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Posted on Techdirt - 18 August 2017 @ 10:46am

NFL Tells ICE That Parody Shirts Are Counterfeits

from the beck-and-call dept

For years now, we've pointed out that ICE -- Immigration and Customs Enforcement -- has this weird habit of acting as the private police force of various big sporting leagues, almost always timed to big sporting events. Every year, right before the Super Bowl, for example, ICE seizes a bunch of websites. And ICE also goes way overboard in seizing physical merchandise, even if that's at least slightly closer to its mission. But it's been painfully obvious that ICE more or less sees itself as an arm of these sports leagues, rather than employees of the US government, and thus, the public. Last year, I filed some FOIA requests about ICE seizures leading up to the Super Bowl, but had them rejected on the basis that it was an ongoing investigation.

However, law professor Rebecca Tushnet is much more persistent than I am, and has been pursuing documents related to ICE seizures in the courts, and has had the court force ICE to hand over details -- including the not-at-all surprising, but still horrifying discovery that the NFL gives ICE guidance on what to seize, and it includes obvious parodies which are clearly not infringing, as they're protected by fair use. This is from the manual that the NFL provided ICE:

And, sure, perhaps it's true that NFL licensed merchandise won't favor one club over or another or make derogatory use of another's marks... but it's easy to argue that this is parody and thus not infringing. Just because it's not licensed, doesn't automatically make it infringing. But the NFL doesn't care. And I guess that's not surprising that the NFL doesn't care -- but it's astounding that ICE just agrees to follow the NFL's marching orders. Because unlike the NFL, ICE should actually follow what the law says, and not what a very wealthy sports league wants to happen.

As Tushnet points out in response to this:

So, what do we know? (1) Despite ICE's initial claims to me via its spokesperson and a lawyer, ICE relies only on industry guides to identify counterfeits, not on any independent sources. (2) Those industry guides identify what they don't like, not what is within the scope of counterfeit goods. (3) Most of what ICE seizes is truly counterfeit, but when it seizes parody merchandise, it implicates First Amendment interests in free speech.

Considering that this is ICE, who has a history of seizing blogs based on big industry claims, it seems quite clear that ICE couldn't care much less about the First Amendment interests of the public. Just the profits of big industry.

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Posted on Techdirt - 17 August 2017 @ 3:38pm

EFF Pioneer Awards: Chelsea Manning, Annie Game... And Me

from the neat dept

So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.

If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.

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Posted on Techdirt - 16 August 2017 @ 3:42pm

Once Again, Rather Than Deleting Terrorist Propaganda, YouTube Deletes Evidence Of War Crimes

from the take-a-step-back-and-rethink dept

It really was just last week that we were discussing the problems of telling platforms like YouTube to remove videos concerning "violent extremism" because it's often tough to tell the difference between videos that many people think are okay and ones that those same people think are not. But in that post, we also linked back to a story from 2013 in which -- after getting pressure from then Senator Joe Lieberman -- YouTube started removing "terrorist" videos, and in the process deleted a channel of people documenting atrocities in Syria.

It appears that history is now repeating itself, because YouTube is getting some grief because (you guessed it), it's effort to keep extremist content off its platform has resulted in deleting a channel that was documenting evidence of war crimes in Syria.

YouTube is facing criticism after a new artificial intelligence program monitoring "extremist" content began flagging and removing masses of videos and blocking channels that document war crimes in the Middle East.

Middle East Eye, the monitoring organisation Airwars and the open-source investigations site Bellingcat are among a number of sites that have had videos removed for breaching YouTube's Community Guidelines.

This comes just days after YouTube announced it was expanding its program to remove "terror content" from its platform -- including better "accuracy." Oops.

Again, there are no easy answers here. You can certainly understand why no platform wants to host actual terrorism propaganda. And platforms should have the right to host or decline to host whatever content they want. The real issue is that we have more and more people -- including politicians -- demanding that these platforms must regulate, filter and moderate the content on their platform to remove "bad" speech. But in the over 4 years I've been asking this question since that last time we wrote about the shut down of the channel documenting atrocities, no one's explained to me how these platforms can distinguish videos celebrating atrocities from those documenting atrocities. And this gets even more complicated when you realize: sometimes those are the same videos. And sometimes, letting terrorists or others post the evidence of what they're doing, people are better able to stop that activity.

There is plenty of "bad" content out there, but the kneejerk reaction that we need to censor it and take it down ignores how frequently that is likely to backfire -- as it clearly did in this case.

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Posted on Techdirt - 15 August 2017 @ 10:45am

The Snopes Fight Is Even Way More Complicated Than We Originally Explained

from the and-it-was-already-complicated-then dept

If you read our post a few weeks ago about the very messy legal fight between Snopes and Proper Media, you may recall that we spent many, many words explaining how the story was way, way, way more complicated than most in the media were portraying it. And significantly more complicated than how Snopes was portraying it. And we thought we did a pretty good job explaining all of that. Indeed, one of our commenters noted: "Wow. This couldn't possibly get any messier."

He was wrong. It turns out it's even messier. And it involves accusations of tax scams and shell companies, none of which came out in the last discussion on all of this. So, buckle in.

In our original story, we fact checked Snopes' claim that it was being "held hostage" by "a vendor." As we pointed out this was, at best, misleading, but the full story was hellishly complex and involved a nasty divorce, poor choices in equity structure, some poorly drafted contractual agreements and much, much more. It was not nearly as simple as saying that one party was holding the other hostage. I'm not going to repeat all of the details here (that original post was pretty damn long), but the real issue came down to the fact that the top execs at Proper Media had ended up purchasing 50% of Snopes' parent company, Bardav, due to a (very acrimonious) divorce between the two (previously) married founders. But because the company was an S Corp., Proper Media itself could not hold the shares, only individuals could. So the shares were split up between the top execs. Proper now claims that (1) those individuals were all really holding the shares on behalf of the company and (2) it accused Bardav's other shareholder, David Mikkelson, of some fairly egregious business practices and handling of corporate funds. No matter what, though, this was not a case of merely "a vendor" holding the site "hostage."

The legal claim, though, felt weak -- if Proper really wanted to own the shares as a company, it should have figured out a way to do something, such as converting the company to a traditional C corp. And, indeed, so far, the case does not appear to be going Proper's way.

In a tentative ruling issued ahead of Friday’s hearing, Judge Judith Hayes of the San Diego Superior Court decided in favor of Bardav in two crucial causes of action.

Proper Media cannot remove Mikkelson as a director of the company, the judge said.

“Proper Media does not have standing to seek removal of Mikkelson. … Plaintiffs have not presented sufficient evidence to prove fraudulent acts,” Hayes wrote in her decision.

The judge also granted Bardav’s request for Proper Media to release the advertising revenue the firm has withheld from the company.

Meanwhile, folks on both sides of the fight have reached out to us directly to supply more information, leading us to discover that what was already hellishly complex, is much, much more so. One of the complicating factors -- that was mostly a sideshow piece of the original story -- was that one of the Proper Media execs, Vincent Green, who had received 3.33% of Bardav in the equity sale had "flipped sides" during the dispute. In short, when Proper Media divvied up the shares, Green got some (much less than Proper's two top execs, but still a bunch). However in the spring, he stopped working for Proper and started working for Snopes directly (while at Proper he'd done a lot of work for Snopes already). From the complaint (and from our last story):

On Saturday, February 18, 2017, Richmond and Schoentrup had an in-person conversation with Green at Proper Media’s offices. When confronted, Green admitted that he was not acting in the best interest of Proper Media. After this conversation, Green never returned to the Proper Media office, and performed no further work for Proper Media. On Tuesday, February 21, 2017—the second business day after the conversation described above—without Richmond’s or Schoentrup’s knowledge or consent, Green removed Richmond’s and Schoentrup’s access to the Snopes content-management system, instructed three Proper Media employees not to return to work, and removed thousands of dollars of computer equipment from the Proper Media offices used by these three employees. On information and belief, Green did so in conspiracy with and at the direction of Mikkelson.


On or about March 8, 2017, Green added himself to the “Snopes.com Staff” page on Snopes, which lists his role as “Business Development”. Snopes.com Staff, http://www.snopes.com/snopes-staff/ (last accessed Apr. 27, 2017; archived at https://perma.cc/BRX7-C99L).

On March 10, 2017, again without Richmond’s or Schoentrup’s knowledge or consent, Green removed Snopes-related data from Proper Media’s communication and project-management tools, including Slack and Asana. On information and belief, Green did so in conspiracy with and at the direction of Mikkelson.


Also on March 10, 2017, Mikkelson purported to terminate the General Services Agreement, to be effective in 60 days, i.e., on or about May 9, 2017.

On or about April 1, 2017, Mikkelson removed Richmond’s and Schoentrup’s access to the bank account used for Snopes business by Bardav and Proper Media.

On April 3, 2017, Green gave written notice—from his Snopes email account—of his resignation from Proper Media.

During the weeks between February 18, 2017 and April 3, 2017, Green admitted that he was doing no work for Proper Media, and was instead working with Mikkelson at Bardav. Despite doing no work, until April 3, 2017, Proper Media continued to pay Green, and contributed to Green’s health-insurance premiums.

Now, when I had first read this, I'll admit that a little voice in the back of my head wondered about the opening of that story -- the line about how "Green admitted that he was not acting in the best interest of Proper Media." What the hell does that mean? But there wasn't much more info, so I didn't follow up. However, I was unaware that there was a parallel lawsuit going on. Not only was Proper Media suing Bardav over what it claimed was David Mikkelson's questionable behavior with Bardav, it separately sued Green. Proper's complaint about Green is pretty similar to what's already written in its complaint against Bardav, but focusing on breach of contract and similarly related claims against Green.

However it's Green's cross complaint that contains the fireworks (amusingly, Green sent us this document saying that it showed how the story was "not as messy as you think." No, it's messier.). First up, about that odd meeting in February, where Proper's 2 top guys, Christopher Richmond and Drew Schoentrup, supposedly got Green to admit that he was not acting in the best interests of Proper Media, well, Green has somewhat different take on that meeting.

In mid-February 2017, Schoentrup and Richmond were in the United States. On February 18, 2017, Schoentrup and Richmond called a meeting with Green. During this meeting, Schoentrup and Richmond told Green that they felt that Green did not respect them, that Green did not work well with Richmond, and that the personality conflict between Richmond and Green had made it impossible for Green to continue working for Proper Media. Schoentrup and Richmond further told Green that he should leave Proper Media, clear out his office, and not return to work.

Immediately after the February 18, 2017 meeting, Richmond sent Green a message stating:

will work out some proposals for the buy out and get back to you. No need to come to the office. You can start passing over any projects, accounts, logins, etc to us. And of course you will still be getting your salary this month while we make the transition.

That's a bit different than the way it's described in Proper's lawsuit, where the whole "getting fired" thing as well as the "don't come into the office" part was left out. And how did things get to this stage where Green and the others were fighting? Well, some of that actually goes back to some contentions over the purchase of Bardav/Snopes shares:

Schoentrup, Richmond, Green, Miller, and Dunn were interested in acquiring an interest in Bardav as early as summer 2015. In early 2016, Green learned that Schoentrup had begun clandestine discussions with Barbara Mikkelson ("Barbara"), David Mikkelson's estranged wife and co-owner of Bardav, to acquire Barbara's 50% interest in Bardav. When Green confronted Schoentrup about this, Schoentrup showed Green a draft purchase agreement that had Schoentrup and Richmond acquiring Barbara's interest to the exclusion of the other minority shareholders in Proper Media, namely Green, Miller, and Dunn. The opportunity to purchase 50% of Bardav was an opportunity that came to Schoentrup and Richmond as a result of their work for Proper Media and was an opportunity that did not belong solely to Schoentrup and Richmond. Indeed, the opportunity would not have existed at all except for Green's diligent work on the Snopes.com account. As such, Green insisted that all Proper Media members be given the opportunity to participate in any acquisition of Barbara's 50% interest.

And, indeed, that's how it eventually worked out. Of course, to me at least, the fact that there appeared to be some contention over this at such an early stage (with Richmon and Schoentrup potentially keeping the others out of the deal) make it that much more egregious that issues over actual ownership weren't taken care of earlier. It seems by that point alone that the likelihood of some of the minority shareholders leaving the company should have been obvious and if Proper wanted to claim it truly controlled the shares, it should have taken concrete steps to make that true contractually. It did not.

But we're just getting started here. In order to purchase the 50% of Bardav from Barbara, Proper Media needed to secure some financing. In the original post and in David Mikkelson's telling of the story, the amount was quite high. And then (per Green's cross-complaint) the following happened:

On August 19, 2016, Diamond Creek Capital sent a draft loan agreement to Schoentrup. Schoentrup forwarded the draft loan agreement to Richmond, Green, Miller, and Dunn. In this email, Schoentrup stated:

Here is a draft of the loan agreement. I haven't reviewed, and I am not sure how much we will actually end up taking.

The biggest issue for the union [e.g., Green, Miller, and Dunn] is that you are personally listed on the loan docs and joint and severally liable -- meaning should we default, Diamond Creek can seek payment in full from any one of us individually -- basically they will go where the money is. To mitigate any heartburn that this may cause, Chris and I will execute an indemnity agreement basically saying that should Diamond Creek come after anyone other than us, we will step in and assume that liability and the costs incurred.

Green claims that Schoentrup and Richmond never actually executed that indemnity agreement, and thus "misrepresented" things. This will come up again soon in connection to all of this, so consider it foreshadowing as we move on.

As part of the loan agreement, Proper Media had to create an "operating agreement" that Green claims he felt pressured into signing, and again throws some shade at Schoentrup, claiming that he misrepresented things to Green, and that he never explained that he was operating in Proper Media's interests. Which... okay... but by this point, I'm surprised that Green himself didn't find an attorney to review anything he was signing, as he's already indicated that he was uncomfortable with some aspects of this deal. But he's about to get a lot more uncomfortable by his telling of the story.

You see, before the loan itself was made, and before Green was supposedly pressured into signing this operating agreement, he argues that Richmond and Schoentrup had begun to "implement a tax avoidance scam." From Green's filing:

Additionally, in mid-2016, Schoentrup and Richmond began to implement a tax avoidance scam involving Schoentrup and Richmond relocating to Puerto Rico in order to take advantage of Puerto Rico's Promotion of Export Services Act ("Act 20") and/or Puerto Rico's Act to Promote the Relocation of Individual Investors to Puerto Rico ("Act 22").

Schoentrup moved to Puerto Rico on or about July 1, 2016. Richmond moved to Puerto Rico on or about January 1, 2017.

One of the requirements for individuals residing in Puerto Rico to avoid US. federal income tax (and thereby receive the minimal or zero income tax benefits of the Puerto Rico Act 20 and/or Act 22) is that the taxpayer cannot receive any income from a U.S. company. Therefore, in order to reap the tax benefits of Act 20 and/or Act 22, Schoentrup and Richmond could not receive any salary or distributions from PrOper Media.

Schoentrup resigned his employment with Proper Media on or about July 1, 2016. Richmond resigned his employment from Proper Media on or about January 1, 2017.

In order for Schoentrup and Richmond to continue receiving money from Proper Media, they concocted a scheme whereby they created PubLife, a Puerto Rico limited liability company, and said that Proper Media would sign a "consulting" agreement with PubLife. Instead of making distributions to members, Proper Media would pay a "consulting fee" to PubLife and would compensate its other members (Green, Miller, and Dunn) with year-end "bonuses" in lieu of membership distributions. According to Schoentrup and Richmond, the amount of each of the PubLife "consulting fee" and the year-end bonuses to Green, Miller, and Dunn would be commensurate with each member's percentage ownership in Proper Media. Being paid in "bonuses" instead of distributions would create negative tax consequences for Green.

Green is informed and believed that, using the above scheme, Schoentrup and Richmond intended not to pay any federal income tax on the money they received from Proper Media through PubLife


26 United States Code section 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be ?ned not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution

Green had serious concerns with the legality of Schoentrup and Richmond's tax avoidance scheme. In particular, Green was concerned that Schoentrup and Richmond's PubLife scheme crossed the line into illegal conduct. Green was particularly concerned about the impact of such potential tax law violations on Proper Media. Green voiced his concerns with Schoentrup's and Richmond's PubLife scheme as early as June 2016 during a series of meetings with Schoentrup and Richmond.

So, that's a bit of a twist, huh? There doesn't seem to be anything in the exhibits that Green filed with the complaint to substantiate these claims, but... uh... that's certainly notable. If the above is accurate, it would mean that technically Shoentrup and Richmond weren't even employed by Proper Media at the time they purchased the shares in Bardav, which they're telling a court is really owned by Proper Media. But, of course, all this happened prior to the loan agreement and the plan to buy into Bardav/Snopes, so it still confounds me that Green didn't think to get a lawyer to make sure this was all legit.

From there, things continued to go sour in the days leading up to that February meeting which becomes key:

Schoentrup and Richmond also revealed that PubLife intended to search for and potentially acquire websites. The opportunity of website acquisition was specifically within the scope of Proper Media's business and to the extent that PubLife acquired any such websites, Schoentrup and Richmond would be taking a corporate opportunity of Proper Media. Green told Schoentrup and Richmond that he objected to PubLife acquiring any such websites or otherwise taking any of Proper Media's corporate opportunities.

Schoentrup's and Richmond's relocation to Puerto Rico had other deleterious effects on Proper Media. Schoentrup and Richmond appeared to stop working on Proper Media's day-to-day affairs and were generally unreachable for large periods of time. On numerous occasions, Green found himself having to explain to other Proper Media employees why Richmond or Schoentrup were unavailable to assist with projects they had formerly worked on at Proper Media. Green voiced these concerns to Schoentrup as well.

When Richmond left for Puerto Rico in January 2017, Green once again voiced his concerns regarding Schoentrup and Richmond's tax avoidance scheme including the potential legal implications, especially for Proper Media. Green also made it known to Schoentrup and Richmond that their absence from Proper Media's offices was having a negative impact on the company's operations.

And that then brings us up to date (in Green's retelling) to that February meeting where (in Proper's version) Green "admitted that he was not acting in the best interest of Proper Media" and never returned to the office again. And, in Green's version, it's that Schoentrup and Richmond told Green he wasn't respecting them, and that due to personality conflicts he should "clear out his office, and not return to work."

From there things continue to disintegrate. Shoentrup and Richmond apparently try to buyout Green's shares in Proper Media as part of his termination, but that included wanting Green to give Shoentrup and Richmond the voting power over Green's shares in Bardav/Snopes. Green claims he pushed back on that. And soon after this, that whole issue of who was liable in the event of default was brought back up:

In connection with negotiating the sale of his Proper Media membership interest back to the company, Green requested that the parties address his obligations under the DCC Loan Agreement. Green proposed that the parties agree to certain specified payments to address Green's portion of the loan amount.

In response, on April 24, 2017, Richmond sent Green a series of emails, stating:

[W]e can't sign anything for the debt as we are each liable for the entire debt amount.

Considering the adverse effect you've caused to the company there is no way we will sign something saying you are responsible for a portion of the debt. You are responsible for 100% of the debt.

After Green responded that he understood that he had signed a personal guarantee with respect to the DCC Loan and was simply trying to address his portion of the loan, Richmond responded:

You didn't just sign a personal guarantee. The loan documents say we are each responsible for the entire debt amount, not just a portion based on equity lines. And I'm afraid your actions already open us up to being in default of the loan. We will be in touch once we figure out what to do.

So, yeah. Remember when I said above to remember the promise to indemnify? Yeah.

A few weeks later, in early May, Schoentrup demanded that Green go into mediation with Proper Media. Green responded saying he (FINALLY!) wanted to speak to a lawyer first, and further notes that the Proper Media Operation Agreement that they had all signed said that they agreed "to enter mediation before filing suit against any other Member...." But before Green could reply again, the lawsuit was filed.

As I said, this got a lot more complicated. Frankly, no one comes out of this looking very good -- and, yet again, this seems like another case where people should have brought in lawyers (or better lawyers) much, much earlier in the process. It's unfortunate that all this dirty laundry is airing out in public. It feels like most of this stuff could have been solved amicably very early on if the contracts and the buyouts had been clearer. But, through a series of bizarre moves on the part of almost everyone, things get more and more messed up, and eventually it all comes out in court. Bardav/Snopes doesn't come out of this looking great and neither does Proper Media. But on the legal issue, it seems that Snopes is likely to prevail at least on the bigger issues.

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Posted on Techdirt - 15 August 2017 @ 3:40am

DOJ Goes Way Overboard: Demands All Info On Visitors Of Anti-Trump Site

from the the-doj-going-too-far?-what-a-surprise dept

Not all search warrants are bad. Indeed, most of them are perfectly legitimate, and meet the qualifications under the 4th Amendment that there is probable cause of a crime being committed, and the warrant is narrowly tailored to seek out evidence to support that. But... not always. As Ken "Popehat" White explains in a recent blog post, the Justice Department has somehow obtained the mother-of-all bad search warrants while trying to track down people who were involved in protests of Donald Trump's inauguration back in January. The government has brought felony charges against a bunch of protestors from the inauguration, and now it appears the DOJ is going on a big fishing expedition.

As Ken notes, it's quite likely that some protestors committed crimes, for which they can be charged, but prosecutors in the case have decided to go ridiculously overbroad in trying to get any info they can find on protestors. They got a search warrant for the well known hosting company DreamHost, which hosts the site disruptj20.org (as an aside, the fact that a site like that doesn't default to HTTPS for all connections is really, really unfortunate, especially given the rest of this article). The warrant basically demands everything that DreamHost could possibly have on anyone who did anything on disruptj20, including just visiting. As White notes in his post, it's not that unreasonable that the DOJ sought to find out who ran the site, but now they're requesting basically everything, which likely includes the IP addresses of all visitors:

a. all records or other information pertaining to that account or identifier, including all files, databases, and database records stored by DreamHost in relation to that account or identifier;
b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, e-mail addresses, business information, the length of service (including start date), means and source of payment for services (including any credit card or bank account number), and information about any domain name registration;
c. all records pertaining to the types of service utilized by the user,
d. all records pertaining to communications between DreamHost and any person regarding the account or identifier, including contacts with support services and records of actions taken.

DreamHost, quite reasonably, found this to be somewhat overbroad and refused to immediately reply, instead having a lawyer ask the DOJ to clarify the request, while making it clear it felt the warrant was likely both vague and overlybroad. The DOJ then asked the court to compel the company to hand over the info, insisting there is "no legal basis for failing to produce" the requested information. DreamHost has now responded in court, saying that the warrant violates the 4th Amendment and appears to endanger the 1st Amendment rights of protestors. They also claim that it violates the Privacy Protection Act and that there are some jurisdictional issues with it as well. DreamHost also has a nice blog post about the whole thing:

This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.

Or, as the filing notes:

Where a search warrant endangers First Amendment interests, the warrant must be scrutinized with “particular exactitude” under the Fourth Amendment. See Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978). “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 701 (1992) (Kennedy, J., concurring). The government’s search warrant (“Search Warrant”) here requires non-party DreamHost, LLC (“DreamHost”) to turn over every piece of information it has about every visitor to a website expressing political views concerning the current administration. This information includes the IP address for the visitor, the website pages viewed by the visitor, even a detailed description of software running in the visitor’s computer. In essence, the Search Warrant not only aims to identify the political dissidents of the current administration, but attempts to identify and understand what content each of these dissidents viewed on the website. The Search Warrant also includes a demand that DreamHost disclose the content of all e-mail inquiries and comments submitted from numerous private e-mail accounts and prompted by the website, all through a single sweeping warrant.

The Search Warrant cannot survive scrutiny under the heightened particular exactitude standard required by the presence of the First Amendment issues. It fails to identify with the required particularity what will be seized by the government. It also fails to provide DreamHost with any assurance that the government will return or destroy the large portion of the information irrelevant to the government’s criminal case or cases. These features render the Search Warrant unreasonable under the Fourth Amendment. In addition, the Search Warrant violates the privacy protections of the Privacy Protection Act, a statute enacted specifically to address such instances, and is without a jurisdictional basis.

As Ken White points out, this fishing expedition by the DOJ should concern us all:

The Department of Justice isn't just seeking communications by the defendants in its case. It's seeking the records of every single contact with the site — the IP address and other details of every American opposed enough to Trump to visit the site and explore political activism. It seeks the communications with and through the site of everyone who visited and commented, whether or not that communication is part of a crime or just political expression about the President of the United States. The government has made no effort whatsoever to limit the warrant to actual evidence of any particular crime. If you visited the site, if you left a message, they want to know who and where you are — whether or not you did anything but watch TV on inauguration day. This is chilling, particularly when it comes from an administration that has expressed so much overt hostility to protesters, so relentlessly conflated all protesters with those who break the law, and so deliberately framed America as being at war with the administration's domestic enemies.

Of course, the DOJ overreaching is nothing new. We just spent eight years highlighting DOJ overreach during the Obama administration (and another eight of overreach under the Bush administration). But it is particularly scary to see just how far this overreach is and that it's coming from an administration that has shown itself to be significantly less tolerant of the First Amendment rights of protestors than basically any predecessor.

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Posted on Techdirt - 14 August 2017 @ 10:42am

How The DMCA's Digital Locks Provision Allowed A Company To Delete A URL From Adblock Lists

from the end-1201 dept

Starting late last week, there's been a bit of a fuss in various circles about a DMCA notice being used to remove a domain from one of the most prominent adblocking server lists, known as Easylist. AdGuard had a big blog post about it, as did TorrentFreak and Gizmodo. But, the whole situation is somewhat confusing, and requires understanding a variety of different things, from how adblocking works, to how certain paywalls work and, most importantly, how two separate parts of the DMCA -- the notice and takedown portions of DMCA 512 intersect with the anti-circumvention/"digital locks" provisions of DMCA 1201.

So, let's dig in. The easiest bit is how adblocking works. You probably already know the basics, but it relies on listing out designated servers, and then blocking resources from those servers from loading. Pretty straightforward. Now, there's a whole industry that has grown up around being anti-adblocking (we get pitches from these people all the time, and tell them to go away, because we actually let you turn off ads directly if you want). Most of the anti-adblock solutions are annoying in one way or another, of course. One popular solution that many popular sites have started using is that they try to detect if you are using an adblocker -- and if they think you are, you're blocked from reading the content unless you disable the adblocker. We've pointed out why we think this is a dumb strategy for a variety of reasons, not the least of which being that after Forbes made people turn off its adblockers, it served up malware via its ads. Oops.

Anyway, one of the companies that offers the technology for this kind of "turn off your adblocker to access this content" setup is a company called Admiral. One of the domains that Admiral apparently uses for its technology is called "functionalclam.com." You can go to the site where you'll see the following nonsense text that almost sorta kinda makes sense, but really doesn't:

This domain is used by digital publishers to control access to copyrighted content in accordance with the Digital Millennium Copyright Act and understand how visitors are accessing their copyrighted content.

Right? It almost makes sense, but then you're left wondering -- wait, how does a domain "control access to copyrighted content"? And, why would a domain have anything to do with the DMCA? Hang tight, we'll get there.

Let's go back to Easylist, which is housed, like so many things, on Github. Last week, Easylist's Github page showed a comment saying that "functionalclaim.com" had been removed "due to DMCA takedown request." This immediately got a lot of people upset -- perhaps reasonably so -- but the whole thing is a bit more complicated. When we talk about the DMCA there are two main parts that we often talk about -- and in nearly every case, the two separate parts of the DMCA we talk about them entirely separately, because they cover different things, and it's rare that they ever intersect.

We most commonly talk about DMCA 512, which is the notice-and-takedown part of the DMCA, laying out the rules for a copyright holder to send a DMCA takedown notice to a platform, as well as the rules for how a platform needs to respond. The other part of the DMCA, which we also still talk about pretty frequently is DMCA 1201, sometimes called the "anti-circumvention" section or the "digital locks" section. This is the (highly problematic!) part of the DMCA that says that circumventing "technological measures" that are designed to "control access" to a work protected by copyright. 1201 is dangerously broad in that it makes it a violation of the law to "manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof" if the purpose of that technology is to circumvent. In practice, this means that using or making a tool for perfectly legal circumvention -- such as for fair use or accessing public domain material -- can still be said to be in violation of this law.

So, here's where this particular DMCA notice gets tricky. When people talk about DMCA notices, they almost always mean a 512 notice. After all, that's the part about "notice and takedown." But this is not a 512 notice. They're actually sending a 1201 notice, which is relatively rare (I can't recall any others, though it's entirely possible they've been sent). Here, unlike with 512 notices, there isn't necessarily a strict procedure that needs to be followed under the law, but for fairly unsurprising reasons, Github more or less treats it as a 512 notice and acts according (as we'll explain later).

The full DMCA notice from Admiral is actually fairly interesting. To its credit, rather than the sort of smash-and-destroy-everything style of DMCA notices we often see, this one actually goes into detail and stresses, repeatedly, that it's not asking Github to remove all of Easylist at all. It's just asking for the removal of that one domain, and it believes that it should be removed because it violates 1201. The notice repeated references 1201, not 512. Now, I have some serious questions about how this can actually be a 1201 violation, but first let's finish what happened before we question things.

A few years back, Github implemented a process (which we approve of!) for dealing with DMCA notices. Rather than taking things down immediately, Github actually alerts the project owner first, and gives them time to review the notice and possibly fix things themselves (or to protest if they believe the notice is in error). And that's what happened here. Github passed along the notice and the Easylist people removed the domain in response, while also noting that if it really is an "Anti-Adblock Circumvention/Warning" service "it should be removed from Easylist without the need for a DMCA request." There's also some confusion over this, but it appears that that anti-adblock company Admiral created a Github user with the confusing name "dmcahelper" who had initially requested the removal in a comment last month. A lot of people thought that this might possibly be from Github, but Github has said it is not, and Admiral has since admitted to posting the request.

Oh, and while everyone was getting upset about this, Admiral put out a weirdish blog post that it titled "DMCA, Easylist, Adblock, Copyright Access Control & Admiral: 10 Things To Know," which explains all of this accurately, but requires an awful lot of background knowledge to actually understand what it's saying (knowledge that most people commenting on this story on various sites do not appear to have given the commentary I've been reading).

So, to summarize: Admiral tries to help publishers deny access to adblock users unless they disable adblocking tools or whitelist those particular publishers. Somehow, one of the long list of nonsensical/wacky domain names that Admiral uses to serve up those "please whitelist us to access" interstitial got included in Easylist. Admiral asked for it to be taken down, but in an awkward manner using a new Github account called "dmcahelper" and the people behind Easylist expressed some confusion. Admiral responded by filing a formal 1201 (not 512) DMCA notice -- that goes to great lengths to explain that it just wants functionalclam removed from the list for anti-circumvention reasons. Github forwards the notice to Easylist, as it would with a 512 notice, and Easylist removed functionalclam, while noting that it shouldn't be on the list anyway, because the domain is just for anti-adblocking tools. Phew.

Or, to make it even shorter: Admiral is arguing that it's "you need to whitelist us on your adblock to access this content" technology is a form of DRM -- and including one of its URLs in adblock itself is "circumventing" its DRM, and therefore in violation of 1201... and thus it sent a takedown notice that is a "DMCA takedown" notice, but not the kind of DMCA takedown notice you would normally see.

When you put all that together, you can see how this could all be pretty confusing -- and could at least lead people to suspect something nefarious in, say, an advertiser trying to get its servers off of an adblock list through a totally fraudulent DMCA notice. This is not quite that.

But is the DMCA notice really legit? That... is not quite as clear. Putting this all back together and zooming in on the specific issue, this would only be a valid DMCA notice if the mere inclusion of the URL counted as a "technology, product, service, device, component, or part thereof" that was "primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner" and "has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner." And, for that I'm left scratching my head a bit. I'm not entirely sure how merely including a domain name would count. But that doesn't mean it wouldn't. Adblock itself isn't a tool designed for circumventing protection (even if some argue that it's circumventing a publication's business model, it's not circumventing copyright protection). But, perhaps there's a reasonable argument that the mere inclusion of a domain used solely to create a blocking on adblock users counts as circumvention in a way that violates 1201. That worries me for a variety of reasons, but it is possible that it's legitimate under the law.

While some are quick to call this a clear abuse of the DMCA or a frivolous takedown, I don't think it's that clear at all. It's not obviously frivolous. There's at least an interesting and possibly credible theory behind it, arguing that the inclusion violates 1201 -- even if I'm not sure it really does. What this really demonstrates to me is -- once again -- the serious problems of DMCA 1201 and how it allows for very dangerous results. The idea that merely including a URL in a list that I use on my own computer to tell my computer not to allow a certain server to send information to my computer... could be seen as violating copyright law is bonkers. This gets right to the heart of what Cory Doctorow frequently discusses concerning problems with 1201 and how it effectively is reaching into people's own computers and telling them what they can't do. And, in this case, what you "can't" do is put a specific URL on a list. That seems bad.

It's fine that Easylist agrees that it doesn't want those kinds of URLs on its list, but there's a larger question here about whether or not others should be able to merely list out the URLs of servers they don't want to send information to their computer. And the idea that merely doing so would be violating copyright law raises a whole bunch of troubling consequences.

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Posted on Free Speech - 14 August 2017 @ 9:28am

Florida City Ignores All Legal Precedent As It Attempts To Silence & Identify Mild Critic

from the that's-not-how-any-of-this-works dept

Florida. It's always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it's the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they're willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.

I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I've tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.

But first, let's back up and explain what's happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren't happy about these interlopers. So it shouldn't have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:

In May, groups called Protect Coral Gables and "Coral Gables residents who care" posted a video on Facebook and Instagram that shows one girl attacking another, knocking her to the ground, then kicking her and stomping on her head. Three men in vests marked “security” watch but don’t intervene.

The posts said "$610,000 tax dollars wasted on security guards in Coral Gables" and described the video saying that the "security guards can only watch as a girl is beaten."

"Don’t let this happen in Coral Gables. Call your elected officials and tell them to step up to the plate and protect our families. Demand that they hire certified police officers."

The video, for what it's worth, was apparently from a few years ago in Seattle -- which is mentioned seven seconds into the video in question -- though the city of Coral Gables insists that the video is misleading and people are implying it's happening in Coral Gables. From the legal complaint, we can see what the city was mad about (though I don't understand why they're so mad about it, as it appears they're a bunch of thin skinned bullies who can't take even the slightest criticism).

On Instagram, they were upset about this ad along with the text above:

That seems like pretty normal "citizen speaking up on a matter of public interest" social media content. And, yes, it does seem noteworthy that the post appeared to have merely 59 views at the time the Coral Gables government decided to take action.

The Facebook complaint is even more ridiculous. They're upset about two Facebook groups. The first was called "Protect Coral Gables" and the second "Coral Gables Residents Who Care." And the main complaint is that the Facebook group uses the (trademarked) logo of Coral Gables. From the complaint:

I'm at a loss as to how Coral Gables attorneys could possibly think this is infringing. These people are commenting on Coral Gables policies and have created a group about Coral Gables, which is pretty obviously done by concerned citizens rather than the government. There's no likelihood of confusion here. And, importantly, they're not using the logo in commerce, so there's no trademark issue at all. Oh, and we should also point out that the Lanham Act forbids cities from trademarking their logos.

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it... [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof

So, yes, the USPTO may have registered Coral Gables' logo trademark, but it is obviously invalid under the law.

The whole thing appears to be that Coral Gables officials are upset that their own constituents are criticizing their decision and they decided to "do something about it."

I mean, it's fine to be unhappy about it, but it's another thing entirely to try to silence and then identify those critics. But, hey, Florida. And here's where things start getting stupid. It appears that the city started searching for any excuse to try to silence and/or identify the critics. In one report, they claimed it was "defamation" or "deception":

"It upset me when I saw it that someone … is trying to defame the city," said Commissioner Frank Quesada. "It’s meant to deceive, it’s meant to scare."

But, that's silly. There's no defamation. There's no deception. Furthermore, as the Supreme Court clearly states in the famous First Amendment case New York Times v. Sullivan, the government cannot sue for defamation:

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.

Now, that's coming from a Commissioner, not the city attorney, so you'd think that the city attorneys would educate Quesada. They did the opposite.

In one of the articles, Coral Gables' city attorney Craig Leen makes this ludicrous statement:

"They’re free to put any statement they want to make but what they can’t do is put a video of a terrible incident that did not happen in Coral Gables and make it seem like it happened in Coral Gables," Leen said.

Except... they didn't. First, the video identifies itself as happening in Seattle in the first seven seconds. Second, the exhibit in Leen's own lawsuit clearly says "Don't let this happen in Coral Gables" which pretty clearly states that the events in the video happened elsewhere. Here's yet another exhibit showing "don't let this happen in Coral Gables" appearing directly above the video:

But I'm getting ahead of myself. Before the city filed the lawsuit, deputy city attorney Miriam Ramos sent a cease and desist letter to both Instagram and Facebook (and, yes, Instagram is owned by Facebook), claiming that the social media posts violated the city's trademarks, even though they clearly do not as explained above. Not only did she send a cease and desist, she claimed that if they failed to comply, she would magically fine them $500 per day.

Instagram General Counsel,

It has come to the attention of the City of Coral Gables that an Instagram page/ad exists under the name "Protect Coral Gables." The page/ad contains an emblem that is a trademark owned by the City of Coral Gables (see attached as Exhibit A). The trademark is registered in the United States (Registration No. 4,307,912). Further, the page/ad contains content that is erroneous and misleading, including a video of an attack on a woman.

We, therefore, order that your company immediately cease and desist from allowing the use of our trademarked logo on the "Protect Coral Gables" Instagram page/ad and remove the erroneous and misleading content contained in the page/ad. Pursuant to Coral Gables Ordinance 2016-059, failure to comply with this letter will subject Instagram to a code enforcement citation carrying a fine of $500 per day of violation.

Miriam S. Ramos
Deputy City Attorney and City Prosecutor

So... there are a whole boatload of problems with this cease and desist. First, as already explained, what was done by the people protesting the decision was clearly not use in commerce and similarly unlikely to confuse. And, the city can't trademark its logo. In short, it's not trademark infringement in any way, shape or form. Second, the last sentence of the first paragraph is painfully misleading, playing up the fact that the video shows "an attack on a woman" but leaving out all context and almost certainly implying that the video violates the company's terms of service (which it does not).

Finally, the whole $500/day fine thing. As we know, CDA 230 has made it quite clear that Instagram and Facebook can't be fined over a user's speech (which is likely why they try to pretend it's a trademark violation, which is exempted from CDA 230). But, what the hell is Ordinance 2016-59? Well, I'll tell you that the city doesn't make it easy to figure that out, but I finally tracked down the ordinance, which became Section 2-203 of the code of the city of Coral Gables, and it says:

(a) The city attorney is authorized to issue cease and desist letters for violation of the City Code, Zoning Code and any other applicable law where such violation causes harm to the city, its residents or its businesses.
(b) It shall be unlawful for any person or entity to disobey the demand made by the city attorney or his/her designee, on behalf of the City of Coral Gables, in a cease and desist letter.
(c) Failure to obey the demand made in a cease and desist letter shall result in the issuance of a code enforcement citation, punishable by a fine of $500.00 per day.

But, uh, what Facebook and Instagram did is not a violation of City Code or (especially) Zoning Code. It's not a violation of any "applicable law." This is just a city attorney trying to talk big, and even then can only threaten a $500 fine normally used for those with zoning violations -- targeting one of the largest companies in the world. Good luck with that.

Instagram replied to Ramos, noting that the user appeared to have removed the content already themselves, so there was no problem. Ramos responded, somewhat hilariously, saying that if the ad reappeared, she'd start fining them $500 per day. Can you say "prior restraint"? Perhaps they don't teach that where Ramos went to law school.

On behalf of the City of Coral Gables, the cease and desist letter remains in effect and if another ad is published using our trademark, Instagram will be fined $500 per day.

Please provide this email to your general counsel and ask them to respond to us.

Instagram then responded, finally pointing out that there was no trademark infringement.


Thanks for your report. Based on the information you've provided, it is not clear that the content you've reported infringes your trademark rights. The reported party appears to be using your trademark to refer to or comment on your goods and services.

For this reason, it does not appear that the reported content is likely to confuse people as to source, sponsorship or affiliation, and we are unable to act on your report at this time.


Intellectual Property Operations

Hats off to you, "Liam." Unfortunately, the enforcement folks at Instagram's parent company, Facebook, didn't bother to look at what was happening, and caved in immediately:


Thanks for bringing this matter to our attention. We removed or disabled access to the content you reported for violating the Facebook Statement of Rights and Responsibilities. We understand this action to resolve your intellectual property issue.

Facebook: you got this one wrong. There's no violation there.

And, either way, what benefit did Facebook get for complying with Coral Gables' censorial bullying? It got dragged into court. Because after all this, the city filed a complaint for a "pure bill of discovery." You may recall the concept of Florida's "pure bill of discovery" as it played a prominent early role in the Prenda saga. It's a generally antiquated law to obtain discovery (which is legalese for "force you to hand over info"). Indeed, there's some argument that John Steele of Prenda moved from Illinois to Florida early on in Prenda's history in order to use Florida's pure bill of discovery to uncover the names of people he wanted to shake down. Courts eventually put a stop to it, but here the City of Coral Gables is trying to use it to identify anonymous critics.

The complaint repeats the misleading claim that the use of the logo is trademark infringement, as well as the false claim that the Instagram ad is "erroneous and misleading." It is neither. Hell, the city's cease-and-desist and complaint are both a hell of a lot more erroneous and misleading than anything in the Instagram ad. And, again, the language here hints at a possible defamation claim which is not allowed under the First Amendment, as made clear by NYT v. Sullivan. Do the city attorneys of Coral Gables not know this... or do they not care?

Then the complaint demands "any and all records identifying the name, address, telephone number of the entity and/or individual(s) responsible" for posting that content.

Let's be clear: this is complete unconstitutional bullshit. I've emailed city attorney Craig Leen as well as the outside lawyer who filed the complaint, Anna Marie Gamez, asking them to explain how any of this could possibly pass constitutional muster. The Supreme Court seriously frowns on this kind of thing. Beyond the NYT v. Sullivan mentioned above, in McIntyre v. Ohio Elections Commission (which involves a government body going after someone for handing out anonymous pamphlets concerning an issue of public concern), Justice Stevens wrote in the opinion:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

I emailed city attorney Craig Leen (as well as the city's outside attorney, Anna Marie Gomez of the law firm Holland & Knight). Just as I was finalizing this post, Leen responded to my emails insisting that the complaint has no First Amendment problems and that their trademark claims are legit:

I want to assure you that the City views the bill it filed as meritorious, and certainly not frivolous. The City also views its bill as consistent with the First Amendment and trademark law.

When asked how, Leen gave some boilerplate language about trademark:

The City’s trademark was used in the profile pictures as if Coral Gables was sponsoring the site. This does not fall under fair use. It is an attempt to appropriate Coral Gables’ mark to induce people to view the post and causes confusion as to whether this highly misleading post is being sponsored or endorsed by the City of Coral Gables. For example, if you look at Exhibit E to the Complaint, at the attachment to the cease and desist letter, it shows the word “Sponsored” right next to the City of Coral Gables mark. The City is seeking to protect its mark and has a right to do so.

Again, this is wrong. Even setting aside the fact that the Lanham Act forbids cities from trademarking their logos, the exhibit he mentions (Exhibit E) does not at all show the word "sponsored" next to the City of Coral Gables mark, and certainly not in a manner that has a likelihood to confuse. Remember, this is the Instagram post (shown above) that clearly shows that it's from a group called "Protect Coral Gables" and the text of the image and the text beneath the image make it blatantly obvious that this is someone protesting the City's actions, not coming from the city itself. The fact that it is a "sponsored" post is meaningless here. This is clearly people of Coral Gables using their right to petition the government.

And the city of Coral Gables is trying to stomp that out. This is very clear abuse of the First Amendment and Leen should be ashamed of trying to pretend otherwise.

It appears that the city of Coral Gables is quickly shooting to the top of the list of thuggish, censorial cities, whose officials can't handle even the slightest criticism of their decisions. You would hope that, at some point, someone explains to them the nature of the First Amendment as well as two of the most famous cases from the Supreme Court that clearly bar this action. And it doesn't matter at all how you feel about the initial action (the hiring of security guards). Indeed, as many would guess from how we cover police issues here, I tend to think hiring unarmed security guards is a much better solution than hiring more armed police officers. But how can a city and its leaders have such thin skins that they'd be willing to trample all over the First Amendment over a tiny bit of criticism seen by fewer than 60 people (including the city's own lawyers)?

Oh, and let us not forget that Florida's got a nice (relatively new) anti-SLAPP law that seems tailor made for this kind of thing, which might mean that Coral Gables taxpayers will be footing Facebook and Instagram's attorneys' fees, should they seek to use the law. If there was already concern about Coral Gables wasting money on security guards, I can't imagine that it will go over all that well that it's also wasting it on frivolous witch hunts for anonymous critics online.

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Posted on Techdirt - 11 August 2017 @ 1:32pm

Appeals Court Mostly Fixes Bad CDA 230 Ruling Over Publicity Rights

from the dodge-one-bullet dept

The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.

The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?

Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.

Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.

Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight‘s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that ―Facebook continues to place ads on all the unauthorized Facebook pages, he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.


The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.


In sum, the evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.

The court still isn't done:

Knight has not even alleged—let alone shown—that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users‘ comments about Knight and his business practices. This is insufficient.

The court chooses not to address the more basic issue of publicity rights under CDA 230.

The rest of the ruling is interesting in its own right, as Cross had also appealed the parts upholding Facebook's anti-SLAPP motion, but fails badly. The court notes that it's fairly obvious that the issue involves a topic of public interest, despite Cross's claims to the contrary. And then there are some weird claims attempting to piggyback on the Barnes v. Yahoo case from years back, in which Yahoo lost its 230 immunity because an employee directly promised to remove certain content. Cross tried to argue that Facebook's terms of service promise it, too, will remove content. But... that's very different, and not what Facebook's terms of service actually say. Separately, Cross claims (to make Barnes more applicable) that Facebook privately did communicate to him that it would remove content. The court's not buying it (neither did the lower court):

Contrary to Knight‘s assertions, the complaint does not arise from "private" statements or promises made to Knight in Facebook's terms. Indeed, similar arguments made by other plaintiffs against Facebook have been rejected by district courts, in language directly applicable here: "while Facebook‘s Terms of Service 'place restrictions on users‘ behavior,' they 'do not create affirmative obligations‘ " on Facebook....

Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service—along with certain 'supplemental terms' specifically incorporated by reference—prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety.'"

As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-a-vis content on its pages. But even if statements in Facebook's terms could be construed as obligating Facebook to remove the pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight's alleged injuries, the basis for his claim, is the content of the pages and Facebook's decision not to remove them, an act "in furtherance of the . . . right of petition or free speech."

The court also dings Cross for claiming that Facebook's terms say stuff they do not:

...even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for "the conduct, whether online or offline, of any user of Facebook." As Facebook sums it up, "We do our best to keep Facebook safe, but we cannot guarantee it."

So, in the end, this is a good result, tossing out last year's bad ruling, though skipping over the CDA 230 question. And, as Eric Goldman notes, that keeps things at least a little murky:

Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.

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Posted on Techdirt - 11 August 2017 @ 10:45am

Should Social Media Sites Be Forced To Pull Pastor Calling For War With North Korea?

from the countering-violent-extremism dept

There's been a lot of debate over the past few years about forcing internet platforms -- YouTube, Facebook and Twitter, mainly -- to respond to terrorists (oddly only Muslim terrorists) using those platforms for propaganda and agitation by taking down that content. It's often been discussed under the banner of "countering violent extremism" or CVE. These days, those and other platforms tend to have large staffs reviewing videos, and especially quickly pulling down videos of ISIS promoters calling for attacks on America and Europe. And, in some countries it's now required by law that internet platforms remove such content. And you can certainly understand the gut reaction here: someone calling you evil and encouraging attacks on you is seriously unnerving.

One of the points that we make about this, though, is that while many, many people think it's "easy" to determine which content is "good" and which content is "bad," it's not. The areas of gray are vast and murky. One example we pointed to is that when YouTube was first pressured into taking down terrorist propaganda videos, it resulted in YouTube killing a channel that was documenting atrocities in Syria. Understanding the difference between promoting violence and documenting violence is not easy.

And here's another example. You may have seen the following news clip floating around, involving a Trump-connected Pastor named Robert Jeffress explaining on a news program why the Bible says it's okay to assassinate Kim Jong Un and go to war with North Korea.

That video clip is all over the news this week and can be found all over the internet. The copy I'm posting above is from Twitter, but I'm sure it can be found elsewhere as well. But what if, instead of an evangelical pastor, that statement were coming from a Muslim cleric, and instead of North Korea and Kim Jong Un it talked about America and Donald Trump? Would it still be all over social media, or would people be demanding that the internet take it down?

And this question applies no matter what you think of the video above. I'm not making a statement one way or the other on the content of it, even if I have an opinion about that. My point is simply that when we demand that platforms pull down "radical" content pushing for "violent extremism," it's really, really difficult to distinguish between the video above and some of what, say, ISIS releases.

This is a point that I think frequently gets lost in these discussions. People think that it's easy to tell what's "bad" because it's easy for them to determine what is bad in their opinion or bad to them. But setting up general rules that scale across an entire platform is almost impossible. And even if you argue that the context of this video is different from my Muslim cleric example, you're only helping to make my point. Because that would mean that anyone reviewing the video to determine if it stays up or down would have to become knowledgeable in the overall context -- which in this case could require understanding centuries of global religious views and conflicts. I'm sorry, but Facebook, YouTube, Twitter and everyone else can't hire thousands of PhDs in all related fields to review these videos (within hours) with the level of understanding and context necessary to make a judgment call on each and every one.

None of this is to say that the platforms need to leave everything up (or take everything down). But if you're going to require platforms to police content, you need to at least recognize that any "rules" on this stuff will lead to rules you don't like. Rules that say a Muslim cleric's call for war on America is not allowed will almost certainly lead to the video above also not being allowed. Maybe some people are comfortable with neither being allowed, but the situation sure gets tricky quickly...

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Posted on Techdirt - 10 August 2017 @ 3:02pm

Court Sends John Oliver, HBO Back To State Court To Fight Bob Murray

from the what-an-odd-footnote dept

Second Bob Murray post in a day? Second Bob Murray post in a day! It would appear that the whole ACLU amicus brief side show will remain a side show. The federal district court has sent the case back to state court where it originated. We had written about HBO moving the case to federal court and (correctly) predicted that Murray would likely try to have it sent back to state court, but (incorrectly) predicted that it wouldn't work.

Just as background: in many cases, defendants want these cases in federal court because of the general belief (and you can debate whether this is accurate or not) that federal court judges are more sophisticated in understanding legal issues than their state court counterparts. This can be a little unfair to state judges (and a little too nice to some federal judges), but the general rule of thumb is if you have a strong case, it's better to be in federal court. But, this case is moving back to state court over lack of "diversity." I'll leave it to lawyers to offer a more complete explanation of diversity, but the short layman's version is that it's basically about whether or not the parties are in different states. If they are, you can move to federal court. If they aren't, you're in state court. As we explained, HBO/John Oliver had tried to argue that Murray's inclusion of various West Virginia companies that he owned was a fraudulent attempt to avoid diversity rules, as those companies weren't really mentioned in Oliver's piece. Murray and Murray Energy are based in Ohio. Oliver and HBO are based in NY.

However, here the court finds that it was proper for Murray to include the various West Virginia coal mining companies he owns as plaintiffs.

The Plaintiff Corporations in question were, therefore, properly joined, and the case should be remanded to state court. First, Mr. Murray is the CEO and director of each of the Plaintiff Corporations and is listed as the controller of the mines owned by those corporations. Not only is Mr. Murray heavily interrelated with these corporations in a formal business sense, but a reasonable person who knows of Mr. Murray, especially in West Virginia or another coal state, would find it nearly impossible to separate Mr. Murray from his corporations and mines. With such a strong interrelationship between Mr. Murray and the Plaintiff Corporations, defamatory statements made about Mr. Murray in his professional capacity may be easily seen as negatively implicating the operation of his corporations.

The court admits that the statements by Oliver were about Murray himself, and not his companies, but says the two are so closely identified with one another that it doesn't matter for this purpose. Also some of the comments Oliver made, while about Murray, were specifically about actions at Murray-owned companies.

The allegedly defamatory statements made about Mr. Murray did refer to him in his professional capacity. First, the Crandall Canyon Statement refers to a collapse at a mine Mr. Murray chaired and operated regarding the cause of the collapse. Second, The Black Lung Statement refers to Mr. Murray in his professional capacity because his decisions regarding Black Lung regulation would be made as the chairman and operator of the mines. The alleged “character assassinations” of Mr. Murray, including the Geriatric Dr. Evil Statement, refer to Mr. Murray in his capacity as a private individual because they bear no relation to his professional conduct. However, because the interrelationship between Mr. Murray and the Plaintiff Corporations is so strong, it is possible that those comments may defame the corporations if it was determined that the comments discredited the way the Plaintiff Corporations were operated. The Crandall Canyon statement implies that the Plaintiff Corporations are run by a dishonest figure, while the Black Lung statement implies a lack of care for the safety of Mr. Murray’s employees. Even without the character statements, there would be sufficient cause for the Plaintiff Corporations to have a possible chance of success in a defamation action based on comments made about Mr. Murray

Random aside: for reasons that I do not understand, in the midst of the above paragraph the court adds a footnote explaining Dr. Evil in much greater details than seems necessary.

1 For those who might not be familiar, Dr. Evil, whose real name is Douglas Evil Powers, gained notoriety as the villain of the Austin Powers film franchise. He is a parody of Ernst Stavro Blofeld, a nemesis of James Bond. Along with his cat, Mr. Bigglesworth, a colorful supporting entourage, and a plethora of secret lairs, Dr. Evil made several attempts at taking over the world, before ultimately finding redemption by the end of the final film.

First: SPOILER ALERT. And second, I mean, sure. That's a decent summary (and I must admit I don't remember Dr. Evil even having a real name, but it's been a while since I've seen the films), but I'm not sure why this footnote is necessary in a straightforward decision to remand. Almost feels like the judge wanted to get in something oddly humorous in such a weird case.

But back to the meat of the ruling. The court says that since the statements could defame the companies in West Virginia and (whoops...) HBO and those West Virginia coal companies are incorporated in Delaware, there's no diversity jurisdiction to move the case to federal court:

Defendants’ primary contention is that the Plaintiff Corporations were not properly joined because the defamatory statements were not of and concerning the corporations, giving the corporations no possibility of asserting a right to relief. As discussed herein, this Court finds that defamatory statements made about an executive of a business may be sufficient to defame his business where the statement was made about the individual in his professional capacity and reflects negatively on the operation of the business. Therefore, the Plaintiff Corporations may have been defamed by statements made about Mr. Murray, giving them a possibility of success in this action as set forth by Ashworth, 395 F.Supp.2d at 403. Because the Plaintiff Corporations have this possibility of success, they were properly joined. This joinder destroys the diversity jurisdiction, which would have allowed a removal to this Court because the Plaintiff Corporations and Home Box Office, Inc. are all incorporated in Delaware. Therefore, this action should be remanded to state court.

All in all, a pretty straightforward decision on remanding -- and, of course, it makes no statement on the merits (or lack thereof) of the actual defamation claims. This is probably not a big deal in the overall case, as Oliver/HBO's argument is much, much stronger when it comes to whether or not his statements were defamatory (as the ACLU so nicely explained in their now-irrelevant amicus brief), but it is at least something of a setback for Oliver and HBO. And, in case you're wondering, the 4th Circuit (where this is) does not tend to allow remand orders like this to be appealed. So they're likely stuck in state court. That's a bit of a hassle for Oliver/HBO, and a bigger annoyance for reporters like myself who do have access to federal court records while state court records in West Virginia are (annoyingly) not so easy to access.

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Posted on Free Speech - 10 August 2017 @ 10:37am

ACLU Sues DC Metro For Banning 'First Amendment' (Literally) And Other Controversial Content

from the strange-bedfellows dept

Free speech can make for some strange bedfellows at times, and the ACLU certainly has a history of defending the free speech rights of people from across the political spectrum (and out to the extremes). The ACLU's willingness to defend just about anyone's free speech rights sometimes confuses people who incorrectly think that free speech should only be protected for people you agree with. The most famous example of the ACLU's willingness to protect the free speech rights of those that they themselves likely disagree with is the famous case in which it defended the right of the KKK to march in Skokie, Illinois. But the ACLU may have just filed a new case that people can point to -- as they seem to have collected plaintiffs from different extremes of the political spectrum, all suing over the DC Metro's refusal to accept their controversial ads. In this case, the ACLU is representing "I just want to seem so controversial" Milo Yiannopoulos's company Milo Worldwide, as well as PETA (you know who they are) and Carafem (a healthcare organization that helps women get birth control and abortions). Oh, and themselves.

The defendant is the Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro. The issue is that all four organizations sought to purchase "controversial" ads for the Metro, and all were rejected. Let's start with the ACLU's own ad, because this one is the most ridiculous of all. The ACLU tried to buy an ad that was just... the First Amendment. Really. No joke.

Doesn't seem very controversial, right? Well, according to the ACLU, this ad was rejected for trying to "influence public policy."

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nation’s capital. But it was not to be: Our ad was rejected because WMATA’s advertising policies forbid, among many other things, advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.”

Quoting the Constitution might influence public policy? I mean, sure, but wouldn't it influence it in a way that is, well, Constitutional?

The other three ads were all more "traditionally" controversial, even if they might be controversial to very different groups of people. Carafem's ad was rejected because it mentioned abortion. PETA's ad was rejected because it told people to "go vegan." And Milo's ad was rejected after people complained about it (yes, they were originally put up, but then pulled).

As the ACLU summarizes:

The ideas espoused by each of these four plaintiffs are anathema to someone — as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATA’s policy is an attempt to silence anyone who tries to make you think. Any one of these advertisements, had it passed WMATA’s censor, would have been the subject of someone’s outraged call to WMATA.

So, to anyone who’d be outraged to see Mr. Yiannopoulos’ advertisement — please recognize that if he comes down, so do we all. The First Amendment doesn’t, and shouldn’t, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, it’s a real shame that WMATA didn’t accept the ACLU’s advertisement — the agency could really have used that refresher on the First Amendment.

As for the actual lawsuit, there are a series of First Amendment claims about why the activity is unconstitutional (viewpoint discrimination, unfettered discretion, unreasonable application) and a Fifth Amendment due process claim for vagueness in the policy. The exhibits also contrast the rejected ads with ads that were allowed -- including ones for joining the military, drinking beer, other medical procedures, hookup apps and (of course) edible meats. All in all a pretty solid case.

And we've already seen some people bitching about the ACLU representing any of these folks -- and you can count me among those who isn't a fan of PETA (have you seen what I've written about those guys?) and who hates giving Milo any attention at all, since that's basically all he wants (see what I put myself through to get you stories?). I don't know anything about Carefem, but I'm sure some people hate them too because "abortion." But I appreciate the fact that there's an ACLU that will stand up for all of their free speech rights (and its own).

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Posted on Free Speech - 10 August 2017 @ 8:53am

Fox News Host Files SLAPP Suit Against Reporter Who Exposed His Sexting

from the never-a-dull-moment dept

Another day, another SLAPP suit -- but, unfortunately, not much in the way of an anti-SLAPP law to protect against it. As you may have heard recently, Fox News host Eric Bolling was recently suspended by the channel after Yashar Ali reported in the Huffington Post that Bolling had sent "lewd" texts to colleagues at the station, including the ever popular dick pic "unsolicited photo of male genitalia via text message." Earlier this week, Bolling announced that he looked forward to clearing his name and apparently he's decided to do that by... suing the reporter Yashar Ali for $50 million.

We don't have the full complaint, but Ali has received a summons, which gives us some information. The notice part reads:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant's efforts to injure plaintiff's reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff's conduct and character. As a result of the defendant's action, the plaintiff has been substantially harmed.


The relief sought includes, but is not limited to, reputational damages, monetary damages, special damages, punitive damages, costs, fees, injunctive relief and such other relief as is just and proper, in an amount not less than $50 million.

A few important things here. The lawsuit is filed in New York state court, not federal court, and it may stay there as both Bolling and Ali appear to be in the state. As we've noted many times in the past, New York has an embarrassingly weak anti-SLAPP law, something it should really work on fixing (being the "media capital of the world" and all...). Also of note: Bolling is targeting Ali directly and not the Huffington Post, which published his article, or any of the layers of parent companies for HuffPo: AOL and Verizon. It is likely Ali does not have $50 million, though I'm pretty sure that those other companies do. Not that they should or would pay -- but if Bolling is truly seeking $50 million, you'd think he'd target the companies with the actual money, rather than the lowly reporter. The targeting of the reporter alone certainly adds weight to the idea that this is a pure SLAPP suit, targeting a reporter and trying to silence him.

Ali, for his part, stands by his reporting and promises not to be intimidated:

Huffington Post has said it also stands by Ali's reporting, and has "no hesitation" about standing by him financially in the lawsuit, further pointing out that he had a fairly astounding 14 sources for his story. It is true that if the claims were entirely made up they likely would qualify as defamatory, but with that many sources, proving they were made up is not going to be easy. Of course, if the point of the lawsuit is just to create a massive hardship for Ali, that part doesn't matter. And without an anti-SLAPP law to make the plaintiff pay the legal fees, such cases can be overwhelming.

One other element of this is that Bolling's lawsuit might serve another purpose: scaring anyone else (beyond the 14 who have already spoken) from speaking out about potential misdeeds for fear of having that info come out in a lawsuit. That's a separate form of chilling effects created by these kinds of lawsuits, and a problem in and of itself.

It seems quite likely that Ali will seek to have the case tossed out as early as possible, but if it actually goes to discovery, well... I'm not sure Bolling will enjoy opening himself up to that. When people get angry over coverage, filing a defamation lawsuit often is their instinctual reaction -- but it can certainly backfire.

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Posted on Techdirt - 10 August 2017 @ 5:47am

Bob Murray To Court: The ACLU Is Too Biased To File Its 'Eat Shit, Bob' Brief

from the eat-shit-bob dept

As you likely recall, last week the ACLU of West Virginia asked the federal court handling the very upset coal boss Bob Murray's defamation lawsuit against comedian John Oliver to allow it to file a hilarious amicus brief explaining (among other things) why it was perfectly legal to say "Eat shit, Bob." As we noted at the time, it is a very funny filing, but we weren't sure the court would allow it for a whole variety of reasons. And thus it's no surprise that Murray's lawyers are opposing the motion -- but we didn't expect that their opposition would be quite so ridiculous. There are lots of normal arguments they could make, including no need for an amicus brief at this point, or pointing out that the amicus arguments are likely to be simply duplicative of HBO/John Oliver's arguments, but... Murray's lawyers went a bit further. Apparently, they don't want the ACLU weighing in, because it has an opinion.

More troubling, the ACLU fails to disclose its indisputable and disqualifying bias, notwithstanding that several district courts have noted that impartiality is a key factor to consider when evaluating whether to permit a non-party to serve as amicus curiae.

But, uh, most amicus briefs have a bias that supports one side or the other. They just add to the overall record, often providing different perspectives on the issues, or offering an alternative way of looking at the issues. Nothing says that amicus briefs need to be totally neutral.

It's no surprise that Murray's lawyers attack the "tone" of the ACLU's brief. Indeed, it wouldn't surprise me if the tone alone makes the judge reject it. But, even here, Murray's lawyers' reasoning is... weird. They argue that the tone shows that the ACLU of West Virginia can't be an amicus.

From the tone of its brief alone, it is obvious that the ACLU is not a "friend of the court" offering a dispassionate view of the issues.

And then they claim that the ACLU is only supporting John Oliver because he once, many months ago, urged people to donate to various organizations, some of which may have helped the ACLU:

Moreover, the ACLU's economic motivations for assisting Defendants and its prejudice against Plaintiffs are a matter of public record. As for its economic interests, in November of 2016, Defendant Oliver used "Last Week Tonight with John Oliver" to encourage viewers to donate to numerous left-leaning organizations, which—not surprisingly—resulted in an immediate surge of millions of dollars in donations to the ACLU, among others. See Exhibit A and Exhibit B hereto. Another subsidiary of Defendant Time Warner furthered the effort to add to the ACLU's coffers by reporting on Oliver's call for donations the next day. See Exhibit C hereto. Consequently, the ACLU's statement in the Motion that "no party, party's counsel, or other person…contributed money intended to fund preparing or submitting the brief" lacks appropriate and complete disclosure.

Oh come on. The idea that the ACLU is weighing in because John Oliver and other Time Warner properties once encouraged donation is ludicrous.

If I had to guess, I'd say that the court will simply reject the amicus brief as being unnecessary and unwanted at this stage, but the arguments from Murray's lawyers continue to make me wonder where he found these guys.

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Posted on Techdirt - 9 August 2017 @ 3:58pm

Complaint Filed Over Sketchy VPN Service

from the deceptive-trade-practices dept

VPNs are important... for some situations. Unfortunately, the message that many have received in hearing about the importance of VPNs is that they somehow "protect your privacy." But that's always been wrong. They just move the privacy questions somewhere else. And sometimes it's a sketchy place. A few months back we discussed this very issue with some security experts on our podcast. All VPNs do is create a secure tunnel from where you are to somewhere else. That's useful if you don't want other people sitting in the Starbucks with you to pick up your unencrypted traffic (or other people in your hotel on the hotel WiFi), but it doesn't solve anything on larger privacy questions. The always excellent SwitfOnSecurity summed it up nicely recently:

Basically, you're just moving the risk elsewhere, and you're trusting whoever your VPN provider is -- and they may very well be worse than whatever it is you're trying to avoid. The specific use case that's almost never recommended is using a VPN on your home network (with a few specific exceptions). You may not trust Comcast/AT&T/whatever, but they may actually be a lot more serious about protecting you than a fly-by-night VPN provider.

But with so many VPN providers out there, it's not always clear how legit they are, and there certainly have been rumors and complaints about some of them. Now, the Center for Democracy and Technology (CDT) has filed an FTC complaint against one of the more well known VPN providers, Hotspot Shield VPN. You can read the short complaint yourself, but the short version is CDT says that Hotspot Shield VPN makes claims about privacy that are... not accurate, and argues that these are deceptive trade practices.

Hotspot Shield makes strong claims about the privacy and security of its data collection and sharing practices. CEO David Gorodyansky has stated that “we never log or store user data.” The company’s website promises “Anonymous Browsing” and notes that Hotspot Shield keeps “no logs of your online activity or personal information.” Hotspot Shield further differentiates itself from “...disreputable providers [that] are able to offer free VPN services [ ] because they make their money tracking and selling their users’ activities” by claiming that “Hotspot Shield neither tracks nor sells customers’ information.”

Take a wild guess what's coming next...

While connection logs can be designed to be minimally privacy-invasive, Hotspot Shield engages in logging practices around user connection data, beyond troubleshooting technical issues. The service uses this information to “identify [a user’s] general location, improve the Service, or optimize advertisements displayed through the Service.” IP addresses, unique device identifiers, and other “application information” are regularly collected by Hotspot Shield.

And then this:

While insisting that it does not make money from selling customer data, Hotspot Shield promises to connect advertisers to unique users that are frequent visitors of travel, retail, business, and finance websites. Moreover, these entities have access to IP addresses and device identifiers collected via Hotspot Shield. Even if Hotspot Shield only provides “hashed” or “proxy” IP addresses to these partners, third parties can also link information about web-viewing habits while using the Hotspot Shield by cross-referencing cookies, identifiers, or other information.

And more:

Contrary to Hotspot Shield’s claims, the VPN has been found to be actively injecting JavaScript codes using iframes for advertising and tracking purposes. An iframe, or “inline frame,” is an HTML tag that can be used to embed content from another site or service onto a webpage; iframes are frequently used to insert advertising, but can also be used to inject other malicious or unwanted code onto a webpage.

Further analysis of Hotspot Shield’s reverse-engineered source code revealed that the VPN uses more than five different third-party tracking libraries, contradicting statements that Hotspot Shield ensures anonymous and private web browsing.

But, wait, there's more...

Additional research has revealed that Hotspot Shield further redirects e-commerce traffic to partnering domains. For example, when a user connects through the VPN to access specific commercial web domains, including major online retailers like and , the application can intercept and redirect HTTP requests to partner websites that include online advertising companies.

And just one more thing...

Consumers have reported instances of credit card fraud after purchasing the “Elite” paid-version of Hotspot Shield VPN. One consumer reported “thousands of dollars” in credit card charges, as well as other suspicious online activity.

There's even more in the complaint, but those are some highlights. CDT claims that these are deceptive trade practices. Of course, the FTC doesn't need to do anything here. Such a complaint is basically asking the FTC to investigate and do something, and the FTC doesn't always do so. But at the very least, it may wake some people up about being careful which VPNs they use.

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Posted on Techdirt - 9 August 2017 @ 10:41am

Facebook, Twitter Consistently Fail At Distinguishing Abuse From Calling Out Abuse

from the the-wrong-approach dept

Time and time again, we see that everyone who doesn't work in the field of trust and safety for an internet platform seems to think that it's somehow "easy" to filter out "bad" content and leave up "good" content. It's not. This doesn't mean that platforms shouldn't try to deal with the issue. They have perfectly good business reasons to want to limit people using their systems to abuse and harass and threaten other users. But when you demand that they be legally responsible -- as Germany (and then Russia) recently did -- bad things happen, and quite frequently those bad things happen to the victims of abuse or harassment or threats.

We just wrote about Twitter's big failure in suspending Popehat's account temporarily, after he posted a screenshot of a threat he'd received from a lawyer who's been acting like an internet tough guy for a few years now. In that case, the person who reviewed the tweet keyed in on the fact that Ken White had failed to redact the contact information from the guy threatening him -- which at the very least raises the question of whether or not Twitter considers threats of destroying someone's life to be less of an issue than revealing that guy's contact information, which was already publicly available via a variety of sources.

But, it's important to note that this is not an isolated case. In just the past few days, we've seen two other major examples of social media platforms banning or punishing the victims of harassment and abuse for posting about it, rather than the perpetrators. The first is the story of Francie Latour, as told in a recent Washington Post article, where she explains how she went on Facebook to vent about a man in a Boston grocery store loudly using the n-word to describe her and her two children, and Facebook's response was to ban her from Facebook.

But within 20 minutes, Facebook deleted her post, sending Latour a cursory message that her content had violated company standards. Only two friends had gotten the chance to voice their disbelief and outrage.

The second story comes from Ijeoma Oluo, who posted to Medium about a strikingly similar situation. In this case, she made what seems to me to be a perfectly innocuous joke about feeling nervous for her safety as a black woman in a place with many white people. But a bunch of rabid angry people online got mad at her about it and start sending all sorts of abusive tweets and hateful messages to her on Facebook. She actually says that Twitter was pretty good at responding to reports of abusive content. But, as in the Latour story, Facebook responded by banning Oluo for talking about the harassment she was receiving.

And finally, facebook decided to take action. What did they do? Did they suspend any of the people who threatened me? No. Did they take down Twitchy’s post that was sending hundreds of hate-filled commenters my way? No.

They suspended me for three days for posting screenshots of the abuse they have refused to do anything about.

That, of course, is a ridiculous response by Facebook. And Oluo is right to call them out on it, just as Latour and White were right to point out the absurdity of their situations.

But, unfortunately, the response of many people to this kind of thing is just "do better Facebook" or "do better Twitter." Or, in some cases, they even go so far as to argue that these companies should be legally mandated to take down some of the content. But this will backfire for the exact same reason that these ridiculous situations happened in the first place. When you run a platform and you need to make thousands or hundreds of thousands or millions of these kinds of decisions a day, you're going to make mistakes. And that's not because they're "bad" at this, it's just the nature of the beast. With that many decisions -- many of which involve people demanding immediate action -- there's no easy way to have someone drop in and figure out all of the context in the short period of time they have to make a decision.

On top of that, because this has to be done at scale, you can't have a team that is all skilled in understanding context and nuance and culture. Nor can you have people who can spend the necessary time to dig deeper to figure out and understand the context. Instead, you end up with a ruleset. And it has to be standardized so that non-experts are able to make judgments on this stuff in a relatively quick timeframe. That's why about a month ago, there was a kerfuffle when Facebook's "hate speech rule book" was leaked, and it showed how it could lead to situations where "white men" were going to be protected.

And when you throw into this equation the potential of legal liability, a la Germany (and what a large group of people are pushing for in the US), things will get much, much worse. That's because when there's legal liability on the line, companies will be much faster to delete/suspend/ban, just to avoid the liability. And many people calling for such things will be impacted themselves. None of the people in the stories above could have reasonably expected to get banned by these platforms. But, when people demand that platforms "take responsibility" that's what's going to happen.

Again, this is not in any way to suggest that online platforms should be a free for all. That would be ridiculous and counterproductive. It would lead to everything being overrun by spam, in addition abusive/harassing behavior. Instead, I think the real answer is that we need to stop putting the burden on platforms to make all the decisions, but figure out alternative ways. I've suggested in the past, that one possible solution is turning the tools around. Give end users much more granular control about how they can ban or block or silence content they don't want to see, rather than leaving it up to a crew of people who have to make snap decisions on who's at fault when people get angry online.

Of course, there are problems with my suggestion as well -- it could certainly accelerate the issues of self-contained bubbles of thought. And it could also result in plenty of incorrect blocking as well. But the larger point is that this isn't easy, and every single magic bullet solution has serious consequences, and often those consequences fall on the people who are facing the most abuse and harassment, rather than on those doing the abuse and harassment. So, yes, platforms need to do better. The three stories above are all ridiculous, and ended up harming people who were highlighting harassing behavior. But continuing to rely on platforms and teams of people to weed out content someone deems "bad" is not a workable solution, and it's one that will only lead to more of these kinds of stories.

And, worst of all, the abusers and harassers know and thrive on this. The guy who got Ken White's account banned gloated about it on Twitter. I'm sure the same was true of the folks who went after Oluo and likely "reported" her to Facebook. Any time you rely on the platform to be the arbiter, remember that he people who want to harass others quickly learn that they can use that as a tool for further harassment themselves.

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Posted on Techdirt - 9 August 2017 @ 6:00am

Techdirt: Now With More Free Speech Reporting

from the don't-count-us-out dept

As you are likely aware, we are currently facing a First Amendment fight for our life. I've spoken about the chilling effects the lawsuit has been having on our reporting -- but also have noted that we are trying to be inspired by this situation to focus more of our reporting efforts on attacks on free speech online, and to tell the stories of those who they're impacting most. As you may recall, we have already launched the crowdfunding site ISupportJournalism.com to support our ability to continue reporting on these issues, and I'm happy to announce today that we've further partnered with the Freedom of the Press Foundation and a group of other companies and organizations to fund more free speech reporting, which will now be included under a new "free speech" tab on the site. Attacks on free speech have been growing, not shrinking, and we need to shine much more light on these attacks, and we're thrilled to be able to do as much as we can. Our official announcement of the program is here:

For nearly two decades, Techdirt has reported extensively on issues related to free speech on the internet. Much of this coverage has been about laws that help to protect free speech, such as anti-SLAPP laws, intermediary liability protections, and fair use, among others. Over time, we’ve seen countless attempts to silence speech and undermine important protections for free speech, even as new technologies and services have risen up to provide more arenas for free speech to thrive. These attacks on free speech — including lawsuits, threats, bullying, and legislative proposals — raise serious concerns about protecting free speech online.

In January of this year, the company behind Techdirt, and two of its employees, were sued for $15 million in a lawsuit that seems specifically designed to either shut down the company or to silence reporting on matters of public interest.

The lawsuit, along with our reporting on many similar stories, motivated the Techdirt team to double down on our coverage of issues related to free speech on the internet, and the ways that it is being attacked. Going through the process ourselves has given us an even deeper appreciation for the First Amendment and the legal protections provided in states with strong anti-SLAPP laws. Similarly, we are more aware than ever before of the myriad ways in which free speech is under attack — not just directly, but indirectly as well, such as via threats against third parties and platforms to stifle speech.

It has also given us greater recognition that many people — even journalists, lawyers and politicians — may not fully understand these issues, what legal protections there are, where those protections are under attack, and where they could be strengthened. Many are also not aware of the massive cost attacks on free speech have, and just how many people they are impacting.

This has inspired us to work with the Freedom of the Press Foundation to put this project together, which will enable us to focus even more reporting resources on covering threats to free speech in the US and around the globe, and to tell the stories of the chilling effects created when free speech is attacked. We are thankful that a number of prominent organizations and foundations have also stepped up to sponsor this effort, including Automattic, the Charles Koch Foundation, Craig Newmark's CraigConnects and Union Square Ventures*. Between all supporting organizations, more than $250,000 has been committed so far to further reporting on free speech. We hope you’ll look forward to much more reporting on issues related to free speech online.

* Techdirt maintains full editorial control over all content.

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Posted on Techdirt - 8 August 2017 @ 6:43pm

Appeals Court Agrees: Awful Patent Used To Shake Down Podcasters Is Invalid

from the good-news dept

Hey, a bit of good news! For years now we've covered the saga of Personal Audio, the "company" that claimed it held a patent (US Patent 8,112,504) that covered podcasting itself. The actual patent is about delivering news on audio cassettes, but give lawyers enough old patents and they'll twist them to be about anything. The company sent threat letters to a bunch of popular podcasts, and actually sued a few. EFF filed to invalidate the patent back in 2013 and finally succeeded in 2015. But... Personal Audio appealed.

But the company won't be getting what it wants, as the Court of Appeals for the Federal Circuit (CAFC) has gotten this one right: it's sided with EFF and said that the patent is invalid.

EFF had filed what's known as an Inter Partes Review (IPR) process, pointing out some prior art and arguing "obviousness" as well, and the Patent Office review board had agreed. Personal Audio tried to argue that the Patent Trial and Appeal Board (PTAB) misconstrued some of its claims, but the court notes that they're the freaking patent office, and they can construe claims however they want. Well, that's not quite how it was put, but:

The PTAB is authorized to construe the claims in accordance with their broadest reasonable interpretation...

It then goes through and affirms all of how PTAB construed the various claims, saying they are perfectly reasonable constructions and then concludes, simply:

We have considered all of Personal Audio’s arguments, and affirm the PTAB’s conclusion that the challenged claims are anticipated by the Patrick/CBC reference, and alternatively that the claims are invalid as obvious in view of the Compton/CNN reference.

And thus, the patent is still invalid. Personal Audio can appeal to the Supreme Court (which seems unlikely to take such a straightforward case), but EFF says it's ready if it does go that far:

“Although we’re happy that this patent is still invalid, Personal Audio could seek review at the Supreme Court,” said Vera Ranieri, Staff Attorney at EFF. “We’ll be there if they do.”

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Posted on Techdirt - 8 August 2017 @ 3:11pm

Section 230 Matters. Congress Needs To Be Reminded Of That

from the it-really-does dept

If you represent a tech company, please consider signing our letter to Congress from tech companies about concerns regarding the latest attempt to dismantle Section 230 of the CDA in a manner that will be completely counterproductive to the stated goals of the bill. Sex trafficking is an incredibly serious issue, and we support efforts by law enforcement and various groups to fight it -- but we are greatly concerned that the approach being put forth here will actually be counterproductive to that goal, and create numerous other problems.

As we've discussed over the past week, Congress has launched a highly questionable attempt to modify Section 230 of the CDA, ostensibly as an effort to takedown Backpage (ignoring (1) that they already passed another law two years ago targeting Backpage and then never used it (2) that the DOJ is already able to go after Backpage if it broke the law and may be investigating the company as we speak and (3) that Backpage has already shut down its adult section), but which will actually create havoc for basically the entire internet. It will do a variety of damaging things, including opening up every tech platform to frivolous lawsuits from individuals and fishing expeditions from states Attorneys General, if anyone uses any part of a platform in a manner that touches on sex trafficking. We've already discussed how the bill could kill Airbnb, for example.

But, really, the worst part of the bill is that it's entirely counterproductive. The tech industry may not be experts in trafficking, but we now have decades of experience dealing with what happens when you blame platforms for the actions of their users -- and the bill here won't help deal with trafficking, but could make a bad problem worse. CDA 230 works by encouraging platforms to moderate their content, by making sure that any attempts to moderate don't make the platform liable for the actions of users. This enables platform companies to freely monitor usage and manage their platforms responsibly. But under the new bill, should it become law, any "knowledge" of trafficking activity using the platform puts the platform itself at risk of violating both civil and criminal law. As such, any monitoring behavior is likely to be used against the platform. This only incentivizes companies to take a total "hands-off" approach to policing their own platform. And this is doubly ridiculous because the tech industry has worked closely with law enforcement over the years to combat trafficking, creating a variety of tech platforms and using big data to help find, target and stop trafficking. But under this bill, participating in those programs very likely will be used against these platforms. And this would be a real tragedy as it could lead to more trafficking, rather than less.

And, on top of that, as we saw when Craigslist was targeted in the past and trafficking just moved over to Backpage, the trafficking will continue and will move to platforms less interested in working with law enforcement (perhaps overseas platforms). The end result: (1) doesn't stop trafficking, (2) pushes tech companies not to cooperate for fear of greater liability and (3) creates massive other problems for those tech companies in the way of increased liability and frivolous lawsuits. It's a bad idea on nearly every front.

Mike Godwin has summarized the problems of the bill nicely with the following analogy:

... the bill would be as if Congress decided that FedEx was legally liable for anything illegal it ever carries, even where it’s ignorant of the infraction and acts in good faith. That would be a crazy notion in itself, but rather than applying only to FedEx's tech equivalents—the giants like Google and Facebook—it also would apply to smaller, less well-moneyed services like Wikipedia. Even if the larger internet companies can bear the burden of defending against a vastly increased number of prosecutions and lawsuits—and that’s by no means certain—it would be fatal for smaller companies and startups. Amending Section 230's broad liability protection for internet service providers would expand the scope of criminal and civil liability for those services in ways that would force the tech companies to drastically alter or eliminate features that users have come to rely on. It could strangle many internet startups in their cribs.

Because of all of this, our think tank organization, the Copia Institute, teamed up with our friends at Engine to put together an open letter from tech companies to Congress about this bill. We've put it up at 230matters.com. Some great tech/internet companies have already signed onto the letter, including Reddit, GitHub, Cloudflare, Medium, Automattic, Rackspace, Tucows and more. We'll be sending a second version of the letter in a few weeks, so if you represent a tech/internet company and have the authority to do so, you can sign the letter on that site (if you work at such a company and don't have the authority, please forward this to someone who does...). We all support the larger goal of stopping sex trafficking, but as these tech companies know all too well, this bill will actually harm that goal by making it harder for the companies to help in that process.

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Posted on Techdirt - 8 August 2017 @ 9:29am

Canadian Telcos Lose Their Goddamn Minds Over TVAddons

from the wtf? dept

For years, we've expressed general bewilderment at the practice in British Commonwealth countries to effectively allow private search warrants, which are given to non-government private parties, engaged in civil infringement cases, to effectively break down other people's doors and dig through their stuff. We've discussed such "Anton Piller" orders in Australia and the UK. And, apparently they apply in Canada too.

And that leads us to the craziest damn story you'll ever read about a bunch of private companies losing their freaking minds over something they believe is infringing. In this case, it's the site TVAddons, which is a site that links to various Kodi software add-ons. Kodi, if you're unaware, is open source home theater software (it was originally the Xbox Media Center, XBMC, but has expanded since then). It's quite popular and an easy way to use a device with Kodi to turn your TV into a smart TV. There are tons of perfectly legitimate and non-infringing uses for Kodi, and a variety of sources of "Kodi boxes" that allow people to make use of the features and to install a variety of useful apps -- such as adding YouTube or Netflix to your TV. Admittedly, there are some add-ons that allow users to access infringing content, though even those add-ons are just really linking to content stored openly and available online.

Still, in the last few years, the entertainment industry has completely lost its shit about Kodi boxes and the ability to use them to infringe. And more than a few sites involved in the space have been targeted. Recently, Dish Network sued TVAddons, a site that aggregates a bunch of Kodi add-ons. However, around the same time, it appears that up in Canada, all the big TV providers went absolutely insane. Bell Canada, TVA, Videotron and Rogers all not only sued TVAddons, but got an Anton Piller order allowing those companies (not police) to raid the home of the guy behind TVAddons, Adam Lackman. For fairly obvious reasons, the process of getting an Anton Piller order is one-sided. There is no adversarial process, because the other side isn't alerted beforehand that someone's trying to get an order allowing them to conduct a surprise raid to grab evidence.

The story of what happened next, first chronicled by Torrentfreak and the CBC is absolutely astounding.

And while a court eventually realized that these companies massively abused the Anton Piller process to effectively interrogate, intimidate, and hold Lackman hostage without legal representation, it came way too late -- and after they'd walked off with a bunch of his stuff, including his domains and his social media and email accounts and passwords. The story is shocking in its overreach. And, let's be clear here: the vast majority of the content on TVAddons is perfectly legal. As the court eventually pointed out, out of 1,500 add-ons, only 22 were found to be infringing. This was not a den of piracy. So keep that in mind as you read what happened. From Torrentfreak:

On June 12, the order was executed and Lackman’s premises were searched for more than 16 hours. For nine hours he was interrogated and effectively denied his right to remain silent since non-cooperation with an Anton Piller order amounts to contempt of court. The Court’s stated aim of not intimidating Lackman failed.

The TVAddons operator informs TorrentFreak that he heard a disturbance in the hallway outside and spotted several men hiding on the other side of the door. Fearing for his life, Lackman called the police and when they arrived he opened the door. At this point, the police were told by those in attendance to leave, despite Lackman’s protests.

Once inside, Lackman was told he had an hour to find a lawyer, but couldn’t use any electronic device to get one. Throughout the entire day, Lackman says he was reminded by the plaintiffs’ lawyer that he could be held in contempt of court and jailed, even though he was always cooperating.

“I had to sit there and not leave their sight. I was denied access to medication,” Lackman told TorrentFreak. “I had a doctor’s appointment I was forced to miss. I wasn’t even allowed to call and cancel.”

In papers later filed with the court by Lackman’s team, the Anton Piller order was described as a “bombe atomique” since TVAddons had never been served with so much as a copyright takedown notice in advance of this action.

I spoke with one of Lackman's lawyers, who told me that Lackman called while this search was happening, only to have the plaintiff's lawyers demand that he hang up and not talk to his lawyer. That's fucked up. Remember, this is not law enforcement. This is not a criminal case. These are private companies ransacking a guy's house and demanding he give up everything and denying him access to his lawyer. They also demanded Lackman give them information on a variety of other people -- and again threatened him with contempt if he didn't comply.

The intent behind Anton Piller cases is to prevent the destruction of evidence. In the US, we seem to deal with this in a more civilized manner -- in which defendants in cases may be alerted to preserve evidence, and failure to do so can lead to significant sanctions (and bad inferences) for "spoliation of evidence." Canada might want to think about adopting something similar.

Eventually, the court realized what a mess this was, vacating the earlier injunction and demanding that the companies return everything that they took. The court realized (again, too late) that the TV companies were using the Anton Piller order not for preservation of evidence, as is required, but for outright interrogation and discovery.

I find the most egregious part of the questioning to be in the independent solicitor’s affidavit, wherein he deposes that counsel for the Plaintiffs ‘provided Defendant Lackman with some names’ of other people who might be operating similar websites. It appears the Defendant was required to associate that list of 30 names with names, addresses and other data about individuals that might have some knowledge or relationship to those names. The list and the responses of the Defendant are found on three complete pages in the exhibits of the independent solicitor’s affidavit. I conclude that those questions, posed by Plaintiff’s counsel, were solely in furtherance of their investigation and constituted a hunt for further evidence, as opposed to the preservation of then existing evidence.

Oh, and also to destroy TVAddons before any actual legal process.

To the Plaintiffs, it mattered not that, by their own estimate, just over 1% of the Add-ons developed by the Defendant were allegedly used to infringe copyright. I therefore conclude that the purpose of the Anton Pillar Order under review was only partly designed to preserve evidence that might be destroyed or that could disappear. I am of the view that its true purpose was to destroy the livelihood of the Defendant, deny him the financial resources to finance a defence to the claim made against him, and to provide an opportunity for discovery of the Defendant in circumstances where none of the procedural safeguards of our civil justice system could be engaged.

Well, no shit. Torrentfreak shows a transcript of the lawyer for the TV companies just flat out admitting that the strategy was to "neutralize" everything.

Justice: And on the next page, paragraph 5, so the experts would deactivate the TV Add-ons domains and sub-domains, so you really want to neutralize the Defendant's operations?

Lawyer for the Plaintiffs: Yeah, completely.

Justice: Completely...

Lawyer for the Plaintiffs: Yeah.

Justice: So it's more than saying you're enjoined of not operating or communicating, you really want to neutralize the guy.

Lawyer for the Plaintiffs: Yeah, completely, that's for sure. Yeah. We use his passwords, we shut down everything, we change the password and we change everything and it cannot be reactivated by him or someone else. That's the goal.

And that's what happened... until the court reversed the order and demanded they give everything back. But... in the meantime, how the hell is that allowed? The raid happened back on June 12th, and Lackman couldn't even talk about it until last week.

Incredibly, after getting slammed by this judge on June 29th, the TV companies appealed and asked to be able to keep all the access to Lackman's stuff. And that's where things are right now. The TV companies get to keep everything and Lackman has nothing... at least until there's a ruling on the appeal, and there won't even be a hearing on that for a few months. Lackman has set up a crowdfunding campaign in the meantime.

This entire story is shocking, but fits within a rather unfortunate theme that we see all too frequently around copyright. Legacy companies assume the absolute worst -- and assume that because there's some infringement somewhere everything must be wiped out and that it's blindingly obvious that they should be allowed to go in and basically destroy everything. It's the same sort of attitude that happened with the ridiculous "raid" on Kim Dotcom's mansion five years ago -- where Hollywood folks had spent so many years hyping up how Dotcom was a Hollywood-style evil villain that, clearly, they needed to bring in the FBI and special forces to raid his house with heavy weaponry and grab everything.

Over and over again, they seem to think that a little copyright infringement happening somewhere means they should now be free to destroy everything. It's quite incredible.

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Posted on Techdirt - 7 August 2017 @ 1:35pm

Kickass Torrents Creator Can't Get Criminal Case Tossed Out

from the moving-onward dept

A year ago, we noted that Kickass Torrents had received the Megaupload treatment, getting hit with criminal charges and having its owner, Artem Vaulin, arrested in a foreign country (in this case, Poland). As we noted in looking over the original complaint, there were some significant concerns (similar to the ones we had with the Megaupload case) concerning whether or not running a service that other people used to infringe could possibly make you guilty of criminal copyright infringement.

The key issue: there is no "secondary liability" concept in criminal copyright law. There is such a thing in civil copyright law, whereby if you're found to be "inducing" copyright infringement (via clear and deliberate statements and steps) you can be found to have to have infringed -- but that's not the case for criminal law. The case against Vaulin (as with Kim Dotcom) tried to get around this by arguing a few different things, which we'll discuss below. Vaulin is fighting extradition in Poland, but in the meantime, had asked the federal court in Illinois to drop the case already, due to the failure to show actual criminal infringement by Vaulin.

Such an effort was always going to be at least something of a long shot, as courts will tend to give a lot of deference to the DOJ, and now Judge John Lee has rejected the request (as was first reported by the Hollywood Reporter).

The first issue the judge had to review was whether Vaulin could even bring his motion in the first place. The DOJ, playing hardball, argued that because Vaulin was fighting extradition to a country that he was not from and had no connection to, he shouldn't be allowed to make any motions in court under the "fugitive disentitlement doctrine" (again, there are similarities here to the DOJ declaring Kim Dotcom a fugitive for fighting extradition -- but that was in a separate effort to get to keep all of Dotcom's assets). As the name suggests, "fugitive disentitlement doctrine" says that those who are running from the law can't show up in court to make their arguments. And... that makes some amount of sense for actual "fugitives" who are hiding and no one knows how to find them. But that's an entirely different situation when you're fighting against extradition to a country you have no connection to.

Unfortunately, the court agrees with the DOJ that the fugitive disentitlement doctrine can apply here, and thus Vaulin's motion is rejected on that basis alone. It cites a few cases on this -- though most do appear to involve people who are more like actual fugitives in that they left the US to escape US law enforcement. However, the court does find one case, In re: Kashamu that involved a Nigerian national who was resisting extradition in a drug smuggling case. That case is precedent, and while I think it's decided incorrectly, the district court can't just ignore that precedent. And thus:

Based on these authorities, and in light of the principles undergirding the doctrine, the Court is persuaded that the elements of the fugitive disentitlement doctrine are met in this case. All three principles that the Supreme Court discussed in Degen—enforcement and mutuality, redressing the indignity of absence, and encouraging voluntary surrender—are implicated here. As long as Vaulin is in Poland, he is not within the Court’s reach. And, as far as the Court is aware, he is actively resisting extradition efforts. His attorneys represented at the most recent status hearing that there is a “real possibility” that he will agree to appear here, but also indicated that he is actively appealing the Polish courts’ decision to extradite him, a process which could take years. Thus, insofar as Vaulin is interested in participating here, he appears willing to do so only from a safe distance.

That said, the court recognizes that the Supreme Court has urged courts to apply fugitive disentitlement "with caution" so it actually digs into the merits of the motion to dismiss. And that's where things get troublesome. There are a few different arguments the court has to respond to, so we'll take them in turn. The first is whether or not criminal conduct occurred in the United States at all. Vaulin and Kickass Torrents are not in the US and thus they argue that if there was any criminal activity it can't be tied to the US. The DOJ argues in response that Vaulin is still guilty of "aiding and abetting" criminal copyright infringement in the US. And the court agrees:

But the core theory underlying the indictment is that Vaulin aided, abetted, and conspired with users of his network to commit criminal copyright infringement in the United States. The first paragraph of the indictment, which is incorporated throughout, alleges that “[m]illions” of Vaulin’s users resided in the United States.... The indictment goes on to allege that these users “uploaded” and “download[ed]” content,... and “obtain[ed] [ ] desired infringed copyrighted content,”.... When viewed in a light most favorable to the Government, as the Court must do at this preliminary stage, the indictment alleges acts of domestic infringement.

But... that totally misses the argument that Vaulin is actually making. No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn't make it criminal infringement. For something to be criminal copyright infringement it has to reach a much higher bar than just "people downloaded stuff." That may suffice (with certain caveats) for civil infringement, but criminal requires a lot more which the court ignores in that paragraph. The court also says that because Kickass Torrents had some servers in Chicago, "overt acts in furtherance of the conspiracy occurred in the United States." I'm troubled by the fact that the court completely brushes past the differences in civil and criminal copyright infringement here, because it's a big difference.

The second argument proffered by Vaulin, is that torrent tracker files are not the copyright-covered work, and thus downloading or distributing torrent files cannot lead to criminal liability. The court claims that this argument "misunderstands the indictment." But... that's wrong. I'd argue the judge's reply "misunderstands the argument." Here's what the judge says:

The indictment is not concerned with the mere downloading or distribution of torrent files. Granted, the indictment describes these files and charges Vaulin with operating a website dedicated to hosting and distributing them... But the protected content alleged to have been infringed in the indictment is a number of movies and other copyright-protected media that users of Vaulin’s network purportedly downloaded and distributed without authorization from the copyright holders.... The indictment describes the torrent files merely as a means of obtaining the copyrighted movies and other media.

But... uh... that totally misses the point of the argument. The torrent files are not copyright-covered content. Nowhere does Vaulin or his site distribute or reproduce copyright-covered content. Many, I'm sure, will argue that this is semantics and nitpicking, but it's actually quite important. Yes, a torrent file can then be used to infringe, but it's the end user potentially doing the infringement -- in the same way that a VCR can be used to infringe, but it's not Sony who is held liable for that infringement (even in the civil sense, let alone the criminal). This is the very basis of intermediary liability. But the court skips over all that and says "yeah, but there's infringement." Well, no shit there's infringement. But the question is who's actually doing the infringement. Because if it's not Vaulin, then, this case has a problem. And the court misses that entire argument and just says "there's lots of infringement." That's... bad.

This part though, does make one claim that, if true, would be a lot of trouble for Vaulin: that there's evidence that Vaulin may have also run some direct download websites. If the evidence shows that Vaulin/Kickass Torrents itself was hosting infringing content, then that could be a much bigger deal and make the case a lot more legit. But even here, the court kind of breezily brushes by this fairly important point, and lumps Vaulin in with "his co-defendants' distribution of copyrighted content through direct download websites." So, it's at least unclear to me if the claim is that Vaulin himself ran direct download websites (which would be very bad for Vaulin) or that some unnamed "others" did so, in which case, the specifics matter a great deal.

Next up is the key argument, which we noted up top, about there being no "secondary liability" in criminal copyright infringement. The DOJ responds -- and the court accepts -- that they're not actually charging him with secondary liability for criminal copyright infringement, but rather "conspiracy" and "aiding and abetting" for criminal copyright infringement. Here, unfortunately, I disagree with the argument that Vaulin's lawyers made that the statute on "aiding and abetting" simply doesn't apply at all to copyright law (even though there is some debate among scholars on this). As I've noted in the past, I do think it does apply, but that the standards for aiding and abetting are much different than the standard for basic secondary liability. Aiding and abetting requires "a tight nexus between the mental state of the defendant and the ultimate criminal act committed by another." Merely providing a platform that many people use -- and very rarely used for criminal copyright infringement (again, a much higher standard) -- makes it difficult to see how Vaulin could qualify as aiding and abetting.

But the court ignores all of that, focusing on the question of whether or not there even is aiding and abetting for criminal copyright law -- and saying that there is. And, because of that, there's no discussion of whether or not what Vaulin did qualifies as actual aiding and abetting. It's just... assumed. Now, it's possible that this is (1) because the argument wasn't raised by Vaulin or (2) this is not the stage to raise that issue, and perhaps that's true. But it does feel like the court wandered down a side path here, and ignored the larger question.

Vaulin makes one final argument on this issue -- that if conspiracy and aiding and abetting do apply to criminal copyright law, they should be "void for vagueness." This is kind of a "shoot the moon" argument, saying that it's so vague that people couldn't understand if they were "aiding and abetting" criminal copyright infringement. Here, the court mainly relies on the fact that criminal copyright law is clear. But... again, that ignores whether or not it's clear what "aiding and abetting" criminal copyright law is. Instead, the court pivots and says that Vaulin's "behavior" -- such as moving Kickass Torrents to new domains -- showed that he knew what he was doing was illegal. There's a little bit of a logical leap there -- as one could just as easily say that he was moving domains and kept the site running because he believed it was perfectly legal, and he felt the foreign court orders were wrong... but... that's probably a weak overall argument.

There's one last argument, which is that the government never shows anyone who actually criminally infringed on copyright. It claims that Vaulin aided and abetted such infringement... but not the actual infringement. The court basically says "this doesn't matter" or, at the very least, it doesn't matter at this stage of the process. At trial, it notes, the DOJ will have to show infringement.

All in all, this isn't a hugely surprising ruling -- but it is disappointing. It appears to get distracted and sidetracked and confused on a few different issues, without clearly addressing the actual underlying arguments. As happens all to often in copyright cases, the issues get blurry when judges start focusing on "but... all this infringement is happening." That may be true, but the question is who is actually liable for it, and whether or not it's actually criminal. And that requires a much higher bar, and the court fails to actually show that those bars are cleared. That doesn't bode well for Vaulin.

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