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Posted on Techdirt - 21 July 2017 @ 7:39pm

San Diego Comic Con Gets Gag Order On Salt Lake Comic Con

from the that-darn-court-of-public-opintion dept

As you may know, San Diego Comic Con is going on right now. And, like many techie/geeky people, while I've never attended the show, I always look forward to what comes out of the event. However, SDCC is increasingly looking like a massive censorial bully. A few years ago, we covered what we believed to be a fairly silly trademark dispute that SDCC had filed against the organizers of the Salt Lake Comic Con. We pointed out that trademarking "Comic Con" seemed silly and there was no problem with multiple Comic Con's happily co-existing. And, really, SDCC is the 800-lb gorilla here. It's the dominant comic con and has been for many, many years, as it seems to grow larger and larger. Other cities having their own comic conventions doesn't take away from SDCC (if anything they tend to reinforce the dominance of SDCC).

Last month, in covering some news about the case still going on, we added a long (longer than the post itself...) editor's note about the truly weird situation in which SDCC had sent us a ridiculous subpoena demanding (among other things) any internal documents ever mentioning SDCC and implying that we had some sort of business relationship with the organizers of the SLC event (to be clear, we have zero relationship with anyone involved in either event -- we just found a story written about the case and used that as the basis for our posts on the topic). We pushed back on SDCC and noted that it really appeared that their fishing expedition was an attempt to intimidate the press from reporting on this case. It was... really strange.

And now, with SDCC happening right now, the Hollywood Reporter has the latest on the case, in which SDCC has filed for one of the strangest legal gag orders I've seen in a while. I mean, I've seen these kinds of gag order requests filed by pro se plaintiffs, but rarely by competent lawyers working at giant famous law firms.

You can read the demand for a protective order here or below, and if I had to summarize it, it's basically: "it's no fair that Salt Lake Comic Con is getting good press coverage and we're being mocked, so the court should silence them." I read through the document and I kept expecting more... and... that's really it. They literally complain that they're losing in "the court of public opinion" and argue that it's somehow unfair that one side is talking about this case publicly and they should be barred from any further conversation. And, it gives some more context to the paranoid view that was clear in the subpoena we received: SDCC and/or its lawyers are so focused on the negative press coverage that they seem to assume that something more nefarious is going on... beyond the basic likelihood that lots of people think this lawsuit is over-aggressive bullying by SDCC.

Since the inception of this dispute, Defendants have brazenly engaged in a strategic public campaign to disparage SDCC and “win this case in the court of public opinion.” Defendants’ public campaign has included statements made in numerous press releases, news articles, on websites and on social media including Facebook and Twitter. Indeed, Defendants boast they have secured more than 200,000 media articles reporting on the case that are “favorable” to Defendants.

Um, so? I have no idea what's wrong with someone trying to get their story out when they've been sued -- especially by a much larger entity. While some people choose not to go that path, there's nothing illegal about telling your story when you've been sued -- and nothing wrong with the media picking up on the story. It's news.

SDCC goes on to claim that many of the statements made by the defendants in the case "are misleading, prejudicial, inflammatory or false." If that's the case, then go after them for defamation. Don't ask for a gag order.

Defendants repeatedly litigate their case by using media outlets to mischaracterize the parties’ positions and taint the public’s perception regarding the issues in dispute in this case. Defendants’ media campaign is increasing in intensity as this case nears trial. Defendants’ goal is to win this case by using media outlets to tarnish the reputation of SDCC and taint the jury pool. As Defendant Bryan Brandenburg stated in one of Defendants’ many press releases, “I am asking for support from the community and all the powers of the Universe to bring victory to us in this case.”

The "jury" tainting is the only aspect of any of this that seems to have a kernel of reasonableness -- but seems easily dealt with during jury selection, in which you ask the potential jurors if they're familiar with the dispute. Despite the supposed 200,000 articles on this (more on that in a moment...) I find it hard to believe that the average potential juror has heard about this dispute at all. Hell, we covered it and I had totally forgotten about it until we got that stupid subpoena (it was so ridiculous that I told the process server that he must have the wrong guy when he showed up at my front door).

From here, SDCC's high priced fancy lawyers then admit that this goes against the basic First Amendment protections anyone has... but argues that's fine and dandy because -- *gosh* -- some people are being mean to them online.

It is appropriate, however, to impose greater restrictions on the free speech rights of trial participants (such as parties and their attorneys) than on the rights of nonparticipants. Levine, 764 F.2d at 595. As the Ninth Circuit noted when considering a district court’s order restricting statements of trial participants, “several other courts have considered similar restraining orders. The overwhelming majority of those courts have upheld the restraining orders.” Id. at 596 (citing numerous cases in which restraining order on trial participants were upheld).

Now, it's important to look at the details of the case that they cite as precedent for why they can gag the people they sued: Joel Levine v. US District Court for Central District. First off, that was a criminal case, not a civil one, and it involved the lawyer for one of the people who had been charged with espionage talking to the press, and the court arguing that in certain circumstances, you could issue a very narrow injunction on this type of thing. But there are lots of conditions on that and it's hard to see how those conditions apply to a civil dispute -- and especially one where the civil dispute involves a large organization (SDCC) suing a smaller one (SLCC) and then trying to further silence the small one.

Indeed, the ruling in the Levine case specifically notes that because it's talking about lawyers the standards are different:

As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings.

But in this case, SDCC is trying to gag the actual defendants, not the lawyers.

Further, the Levine opinion makes it clear that there should be strict scrutiny applied before issuing such a gag order, as it clearly is prior restraint. From the opinion:

Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest,... (2) the order is narrowly drawn.... and (3) less restrictive alternatives are not available

And, really, is "people are being mean about us online" really going to qualify as "a clear and present danger or a serious and imminent threat to a protected competing interest"? Come on!

The rest of the request for the gag order is basically "damn, the other side has been effective in telling their story to the press. That's so unfair."

Since the inception of this dispute, Defendants have engaged in a willful, open, and consistent strategy to win this case “in the court of public opinion.” See Edge Decl. Ex. 1, at p. 6. Through numerous press releases, articles, interviews with various media outlets, and the pervasive use of social media, Defendants (most notably Bryan Brandenburg) have been posting material and making statements that are designed to tarnish the reputation of SDCC and thereby influence the public (including the jury pool) regarding who should prevail in this litigation. In many instances, these statements are misleading, prejudicial, inflammatory, or false. Indeed, Defendants have made their strategy and intention clear from the outset. On August 11, 2014, shortly after the dispute between the parties began, Brandenburg commented extensively in an article in Inside Counsel titled “Salt Lake Comic Con founders fight back” with the subtitle “Use the court of public opinion to combat trademark infringement claims brought by the San Diego Comic-Con.” Id. The article paints Defendants as “David” to SDCC’s “Goliath,” and compares SDCC to Superman’s nemesis Lex Luthor. Brandenburg is credited in the article with the following statement “[a]fter consulting with their lawyers, the team behind the Salt Lake Comic Con knew they had strong legal ground to stand on, but they didn’t want to go to court, they wanted to win in the court of public opinion.” Id. (emphasis added). Brandenburg is further quoted as saying “[o]ur strategy was, if we are going to spend legal fees vs. legal fees, we wanted to be creative. We put it out to the public, challenging the cease and desist letter publically.” Id. at p. 7 (emphasis added) (noting “anecdotally, the fans seem to be on the side of Salt Lake’s David rather than San Diego’s Goliath”).

Again, I'm trying to understand what the issue is here. Lots of people involved in court cases look to get support in the court of public opinion, but none of that really matters compared to the court of actual opinion: the court that is hearing the case. And, sure, the jury tainting bit is potentially an issue, but only if you really believe that the entire jury pool is going to be tainted by this. And that seems... difficult to believe.

Of course, the whole "200,000" articles bit is part of the effort to argue that this info is widespread... but the details there are... lacking. It appears the vast majority of those 200,000 are... because the Associated Press wrote about the case and it has 160,000 distribution partners.

Defendants boast that an article written by the Associated Press about this dispute was published in more than 160,000 news outlets worldwide and claim many media outlets have already declared Salt Lake Comic Con the winner in the court of public opinion.

Okay... well, I went looking for the AP stories on the case... and they're pretty damn balanced (as you would expect from the AP). Here's one from 2015 that seems unlikely to bias anyone:

Salt Lake City co-founder Bryan Brandenburg said the trademark announced Thursday will be decisive in the suit, but attorneys for the established San Diego Comic-Con disagree. The case appears headed for trial after settlement talks broke down earlier this month.

And a more recent article:

Settlement talks have broken down between the organizers of two pop-culture conventions in California and Utah known for guests' elaborate costumes, Salt Lake Comic Con officials said Tuesday.

Both sides are asking a judge to decide the contest over naming rights, said Bryan Brandenburg, co-founder of Salt Lake Comic Con.

"They want us to change our name," Brandenburg said. If the federal judge overseeing the case in San Diego doesn't side with either convention, the case could go before a jury later this year. Salt Lake has already spent nearly $1 million legal fees on the case.

Those are both snippets from longer articles, but hardly proof that a jury will be biased.

What about social media? SDCC whines that one of the organizers of the SLC event has 5,000 Twitter followers and the SLCC Twitter feed has 30,000:

Importantly, Defendants’ public campaign is not limited to press releases and contact with news media outlets. Bryan Brandenburg has waged war against SDCC on social media as well. Brandenburg uses his Twitter feed, which has more than 5,200 followers, to comment on the dispute and disparage SDCC. See Edge Decl. Ex. 4. Similarly, Defendants use the Salt Lake Comic Con Twitter feed, which has more than 30,000 followers to comment on the dispute and accuse SDCC of fraud.

I mean, 30,000 Twitter followers is nothing to sneeze at, but... uh... let's take a look at SDCC's Twitter followers, shall we?

Now, I'm no math genius, but 1.55 million followers seems like... a wee bit more than 35,000 or so. But... but... but, SDCC replies: it's not fair that the SLC guys speak out because SDCC has specifically chosen not to comment:

It is also worth noting that in the face of Defendants’ public attacks, SDCC has exercised incredible restraint and has not responded in kind. SDCC believes this dispute should be litigated and decided in this Court. However, if Defendants’ conduct goes unchecked, SDCC will have no choice but to defend itself publically in order to protect its reputation and set the record straight when Defendants disseminate false or misleading information. This type of public exchange regarding ongoing litigation is not productive or conducive to judicial integrity and SDCC hopes it can be avoided.

Incredible restraint. We're so proud of you SDCC. Of course, it didn't stop you from sending a bogus subpoena to us (and who knows how many other media properties), potentially creating massive chilling effects on media companies reporting on your silly dispute. And, really, what exactly is the problem with responding publicly? If you don't want to, don't. If you do, do. But, if you're just concerned about the outcome of the court case, focus on that, not gagging anyone.

Unfortunately... it appears that the court granted the gag order just days before SDCC was set to start. It does limit the request though, noting that the first two parts of the request would be unconstitutional prior restraint. That covers "any false or misleading statements about SDCC or any of its board members" or "any false or misleading statements about the merits of this dispute." What the judge did grant was a gag order on statements that "accuses, suggests, implies or states that SDCC lied and/or committed fraud," "any statement about the genericness of the term comic con," "any statement about whether the term comic con is descriptive" and "any statement about whether SDCC abandoned any trademark rights."

I have trouble seeing how the first two are unconstitutional prior restraint, but the rest are allowed to be gagged -- especially something as mundane as discussing whether comic con is generic or descriptive. But, really, since the court apparently doesn't want anyone discussing that kind of thing, perhaps go ahead and have a discussion in the comments about that very question. And, in case SDCC's high priced lawyers are looking at this yet again, I'll remind you once again that we have no relationship of any kind with the organizers of the Salt Lake City event. We just don't like big bullies silencing people or filing questionable lawsuits.

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Posted on Techdirt - 21 July 2017 @ 3:23am

Top European Court To Consider If EU Countries Can Censor The Global Internet

from the it's-spreading... dept

Last month we wrote about the tragic and hugely problematic ruling in Canada that said a Canadian court could order global censorship of content it deems to be illegal. As lots of people pointed out, that is going to have dangerous consequences for speech around the world. If you accept that Canada can censor the global internet, what's to stop China, Iran or Russia from claiming the same rights?

And now we'll get to find out if the EU similarly believes in the ability of one country to demand global censorship online. In another case that we've been following, French data protection officials had been demanding Google censor content globally, and Google had been refusing. Now, the issue has been sent to the EU Court of Justice, the very same court who created this mess three years ago in saying that Google was subject to "right to be forgotten" claims. Google had reasonably interpreted the law to just apply in the EU (where the jurisdiction existed). But now the same court will decide if EU officials can censor globally.

One hopes that the sheer absurdity of the situation may lead the CJEU to start to recognize just how problematic its ruling was back in 2014, but somehow, that's unlikely. We'll certainly be paying attention to this case...

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Posted on Techdirt - 20 July 2017 @ 12:07pm

Russia Does A 'Copy/Paste' Of Germany's New 'Hate Speech' Online Censorship Law

from the well,-that-wasn't-predictable-at-all dept

A few weeks ago, we warned about a dangerous new German law that would fine social media companies if they didn't magically block "hate speech" on their platforms. As we pointed out, this would lead to widespread censorship, as the risk of liability for leaving up even borderline speech would be massive. And, equally important, this would embolden oppressive, dictatorial and autocratic regimes to press on with their own crackdowns on free speech by using laws like this one and claiming that they're doing the exact same thing as supposedly democratic nations like Germany.

We didn't have to wait long. Reporters Without Borders points us to the news that Russia has now rushed out a bill that is basically a cut and paste of the German law:

Reporters Without Borders (RSF) condemns a Russian bill that would force social networks to remove “unlawful” content within 24 hours of notification. It is based very closely on a law that was adopted in Germany on 30 June.

The Russian bill shows that when leading democracies devise draconian legislation, they provide repressive regimes with ideas. Submitted to the Duma on 12 July by members of President Vladimir Putin’s United Russia party, the bill’s references to the German law are explicit.

Just like the German bill, the Russian bill would allow anyone to claim certain content is "unlawful" and then the platforms would have 24 hours to remove the content or face massive fines. This will, inevitably, enable much greater control and censorship (already an issue in Russia). But it will be more difficult to argue that Russia is doing something "bad" here as the Russians will quickly point out that Germany has identical legislation. And I wouldn't be surprised to see other countries, such as Iran or China, put in place similar "laws" themselves.

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Posted on Techdirt - 20 July 2017 @ 10:45am

Seeking Clarification: Is James Woods A Hypocritical Asshole?

from the good-for-the-goose dept

Oh, James Woods. He has now "settled" the ridiculous lawsuit he filed against someone mocking him on Twitter... but is still fighting a fairly similar lawsuit that was filed against him -- complaining that it's an attack on his free speech rights.

If you don't recall, the rather opinionated actor sued a trollish Twitter user who went by the name Abe List, after Abe referred to Woods as a "cocaine addict" in a clearly hyperbolic tweet. As the case progressed, "Abe List" died unexpectedly, leading to Woods obnoxiously gloating on Twitter that List had "dropped" his anti-SLAPP appeal, and when people pointed out it was only because List had died, Woods demonstrated what kind of character he is by cheering on the fact that someone died.

Nice guy, huh?

And, of course, that leaves out that Woods had a history of tweeting similarly hyperbolic statements about others who he disagreed with:

So, Woods was already looking fairly hypocritical here, but as you'll see soon, that level of hypocrisy is becoming more pronounced.

Either way, after "List" died, you might think that Woods would just drop the case, but given his clear animosity (see tweet above) towards a guy making a silly statement on Twitter, he kept the case going in order to unmask the real identity of "List" and to potentially pursue the case against his estate. As first revealed by Eriq Gardner at THREsq, Woods has finally agreed to settle the case, but at least part of the terms of the settlement is that he got attorney Ken "Popehat" White (who you probably know if you're reading Techdirt, and who has represented us at times) to write a silly letter stating what basically everyone in the world already knew: specifically that when Abe List referred to Woods as a "cocaine addict" it wasn't meant to be taken literally:

From attorney Kenneth White, the letter states, "On behalf of my client — the defendant referred to as 'Abe List' in the lawsuit filed by James Woods — and my client's surviving family, I acknowledge that they are not aware of any facts to suggest that Mr. Woods has ever been a cocaine addict or used any other drugs."

Frankly, this feels more like an attempt to try to humiliate Ken (which, uh, generally isn't a good idea), but the end result just makes Woods look ridiculously and almost comically petty.

Oh, and back to the hypocrisy thing. Earlier this year, we also noted, with some amount of irony, that Woods was now on the receiving end of a very similar lawsuit. A woman, Portia Boulger, sued Woods for calling her a "Nazi" in a tweet that was actually a case of mistaken identity. As we pointed out, unlike some people, we can remain true to our principles, and we believe that Boulger's lawsuit against Woods is just as misguided and just as much as a SLAPP suit as Woods' lawsuit was against List.

Either way, in that case, Woods' lawyers filed a motion for judgment on the pleadings last month, which makes a bunch of statements that sound a little odd, considering they're on behalf of someone who was (at the time) still engaged in litigation against someone who jokingly called him a "cocaine addict" on Twitter.

This case is simply an unsuccessful attempt by Plaintiff to quell the free speech rights of Mr. Woods, a conservative actor. Indeed, Plaintiff's claims for defamation and false light/invasion of privacy both fail as a matter of law. First, Plaintiffs claim for defamation fails as a matter of law because Mr. Woods' allegedly defamatory question is not a statement of fact. Nor would a reasonable reader interpret Mr. Woods' question--seeking clarification--as inferring any factual content. Likewise, Plaintiff's false light/invasion of privacy claim fails as a matter of law because no misrepresentation regarding Plaintiff's character, history, activities or beliefs is present in Mr. Woods' tweets, much less a misrepresentation that would warrant a reasonable person, in Plaintiff's position, to take the serious offense required to succeed on a false light/invasion of privacy claim.

That's... an interesting way of saying what happened. As a reminder, here's how THResq described the tweet that Woods sent:

This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”

So, yeah, his tweet was a "question" but a "reasonable person" would be unlikely to think that Woods was "seeking clarification." Rather most reasonable persons would likely believe that Woods was implying strongly that Boulger, a Bernie Sanders supporter, had gone to a Trump rally and pretended to be a Nazi supporter of Trump (which she had not).

But, really, it's the "reasonable person" line that's the kicker here. Because that same "reasonable person" looking at Abe List's tweets would similarly have been just as unlikely "to take serious offense" to that tweet. And, yes, there's something fairly ridiculous for Woods to be whining that someone is trying to "quell" his free speech (even if true) when he was doing something quite similar at the very same time.

Later in the motion, Woods' lawyers (properly) point out that "the general context of the statement" and the "broader context in which the statement appears" are a critical element in determining defamation -- which, again, seems silly given that same test, applied to the guy Woods' sued would likely have worked very much against Woods' defamation case.

Finally the truly amazing argument, given Woods' lawsuit against List. I'll just post the paragraph here:

Likewise, Mr. Woods' allegedly defamatory question appeared on his personal Twitter account, in the midst of a highly-contested and widely-covered presidential political campaign.... A personal social media account, such as an individual's Twitter account, cannot reasonably be interpreted as a forum for fact reporting.... Rather, such a context is akin to a forum or editorial section of a newspaper where a reader would expect to see statements of opinion.... Additionally, Twitter, a social media platform powered by individual user accounts, can be described even more so as a "well established genre of opinionated speech as it is commonly known the average Twitter user is not "normally engaged in the business of factual reporting or news dissemination."

What the actual fuck, James? I mean, I agree. That paragraph is 100% accurate. But it sure seems... massively hypocritical to make that argument while suing someone for their similarly silly tweet about you.

Either way, if you're going to go around suing people for trollish tweets, perhaps don't go around posting trollish tweets yourself. And, if you do and even continue to pursue them after their death, don't then argue in a different lawsuit a bunch of points that totally undermine your own lawsuit. I mean, unless you want to be called out as a raging hypocrite.

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Posted on Techdirt - 18 July 2017 @ 10:43am

George Romero, Zombies... And The Public Domain

from the a-rememberance dept

As you probably heard, over the weekend, famed filmmaker George Romero passed away. Romero's influence on film making is legendary -- and people today still seem amazed to find out that basically everything you think you know today about the concept of "zombies" exists almost entirely because of Romero and Night of the Living Dead. He really invented the entire genre, and the use of zombies as social commentary. But, perhaps just as importantly -- you may not realize that a big part of why Romero's vision of zombies as flesh/brain-eating undead creatures taking over the world -- is because his key movie is already in the public domain:

It's true. You can go watch the movie now and you're not violating anyone's copyright. A few years back, Plagiarism Today did an excellent job summarizing the story. In short, under one of the many quirks of the 1909 Copyright Act, a messed up copyright notice would put a work into the public domain (in fact, this quirk of copyright law was one of the main reasons given by some for why copyright should be automatically placed on everything in the 1976 Copyright Act). But for Night of the Living Dead a last minute name change meant a messed up copyright notice... and, voila, public domain.

The first prints of “Night of the Living Dead” didn’t use the title we know it as today. Instead, it referred to the movie as “Night of the Flesh Eaters”, one of the working titles of the movie. However, before release, the title was changed to its more familiar version but, when changing the title card, the distributor forgot to put the copyright notice on the final print.

Though that would not be a large issue today (the Copyright Act of 1976 removed all notice requirements), in 1968 that meant the movie was not protected by copyright and, instead, was placed immediately into the public domain.

But, more importantly, this "accident" also may have contributed to the movies popularity and influence on culture. As Plagiarism today notes, so many other works basically copied Romero's zombies and how they acted -- while others used clips directly from the film. All of that was perfectly legal. And tons of "derivative works" never had to worry about being hit up with copyright infringement claims.

Many movies either referenced scenes from “Night of the Living Dead” or films that used footage directly from its predecessor, often on TVs playing in the background.

All in all, hundreds of zombie movies have been made that built upon “Night of the Living Dead” in one way or another, ranging from low-budget films to blockbusters. Even many video games such as the “Resident Evil” series (and subsequent movies) also owe a great deal to it.

And while some will obviously point out that the distributor (who messed up the copyright notice) raked in tons of money from Night of the Living Dead while Romero himself made little -- the widespread success of the movie did enable him to go on and make many more films and more, for which he was paid quite nicely over his career. As Plagiarism Today rightly notes, the end result worked out great for Romero:

Even though Romero, without a doubt, missed out on a lot of money due to the copyright mishap with “Night of the Living Dead”, the story ends well for him. The popularity of the film enabled him not only to create a successful series of sequels that he retained copyright in, but also other opportunities to exploit his notoriety, including books, comics and more.

For the zombie movie industry, however, the lapse of “Night of the Living Dead” into the public domain turned out to be a boon. With a well-understood set of clear-cut rules, others were able to build on and expand on the work without paying a licensing fee or fear of being sued. This helped grow the genre, especially during the long wait between “official” sequels.

This is not, necessarily, an argument that all things must be in the public domain, but a reminder that -- contrary to the claims of some -- just because some stuff is in the public domain, or even just available for free, it doesn't mean there aren't ways to build real businesses and real creativity off of it. Romero was a film making genius in many, many ways -- and the public domain helped his career greatly. It's too bad we now deny that option to basically everyone else.

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Posted on Net Neutrality Special Edition - 18 July 2017 @ 6:26am

Senator Wyden To FCC Chair Pai: Hey, Stop Lying About What I Said To Undermine Net Neutrality

from the misrepresentations-all-the-way-down dept

Yesterday we posted our comments to the FCC on net neutrality. Tons of others did as well, but I wanted to call out the comment submitted by Senator Ron Wyden. For two decades, Wyden has been a leading advocate of keeping the internet free from burdensome regulations, thus allowing tremendous innovation to occur. This echoes our position as well. However, both of us have advocated strongly for keeping the net neutrality rules in place. As we've pointed out, such rules are actually necessary in keeping the internet free and open -- because access to the internet has become dominated by just a tiny handful of giant companies with a history of bad behavior towards consumers, and repeated statements about plans to defy the internet's end-to-end principles.

However, Wyden is particularly annoyed that FCC chair Ajit Pai uses Wyden's own words out of context to support his plan to do away with the open internet rules. You see, in Pai's Notice of Proposed Rulemaking (NPRM), he quotes a letter that Wyden sent back in 1998 about internet regulations:

Congress weighed in again two years later. Five Senators—John Ashcroft, Wendell Ford, John F. Kerry, Spencer Abraham, and Ron Wyden—wrote the Commission that “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” These five members further warned that if the Commission “subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.”

Later in the NPRM he quotes Wyden's letter again.

This success wasn’t an accident. In 1996, President Clinton signed the Telecommunications Act of 1996 and established a national policy “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” In 1998, Senators Ron Wyden and John Kerry, among others, said that if the FCC “suddenly subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services.” The next year, Democratic FCC Chairman Bill Kennard said that it “is not good for America” to “just pick up this whole morass of [telephone] regulation and dump it wholesale on the [Internet] pipe.” This wasn’t controversial. It was the consensus.

Except there's a big problem here. The quotes a completely out of context and misleading. What Wyden was talking about then -- and which he still supports today -- is that it doesn't make sense to apply telecommunications regulations to services on the internet. That is, we shouldn't apply such rules to VoIP and streaming services and websites. Because those are highly competitive markets where anyone can jump in and they don't need such regulations. But that's entirely different than the market for internet access providers and specifically broadband internet access providers.

This is a key point that too many people are conflating -- including Ajit Pai and other anti-net neutrality folks. They insist (some in our comments) that putting in place very limited restrictions on broadband access providers, like those in the 2015 open internet rules, is somehow "regulating the internet." It's not. It's putting in place very limited regulations for internet access. Access is not the internet. Access is the way onto the internet.

Wyden, it appears, is none too pleased with Pai misrepresenting his words, and using them to pretend that Wyden supports undoing the open internet rules:

The purpose of this comment is to specifically refute the Chairman’s willfully ignorant mischaracterization of a letter I signed in 1998, which this NPRM improperly claims as justification for classifying broadband service providers as an information service in 2017.

In the late 90’s, I led the charge against government over-regulation of the content of the internet, including by authoring Section 230 of the Communications Decency Act, a law which maintains free speech on the internet. Similarly, I wrote the Internet Tax Freedom Act, which prohibits internet access taxes and disallows discrimination between digital goods and services and their physical counterparts. My priorities from 1998 to 2017 have not changed. Then, as today, I fought for telecommunications policies deeply rooted in a philosophy of openness, transparency, nondiscrimination, competition, and freedom online. In 1998, that meant working to make sure third-party Internet Service Providers (ISPs) continued to grow from “walled-garden” services to the services we have today. In 2017, that means protecting the internet from the balkanization — from sponsored content and zero rating to paid prioritization and blocking — that will arise from removing the protection of the 2015 Title II Order.

The internet and internet access service today both are wildly different than they were in 1998. Back then, large numbers of consumers were starting to take advantage of the whole internet, rather than just a walled-garden service. The key difference, however, was that in 1998 consumers largely accessed the internet through third-party ISPs like AOL, or Prodigy, and those consumers used the infrastructure of the common carrier telephone system to connect to that third-party ISP.

Today, those third-party ISPs are few and far between, and the same company that provides the customer with internet service owns the broadband telecommunications infrastructure used to transmit online content. While the Internet Service Providers referenced in the 1998 letter provided what was an information service “over the top” of common carrier facilities, today’s ISPs offer a transmission service to their broadband internet access customers.

This key difference means that without the strong protections of common carrier regulations, the broadband providers of 2017 have both the means and motivation to discriminate and profit from playing the internet gatekeeper, for example by turning off content from certain sources or competitors. If we lived in a world where effective broadband competition existed, and a functioning market worked to balance these incentives, that might impact the analysis if — and only if — internet users once again had dozens or even hundreds of ISPs from which to choose. Unfortunately, far too many Oregonians only have access to a single broadband provider for their home. Broadband providers that control their customers’ pathway to the entire internet cannot be permitted to interfere unreasonably with the transmission of content that those customers send and receive.

He concludes by asking Pai to "refrain from continuing disingenuous rhetoric intended to deceive Americans about the net neutrality debate." Indeed.

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Posted on Net Neutrality Special Edition - 17 July 2017 @ 11:56am

Our Net Neutrality Comments To The FCC: We Changed Our Mind, You Can Too

from the don't-kowtow-to-the-most-hated-company dept

Earlier today, we published Mike Godwin's excellent post about why why everyone should file a comment with the FCC about their views on net neutrality (and, again, we highly recommend reading Gigi Sohn's excellent advice on what to include in your comment if you do). I see a lot of comments on that post with the defeatist and cynical response of "it doesn't matter, Pai's already decided what he's going to do."

This is self-defeating, dumb and wrong for a variety of reasons. First, everyone was saying the same damn thing about Tom Wheeler three years ago, and that turned out to be wrong. Despite being a former lobbyist for the cable and wireless industries, and his initial indications that his proposed rules would be weak and allow all sorts of mischief, Wheeler was eventually convinced to go in a different direction. Second, this goes beyond just this current FCC. Even if (as is widely expected) Pai ignores these comments and reclassifies broadband anyway, there is still a court case that will follow -- as well as Congress considering what to do. In both cases, having strong, clearly thought out arguments concerning net neutrality on the record that we can show Pai ignored will help possibly stop Pai's plan from moving forward. Pai is not the end of the story.

Third: it's the right thing to do. This is a chance to make your voice heard and participate in the process -- and you should take advantage of that. If you don't, and then you whine about how no one listens to you and how the bureaucrats and politicians don't pay attention to the people -- then you are a big part of the problem. You have a chance to weigh in here and you should.

With that said, below is what I just submitted to the FCC. My comments talk about how we, as a company, have relied on an open internet, but also why the existing rules have shown real promise in increasing competition. But, more important, it also discusses why I changed my mind on this issue. Many people here -- even long term readers -- may forget that in the mid-2000s, Techdirt was against having official open internet rules, either via Congress or the FCC. We were afraid that these rules would be bad and harmful. We worried that they would be written in a way that would stifle internet innovation. And, most importantly, we felt that they were missing the point: that the true problem was the lack of competition in broadband access. If there was a real focus on competition, net neutrality would fade away as a problem, as there would be competitive reasons to keep the internet open.

But, as we note in our comment, over the past couple decades things have changed. We've seen less and less competition, and now near-total domination of the broadband market by a few players. Even worse, those players have long histories of anti-consumer behavior and have repeatedly made it clear that they wish to end some of the basic principles of the open internet in order to put in place additional toll booths, charging extra to successful internet companies for merely carrying traffic. Finally, with the rules of 2015, we've seen a decrease in bad behavior by internet providers -- such as throttling Netflix upstream via interconnection disputes (even though that's not technically a part of the open internet rules). Similarly, we've seen that the new rules have inspired third parties like Sonic and Ting to increase their competitive broadband buildouts.

Given all of that, while we're generally worried about any kind of "regulation" for the internet, this was a case where the market had clearly failed to deliver a truly competitive and innovative market, and light touch rules as blessed by multiple courts under a Title II regime clearly made sense, and they have been working for the past two years. Changing that now makes no sense. And if we could change our mind concerning such rules, so can the current FCC.

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Posted on Techdirt - 17 July 2017 @ 10:42am

Latest EU Parliament Votes On Copyright: Fuck The Public, Give Big Corporations More Copyright

from the that's-not-good dept

The weird and persistently silly copyright reform process in the EU Parliament continues to get more and more bizarre and stupid. Last month, we told you about the first committee vote, which we feared would be terrible, but turned out to be only marginally stupid, as the worst parts of the proposal were rejected. Now, two more committees -- the Culture and Education (CULT) and Industry, Research and Energy (ITRE) Committees -- have voted on their own reform proposals and the results are really, really bad if you support things like culture, education, research and the public. And, yes, I get the irony of the fact that the Culture and Education Committee in the EU just declared a giant "fuck you" to culture and education with its vote.

Among the many problematic aspects approved by these committees is a filter requirement that would block users from uploading legally obtained media into the cloud. This makes no sense -- especially given that the EU already has additional "you must be a pirate" taxes on situations where individuals are making copies of their legally acquired works.

And then there's the whole "snippet tax" which legacy newspapers are demanding because they've failed to adapt to the digital age, and they want Google News to send them money for daring to send them traffic without monetary compensation. The whole concept is backwards... and here, it's been expanded. As Copybuzz explains:

  • The press publishers’ right went from applying to ‘digital’ uses of press to all uses, including print. Aside from the fact that this seems a violation of Article 10(1) of the Bern Convention (which establishes a mandatory exception for ‘press summaries’), the impact of such a massive extension is unfathomable.
  • The definition of press publications has become so broad that infringements to article 11 are impossible to predict and hence prevent. The ‘exceptions’ to the applications of this new right just add to the potential legal uncertainty, as the CULT text states ‘The [publisher] rights granted under this Directive should be without prejudice to the authors’ rights and should not apply to the legitimate uses of press publications by individual users acting in a private and non-commercial capacity. The protection granted to press publications under this Directive should apply to content automatically generated by an act of hyperlinking related to a press publication without prejudice to the legitimate use of quotations.’ This paragraph alone opens such a Pandora Box of unanswered questions, such as:
    • What is a legitimate use of press publications? And who’s the judge of the legitimacy?
    • When are you acting in your private and non-commercial capacity?
    • Content automatically generated by an act of hyperlinking related to a press publication: so that mean that when you share a link on social media and that triggers automatically the appearance of a snippet, you are now officially in trouble?
    • When are you ‘legitimately’ quoting? Is that a new criteria imposed on top of the only mandatory exception globally? And if so, who judges if you comply?
  • None of that sounds good or well thought out. It sounds like the kind of thing that someone not very knowledgeable about the subject would put together after just hearing one side from a bunch of whining newspaper execs.

    And then there's this nonsense, as summarized by Parliament Member Julia Reda:

    Incredibly, the ITRE committee – responsible for research and usually a staunch defender of open access – even voted to extend the extra copyright to academic publications, which would make open access publishing virtually impossible. It would stop people from linking to academic content, despite the content itself being free. This would apply to both online publications and print journals. The chilling effects on the spread of academic works and information would be substantial.

    Yes, linking to academic content will now require payment -- even if it's open access. That's... nuts.

    And, finally, on the "text and data mining" issue -- which is one of the key points that the EU has been fighting over with this new copyright reform effort, ITRE again severely limited who can do data mining to tiny startups. Again from Copybuzz:

    The ITRE Committee for example has in its extreme generosity decided to leave the benefit of the Text and Data Mining exception limited to research organisations and ‘start-up companies’, defined as ‘any company with fewer than 10 employees and an annual turnover or balance sheet below €2 million and which was established not earlier than three years before benefiting from the exception’. The message for European start-ups is clear: don’t dare scale up your first three years of business if you want to mine content and if you do, move away from the EU (and move anyway after 3 years)! Never mind jobs and growth, the EU mantra we keep on hearing. Oh, and please do not be innovative any longer once you are an established player: we would not want our economy to be competitive on the international scene.

    This is really a killer for innovation. There's a massive industry now being built up around machine learning and AI and autonomous machines -- and an awful lot of it actually relies on the ability to do text and data mining on the internet. With this proposal, the (of all things) "Industry & Research" committee is basically saying there shall be no such industry or research in Europe. It's pushing one of the most promising up and coming industries out of the EU entirely. Incredible.

    It's almost stunning how bad these decisions were. But, of course, some of the legacy copyright industry folks decided to celebrate, claiming that the votes showed that the EU Parliament "would not tolerate free-riding platforms." That's complete nonsense and an insult. Again: things like news aggregators and search engines have been enormously helpful in creating new markets and expanding attention and traffic to sites. If anything, legacy content producers have been "free riding" on those platforms.

    Hopefully saner heads will prevail as this process moves forward, but the EU seems to be going down a dark and dangerous road on copyright policy.

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    Posted on Techdirt - 14 July 2017 @ 11:44am

    All Out Of Ideas, Legacy News Providers Ask US Gov't For The Right To Collude Against Google & Facebook

    from the failure-to-adapt dept

    About a month ago, Buzzfeed's founder and CEO, Jonah Peretti summed up my feelings about watching old news media organizations running around everywhere blaming Google and Facebook for their own failure to innovate:

    “A lot of the traditional media players are opportunistically attacking Facebook and Google because Facebook and Google have figured out a better model for delivering information and entertaining people which is real-time, personalised, shareable and global – all these things that you can't do in broadcast and print,” he says.

    “These traditional media companies have had decades of massive cashflow and they decided to stockpile that instead of investing in digital. They just kept managing earnings on their traditional businesses even though we have known for 20-plus years that the internet was going to be a big thing and now all these things have unfolded, with some surprises but in a way that was not that hard to predict. Now we are at the point where Facebook’s and Google's revenues are starting to be a substantial portion of the pie, they are attacking them, saying it is unfair.

    “The truth is that Facebook and Google have always taken a long term perspective – so has Netflix, so has Amazon – that the internet would win out in the end. A lot of the big media companies always took a quarter-to-quarter perspective, a maximise earnings perspective, and that has resulted in them being in a tough position and so they attack Facebook and Google because of it.”

    This is, more or less, what we've been arguing for nearly two decades. There are a ton of opportunities for these companies if they actually embraced digital -- but they did so in drips and drabs and often stupidly chasing fads, rather than actually figuring out how to deliver content that people actually wanted in a way they wanted it. So, for the past few years, they've focused on whining about how it's so gosh darn unfair that the companies who did figure it out -- Google and Facebook -- are now making lots of money.

    And... now those legacy firms are seeking the nuclear option. The News Media Alliance -- formerly the Newspaper Association of America -- has spent the last few years pushing bad idea after bad idea to try to "save" the news organizations that failed to actually innovate (for example: asking Trump to whittle away fair use). We mocked the fair use proposal as complete nonsense, but in order to make it happen, the News Media Alliance is... asking the government for a special exception to antitrust law to allow its members to collude against Google and Facebook... and to generally make the internet less interesting and more expensive.

    Today, the News Media Alliance – representing almost 2,000 news organizations – called on Congress to allow publishers to negotiate collectively with dominant online platforms. The objective is to permit publishers to have concrete discussions with the two dominant distributors of online news content, Google and Facebook, on business model solutions to secure the long-term availability of local journalism produced by America’s newsrooms.

    Supposedly there are three goals here: to get greater copyright control over news and to create a snippet tax, to force Google and Facebook to work with news organizations on some sort of subscription program, and to get "a fair share" of revenue and user data. None of these make much sense. As Matt Schruers at the Disruptive Competition Project points out, all three of these goals have issues:

    Let’s consider those three objectives: IP protection, subscriptions, and a “fair share” of revenue and data. First, news publishers do not need an antitrust exemption to lobby for more IP protection; federal law already allows it. (As I’ve noted before, News Corp. is already quite fond of doing so.)

    Second, Google and Facebook are already pursuing new strategies for supporting subscriptions. The NMA proposal, however, suggests a collective turn to subscription models, removing consumers’ ability to choose among products with different business models, including ad-supported ones. Individual newspapers should have the freedom to experiment, pursuing the model best suited to their business. Consumers are best served when they can choose between competing models.

    Third, Chavern wants a “fair share of revenue and data.” In pursuit of this, the NMA would make an end-run around copyright law’s fair use doctrine, which permits the indexing of content, so as to force digital services to pay for the privilege of sending traffic to their sites. As I discuss below, news publishers have tried this in Europe. It hasn’t gone well.

    There are lots of other problems here as well. As Mathew Ingram pointed out, there's tremendous hubris in the NMA members thinking that they're the only ones producing quality journalism:

    This sense of entitlement is at the core of what the NMA is proposing. In effect, it is suggesting that mainstream newspaper companies are the only entities capable of producing quality journalism, and therefore they deserve a get-out-of-jail-free card so they can engage in what amounts to collusion. And they are hoping Congress will see Google and Facebook as the enemy.

    Here’s a thought: What if these newspaper companies had spent a little more time trying to compete over the past decade or so, instead of relying on their historic market control to keep their profits rolling in? What if more had tried to improve their websites and their mobile versions, so that users wouldn’t install ad blockers, or turn to other solutions like Facebook Instant Articles?

    Every single competitive threat the newspaper industry has faced, from Craigslist to Facebook, has been visible long before it decimated the industry’s profits, and most of the newspapers in the NMA did little or nothing to deal with them until it was too late.

    Indeed, some more local news organizations are already pushing back against the NMA's plans. The Local Media Consortium, which admits some overlap with NMA members, points out that this whole thing seems like the wrong approach:

    First, Chavern’s position ignores the LMC’s work during the last four years forging partnerships essential to us as providers of quality local content and local business solutions. Those partnerships align the news industry – print, broadcast and ultimately digital – with tech companies in a symbiotic relationship. The LMC has provided revenue opportunities for all levels of local media – and we’ve done that while leveraging our scale to garner both the attention and respect of the tech platforms. We have built partnerships based on shared value, not entitlement.

    Second, I am concerned about the mixed messages the NMA’s stance is creating within the industry and our own LMC membership. The NMA board includes several members of the LMC, and these board members may not be fully aware of our relationship with tech companies. Chavern’s op-ed suggests a lack of knowledge of the tens of millions of dollars our partnership with Google has netted the industry, or the inroads we have made influencing innovation with Google, Facebook, Apple and Yahoo

    That is, the LMC is looking at new tech and innovation as an opportunity. The NMA, on the other hand, seems to be looking at it as the enemy. This is a fairly typical response for legacy industries who failed to adapt, then flail about wildly against those who succeeded, but it's never good for consumers (there's a reason we don't allow collusion to happen after all...).

    Rafat Ali probably summed all of this up best:

    Look, I get it. Google and Facebook are big and successful and making lots of money. And because these news organizations failed to do much to adapt (or, at best, made superficial embraces of digital), they're pissed and they blame Google and Facebook for their own failures (not unlike the recording and film industries). But that misses the point. There's a reason why this happened, and we shouldn't have the US government reward those who didn't innovate by taxing those who did. The end result would be bad for the public. It would be bad for innovation.

    And, sure, I'm saying this as a news publication that is concerned about Google and Facebook's power in the market -- but it's on me to figure out how to adapt and leverage the benefits that platforms like that (and others) bring. Not to go running to the government seeking to collude with others and to cement weak business models in place. Frankly, for companies seeking to blame others rather than their own failures, it's probably best that they go out of business sooner, rather than later. Clear the field for others who are willing to innovate and embrace technology, rather than whine about it.

    24 Comments | Leave a Comment..

    Posted on Techdirt - 14 July 2017 @ 10:43am

    Aussie Prime Minister Says The Laws Of Math Don't Apply In Australia When It Comes To Encryption

    from the good-luck-with-that,-mate dept

    Oh boy. It's no secret that the Australian government -- led by George Brandis (who has made it abundantly clear he has no clue what a VPN is or what metadata is) -- is pushing strongly for mandated backdoors to encryption. At this point, it's beating a dead horse, but this is a very, very bad idea for a whole host of reasons -- mainly having to do with making absolutely everyone significantly less safe.

    And it appears that Brandis' ignorance has moved up the chain of command. Australian Prime Minister Malcolm Turnbull has now put out what may be the single dumbest statement on encryption yet (and that's a pretty high bar). After being told yet again that safe encryption backdoors violate basic mathematics, Turnbull became super patriotic about the ability of Australian law to trump mathematics:

    "The laws of Australia prevail in Australia, I can assure you of that," he said on Friday. "The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia."

    And, then he pulled out the "nerd harder, nerds" argument:

    "I'm not a cryptographer, but what we are seeking to do is to secure their assistance," Turnbull said. "They have to face up to their responsibility. They can't just, you know, wash their hands of it and say it's got nothing to do with them."

    "I am sure they know morally they should. Morally they should."

    So after admitting that he doesn't understand how this works, he's saying that the "moral" responsibility of cryptographers -- who have basically all told him his plan will make people less safe -- is to make people less safe.

    Turnbull seems to think he can get around the whole problem by... semantics. You see, if we just redefine things and say we're not asking for "backdoors" then it's fine:

    "A back door is typically a flaw in a software program that perhaps the -- you know, the developer of the software program is not aware of and that somebody who knows about it can exploit," he said. "And, you know, if there are flaws in software programs, obviously, that's why you get updates on your phone and your computer all the time."

    "So we're not talking about that. We're talking about lawful access."

    That bit of word salad suggests that at least a tiny smidgen of actual knowledge made it into his brain. A backdoor is an exploit. But "lawful access" is a backdoor. Pretending they are different suggests a fairly staggering level of ignorance.

    Not to be outdone, but Brandis then took his own turn at the podium to spew more ignorance:

    Asked how Australia's proposed regime would allow local authorities to read messages sent with either WhatsApp or Signal, Brandis said “Last Wednesday I met with the chief cryptographer at GCHQ ... And he assured me that this was feasible.”

    Right. It's pretty well known that intelligence communities can frequently hack into things to get messages, but not because of backdoors to encryption but through other flaws. This includes things like keyloggers or other spyware that effective route around the encryption. But that's entirely different than demanding backdoors. And, of course, this all comes about a week after GCHQ's own former boss argued that attacking the end points was a better strategy than backdoors. It's almost certain that what GCHQ told Brandis is that they can be pretty successful in attacking those endpoints, without undermining encryption -- and that message got twisted in Brandis' mind to believe that it meant that there were already backdoors in Whatsapp and Signal (there are not).

    This whole thing is a somewhat tragic comedy of errors with completely clueless politicians making policy badly, potentially putting everyone at risk... while astoundingly claiming that laws can trump basic mathematics. What a joke.

    130 Comments | Leave a Comment..

    Posted on Techdirt - 13 July 2017 @ 11:56am

    Canadian Rapper Sends Rap Video Cease & Desist Letter To Coca Cola For 'Jacking' His Catchphrase

    from the our-for-a-sip? dept

    So we've seen some unique and amusing trademark disputes in the past, but this one beats them all. Canadian lawyer Rob Kittredge got to send a rap video cease-and-desist to Coca Cola. Yes, you heard me correctly. A rap video cease and desist. Not a cease and desist letter about a video. The video is the cease and desist letter. Check it out:

    And... yes, it appears that Rob is, in fact, the lawyer in the video as well. As background -- if you somehow missed it -- a few years ago, there was a virally popular rap song and video, by Brendan "B.Rich" Richmond, called Out for a Rip, spoofing Canadian culture/stereotypes. It got over 12 million views, and has become a bit of an anthem.

    So, yeah. Coca Cola is using the phrase "out for a rip" on its Coke bottles and Richmond and his lawyer Kittredge decided the best way to respond was to write a song calling out Coca Cola on this and then recording a whole video. At the end of the video there's an actual letter (part of which is dictated in the song itself) which is also pretty damn amusing:

    Dear Coke,

    I represent Brendan (B.Rich) Richmond (a.k.a. Friggin' Buddy). You jacked his catchphrase, but you already know that.

    Buddy owns the registered trademark "OUT FOR A RIP" in Canada (TMA934277). The music video for buddy's original composition "OUT FOR A RIP" has been viewed more than 12 million times. Canadians associate the phrase "OUT FOR A RIP" with him.

    Personally, I'm pretty psyched about this once-in-a-career opportunity to send a demand letter in the form of a rap video. Nonetheless, unlicensed use of OUT FOR A RIP violates my client's rights. From what I understand, you guys do fairly well for yourselves - at least in comparison to most other multinational corporations, the GDP of most countries, or, say, the average musician, right? No room in your budget to clear IP rights?

    Contact me no later than August 1, 2017 to discuss settlement of this matter. If you do not wish to discuss settlement, we require that you immediately cease using the OUT FOR A RIP mark, recall all OUT FOR A RIP bottles, and take immediate steps to preserve all relevant evidence in anticipation of possible litigation.

    Rob Kittredege

    So... yeah. I have no idea if this is a valid trademark claim, though it certainly sounds plausible. The trademark certainly exists, and does cover the phrase on "mugs, coffee mugs, travel mugs, cups, drinking cups and beer steins." I've seen some people complain that "out for a rip" was in common usage going back decades, but in searching for the history of it, the phrase does show up in Urban Dictionary... but entered by "B. Richmond" about a week after the original song was released.

    So it certainly seems pretty credible that the public associates the phrase with Brendan Richmond. Either way, I actually think this kind of response is pretty clever, no matter what. Despite being a legal cease and desist, it certainly doesn't come off as bullying -- and actually does a pretty good job of just publicizing Richmond and his music -- no matter what happens with Coca Cola. If Coke is smart -- and I'm hoping its lawyers are -- I would imagine that responding along the lines of what's suggested in the video would be the best way to settle this situation with everyone coming out of it looking good.

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    Posted on Techdirt - 12 July 2017 @ 1:27pm

    EFF Officially Appeals Tim Berners-Lee Decision On DRM In HTML

    from the last-ditch-effort dept

    Last week, we wrote about the unfortunate and short-sighted decision by Tim Berners-Lee to move forward with DRM in HTML. To be more exact, the move forward is on Encrypted Media Extensions in HTML, which will allow third party DRM to integrate simply into the web. It's been a foregone conclusion that EME was going to get approved, but there was a smaller fight about whether or not W3C would back a covenant not to sue security and privacy researchers who would be investigating (and sometimes breaking) that encryption. Due to massive pushback from the likes of the MPAA and (unfortunately) Netflix, Tim Berners-Lee rejected this covenant proposal.

    In response, W3C member EFF has now filed a notice of appeal on the decision. The crux of the appeal is the claimed benefits of EME that Berners-Lee put forth won't actually be benefits without the freedom of security researchers to audit the technology -- and that the wider W3C membership should have been able to vote on the issue. This appeals process has never been used before at the W3C, even though it's officially part of its charter -- so no one's entirely sure what happens next.

    The appeal is worth reading so we're reposting a big chunk of it here:

    1. The enhanced privacy protection of a sandbox is only as good as the sandbox, so we need to be able to audit the sandbox.

    The privacy-protecting constraints the sandbox imposes on code only work if the constraints can't be bypassed by malicious or defective software. Because security is a process, not a product and because there is no security through obscurity, the claimed benefits of EME's sandbox require continuous, independent verification in the form of adversarial peer review by outside parties who do not face liability when they reveal defects in members' products.

    This is the norm with every W3C recommendation: that security researchers are empowered to tell the truth about defects in implementations of our standards. EME is unique among all W3C standards past and present in that DRM laws confer upon W3C members the power to silence security researchers.

    EME is said to be respecting of user privacy on the basis of the integrity of its sandboxes. A covenant is absolutely essential to ensuring that integrity.

    2. The accessibility considerations of EME omits any consideration of the automated generation of accessibility metadata, and without this, EME's accessibility benefits are constrained to the detriment of people with disabilities.

    It's true that EME goes further than other DRM systems in making space available for the addition of metadata that helps people with disabilities use video. However, as EME is intended to restrict the usage and playback of video at web-scale, we must also ask ourselves how metadata that fills that available space will be generated.

    For example, EME's metadata channels could be used to embed warnings about upcoming strobe effects in video, which may trigger photosensitive epileptic seizures. Applying such a filter to (say) the entire corpus of videos available to Netflix subscribers who rely on EME to watch their movies would safeguard people with epilepsy from risks ranging from discomfort to severe physical harm.

    There is no practical way in which a group of people concerned for those with photosensitive epilepsy could screen all those Netflix videos and annotate them with strobe warnings, or generate them on the fly as video is streamed. By contrast, such a feat could be accomplished with a trivial amount of code. For this code to act on EME-locked videos, EME's restrictions would have to be bypassed.

    It is legal to perform this kind of automated accessibility analysis on all the other media and transports that the W3C has ever standardized. Thus the traditional scope of accessibility compliance in a W3C standard -- "is there somewhere to put the accessibility data when you have it?" -- is insufficient here. We must also ask, "Has W3C taken steps to ensure that the generation of accessibility data is not imperiled by its standard?"

    There are many kinds of accessibility metadata that could be applied to EME-restricted videos: subtitles, descriptive tracks, translations. The demand for, and utility of, such data far outstrips our whole species' ability to generate it by hand. Even if we all labored for all our days to annotate the videos EME restricts, we would but scratch the surface.

    However, in the presence of a covenant, software can do this repetitive work for us, without much expense or effort.

    3. The benefits of interoperability can only be realized if implementers are shielded from liability for legitimate activities.

    EME only works to render video with the addition of a nonstandard, proprietary component called a Content Decryption Module (CDM). CDM licenses are only available to those who promise not to engage in lawful conduct that incumbents in the market dislike.

    For a new market entrant to be competitive, it generally has to offer a new kind of product or service, a novel offering that overcomes the natural disadvantages that come from being an unknown upstart. For example, Apple was able to enter the music industry by engaging in lawful activity that other members of the industry had foresworn. Likewise Netflix still routinely engages in conduct (mailing out DVDs) that DRM advocates deplore, but are powerless to stop, because it is lawful. The entire cable industry -- including Comcast -- owes its existence to the willingness of new market entrants to break with the existing boundaries of "polite behavior."

    EME's existence turns on the assertion that premium video playback is essential to the success of any web player. It follows that new players will need premium video playback to succeed -- but new players have never successfully entered a market by advertising a product that is "just like the ones everyone else has, but from someone you've never heard of."

    The W3C should not make standards that empower participants to break interoperability. By doing so, EME violates the norm set by every other W3C standard, past and present.

    It's unclear to me why Tim Berners-Lee has been so difficult on this issue -- as he's been so good for so long on so many other issues. I understand that not everyone you agree with should ever agree with you on all things, but this seems like a very weird hill to die on.

    32 Comments | Leave a Comment..

    Posted on Net Neutrality Special Edition - 12 July 2017 @ 3:24am

    If You Want To Protect The Internet, Look To Congress

    from the and-fight-fight-fight dept

    As you probably know (because it's almost unavoidable across the web), today is the "Day of Action" on behalf of net neutrality. Tons of other sites are participating in various ways. Many are popping up widgets, warning you of how crappy the internet might become if broadband access providers were allowed to create the kind of internet they dream of -- one in which they are the gatekeepers, and where they get to put tollbooths on services trying to reach you. But you already know about all that, because you already read Techdirt, and we've been talking about this for over a decade. Many sites are encouraging you to comment on the FCC's proceedings -- which you absolutely should do (even as the FCC itself is making a mockery of the commenting process, by allowing bogus and fraudulent comments in.

    However, for this day of action, I wanted to focus people here on two key things. First, yes this does matter. I know that some of you think you're oh-so-cool and therefore you take the cynical approach of "it doesn't matter, man, the fix is already in" or however you phrase it, but that's bullshit. This stuff does matter. And I know that the cynical folks and the DC insiders absolutely hate when people bring this up, but other situations in the past -- including SOPA and the last net neutrality rule making -- were both situations where the "savvy" absolutely knew what was going to happen... and they were totally wrong. If enough people speak up and make things clear, change can and does happen. And if you still want to remain cynical, consider this: being cynical and insisting that nothing you do will matter guarantees that nothing you do will matter and by default helps ensure the shitty situation you're so cynical about remains shitty. Speaking up at least contributes to the possibility of things going in a better direction.

    Second: while you absolutely should go and file FCC comments (and I highly recommend first reading this guide to filing impactful FCC comments from a former top FCC staffer), this fight is going to end with Congress one way or the other. Two months ago we wrote about the real game plan to destroy net neutrality, and you can see it playing out in realtime. Ajit Pai's move to get the FCC to repeal the rules is an effort to force the hand of Congress, and make it come in and create new regulations. Indeed, if you look around, it's not hard to find lots of opeds from telco-funded folks about how "Congress should solve this" (all of which pretend to support net neutrality). And, yes, this is the kind of thing that Congress should solve -- if we trusted Congress to actually do what was in the interest of the public, rather than the interests of the broadband access providers. But, right now, you shouldn't. After all, this is the same Congress that happily voted to kill broadband privacy rules, and then seemed shocked that this upset people.

    So, the fight at the FCC matters, but the end game is Congress. And we all know that bad stuff can happen in Congress (especially when it comes to broadband providers writing legislation themselves). But (and this is the important part): the best way to stop bad stuff from happening in Congress is to speak up. This is what killed SOPA five years ago, even though a ton of people in Congress had signed on as co-sponsors. We've talked about this in the past: lobbyists win in Congress all the time, but only on issues where the public isn't speaking up. Congress relies on lobbyists to fill in the gaps (and sometimes that's even okay!). The problems come in when the public interest and the lobbyists' interest diverge -- and if the public isn't speaking up, then the lobbyists win. But if the public is speaking up -- and doing so loudly -- it can stop bad bills in their tracks (witness Congress's recent inability to pass any major bad legislation).

    So, not only should you be commenting for the FCC's benefit, you should be calling your Representative and Senators and letting them know that if they support undermining net neutrality in any way -- even with bogus bills that pretend to support net neutrality, while really undercutting it -- then you'll no longer support them. If you can, set up meetings. Make Congress aware that this matters to you deeply. Make them aware that if they support the internet, the people on the internet will support them back. Make Congress aware that this is an issue that matters and that ignoring the will of the public (most of whom -- on both sides of the partisan aisle overwhelmingly support an open internet) will not go unnoticed by the wider internet.

    Techdirt only exists because of the open internet. When I set it up almost 20 years ago, I didn't have to go and get permission. I didn't have to go and beg (or pay!) AT&T or Comcast to make sure people could reach the site. It wasn't like TV or publishing where I had to get approval from some giant gatekeeper to exist. I just got to set stuff up and now millions of people have visited and supported us over the years. The internet is wonderful because it's not TV and there aren't gatekeepers. Let's keep it that way.

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    Posted on Techdirt - 11 July 2017 @ 11:54am

    People Would Pay A Hell Of A Lot More If DRM Were Gone

    from the paying-for-value dept

    An argument that we've made for years is that for all the whining about how the legacy entertainment industry insists it needs DRM, adding DRM takes away value. It limits the content/games/software/etc. that people purchase a license to and therefore limits the value. You don't need an economics degree to recognize that providing less value decreases how much people are willing to pay (and how many people are willing to pay). Thus, there's at least some economic force when using DRM that decreases the potential market for DRM'd offerings. Supporters of DRM will likely counter with some version of the argument that this decrease in value/addressable market is okay, because it's less than the expected decrease in the potential market that happens when "OMG I CAN GET A PIRATED VERSION FOR FREE!?!?!?!??" enters the market. I'm not entirely convinced that's true -- as time and time again, we've seen that people are more than happy to pay for (1) official versions in order to support creators they know, appreciate and trust and (2) especially when it comes with other benefits beyond just the content.

    But, one thing that hasn't really ever been made clear is just how much DRM depresses markets. Until now. Some researchers at the University of Glasgow have just released some preliminary research (found via Cory Doctorow and EFF) specifically looking at the market for DVD players -- and how things work when they come with built in DRM and without it. The findings are pretty spectacular. People are much more willing to spend more money to be able to avoid DRM.

    Overall we find that interoperability has a significant positive effect on the price that consumers are willing to pay for DVD players. The average price that they are willing to pay increases by $19 USD for players with any interoperability features present. The average price increases by $30 USD for players with the specific ability to play content in open file formats like Xvid. This feature has the strongest impact on price in our study. The lack of region locks also has a moderately significant effect on price. Backwards compatibility with legacy formats live VCD had no significant impact on price in any of our models, likely because VCD is a very legacy format, indeed, having been popular in the late 1990s. Backwards compatibility might have a bigger impact for products that are released at closer time intervals.

    These are -- again -- preliminary findings, and specific to DVD hardware. It's possible that there are confounding factors here as well, but as a starting point, it's quite interesting to see that people seem willing to spend much more for greater interoperability and less DRM. And, once again, it goes against the claims of Hollywood that people are always just looking for the cheapest overall option.

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    Posted on Techdirt - 10 July 2017 @ 1:18pm

    What If You Published Half Your Book For Free Online?

    from the interesting-experiments-in-publishing dept

    Almost exactly 17 years ago, we wrote about an interesting experiment in the movie world, in which the film Chicken Run freely chose to put the first 7 minutes of the film online (in my head, I remember it being the first 20 minutes, but I'll chalk that up to inflation). I thought it was a pretty clever experiment and am still surprised that this didn't become the norm. The idea is pretty straightforward -- rather than just doing a flashy trailer that may give away much of the movie anyway -- you give people the beginning of the actual movie, get them hooked, and convince them it's worthwhile to go pay to see the whole thing. Of course, that only works with good movies where the beginning hooks people. But... it's also interesting to think about whether or not this kind of thing might work for books as well.

    In this always on world, where some fear that people are so hooked on short attention span bits of information raining down from Facebook, Twitter and Snapchat, there's a reasonable concern that people just aren't willing or able to disconnect for long enough to actually read a full book. Some argue that we may be reading more, but getting less out of all of this. But now author/entrepreneur Rob Reid and Random House are experimenting with something similar. If they have to convince people to put down the internet to read a full book, why not go to the internet first. Rob has announced that he (and Random House) has teamed up with Medium to publish the first 40% of his latest novel, After On, which is coming out in full on August 1st.

    Now, you may recall, five years ago, Rob came out with a fun book called Year Zero, a hilarious comic sci-fi story about aliens needing to destroy the earth... because of massive copyright infringement (no, really). With that book, we were able to publish a short excerpt, but that isn't always enough to get people hooked. With After On, a massive chunk of the (admittedly massive!) book will be published online in a dozen segments over the next few weeks leading up to the release of the actual book (the first few segments are entirely free -- and after that, they want you to become a "member" of Medium, but you can get your first two weeks free for membership -- or you can just go buy the book by that point.

    Rob has written a blog post talking about this experiment and what went into it -- and he'll also be on the Techdirt podcast tomorrow to talk more about it. In this book, while not about copyright, it does touch on a number of other issues that we frequently write about here, including patents, privacy, AI, terms of service and... the general nature of startup culture. The book is super interesting and engaging, but this experiment is interesting in its own way as well:

    After putting 7,500 hours of my life into it, I want After On to reach lots of people. But I’m even more interested in reaching the people it will truly resonate with. It’s quirky, costs money, and entails a real time commitment. So if it’s not right for you, I’d rather not take your dollars or hours (which is arguably bad for business — but good businesspeople don’t write sprawling novels for a living). Whereas if it is right for you, I want you to discover it with as little friction as possible. Both goals made a big excerpt on Medium seem like a good idea.

    My pitch to Random House evoked the largely bygone practice of US magazines excerpting new books. Licensing fees cost editors less than a major article, and publishers were pleased to generate income while promoting new titles. This practice is now rare. Reasons include the drop-off in print advertising, which has lowered magazine page counts, squeezing content. So why not transplant this pillar of the publishing ecosystem? Without trees to topple or ink to smear, we can release much longer excerpts online. Digital excerpts travel globally, and widespread excerpts will help books reach their most natural audiences. Better fits between books and readers will make reading more delightful, which means more books should sell — and hey, presto, everybody wins!

    Anyway, check out the first excerpt that just went a little while ago, in which Rob (or the book's narrator...?) dares you to read the whole damn thing...

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    Posted on Techdirt - 7 July 2017 @ 4:04pm

    Tim Berners-Lee Sells Out His Creation: Officially Supports DRM In HTML

    from the this-is-bad dept

    For years now, we've discussed the various problems with the push (led by the MPAA, but with some help from Netflix) to officially add DRM to the HTML 5 standard. Now, some will quibble with even that description, as supporters of this proposal insist that it's not actually adding DRM, but rather this "Encrypted Media Extensions" (EME) is merely just a system by which DRM might be implemented, but that's a bunch of semantic hogwash. EME is bringing DRM directly into HTML and killing the dream of a truly open internet. Instead, we get a functionally broken internet. Despite widespread protests and concerns about this, W3C boss (and inventor of the Web), Tim Berners-Lee, has signed off on the proposal. Of course, given the years of criticism over this, that signoff has come with a long and detailed defense of the decision... along with a tiny opening to stop it.

    There are many issues underlying this decision, but there are two key ones that we want to discuss here: whether EME is necessary at all and whether or not the W3C should have included a special protection for security researchers.

    First, the question of whether or not EME even needs to be in HTML at all. Many -- even those who dislike DRM -- have argued that it was kind of necessary. The underlying argument here is that certain content producers would effectively abandon the web without EME being in HTML5. However, this argument rests on the assumption that the web needs those content producers more than those content producers need the web -- and I'm not convinced that's an accurate portrayal of reality. It is fair to note that, especially with the rise of smart devices from phones to tablets to TVs, you could envision a world in which the big content producers "abandoned" the web and only put their content in proprietary DRM'd apps. And maybe that does happen. But my response to that is... so what? Let them make that decision and perhaps the web itself is a better place. And plenty of other, smarter, more innovative content producers can jump in and fill the gaps, providing all sorts of cool content that doesn't require DRM, until those with outdated views realize they're missing out. Separately, I tend to agree with Cory Doctorow's long-held view that DRM is an attack on basic computing principles -- one that sets up the user as a threat, rather than the person who owns the computer in question. That twisted setup leads to bad outcomes that create harm. That view, however, is clearly not in the majority, and many people admitted it was a foregone conclusion that some form of EME would move forward.

    The second issue is much more problematic. A bunch of W3C members had made a clear proposal that if EME is included, there should be a covenant that W3C members will not sue security researchers under Section 1201 of the DMCA should they crack any DRM. There is no reason not to support this. Security researchers should be encouraged to be searching for vulnerabilities in DRM and encryption in order to better protect us all. And, yet, for reasons that no one can quite understand, the W3C has rejected multiple versions of this proposal, often with little discussion or explanation. The final decision from Tim Berners-Lee on this is basically "sure a covenant not to sue would have been nice, and we think companies shouldn't sue, but... since this wasn't raised at the very beginning, we're not supporting it":

    We recommend organizations involved in DRM and EME implementations ensure proper security and privacy protection of their users. We also recommend that such organizations not use the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) and similar laws around the world to prevent security and privacy research on the specification or on implementations. We invite them to adopt the proposed best practices for security guidelines [7] (or some variation), intended to protect security and privacy researchers. Others might advocate for protection in public policy fora – an area that is outside the scope of W3C which is a technical standards organization. In addition, the prohibition on "circumvention" of technical measures to protect copyright is broader than copyright law's protections against infringement, and it is not our intent to provide a technical hook for those paracopyright provisions.

    Given that there was strong support to initially charter this work (without any mention of a covenant) and continued support to successfully provide a specification that meets the technical requirements that were presented, the Director did not feel it appropriate that the request for a covenant from a minority of Members should block the work the Working Group did to develop the specification that they were chartered to develop. Accordingly the Director overruled these objections.

    This is unfortunate. What's bizarre is that the supporters of DRM basically refuse to discuss any of this. Even just a few days ago, the Center for Democracy and Technology proposed a last-ditch "very narrow" compromise to protect a limited set of security and privacy researchers (just those examining implementations of w3C specifications for privacy and security flaws.) Netflix flat out rejected this compromise saying that it's "similar to the proposal" that was made a year ago. Even though it's not. It was more narrowly focused and designed to respond to whatever concerns Netflix and others had.

    The problem here seemed to be that Netflix and the MPAA realized that they had enough power to push this through without needing to protect security researchers, and just decided "we can do it, so fuck it, let's do it." And Tim Berners-Lee -- who had the ability to block it -- caved in and let it happen. The whole thing is a travesty.

    Corry Doctorow has a thorough and detailed response to the W3C's decision that pushes back on many of the claims that the W3C and Berners-Lee have made in support of this decision. Here's just part of it:

    We're dismayed to see the W3C literally overrule the concerns of its public interest members, security experts, accessibility members and innovative startup members, putting the institution's thumb on the scales for the large incumbents that dominate the web, ensuring that dominance lasts forever.

    This will break people, companies, and projects, and it will be technologists and their lawyers, including the EFF, who will be the ones who'll have to pick up the pieces. We've seen what happens when people and small startups face the wrath of giant corporations whose ire they've aroused. We've seen those people bankrupted, jailed, and personally destroyed.

    This was a bad decision done badly, and Tim Berners-Lee, the MPAA and Netflix should be ashamed. The MPAA breaking the open internet I can understand. It's what that organization has wanted to do for over a decade. But Netflix should be a supporter of the open internet, rather than an out and out detractor.

    As Cory notes in his post, there is an appeals process, but it's never been used before. The EFF and others are exploring it now, but it's a hail mary process at this point. What a shame.

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    Posted on Techdirt - 7 July 2017 @ 1:34pm

    House Appropriation Committee Demolishes Hollywood's Excuses For Moving Copyright Office Out Of Library Of Congress

    from the oops dept

    As we've discussed there's this stupid big fight going on these days, in which some in Congress -- mainly at the urging of the legacy entertainment industry -- are looking to move the Copyright Office out of its historical home in the Library of Congress. The first proposal to sort of (but not completely) do that, involved just making the head of the Copyright Office a Presidential appointment position, rather than (as now) appointed by the Librarian of Congress. The main reason that various members of Congress put forth in support of this change was that this would magically give the Copyright Office the freedom to modernize. Of course, there are few facts to support this argument. We broke the story about serious incompetence at the Copyright Office in managing its own modernization efforts, and there was also plenty of evidence that the current Librarian of Congress was successfully moving forward with a thorough modernization plan.

    And, yet, the House Judiciary Committee still voted overwhelmingly to move the bill out of committee. Thankfully, it appears the bill is pretty much dead in the water for now, apparently in part because some people noticed that it's not really the Judiciary Committee's jurisdiction. Judiciary has power over issues related to copyright, but this isn't a bill about copyright, but about administration. That belongs elsewhere and apparently some folks are none too pleased that the Judiciary Committee went behind their backs on this effort.

    And then there's this: last week in the Appropriations Committee's latest appropriations bill for the legislative branch, it pointed out that the Library was doing a good job in modernizing the Copyright Office. Here's the relevant section:

    Copyright Modernization: The Committee is encouraged by the collaborative work between the United States Copyright Office (USCO) and the Library of Congress’s Office of the Chief Information Officer’s Office (OCIO) and is looking forward to the USCO’s revised provisional IT plan which is expected in early August. The Committee continues to support a shared-services approach with regards to commodity IT services. Copyright modernization is something the Committee fully supports and will continue to provide appropriate resources. As we go forward OCIO is encouraged to engage with stakeholders both in the Congressional-community and beyond to outline clear benchmarks for progress.

    In other words, the very reason given by the Judiciary Committee for why we need a separate Copyright Office has been totally undermined by the Appropriations Committee, who actually took the time to figure out what was going on. Now, some of this might just be fighting over domains, but it raises even more questions about why some in Congress are so eager to yank the Copyright Office away from the Library of Congress at a time when the modernization program seems to be moving forward successfully.

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    Posted on Techdirt - 6 July 2017 @ 9:31am

    Bob Murray Demands John Oliver Be Silenced... While HBO Moves Case To Federal Court

    from the hey-bob dept

    We've been covering just how silly coal boss Bob Murray's SLAPP lawsuit against John Oliver is, and things keep getting sillier. Late last week, Murray's lawyers dug themselves in even deeper, asking for a gag order on Oliver and HBO (first reported by Betsy Woodruff at the Daily Beast). Specifically, they filed for a temporary restraining order and preliminary injunction to gag Oliver. They even admit that it's a "gag order" on Oliver and HBO. This kind of prior restraint is not supposed to be allowed under the First Amendment, but Murray's lawyers already have shown some fairly wacky legal theories, so it doesn't seem likely that "what the law says" is going to stop them from asking for ridiculous things.

    The document specifically requests that the defendants in the case be barred from re-broadcasting Oliver's hilarious report (which already has 6.6 million views and counting) and also that he be stopped from "publicly discussing the substance of this litigation." Of course, Oliver himself has already said on his show that, on the advice of HBO's lawyers, he won't be discussing the case until it's over, so this request is even more bizarre. But it's also silly legally. The First Amendment doesn't allow for a gag order to prevent someone from discussing a case. That's blatant prior restraint, and in the immortal words of Walter Sobchak, "the Supreme Court has roundly rejected prior restraint."

    The motion, like the original lawsuit, is highly theatrical, but has little relation to the actual law. It's basically a litany of complaints about how people are mocking Bob Murray for suing Oliver.

    Plaintiffs are quickly learning firsthand about the phenomenon that Time and Fortune magazines have dubbed the "John Oliver Effect." When Plaintiffs filed their Complaint, they did not appreciate the extent of the destructive aftermath that Defendants" malicious and false broadcast would cause. Mr. Murray and his employees and family have been inundated with an onslaught of threats, harassment, and intimidation by people that are simply following Defendants' lead as they view and re-view the Defamatory Statements. Murray Energy's website has been overrun with messages of "Eat Shit, Bob." Employees who once enjoyed coming to work now spend their days receiving countless phone calls and e-mails telling them they are "a worthless piece of shit," and worse. Mr. Murray's family members have even received death threats. None of this would have occurred but for Defendants' broadcast of the Defamatory Statements. Worse yet, Defendants knew that fans of the show would react in this manner. Continued publication and public access to the Defamatory Statements will only enlist additional people to Defendants' perverse "call to action," with additional grave consequences.

    Moreover, the John Oliver Effect has already spilled over to directly affect this litigation: numerous media outlets are commenting on their views of this action in a biased fashion that often times provides viewers with access to the entire June 18 broadcast. Additionally, the broadcast's YouTube video has been viewed 1.9 million times more since the Complaint was filed. The pervasiveness of the Defamatory Statements is unfairly tilting public opinion in Defendants' favor so much so that third parties have specifically directed threats and harassment at Plaintiffs' counsel regarding the perceived merits of Plaintiffs' claims. Plaintiffs' ability to assemble a fair and impartial jury diminishes every day that the Defamatory Statements are available to prejudice the individuals that might be called upon to serve justice in this matter.

    Basically, this request for a gag order boils down to: "OMG, people are making fun of our lawsuit and the lawyers writing this, so please make them stop." Perhaps the reason people are making fun of you is because the lawsuit is a bad one, guys. And that's all protected free speech under this great American thing we have called the First Amendment of the Constitution. You guys are the lawyers -- you're supposed to know that stuff.

    The complaint goes on to list out some excerpts from some phone calls to Murray's companies that were clearly people responding to the Oliver piece and the lawsuit. I'm sure it's no fun at all to be on the receiving end of those calls -- but, again, that's not against the law. Hell, some of the phone calls don't sound particularly harassing: "Others demanded that Plaintiffs "stop with their bullshit lawsuits" or asked "Why are you suing John Oliver?" Who knew that merely asking why are you suing someone would be held up as evidence of harassment? Who knew that Bob Murray was such a snowflake? The report also highlights a bunch of emails all saying "eat shit Bob" in some form or another (a statement that comes directly from the Oliver broadcast):

    Of course, if this is really so bothersome, why doesn't Murry just set up a filter to route all emails with "eat shit" in them to trash? Seems like a pretty easy solution.

    There's more in the filing in which they try to tap dance around the First Amendment claims by saying that there's no harm in censoring speech and putting a gag order on Oliver/HBO. This goes against basically all historical precedent noting that prior restraint on speech is, by itself, a form of harm. But Murray's lawyers don't want to talk about that. They pull out a classic anti-First Amendment trope, that because there are a few, very narrowly tailored exceptions to the First Amendment, their own requested exception surely must be okay:

    Defendants doubtless will resist an injunction using words such as "First Amendment" and "free speech." But these rights do not give anyone the right to say anything, anywhere, to anyone. Indeed, our Nation's founding founders and The Supreme Court of the United States have repeatedly noted that false and defamatory statements deserve no Constitutional protection.

    Sure. The courts have noted that defamation isn't protected by the First Amendment, but this gag order request is not asking for a blocking of just defamatory statements (hell, they barely identify any potentially defamatory statements amidst all the hand waving). They're literally asking for a gag order on discussing the case itself. The case itself is not defamatory. You can't silence a defendant from talking about the fact that you stupidly sued him. That's not what the Supreme Court is saying. Indeed, the two citations that Murray's lawyers point to from the Supreme Court notably do not support injunctions against speech. They merely note that defamation is not protected speech. But plenty of other cases explicitly make it clear that injunctions on speech should not be granted because of prior restraint. In Near v. Minnesota, the court said that a law granting injunctions on defamation was unconstitutional. In Bantam Books v. Sullivan the court famously said that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

    Murray's lawyers do nothing to counter this fairly set-in-stone precedents. They just go with the "well, there are exceptions, therefore gag order."

    They also play up -- once again -- the fact that Murray has health problems, insisting that this weighs in favor of granting an injunction. Amazingly, they point to a case that said an injunction could be issued against a landlord for trying to bring in an exterminator, because it might impact a tenant's pulmonary fibrosis, as a reason to grant this injunction against speech. Really.

    And indeed, pulmonary fibrosis has been specifically recognized to be an ailment that can warrant injunctive relief, including under less aggravating circumstances than those found here. See 2 Perlman Drive, LLC v. Stevens 2017 N.Y. Slip. Op. 50173(U), (N.Y. Civ. Ct. Feb 9, 2017) (enjoining landlord from employment of chemical exterminators in apartment tenanted by sufferer from pulmonary fibrosis).

    Yes, that's Bob Murray's lawyers stating that people mocking Bob Murray is a more aggravating circumstance than someone getting sprayed with harmful chemicals. That takes some level of chutzpah on the part of his lawyers.

    They also pull out another old trope, insisting that all this mocking press coverage might influence a jury, so surely a gag order is appropriate. Except, of course, this isn't the UK where there are superinjunctions or whatnot. The press is allowed to talk about stuff, and they're even allowed to give their opinion on things. And if that opinion includes mocking the bad decisions of Bob Murray, that too is protected speech. Amusingly, among the complaints about those biased press reports, Murray's lawyers call out Ken "Popehat" White's opinions of the lawsuit in the Daily Beast (without naming Ken):

    The Daily Beast ran an article on June 22, 2017, titled "Republican Coal King Sues HBO over John Oliver's Show," in which it features a statement by an attorney describing this lawsuit as "frivolous and vexatious."

    Yes, and so? That's a protected opinion backed up with lots of experience.

    Either way, this request will now be viewed by a federal judge, rather than a local West Virginia court. Because, just as we (and basically everyone else) predicted, HBO has removed the case to federal court. Murray's lawyers may try to get the case sent back to the local court, but that's unlikely to work. When you have defendants in other states (and even some of the plaintiffs in other states) and a cause of action over $75k, then you have what's known as diversity, and the case should rightfully be kicked up to federal court. In fact, the Notice of Removal argues that there really isn't even any West Virginia parties in the lawsuit at all, since the only "real" plaintiffs are Bob Murray and Murray Energy -- both of which are from Ohio. Yes, the lawsuit lists a bunch of West Virginia subsidiaries of Murray Energy, but Oliver never mentioned any of them at all, so there's no legitimate claim any of them can make for defamation. Indeed, the filing argues they were just thrown into the case to pretend that it belonged in West Virginia local court.

    I get the feeling we've still got plenty of future filings to look forward to in this SLAPP suit (again, West Virginia, tragically, has no anti-SLAPP law). Wouldn't it be nice if we finally got a federal anti-SLAPP law to deal with these kinds of suits?

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    Posted on Techdirt - 5 July 2017 @ 10:44am

    State Dept. Enlists Hollywood And Its Friends To Start A Fake Twitter Fight Over Intellectual Property

    from the um,-guys? dept

    For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud:

    Good Morning! My name is H------, and I am reaching out to you from the State Department’s Bureau of Economic Affairs. I gave you call a little earlier this morning, but I thought I would follow up with an email as well.

    Currently, I am working on a social media project with the Office of Intellectual Property Enforcement. This summer, we want to activate an audience of young professionals- the kind of folks who are interested in foreign policy, but who aren’t aware that intellectual property protection touches every part of their lives. I think the law school students at your institution may be the type of community that we would like to engage. Additionally, we know that your law school is ranked among the top schools in Intellectual Property law, and thus our campaign may not only be fun, but relevant for you all as well.

    So a little bit of a recap from the message that I left you this morning. The Bureau of Economic and Business Affairs wants to start a fake Twitter feud. For this feud, we would like to invite you and other similar academic institutions to participate and throw in your own ideas!

    The week after the 4th of July, when everyone gets back from vacation but will still feel patriotic and summery, we want to tweet an audacious statement like, “Bet you couldn’t see the Independence Day fireworks without bifocals; first American diplomat Ben Franklin invented them #bestIPmoment @StateDept” Our public diplomacy office is still settling on a hashtag and a specific moment that will be unique to the State Department, but then we invite you to respond with your own #MostAmericanIP, or #BestIPMoment. Perhaps it will an alumni defending intellectual property in the courts or an article that your institution has produced regarding this topic.

    Some characters from the IP community here in DC have agreed to participate with their own tweets: US Patent and Trademark Office, the Copyright Alliance, the Motion Picture Association of America, the Copyright Office, and the Recording Industry Association of America. We hope to diversify this crowd with academic institutions, sports affiliations, trade associations, and others!

    Please give me a call or email me with any questions, comments, or concerns. I look forward to hearing from you soon!


    So, let's break this down. This is literally the State Department, working with the IP Enforcement Coordinator (normally called the "IP Czar") to team up with the MPAA, RIAA and Copyright Alliance (a front group for the RIAA and MPAA), along with the Patent & Trademark Office and the Copyright Office to create a fake Twitter feud over who likes copyright and patents more.

    Everything about this is crazy. First, the State Dept. should not be creating fake news or fake Twitter feuds. Second, even if it were to do so, it seems to have picked one side of the debate, arguing that greater copyright and patent enforcement is obviously a good thing (how far we've come from the time when it was the State Department that fought back against SOPA and told the White House not to support it).

    Separate from that, why are the MPAA, the RIAA and the Copyright Alliance agreeing to team up with the US government to create fake stories? That seems... really, really wrong. I get that they are obsessed with always pushing a misleading and one-sided message on copyright law, but creating out and out propaganda with the US government?

    Also, even if the geniuses at IPEC -- an office that was set up in 2008 under another anti-piracy copyright law -- falsely believe it's their job to push Hollywood's message out to the world, how could they possibly have thought it was a bright idea to engage in outright propaganda using Twitter... and to try to enlist law school professors and students in these shenanigans?

    I've put out a request for comment from the State Department's Bureau of Economic Affairs, and will update this post if I hear back.

    71 Comments | Leave a Comment..

    Posted on Techdirt - 30 June 2017 @ 7:39pm

    Germany Officially Gives Up On Free Speech: Will Fine Internet Companies That Don't Delete 'Bad' Speech

    from the this-won't-end-well dept

    Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news.

    Social media companies face fines of up to €50m (£43m) if they persistently fail to remove illegal content from their sites under a new law passed in Germany

    The German parliament on Friday approved the bill aimed at cracking down on hate speech, criminal material and fake news on social networks – but critics warn it could have drastic consequences for free speech online.

    And, yes, again Europe has very different standards for free expression -- and Germany, in particular, has a long history of trying to suppress what it considers "bad" speech regarding some of its historical actions (Godwin'd!). Even so, this is dangerous and will be abused to stifle all sorts of important expression:

    The German justice minister, Heiko Maas, who was the driving force behind the bill, said: “Freedom of speech ends where the criminal law begins.” Maas said official figures showed the number of hate crimes in Germany increased by more than 300% in the last two years.

    Even accepting that free speech ends where criminal law begins, that doesn't justify fining the platforms. If people are posting "illegal" content, go after them for breaking the law. Don't go after the tools they use. By putting massive liability risks on platforms, those platforms will almost certainly overcompensate and over censor to avoid any risk of liability. That means a tremendous amount of what should be protected speech gets silence, just because these companies don't want to get fined. Even worse, the big platforms can maybe hire people to handle this. The littler platforms? They basically can't risk operating in Germany any more. Berlin is a hotbed of startups, but this is going to seriously harm many of them.

    The new law also has an even weirder provision, putting liability not just on the platforms, but on individual employees at online platforms who are designated the Chief Censors for that platform:

    Aside from the hefty fine for companies, the law also provides for fines of up to €5m for the person each company designates to deal with the complaints procedure if it doesn’t meet requirements.

    Who the hell is going to want that job? Make one mistake in failing to censor something, and you may be bankrupted.

    Just a little while ago we wrote about how difficult it can be for a platform to be calling the shots on what's worth censoring and what's not. Since there's so much content, the analysis of each piece of content needs to be standardized in a manner that tends to be absurd. It appears that those supporting this law don't have any interest in the realities involved, but think that by passing this legislation, they've waved a magic wand. Yes, putting liability onto platforms (and employees) will likely lead to greater suppression of speech people dislike -- but also of important and necessary speech. There appears to have been no effort to consider how dangerous that might turn out to be.

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