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The Kansas City Royals' long-delayed return to competitive baseballing coincided with one of the most ridiculous raids ever conducted by the Department of Homeland Security. Birdies, a Kansas City lingerie shop, was "visited" by DHS agents -- working in conjunction with ICE -- who seized a number of panties emblazoned with a handcrafted take on the Royals' logo, along with the phrase "Take the Crown." The agents performing the raid didn't seem all too enthused about their participation in this panty raid, according to the shop's owner, Peregrine Honig. She says you could tell “they [DHS agents] felt like they were kicking a puppy.” Honig also pointed out that many local law enforcement officers had purchased lingerie, including the supposedly-trademark infringing panties, without expressing concerns about IP violations or counterfeited goods. The printing shop that made the panties for Birdies was also visited by DHS agents, who threatened the owner with six years in prison for "breaking copyright law" unless he consented to a warrantless search. All of this culminated in plenty of unfavorable press coverage highlighting Homeland Security's panty raid and how much "safer" we all were thanks to its intercession on behalf of the Kansas City Royals and Major League Baseball. Aaron Gordon of Vice Sports has acquired DHS communications related to the infamous panty raid via a FOIA request. The internal emails contain an awesome mixture of self-congratulation, defensiveness, and the agency's willingness to go above and beyond to please its "eager" partner in IP enforcement. On October 16, five days before the raid, an anonymous ICE officer from the Intellectual Property Rights Coordination Center (IPRC)—in the documents released, names of officers were redacted; an appeal has been filed to release the names of the officers involved—wrote an email with the subject "Op Team Player - world series update," referring to Operation Team Player, ICE's partnership with U.S. professional sports leagues to intercept counterfeit goods, including tickets and merchandise. The unnamed officer wrote, "They [the Kansas City office] are trying to get their numbers up and will accept any leads for controlled delivery in Kansas or Missouri, even if they do not meet the criteria because the AUSA Prosecutor is eager." For the want of increased "numbers," the DHS lowered its standards to raid a lingerie shop. That's basically all there is to it. Without the prompting of an "eager" AUSA, this may never have happened. Within hours of the raid, the story was already spreading across the internet. A blanket statement was composed for handling inquiries from the press: the usual "Go Team IP Enforcement" jingoism that accompanies ICE's sporting event-related raids performed in close partnership with the MLB, NBA, NFL etc. But someone in the email chain knew the usual stuff wasn't going to be nearly as effective in this case. The headlines at the bottom of the email pretty much say it all. We're going to be all over the news tomorrow for the wrong reasons. We'll obviously try to spin this as an opportunity to discuss IPR, but the panty raid jokes will make it hard. Apparently, ICE/DHS felt this particular narrative might be beyond its control. So it tried to drag Major League Baseball down with it. On the same thread, at 9:57 PM, someone wrote, "We need MLB to step forward and throw some support for what we do. Let us get with our MLB contact and we'll be proactive as we can re: media." Someone with the title "Executive Associate Director of Homeland Security Investigations-ICE" replied, "Great idea. Let's move on it." As Gordon notes, perhaps the hilarious part of the email chain is the agency's severe underestimation of the internet's thirst for stories containing (a) abuse of government power, or (b) women's intimate garments -- especially any combination of (a) and (b) that's capable of composing its own headlines. [S]omeone else on the same thread exhibited a fundamental misunderstanding of the internet's interest in panty raids by writing, "So far it appears to have just localized press. Hopefully, it won't make it out of the local news bubble." Well, hope in one hand and hold seized panties in the other, as they say. Still, one agent appeared to believe that the government's panty raid was nothing more than a judicious use of Homeland Security assets and taxpayer dollars. Excellent work, which speaks for itself! Sure does. That's why press coverage was unanimously negative. ICE, DHS and an "eager" AUSA joined forces with MLB to generate additional acronyms like "WTF" and "BS." Americans were protected from unauthorized sportsball underwear -- something than can only serve to increase their respect for intellectual property rights... and the sprawling, often-thuggish bureaucracies that enforce them. Permalink | Comments | Email This Story

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We've been covering for a while the ridiculous ongoing fight about the FCC's plan to open up the set top box market to actual competition. Historically, we've always seen that when closed technologies are opened up, it generally leads to much more innovation that benefits everyone. But the big cable companies are freaking out, because locked set top boxes are a huge moneymaker for them: they get customers to "rent" those cable boxes for an average of $230 per year. The industry, as a whole, takes in approximately $20 billion from set top box rentals alone. And they can only do that because the market is locked down. And the cable companies don't want to give that up. They've been trying various strategies to kill off the FCC's plans, including the ridiculous, but frequently used, argument that opening up set top boxes will harm diversity (the opposite is actually true, but... details). But a key vector of attack on this plan has been to convince their buddies at the MPAA that open set top boxes are just another name for piracy. They've convinced some truly confused Hollywood types to freak out about more innovation in set top boxes meaning more piracy, leading to a series of similar op-ed pieces showing up basically everywhere. And those op-eds have influenced some of our clueless lawmakers too, who are now asking if open set top boxes will lead to a Popcorn Time revolution. As we've explained over and over and over again, these concerns are complete bunk. The proposal has always made clear that cable providers will still be able to "determine the content protection systems it deems sufficient to prevent theft and misuse, and will not impede the introduction of new content protection systems." In other words, these other boxes will still be encumbered with DRM (as bad an idea as that is...). Thankfully, now a new flurry of "response" comments have come in and people are pointing out just how wrong the "OMG piracy!" comments are concerning set top boxes. First up, some actual copyright law professors -- including Pam Samuelson, Peter Jaszi, Annemarie Bridy, Betsy Rosenblatt and Rebecca Tushnet, along with Mitch Stoltz from EFF -- have filed a response pointing out that the concerns about piracy from open set top boxes is not particularly accurate. First, they point out that it's not the FCC's job to protect a particular business model of legacy industries, and that the intent of copyright law is, once again, to benefit the public. And it seems like an odd way to do that by locking up set top boxes. They also take issue with the idea that because someone might potentially view infringing works via a set top box, it makes that an issue that (1) the FCC should even care about or (2) that is really about set top boxes at all: Copyright does not confer a general right of commercial exploitation or “use” of a work. Thus, products and services that touch copyrighted works do not infringe copyright, and do not require a license, except to the extent that they implicate one or more of the exclusive rights. A television set is worthless without video programming to view, and a home audio system has little purpose without music. One could argue that the commercial value of these devices derives from the copyrighted works they touch. Following that reasoning, the sale of TVs and home audio equipment could be deemed a commercial exploitation of copyrighted works. But because these devices don’t ordinarily reproduce, distribute, or publicly perform works (let alone meet the rigorous standards for establishing secondary liability under copyright law), the law does not give copyright holders any right to prohibit their use and sale, dictate their design, or demand royalties. They further point out that the set top boxes themselves are clearly not infringing anyone's copyright, no matter how much the MPAA and its friends have been repeating this myth. In some sense, the comment suggests that the MPAA is trying to roll back the famed Betamax decision that legalized the VCR (and, I should add, provided a massive new revenue stream for Hollywood). Commenters in this rulemaking have characterized the proposed use of third-party devices or services to access pay-TV programming with terms such as “exploit[ing],”7 “repackag[ing],” “convey[ing]” copyrighted works to a third party, and creating “new uses on new platforms.” They imply that these activities constitute copyright infringement, or that the Commission should prevent these things regardless of whether they constitute infringement. These terms confuse rather than clarify the issue, because most of the activities they describe are not copyright infringement. For example, a set-top box or other consumer device that receives TV programming in the home and displays it to the user does not inherently perform or display that programming publicly, nor does it distribute copies of the programming. While such a device is likely to make transitory, internal reproductions of programming in the process of displaying it to the user, such reproductions are not copies for purposes of the Copyright Act. A set-top box or service might also make long-term personal copies of programming for the customer to watch later, much as a videocassette recorder does. This is firmly established as a fair use, including in systems where the recording is stored at a central facility. They also use the infamous lawsuits against the Dish Hopper system to remind the FCC that the MPAA and its friends have, shall we say, a rather long and sad history of exaggerating claims to say that basically any new consumer friendly innovation is automatically copyright infringement if it happens to impede their chosen business model: Such devices and service arise with some regularity, and their status is resolved either through litigation or licensing. For example, several programming providers sued Dish Networks, accusing its Hopper DVR and PrimeTime Anytime service, which skipped commercials upon playback, of causing infringement. After a court ruling that the core features of the device and service did not infringe, Dish reached settlements with most of the rightsholders in which the company agreed to limit the functionality of the service. Meanwhile, in what might seem like a surprising source, another group calling bullshit on the MPAA is the local Hollywood writer's guild, the Writers Guild of America, West. Their full filing is totally worth reading. They basically make the exact point we've made for years: every time the MPAA fears some new innovation, it's not just wrong, but it often misses how that new innovation actually helps Hollywood in addition to the public: It is often the case that when new technology emerges incumbent providers make alarmist predictions about guaranteed harms resulting from these innovations. While some concerns may be reasonable, the overwhelming majority of outlined harms are never realized. As CBS Chairman and CEO Les Moonves said in 2015, “All these technology initiatives that supposedly were going to hurt us have actually helped us. SVOD has helped us. DVR has helped us. The ability to go online with our own content, CBS.com, and the trailing episodes – all have helped us.” With the entertainment industry currently dominated by a handful of companies that have never been more profitable, it is clear that new technology and forms of content distribution have helped, not hurt the industry. While new technology can create some business uncertainty, there is strong evidence that pro-consumer developments that make legal content more accessible to viewers benefits both consumers and content creators. And then they point out that open set top boxes, combined with an open internet, are almost certainly a good thing: Like all other entertainment industry participants, WGAW has strong incentives to protect the health of the business. WGAW members are the creators of intellectual property and their livelihoods depend on the ability of studios to license programming for initial exhibition and generate revenue in secondary markets. As such, WGAW and its members do not take concerns regarding piracy lightly. WGAW has consistently advocated for reasoned measures to protect copyright and address infringement. But WGAW members are also strong proponents of market competition, because it leads to more and better choices for consumers and more and better opportunities for writers. WGAW’s position seeks to strike a balance between these objectives, and led to our support for strong Net Neutrality rules and, ultimately, the need to reclassify broadband Internet access services under Title II of the Communications Act. In our advocacy, we were clear that Net Neutrality rules could protect Internet openness without jeopardizing content, as the rules applied only to lawful content, and outlined ways to address piracy that would not harm a free and open Internet. We believe the developments resulting from the open Internet, primarily the growth of a robust online video market, demonstrate the success of a balanced approach. The online video market generates significant revenues for media companies and residuals for writers through the licensing of television series and feature films and is projected to see upwards of 100 professional scripted series released for initial distribution on subscription online video distribution (“OVD”) services in 2016. We believe a similar balance can be achieved in the Commission’s proposed rules. Reasonable concerns can be addressed. Content can be protected while competition is promoted. They also point out that they're totally against piracy -- in fact, they argue that limiting piracy is important to their careers -- but they don't see how these open set top boxes will actually increase piracy, especially when it will likely create tons of other benefits. WGAW strongly agrees with the need to protect content and to limit piracy. No less than our members’ livelihoods depend on it. However, WGAW believes that a competitive navigation device market can and will protect content and, consistent with our position in Net Neutrality, we approach the proposed rules by assessing the likely benefits of competition and the risk of piracy. We find that the risks of this proposal are no greater than those presented by an open Internet, where there is strong evidence of a flourishing legal market that is very attractive to consumers. There's a lot more good stuff in the full filing. Once again, the Writers Guild of America is one of the few voices that rises out of the Hollywood ecosystem that actually looks at the larger picture and how an open internet benefits everyone. In the past, the same organization came out against SOPA, in favor of better copyright law (as opposed to increased enforcement) and (as mentioned in the quoted portions above) in favor of net neutrality (while much of Hollywood opposed it). Kudos to the folks at the Writers Guild for taking a more accurate and holistic view of these issues, as compared to so many others.Permalink | Comments | Email This Story

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Soon after the original Snowden revelations, I went around talking to a bunch of startups and startup organizers, discussing whether they'd be more willing to speak out and complain about excessive government surveillance. Some certainly did, but many were cautious. A key thing that I heard over and over again was "well, our own data privacy protections... aren't that great, and we'd hate to call attention to that." Every single time I'd hear that I'd point out that this should now be their first priority: clean up your own act, now and fix your own handling of people's data, because it's an issue that's going to become increasingly important, and you're being foolish and shortsighted to ignore it. While the Snowden revelations certainly did get some companies to improve their own practices, it looks like the FBI's decision to go after Apple over encryption, has really galvanized many in Silicon Valley to take action to truly protect their users from snooping government officials -- meaning making use of real (not backdoored) encryption and also diong other things like dumping log files more frequently. “We have to keep as little [information] as possible so that even if the government or some other entity wanted access to it, we’d be able to say that we don’t have it,” said Gadea, founder and chief executive of Envoy. The 30-person company enables businesses to register visitors using iPads instead of handwritten visitor logs. The technology tracks who works at a firm, who visits the firm, and their contact information. The article is full of such stories -- including one of a company called Stealth Worker that is basically helping lots of startups build in better security from the start: Stealth Worker — a start-up funded six months ago by the prominent incubator Y-Combinator — provides contract cybersecurity experts to early-stage start-ups, which often operate on a shoestring budget. Stealth Worker chief executive Ken Baylor said that in the past month he had been approached by a half-dozen companies looking for ways to build tougher encryption and other secure technical architectures. Because it's the Washington Post, and they feel the need to be "balanced" the article does include the one ridiculous contrarian quote from our old friend, former NSA General Counsel Stewart Baker, who basically dismisses reality as a myth in the heads of some engineers: “This is a Silicon Valley delusion that the government wants to outlaw encryption,” Stewart A. Baker, a former National Security Agency general counsel, said in an interview. “I grant that there is a radicalized subculture of engineers that is very prone to that delusion, but it is a delusion.” This is classic Baker: saying something that avoids the actual truth by saying something that's nominally true, but not what people are actually discussing. The claim of "outlawing encryption" is really shorthand for "outlawing effective encryption that is less vulnerable to attack." And that's absolutely what many in the government are trying to do. I mean, there's no delusion necessary when you can just read the bill put forth by Senators Dianne Feinstein and Richard Burr, that absolutely would make real encryption illegal. Sure, it says you can keep encryption, but only if it includes a way for 3rd parties to decrypt it. And the only way that's possible is to introduce serious vulnerabilities into the encryption. The thing that Baker and many others truly don't get about Silicon Valley is that when you give techies a challenge that involves making "the best" of something, they like solving the challenge. The suggestions to backdoor encryption undermine that philosophy. They're saying that techies would need to deliberately cripple their own solutions. And the more that the FBI and clueless Senators push for such a solution, the stronger Silicon Valley will dig in and keep building better overall solutions that are less prone to government snooping. Maybe, just maybe, if the likes of the NSA and FBI hadn't regularly abused their snooping powers, folks would be more willing to give them the benefit of the doubt. But it's a bit late for that at this point.Permalink | Comments | Email This Story

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For a company that just spent $69 billion on DirecTV to unlock "amazing synergies" across the TV, wireless and broadband sectors, AT&T's latest quarterly earnings subscriber tallies landed with a bit of a thud. The company actually posted a net loss of 54,000 video subscribers, a net loss of 363,000 postpaid phone subscribers, and a net gain of just 5,000 broadband customers during the quarter -- suggesting that any "synergies" AT&T envisioned are going to be somewhat slow in coming, if they arrive at all. That AT&T spent $69 billion on a satellite TV provider on the eve of the cord cutting revolution -- especially given its fixed broadband network lags cable speeds and is in desperate need of upgrade -- turned numerous heads on Wall Street. But skeptics haven't yet really keyed in to the cornerstone of AT&T's plans or its ultimate secret weapon in the war on evolving markets: usage caps. We've long noted how usage caps are little more than anti-competitive weapons and glorified price hikes levied on uncompetitive broadband markets. And this week, AT&T formally took aim at millions of you with the launch of usage caps on all of the company's broadband customers. Starting this week, U-Verse customers now face caps ranging from 300 GB to 1 terabyte depending on speed -- caps that users can avoid if they're willing to pay an extra $30 per month. Things are worse for DSL customers, who face a fixed cap of 150 GB and need to pay $10 for each additional 50 GB of data consumed. But usage caps don't just have the benefit of letting duoplists like AT&T and Comcast charge customers more money for the same exact product. In addition to using caps to punish cord cutters, AT&T hopes to (ab)use usage caps to prevent cord cutting altogether. The company has announced it's eliminating caps entirely for customers who subscribe to DirecTV service. In other words, you can avoid aggressive price hikes on your broadband line -- if you pay even more money for a TV service you may not even want. AT&T's doing something similar in wireless, where customers can now only get unlimited data -- if they subscribe to DirecTV. So while the merger may not have provided notable "synergies" yet, the long play is that it gives AT&T the ability to effectively abuse the lack of fixed-line competition -- to drive captive, capped customers toward AT&T TV services. And as the justification for usage caps has been increasingly debunked, ISPs have stopped really justifying the moves at all. AT&T's statement on the matter barely even tries to give a reason for the new limits:"We want to continue providing a great experience for our Internet customers so we’re giving U-verse® Internet customers more choices and more data, including an unlimited data option available to any U-verse Internet customer."And here's the thing: AT&T's only just getting started. Leveraging its NFL Sunday Ticket platform acquired in the merger, AT&T says it wants to launch not one -- but three nationwide streaming services later this year in a bid to become the streaming video provider across the United States. And should the FCC's net neutrality rules fail to stand up in court (and perhaps even if they do), guess who's streaming video service won't count against any of these usage restrictions?Permalink | Comments | Email This Story

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Indie musician Will Toledo has a band (it's all him, actually) called Car Seat Headrest that just (sorta) put out its first album with a label (pretty famous indie record label) after a whole bunch of self-released albums, and lots of (well-deserved) internet buzz. The album was released this past Friday... sorta. Apparently one of the songs included an homage to a song by The Cars. I've read a bunch of articles on this and Toledo's own statement, and the homage is called a bunch of different things, from a "sample" to a "cover" and no one ever clarifies which it actually is. And that's important because the legal issues are potentially different with each. But, it also doesn't matter at all because Toledo and Matador have agreed to destroy all the physical copies of the album after The Cars' Ric Ocasek complained that he didn't like it. So the digital release came out, with a replacement version of the song that Toledo apparently rewrote a week before the album was released, and a new physical version will come out... sometime. Here's the way Toledo explained it: Life happens and sometimes not in ideal ways. If you’ve heard anything about the new album, then you’re probably aware that one of its songs made use of The Cars song “Just What I Needed.” Now, obviously, when we called the record ‘done’ and sent it off to be printed, we were working in full confidence that we had the legal side of it all worked out. We found out last week that this was not the case. I’m not going to get into the nitty-gritty of email chains and invested parties; suffice it to say that Matador (and I) were neither pulling a Banksy nor operating in ignorance of the law, but that we truly believed we had the issue resolved months ago, until last week. As you may have heard, vinyl is being pulled from stores right now. There’s a total recall out, and all copies with the original version of the song will be destroyed. Nevertheless, Teens of Denial WILL COME OUT ON MAY 20TH, at least digitally. I spent the last 48 hours working on an alternate cut of the track, which is now called “Not What I Needed”. It’s not merely an edit – it is its own thing, about half a minute longer than the original track, and goes in a much different direction. Honestly, despite the apparent clusterfuck, I had fun doing it, and I think it’s a stronger song now. In any case I’ve grown up accustomed to working on an album right up to its drop date, so this is not a freak-out scenario for me. The album is going to come out on time and it’s going to be good. The physical release will not come out on time, obviously. We’ll likely see a street date of sometime in July. I’m very sorry to everyone who was anticipating a preorder (it does sound GREAT on vinyl). It will be in your hands eventually. But it was very important to me that we keep the digital release for May. We’ve all been waiting long enough. Most of my music only exists online anyways, so it makes sense that this album should start the same way. Thanks for your continued support, and I am very excited for this fucking record to come out already. -Will Toledo aka Car Seat Headrest In short, "we thought we had a license, but turns out we didn't." But I'm still confused as to whether or not a license is truly needed here. Of course, there's enough ambiguity over the law that I can see why no one would want to chance it. If it was truly a "cover" then we have compulsory licenses for that, and it wouldn't matter what Ocasek thought, because he couldn't stop it. But, one of the true oddities of copyright law is that such compulsory licenses really only apply if you do a cover that is a faithful representation of the original, and from folks who have heard the now vanished song, it was not that at all: “There Is a Policeman in All Our Heads, He Must Be Destroyed” starts off sounding like a straightforward cover of The Cars’ “Just What I Needed”, but Toledo superimposes a different vocal melody on the intro to create what is essentially a brand-new song. Later, in the outro, he returns to the Cars song and adopts Ric Ocasek’s original vocal melody. The end result is strange and delightful — a kind of cover-within-a-song that plays around with expectations and comes across as entirely original. From that, it certainly sounds like it was not "a sample" as many reporters are claiming, but rather just a transformative work paying homage to The Cars' original. And, as such, you'd think that there would be a very strong fair use argument. But, fair use and music remains a tricky minefield with no clear rules, and I can see why Toledo and Matador wouldn't want to spend time and money in court defending this, especially given that a positive result is no sure thing. Still, for people who love music, this seems like a somewhat horrific result. Yes, Toledo is cheerful about the whole thing and insists that the revised work is a better track, but this is yet another example of copyright being used to literally destroy a piece of culture. And I think we should find that revolting. As the folks at Consequence of Sound, who heard the track, noted in their story on this: The biggest bummer is that the listening public may never get to hear “There Is a Policeman in All Our Heads, He Must Be Destroyed” I'm guessing that sooner or later (or perhaps already?) some version of this track will leak out and become available, because this is the internet. But it's still disappointing that Ocasek is using copyright as an effective veto on someone else's creativity.Permalink | Comments | Email This Story

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Back in 2012, Netflix and Disney struck a deal wherein Netflix would be the exclusive online provider of Disney content starting in 2016. And while we knew that the deal had been struck, it was only this week that Netflix announced on its blog that the exclusive arrangement would formally begin in September. As of September 1, if you want to stream the latest Disney (and by proxy Marvel, Lucasfilm and Pixar) films -- you need to do it via Netflix. Given the popularity of the Marvel films and the now-annual release of new "Star Wars" titles, that deal has become bigger and more important than ever, making it a pretty large coup for Netflix. Especially if you consider that Disney is co-owner of Hulu, which is planning to dramatically scale up its own subscription streaming video service later this year or early next. In fact, while Hulu for years was little more than an uninteresting ad for traditional cable, data suggests that Hulu's catalog is now much larger, thanks in large part to Netflix's tight focus on original content. And while this is good news if you already subscribe to Netflix, this ongoing quest to lock down content in exclusive arrangements has a notable downside as the practice expands. As Hulu, Netflix, and Amazon have tried to each lock down their own exclusives, finding your favorite movie or TV series has become a frustrating game of hunting and pecking to ferret out which provider has the exclusive rights. It's also becoming increasingly confusing for consumers to understand when these deals expire; something that's not effectively communicated by most streaming companies. And, ironically, while many streaming video customers cut the cable cord due to high prices, exclusive arrangements are now forcing those customers to pay for countless streaming services if they actually want to access all of their favorite shows and movies. There's a certain danger in replacing the cable industry's long-standing walled gardens with newer, different walled gardens, and it's pretty clear most of these companies either don't see the potential pitfalls or, in a rush for eyeballs, just don't care. And as broadcasters increasingly realize they can cut out the middlemen and launch their own streaming services, it seems inevitable that the exclusivity wars will only get worse. For example, if you want to watch the new "Star Trek" TV series from CBS when it launches in January 2017, you'll need to subscribe to CBS's $7 a month, All Access streaming platform. There's likely going to be a lot more where that came from, especially as Comcast takes a bigger role in managing Hulu (NBC Universal merger conditions preventing it from fiddling with Hulu to prevent anti-competitive shenanigans expire next year). So while the streaming industry and broadcasters are intent on following the exclusivity concept deep down the rabbit hole, few if any seem to notice that while these kinds of exclusive deals may be good for one company over the short term, they're not going to be great for the broader streaming industry over the long haul. There's a lot of potential here to fracture content availability, confuse paying customers, and drive frustrated customers back to piracy after all of the work done to get them on legitimate platforms in the first place.Permalink | Comments | Email This Story

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So here's a crazy and unfortunate story. On Monday evening, the NY Times posted a rather weird story suggesting that there was someone with a grudge against Gawker funding the various lawsuits against the site, including Hulk Hogan's multiple lawsuits (he recently filed another one, even more ridiculous than the first -- which resulted in a $115 million verdict against Gawker that hopefully will get tossed on appeal). The NYT piece was weird in that it was pure innuendo -- just saying that Gawker's Nick Denton was increasingly sure that someone who really disliked the site was funding the lawsuits. It was surprising that the NY Times ran it given the lack of anything beyond speculation and rumor. And then, about 24 hours later, Forbes publishes a story saying that it's well-known billionaire Peter Thiel funding the lawsuit (warning: Forbes' ridiculous anti-adblock policy means you may not be able to read that article): Peter Thiel, a PayPal cofounder and one of the earliest backers of Facebook, has been secretly covering the expenses for Hulk Hogan’s lawsuits against online news organization Gawker Media. According to people familiar with the situation who agreed to speak on condition of anonymity, Thiel, a cofounder and partner at Founders Fund, has played a lead role in bankrolling the cases Terry Bollea, a.k.a. Hogan, brought against New York-based Gawker. Hogan is being represented by Charles Harder, a prominent Los Angeles-based lawyer. First off, it's perhaps no surprise that Thiel is very anti-Gawker. Lots of people dislike Gawker, and many of them have really good reasons to dislike Gawker. Its Silicon Valley coverage, in particular, was often terrible and basically just wrong. Its Valleywag publication often went for snark and conspiracy over reality. In Thiel's case, he has a much more direct reason for hating Gawker. In 2007, the publication outed him for no reason at all other than because it wanted to do so. That said: this is insane. Thiel has his quirks, and has a reputation for supporting extreme political causes (that then, unfortunately, lead many outside of Silicon Valley to think his views are representative of the Valley), but funding a lawsuit (or possibly a series of lawsuits) that is flat out designed to undermine the First Amendment goes beyond what most people would expect. And that's doubly true given that his lawsuits against Gawker could have serious damage on free speech on the internet. It's one thing to hate Gawker and to wish its demise. It's another thing entirely to fund a series of lawsuits that chill expression online. For what it's worth, it's also worth noting (as both of the articles linked above do), that the same lawyer who represented Hogan, and who Thiel is allegedly paying, is also the lawyer handling Shiva Ayyadurai's ridiculous lawsuit against Gawker, which cites the Hogan case for support. In our write-up of that ridiculous lawsuit, we noted that it looked like Ayyadurai was inspired by Hogan's victory, but we didn't realize that it was the same lawyer, and possibly funded from the same source. For what it's worth, there are questions about if other lawsuits against Gawker are also being funded by Thiel, and you have to at least wonder if that includes Chuck Johnson's ridiculous defamation lawsuit against Gawker. As you may recall, Johnson struck out in Missouri, but filed the identical suit in California. Ayyadurai's lawsuit cites Johnson's lawsuit as proof of Gawker's pattern of bad behavior, even though both lawsuits are ridiculous. But it's also worth noting that Johnson and Thiel actually appear to have some political similarities, including both becoming strong Donald Trump supporters (Thiel is, famously, a Trump delegate, while Johnson says he's an alternate). As a bit of an aside, how much more terrifying is it now when you hear Trump talk about "opening up" libel laws to make it easier to sue the press -- or him praising the district court win by Hogan over Gawker? Thiel has obviously had quite a bit of success on the internet with Paypal, and then leveraging that into the first money into Facebook, along with helping to found Palantir (though that company is raising questions lately as well). He's also funded lots of other companies and famously supported Ron Paul and certain libertarian causes. But a lawsuit against an online publication solely out of vindictiveness (even if his hatred of the publication is for perfectly valid reasons) is a terrible, terrible idea that seems to go against his supposed libertarian views. It's also just petty and vindictive, and only cements in the misleading idea that Silicon Valley is full of ego-maniacal billionaires for whom the ends always justify the means.Permalink | Comments | Email This Story

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The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall. Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration. The Department of Defense has fought this the whole way. It wanted a clear-cut delineation between students and staff for reasons only it comprehends, as that would mean saddling those with fewer financial resources (students) with higher fees. The decision starts out by noting that FOIA fees -- if high enough -- are an effective deterrent to requesters. It then goes on to examine the government's assertion that the category of "educational institution" does not include these institutions' student bodies. We thus must decide whether the statutory term “educational institution” is properly read, as the Government reads it, to include teachers but exclude students from the category of preferred requesters who are eligible for reduced fees. We conclude that the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all. [...] It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight. The government -- in making its nonsensical argument that students are not part of educational institutions -- relies on two different pull quotes. One is from a statement Sen. Charles Leahy made way back in 1986 during his legislative push to amend the FOIA to reduce fees for schools. “A request made by a professor or other member of the professional staff of an educational or noncommercial scientific institution should be presumed to have been made by the institution.” The government has chosen to believe this excludes students. The court, however, points out that Leahy was actually expanding the definition from what was originally assumed: that only top-level representatives of education institutions (presidents, chairpersons, etc.) could benefit from the lowered fees. The amendment, as written, makes no delineation between staff and students, no matter what the government feels Leahy must have meant when he made that statement. The second pull quote is from an OMB (Office of Management and Budget) FOIA guideline. “A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify” as a request made by an educational institution. With this, you'd figure the DoD has a point. But it doesn't, as the court explains. There are questions that need to be answered and one of them is, "How does the OMB arrive at this conclusion without a single statutory leg to stand on?" In our view, OMB’s rule for student requests is inconsistent with the statute. FOIA refers broadly to an “educational institution.” As we have explained, we see no good basis in the text or context of FOIA to draw a line here between the teachers and students within the educational institution. The Guideline’s ipse dixit distinction of students from teachers is entirely unexplained and unpersuasive. The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student. As the court sees it, the OMB's diversion from the statutory mean may be more motivated by its position (the "Budget" part of OMB) to seek higher fees from more requesters -- allowing it to make more money while deterring a certain percentage of FOIA requesters. If so, that's its own problem and one it fixes immediately. The FOIA isn't supposed to be a profit-making enterprise, much less a reliable revenue stream. But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students. The statutory text and context lead us to this simple conclusion: If teachers can qualify for reduced fees, so can students. The court cautions that its take on the "educational institution" price break is not meant to be read as FOIA: Student Edition and used by attendees to obtain cheap documents for personal or commercial use. It says the government can take steps to prevent abuse by requiring things like copies of student IDs, letters from instructors, etc. That being said, the court is similarly not granting agencies the power to follow the letter of ruling while doing everything they can to break its spirit. We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests. This is a win for student Kathryn Sack and for all others similarly situated. It returns a fee exemption to a more logical place, rather than leaving it in the shape it was, where it could be used to deter requesters with limited means. Permalink | Comments | Email This Story

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Re-usable spacecraft sound like a good idea -- if they actually saved any costs and refurbishing them was economical. There are only a few examples of re-usable space vehicles so far, and NASA retired its space shuttle program in 2011, narrowing the field a bit. SpaceX seems to be getting closer to demonstrating a re-usable rocket system, but it still needs to re-launch one of its rockets (and it currently only has one rocket for such an attempt). India has an incredibly frugal space program which has just launched a mini reusable shuttle called the Reusable Launch Vehicle (RLV-TD). This shuttle was developed for about $14 million and looks like a smaller X-37B, but it has a lot more testing to undergo before performing the same kind of tricks. [url] SpaceX's latest rocket to successfully land may not be able to be re-used because it sustained "max damage" from its re-entry path. Still, this rocket stage will provide plenty of data to benchmark future re-usable rocket stages -- or perhaps inspire modifications that could make the journey less damaging. [url] NASA is working on high altitude balloons to study the upper atmosphere. Okay, this isn't exactly space, but NASA could also get a telescope to fly above a lot of atmosphere for a few months (or longer?) -- and that would be a lot cheaper than a satellite. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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In Russia, we've talked about how Vladimir Putin employs a massive army of Internet trolls to ridicule and shout down political opponents and critics. In China, the government's tactics are notably different. According to a new study out of Harvard (pdf), the Chinese government posts about 488 million fake social media comments -- or roughly one day of Twitter's total global volume -- each year. In China, these propagandists have historically been dubbed the "50 Cent Party," because it was generally believed they were paid 50 Chinese cents for every social media post. It's the first study of its kind, only made possible after a blogger by the name of "Xiaolan" leaked an archive of all 2013 and 2014 emails to and from the Zhanggong district's Internet Propaganda Office. Journalists had previously written news articles about the leaks, but the researchers in this case crafted custom code to thoroughly dissect and identify the posts across a wide variety of formats and track them to verified government accounts, leading researchers to conclude that an amazing one out of every 178 posts to Chinese social media was government propaganda. But unlike Russia's tendency to pay ordinary citizens to parrot propaganda (which is ultimately what wound up exposing the practice), the study found that many of China's social media propagandists are government workers, for whom propaganda was just part of their overall job duties at existing agencies:"Although those who post comments are often rumored to be ordinary citizens, the researchers were surprised to find that nearly all the posts were written by workers at government agencies including tax and human resource departments, and at courts. The researchers said they found no evidence that people were paid for the posts, adding the work was probably part of the employees’ job responsibilities. Fifty Cent Party is a derogatory term since it implies people are bought off cheaply."And whereas Russia's online propaganda efforts tend to involve personally attacking critics, Chinese propaganda takes a notably different tack -- focusing more on feel-good nationalism and reminders of the Communist Party’s revolutionary past. Like any government, the study highlights that China's biggest fear isn't from abroad -- but the country's own people -- a threat best handled with distraction, not direct confrontation:"The main threat perceived by the Chinese regime in the modern era is not military attacks from foreign enemies but rather uprisings from their own people,” they said. Revealing a paternalistic approach, the guiding policy of China’s Fifty Cent Party appears to be that distraction is better than conflict. “Letting an argument die, or changing the subject, usually works much better than picking an argument and getting someone’s back up (as new parents recognize fast),” they wrote.Granted, distraction certainly isn't a new concept, and it only takes about five minutes watching U.S. cable news to realize we're pretty damn good at it here in the States. In fact, we're so good at distracting ourselves from issues of substance that it seems unlikely that the United States government would even need to spend money on an institutional-grade social media disinformation effort. Then again, maybe I was just paid fifty cents to say that.Permalink | Comments | Email This Story

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Yet another court has found that the warrant used by the FBI in the Playpen child porn investigation is invalid, rendering its NIT-assisted "search" unconstitutional. As USA Today's Brad Heath points out, this is at least the sixth court to find that Rule 41's jurisdictional limitations do not permit warrants issued in Virginia to support searches performed all over the nation. While the court agrees that the warrant is invalid, it places the blame at the feet of the magistrate judge who issued it, rather than the agents who obtained it. That Congress has “not caught up” with technological advances does not change the fact that the target of the NIT in Werdene’s case was located outside of the magistrate judge’s district and beyond her jurisdiction under subsection (b)(1). The property to be seized pursuant to the NIT warrant was not the server located in Newington, Virginia, but the IP address and related material “[f]rom any ‘activating’ computer” that accessed Playpen. (Gov’t’s Opp., Ex. 1 Attach. A.) Since that material was located outside of the Eastern District of Virginia, the magistrate judge did not have authority to issue the warrant under Rule 41(b)(1). So, unlike other cases, this will not result in a suppression of evidence, thanks to the "good faith exception." Werdene claims that the Government acted with intentional and deliberate disregard of Rule 41 because the FBI misled the magistrate judge “with respect to the true location of the activating computers to be searched.” (Def.’s Mem. at 17.) This argument is belied by both the warrant and warrant application. Agent Macfarlane stated in the warrant application that the “NIT may cause an activating computer—wherever located—to send to a computer controlled by or known to the government, network level messages containing information that may assist in identifying the computer, its location, other information about the computer and the user of the computer.” With this information, the magistrate judge believed that she had jurisdiction to issue the NIT warrant. Contrary to Werdene’s assertion, this is not a case where the agents “hid the ball” from the magistrate or misrepresented how the search would be conducted. [...] [T]o the extent a mistake was made in this case, it was not made by the agents in “reckless . . . disregard for Fourth Amendment rights.” Davis, 564 U.S. at 238 (quoting Herring, 555 U.S. at 144). Rather, it was made by the magistrate when she mistakenly issued a warrant outside her jurisdiction. Added to this is another wrinkle that doesn't work in the defendant's favor. The court also follows Third Circuit precedent in finding that there is "no expectation of privacy" in an IP address, even if a person has taken measures to hide that information from others. Werdene had no reasonable expectation of privacy in his IP address. Aside from providing the address to Comcast, his internet service provider, a necessary aspect of Tor is the initial transmission of a user’s IP address to a third-party: “in order for a prospective user to use the Tor network they must disclose information, including their IP addresses, to unknown individuals running Tor nodes, so that their communications can be directed toward their destinations.” United States v. Farrell, No. 15-cr-029, 2016 WL 705197, at *2 (W.D. Wash. Feb. 23, 2016). The court in Farrell held that “[u]nder these circumstances Tor users clearly lack a reasonable expectation of privacy in their IP addresses while using the Tor network.” The FBI is struggling to keep its many Playpen cases from falling apart, thanks to bogus warrants, a tool it refuses to discuss, and unexpected pushback from usually ultra-compliant courts. The proposed changes to Rule 41 will remove jurisdiction limits, but it isn't law yet. (Fortunately, there's an actual effort to prevent this from happening, as it would only take Congressional inactivity to see it become codified.) This outcome doesn't necessarily hurt this particular case, but yet another judge finding the warrants invalid from word one isn't exactly a confidence-builder either. Permalink | Comments | Email This Story

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The DOJ likes to sling lawsuits and injunctions towards law enforcement agencies with histories of misconduct and deception, but it's apparently less interested in ensuring its own behavior is above reproach. A lawsuit filed by a handful of states in opposition to the administration's new (and controversial) immigration policies have made their way through a number of courts, with one headed to the top court in the land. Meanwhile, down in Texas, a federal judge has uncovered DOJ lawyers have been engaged in a pattern of deception since the inception of the litigation. While the Supreme Court will be tackling the question of whether the administration has to play by its own rules, Judge Andrew Hanen is spending his time reprimanding the government's lawyers for their misdeeds. (via Jonathan Turley) What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court. To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.” These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed. The lies the DOJ told involve a 2014 DHS directive that changed its handling of Deferred Action for Childhood Arrivals (DACA). The DOJ told the court and opposing counsel that no action under the new guidelines would commence until February 2015. These statements were made both orally (January 15, 2015) and in a filing (December 19, 2014). But in reality, the guidelines were already being used to process immigrants, resulting in over 100,000 modified DACA applications being granted or renewed by the DHS prior to either of these statements. This was caught by the court in April 2015, but the DOJ insisted its statements weren't lies, but rather the "innocent mistakes" of poorly-informed counsel, shifting the blame towards the DHS. Months later, the real truth has come out. Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions. [...] In fact, the Justice Department knew that DHS was implementing the three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical. This isn't the DOJ lying about a minor procedural detail. This is the DOJ lying about the DACA modification central to the states' lawsuit against the US government. To purposely mislead the court and the defendants about the status of DACA applicants cannot be waved away with claims of foggy memories. It also cannot be waved away with claims that the DOJ had no idea so many applicants were already being processed using guidelines still being contested in federal court. In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. This may be true, but knowing the exact number is beside the point. [...] Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. [...] The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth. The DOJ's lies made the court's temporary restraining order a joke. The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief. Unfortunately, the court is limited to what it can do in response to the DOJ's misconduct. Holding the DOJ responsible for the involved states' legal fees would result in the participating states effectively paying their own legal fees. It would be nothing more than moving around money collected from taxpayers and, thanks to federal taxes, robbing plaintiffs to pay plaintiffs. Instead, Judge Hanen has ordered that any DOJ lawyer who has -- or will -- appear in the courts of the 26 states involved in the lawsuit attend legal ethics courses. The courses will be provided by a legal agency unaffiliated with the DOJ, and the DOJ itself will be required to provide annual reports to the court confirming these courses are being attended. This may seem like a laughable conclusion to such widespread, persistent dishonesty, but with the case currently in front of the Supreme Court, Judge Hanen only has a few options at his disposal. Awarding fees would be even more of a joke and he's in no position to find in favor of the State of Texas, much less the other 25 plaintiffs. So, this will have to do. More importantly, this opinion is on the record, in writing, and will serve as documentation of the DOJ's willingness to bend/break rules to serve its own purposes. Permalink | Comments | Email This Story

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We've noted how the FCC's latest net neutrality rules do a lot of things right, but they failed to seriously address zero rating or broadband usage caps, opening the door to ISPs violently abusing net neutrality -- just as long as they're relatively clever about it. And plenty of companies have been walking right through that open door. Both Verizon and Comcast for example now exempt their own streaming services from these caps, giving them an unfair leg up in the marketplace. AT&T meanwhile is now using usage caps to force customers to subscribe to TV services if they want to enjoy unlimited data. In each instance you've got companies using usage caps for clear anti-competitive advantage, while industry-associated think tanks push misleading studies and news outlet editorials claiming that zero rating's a great boon to consumers and innovation alike. The FCC's net neutrality rules don't ban usage caps or zero rating, unlike rules in Chile, Slovenia, Japan, India, Norway and The Netherlands. The FCC did however state that the agency would examine such practices on a "case by case" basis under the "general conduct" portion of the rules. But so far, that has consisted of closed door meetings and a casual, informal letter sent to a handful of carriers as part of what the FCC says is an "information exercise," not a formal inquiry. But in a letter sent to FCC Commissioners (pdf) this week, a coalition of companies including Yelp, Vimeo, Foursquare, Kickstarter, Medium, Mozilla and Reddit have urged the agency to launch a more formal -- but also transparent -- probe of ISP behavior on this front: "Zero­ rating profoundly affects Internet users' choices. Giving ISPs the power to favor some sites or services over others would let ISPs pick winners and losers online—precisely what the Open Internet rules exist to prevent...Given how many stakeholders participated in the process to make these rules, including nearly 4 million members of the public, it would be unacceptable not to seek and incorporate broad input and expertise at this critical stage." Given the FCC's decision to ban usage caps at Charter as a merger condition, the agency is clearly aware of the threat zero rating and caps pose to a healthy Internet. It's possible the FCC is waiting for the courts to settle the broadband industry's lawsuit against the FCC, which could gut some or all of the net neutrality rules. But it's also entirely possible that the FCC does nothing. Usage caps are a glorified price hike, and even in its latest more consumer friendly iteration, the FCC has historically been afraid to so much as even acknowledge high prices are a problem in the sector. Things have been muddied further by T-Mobile's Binge On program, which gives users the illusion of "free data" by setting arbitrary usage caps, then exempting the biggest video services from usage caps. And while many consumers applaud the idea, even T-Mobile's implementation sets a potentially dangerous precedent in that it fails to whitelist smaller video providers and non-profits -- most of which have no idea they're even being discriminated against. There's a contingent at the FCC and elsewhere that believes efforts like this are a positive example of "creative pricing experimentation." Either way it's increasingly clear that the FCC needs to take some public position on the subject as ISPs continue to test the agency's murky boundaries to the detriment of users and small companies alike. Should the FCC win its court case, pressure will grow exponentially for the FCC to actually put its money where its mouth is -- and put the rules so many people fought for to actual use.Permalink | Comments | Email This Story

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As we've been covering here at Techdirt, French regulators have been pushing Google to censor the global internet whenever it receives "right to be forgotten" requests. If you don't recall, two years ago, there was a dangerous ruling in the EU that effectively said that people could demand Google remove certain links from showing up when people searched on their names. This "right to be forgotten" is now being abused by a ton of people trying to hide true information they just don't like being known. Google grudgingly has agreed to this, having little choice to do otherwise. But it initially did so only on Google's EU domain searches. Last year, a French regulator said that it needed to apply globally. Google said no, explaining why this was a "troubling development that risks serious chilling effects on the web." French regulators responded with "don't care, do it!" Google tried to appease the French regulators earlier this year with a small change where even if you went to Google.com, say, from France (rather than the default of Google.fr), Google would still censor the links based on your IP address. And, again, the French regulators said not good enough, and told Google it needed to censor globally. It also issued a fine. As we noted at the time, Google immediately said it planned to appeal and that's now officially in motion, as was explained in a writeup on Google's own blog (and was also published in France's Le Monde newspaper). As a matter of both law and principle, we disagree with this demand. We comply with the laws of the countries in which we operate. But if French law applies globally, how long will it be until other countries - perhaps less open and democratic - start demanding that their laws regulating information likewise have global reach? This order could lead to a global race to the bottom, harming access to information that is perfectly lawful to view in one’s own country. For example, this could prevent French citizens from seeing content that is perfectly legal in France. This is not just a hypothetical concern. We have received demands from governments to remove content globally on various grounds -- and we have resisted, even if that has sometimes led to the blocking of our services. This is a big, big deal for how the global internet will function. Giving the most censorious and autocratic countries veto powers over the global internet should obviously raise serious concerns among everyone -- even those among you who hate or fear Google.Permalink | Comments | Email This Story

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HDR (high-dynamic-range) imaging is an innovative technique for perfecting photos. It displays a greater range of luminance levels that better represents what the human eye actually sees. HDR Projects 4 Professional will let you capture that soft, indoor shadow, or bring out every color in a sunset. Use it as a standalone platform, or as a plug-in to Adobe Photoshop or Lightroom (plug-ins included free). HDR Projects 4 Professional is available for $29 (85% off of the listed price) for Mac or PC in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Mitch Stoltz, over at EFF, has been writing about a ridiculous situation in which Sony Music has been using ContentID to take down fair use videos -- and then to ask for money to put them back up. As Stoltz notes, the videos in question are clearly fair use. They're videos of lectures put on by the Hudson Valley Bluegrass Association, teaching people about bluegrass music. They're hourlong lectures in a classroom setting, that do include snippets of music here and there as part of a lecture, with the music usually less than 30 seconds long. HVBA’s use of clips from old bluegrass recordings is a clear fair use under copyright law. The clips are short, the purpose of the videos is educational, and the group does not earn money from its videos. Plus, no one is likely to forego buying the complete recordings simply because they heard a clip in the middle of an hour-long lecture. Nonetheless, like so many others, HVBA had its videos disappear thanks to a ContentID match on some Sony music. Here's where the story gets much worse than the standard version of this story. HVBA reached out to Sony Music, asking it to release the claim, but Sony Music demanded money, saying it was an "administrative" fee. When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up. As the EFF post notes, this highlights (yet again) what a dangerous disaster "notice and staydown" would be. It would open up the ability for shakedowns and censorship like what happened above. Of course, once EFF publicized the story, Sony Music quickly backed down, but not everyone will be able to have their story told by EFF. Even worse, even in backing down, Sony Music refused to concede the point, and indicated it still believed that fair use needed to be paid use. A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all. It does make you wonder if Sony Music has been successful in charging this $500 fair use "administrative fee" to others, in a move that would be pure copyfraud. Either way, imagine how copyright trolls would react to this kind of situation if it were more global on the internet with a mandated notice and staydown provision. We've already written about cases where people falsely claim copyright on works to get stuff taken down on other sites, but if there's a way to not just censor with that, but also make money, you know it's going to get widely abused. Hell, we've even had a similar situation here, where a small publication in another country (which does not have a fair use regime) sent us a letter objecting to our linking and quoting them without reaching "an agreement." Giving more power to folks like that is a recipe for widespread censorship and shakedowns.Permalink | Comments | Email This Story

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Last week, Twitter engaged in some dubious behavior on behalf of a few super-secret someones who'd rather the press didn't discuss their sexual activity. Twitter was apparently firing off "letters of warning" to users who had dared break an injunction issued by the UK Supreme Court forbidding anyone in the media from discussing a threesome involving a prominent British celebrity. There was very little legal force behind the "warning letters" (despite threats from local authorities) and Twitter users were under no obligation to comply with the company's request. The fact that Twitter even bothered to issue these highlights the utter futility of injunctions/super-injunctions of this variety, which are really just a way for British citizens of a certain level of importance to control local media. It doesn't really matter if the UK's highest court upholds a super-injunction if it has no way of enforcing it beyond its super-limited purview. That doesn't mean the lawyers who have obtained these injunctions on behalf of their clients aren't trying. While doing a bit of research for an unrelated story, I stumbled across Web Sheriff's utter failure to talk Google into delisting URLs by waving this injunction around in a threatening manner. The copyright owner is (apparently): APPELLANT (COMPLAINANT’S IDENTITY PROTECTED BY COURT OF APPEAL RULING / ORDER) Whatever these clients are paying Web Sheriff, it's far too much. Web Sheriff has issued 12 requests targeting 447 URLs. And so far, all 447 URLs are still live. Contained in these takedown notices is an awe-inspiring wall of text -- something that might impress the average DMCA notice recipient. But Google? Not so much. Here's just a very small portion of it: Then, of course, there are the URLs targeted for delisting, which -- thanks to Web Sheriff's failed injunction-quoting requests -- are all basically injunction spoilers. Included in the failed notices are some seriously dubious requests, like Web Sheriff demanding an entire post at the Onion's AV Club be taken down because of a single comment and what appears to be Web Sheriff's own attempted Zendesk request for removal of content from Reddit. Thanks to Web Sheriff's efforts to force the rest of the world to comply with UK law and its ridiculously unenforceable injunctions, more people are now aware of who's being "protected" by the ruling and where to find more details. Permalink | Comments | Email This Story

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Here we go again: intellectual property laws being abused to silence critics. In this case -- which resembles the tactics exposed by Pissed Consumer recently -- bogus copyright claims contained in bogus DMCA notices are being used to remove negative reviews from websites. In this case, it's a British firm -- one that first tried to abuse that country's oft-abused defamation laws. [Annabelle] Narey, who is the head of programme at an international children’s charity, had turned to London-based BuildTeam for a side return extension, but almost six months later, the relationship had turned acrimonious. The build, which was only supposed to take 10–14 weeks, was still unfinished, she wrote. “On Christmas day a ceiling fell down in an upstairs bedroom,” she says, apparently due to an issue with the plumbing. “Mercifully no one was hurt. [That] there seem to be so many glowing reports out there it is frankly curious. Proceed at your own risk,” the review concluded. BuildTeam disputes her account. In a letter sent to Mumsnet, which the site passed on to Narey, the builders complained that the comments were defamatory. They say it is “untrue” that the ceiling fell down due to an issue with plumbing, and cited a total of 11 statements they claimed were defamatory. Mumsnet refused to remove the post, so BuildTeam decided to start harassing Narey at her home, showing up with printouts of the negative review and asking for it to be taken down. BuildTeam's reps refused to discuss Narey's accusations or verify for themselves the damage allegedly caused by their work. They were only interested in the removal of the review. More unsatisfied customers joined Narey's thread at Mumsnet. So, BuildTeam decided to nuke the entire thread from orbit by abusing the DMCA process and IP laws meant to protect artistic endeavors, not shoddy construction work. As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure. But there was no copyright infringement. The DMCA notice links back to a bogus site created solely for the purpose of posting the review BuildTeam wanted removed, backdating it so it appeared to predate Narey's complaint, and use that post as the basis of a bogus takedown request. The website crafted for the purpose of crafting bogus takedown requests follows the same M.O. we've seen elsewhere: random bits of content are scraped to create the appearance of a legitimate website. After that, the reviews companies/individuals want to see vanished are mixed in and DMCA notices issued. Someone calling themselves "Douglas Bush" now claims Narey's negative review of BuildTeam was written by him, according to his overwrought DMCA takedown request. I'm upset at finding out my article was copied without my permission starting at "Do not be taken in by the slick facade this company presents to the public", word for word, till the very end. My name was also removed from the post, and now it looks like it's not mine. I flagged the post and mentioned that it was stolen, but they did not remove it (about a month passed). At least I want it to be removed from Google. Thank you As the Guardian's Alex Hern points out, there is no "Douglas Bush." The post, headlined “Buildteam interior designers” was backdated to September 14 2015, three months before Narey had written it, and was signed by a “Douglas Bush” of South Bend, Indiana. The website was registered to someone quite different, though: Muhammed Ashraf, from Faisalabad, Pakistan. BuildTeam denies having anything to do with Ashraf, Bush, the bogus website, or its bogus DMCA takedown notice -- a statement that deserves no more credibility than "Douglas Bush" himself. This sort of thing does not happen in a vacuum. It may be that BuildTeam has created plausible deniability by placing a series of intermediaries between it and this bogus DMCA takedown, but it's no coincidence that a review it wanted removed badly enough it sent reps to Narey's house has now been destroyed by a scraper site doing double duty as a half-assed reputation management service. Permalink | Comments | Email This Story

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Facebook's Oculus Rift was originally expected to lead the virtual reality charge and become a shining example of "VR done right," but a bungled launch and a series of sloppy public relations missteps have ensured that won't be happening any time soon. The company generated a tidal wave of ill will after production issues delayed Oculus pre-order ship dates by two months or more. That was compounded by some overly broad terms of service language, and an Oculus decision to sell some headsets at Best Buy before pre-order customers had received their own headsets. Combined with a lack of "room scale" support (the ability to move freely in space using handheld controllers) out of the gate and a general nervousness about Facebook's snooping tendencies, Oculus has effectively given the HTC Vive a huge PR advantage as VR begins to slowly claw its way towards mainstream adoption. Oculus isn't helping matters much this week with moves that indicate Facebook and Oculus are very much keen on embracing walled gardens, DRM, and closed ecosystems at a time when VR very much needs the exact opposite to thrive. As it stands, Oculus Rift owners can play non-roomscale games designed for the Rift via the SteamVR store. In contrast, HTC Vive customers can't play games designed for the Oculus Rift, since Oculus and Facebook have decided to lean heavily on exclusives out of the gate. To play Oculus games, many Vive customers had taken to using third-party software known as Revive. But in a recent post to Reddit, Revive developers say Oculus and Facebook have deployed an update that stops the workaround in its tracks:"From my preliminary research it seems that Oculus has also added a check whether the Oculus Rift headset is connected to their Oculus Platform DRM. And while Revive fools the application in thinking the Rift is connected, it does nothing to make the actual Oculus Platform think the headset is connected. Because only the Oculus Platform DRM has been changed this means that none of the Steam or standalone games were affected. Only games published on the Oculus Store that use the Oculus Platform SDK are affected"Oculus is denying that the software update was specifically targeting Revive, only telling a number of different news outlets that the update was necessary to help curb piracy. Most of the comments to the media imply that shucks -- hacks like Revive just occasionally break during the course of software updates:"We take the security, functionality and integrity of our system software very seriously and people should expect that hacked games won’t work indefinitely as regular updates to content, apps and our platform may break the hacks."However, Revive developers say the update isn't checking to see whether or not software was legitimately purchased, but whether or not the Oculus headset itself is connected and being used to experience that content. To get around Oculus' update, the Revive developers have been forced to issue their own update that bypasses all DRM and ownership checks in order to work, something the developers say isn't the path they wanted to take and makes piracy easier than before:"LibreVR has some concerns about hacking into purchase-protecting DRM in order to get around the Rift's hardware exclusivity. "I am worried about whether I'm helping piracy by implementing this workaround," he said. "When possible I'd like my workaround to help developers generate more revenue, not hurt that revenue." On the other hand, LibreVR also added that "pirates will always find a way to work around DRM, [so] I don't think my effort significantly contributed to that."So at the end of the day, Oculus' latest decision to lock down its ecosystem not only pissed off the userbase, it contributed to a cat and mouse arms race that may actually ramp up the potential for piracy. Where's the benefit again? Oculus' fall from grace among the VR faithful has been accelerated at times by company founder Palmer Luckey, who has been mercilessly hammered over at Reddit for repeatedly flip-flopping on claims regarding the headset. For example, this is what Luckey said about the ability to use different titles on different headsets last December:"If customers buy a game from us, I don't care if they mod it to run on whatever they want. Our goal is not to profit by locking people to only our hardware—if it was, why in the world would we be supporting GearVR and talking with other headset makers? The software we create through Oculus Studios (using a mix of internal and external developers) are exclusive to the Oculus platform, not the Rift itself."Except the company's behavior has focused on the exact opposite: Oculus and Facebook (or predominantly Facebook) pretty clearly believe that a closed door, walled garden approach to VR development is the path forward. The problem is that with a high cost of entry, the VR development community is already struggling for mainstream adoption; VR is very much in the 1.0 era and very much in a period of experimentation, and many (including Valve) believe that more open, cross platform development will help ensure a broader, happier overall userbase. From the overall negative timbre of the VR community right now, Oculus appears intent on learning this the hard way.Permalink | Comments | Email This Story

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Back when I first wrote about the copyright lawsuit between a tattoo artist and Take-Two Software, makers of the highly successful NBA2K basketball series, over the faithful depiction of LeBron James' image including his ink, I had been hopeful that perhaps this case could be a step towards resolving whether fair use applies when presenting images of people with tattoos in creative works. And that might still happen, but the defense Take-Two has decided to start things off with won't do the trick. Rather than asserting the work's status as fair use, the video game maker has led with a challenge to whether the tattoo artist can claim statutory damages based on when he had registered the copyright for the tattoos in question. It's a play on a technicality, one which seems to strangely play on what counts as an independent work. Solid Oak Sketches had sued for damages nearing $1.2 million, claiming eight works had been infringed upon in the game NBA 2K16, including tattoo designs for LeBron James and two other players. According to Take-Two's most recent filing with the court, Solid Oak Sketches registered the copyright for those tattoos in 2015. The game company's argument is that it has been depicting those players and their tattoos since 2013, therefore there is precedent that statutory damages are not in play. These claims for damages, however, are precluded by 17 U.S.C. §412. As is clear form the face of the Amended Complaint and its attachments, Take-Two has depicted Mr. James, Mr. Martin, and Mr. Bledsoe -- and their tattoos -- in its NBA videogames since at least 2013. This is years prior to the registration of the tattoos with the U.S. Copyright Office in June and July 2015... Here, where the same work has allegedly been infringed by the same defendant in the same manner since 2013 -- long before registration -- binding Second Circuit precedent dictates that statutory damages and attorneys' fees are unavailable. In other words, because the complaint is over infringement that is essentially the same as has been occurring two years prior to the registration, precedent indicates that statutory damages and attorneys' fees should not apply. It's an interesting argument, though I wonder if it isn't without its pitfalls. Does Take-Two mean to suggest that in some way each years' NBA 2K game is not a separate work and publication. I am sure that is not what they are trying to argue, but arguing that the depiction of individual players within the game are essentially the same depiction for the purposes of combating this action leads us down that path. Regardless, it does certainly seem to demonstrate that whatever harm Solid Oak Sketches wants to claim in their suit seems silly. Were it so injurious, it brings the question as to why it didn't act to protect itself in all the years previous in which similar alleged infringement is supposed to have occurred. Did it suddenly only become a problem in 2016? The filing also makes it clear that Take-Two plans to also attack the underlying nature of the infringement claim in the future, which likely means it will assert a fair use argument. I hope it does. That would be the more important precedent to set here. Permalink | Comments | Email This Story

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There are plenty of smart animals in the world. Dogs, cats and pet birds are the ones we're usually familiar with, but there are also dolphins, elephants... and octopuses. Generally, animals with 8 legs are fascinating because that's just a lot of legs. If you haven't been to an aquarium recently, check out some of these links on our friend the octopus. Inky the octopus escaped from the National Aquarium of New Zealand less than a year ago -- and no one knows exactly how he did it. Just more evidence that Inky is (was?) one smart octopus -- given the examples of other octopuses being able to open jars and perform other complex cognitive tasks. [url] Another cool octopus trick is to see our 8-legged friend catch a shrimp by startling it to jump straight into an octopus's mouth. This kind of intelligence might deter some people from eating octopus, but we're all animals, right? [url] An octopus can actually sense the brightness of light with its skin. This ability helps with camouflage (since the octopus can change the color, pattern and even texture of its skin), but it's not the only marine mollusk that has light-sensing skin. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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For many, many years, we've complained about the fact that research reports from the Congressional Research Service (CRS) are kept secret. CRS is basically a really good, non-partisan research organization that tends to do very useful and credible research, when tasked to do so by members of Congress. The results, as works created by the federal government, are in the public domain. But the public never gets access to most of them. The reports are available to members of Congress, of course, but then it's up to the members who have access to them to actually release them to the public... or not. And most don't. Back in 2009, Wikileaks made news by releasing almost 7,000 CRS reports that had previously been secret. Since at least 2011, we've been writing about attempts to release these reports publicly, and nothing has happened. In fact, Congress seems quite fearful of the public getting its hands on timely, credible, non-partisan and useful research paid for by taxpayers. Because it undermines the partisan fighting and tribalism around certain policy platforms that are built on myths, rather than evidence. For years, Congress has refused to adequately fund the CRS, and has tried to turn the useful researchers within CRS into free lackeys, rather than having them work on useful research. In 2012, an effort was made to make CRS research available to the public and it went nowhere. And it looks like the same thing has just happened again. The House Appropriations Committee has voted down the bill by a large margin: At a time when highly informed voters might seem like a good thing, the Appropriations Committee voted down, 18-32, an amendment from Reps. Mike Quigely (D-Ill.) and Scott Rigell (R-Va.) that would have made it easier for the public to access Congressional Research Service reports. For what it's worth, CRS itself has historically opposed this, out of fear that it will put more pressure on its research team, and perhaps even lead them to being more fearful of writing something that is totally accurate, but politically unwelcome. And, some in Congress argue that such fears might bubble up to Congress as well: But the chairman of the Legislative Branch Appropriations Subcommittee, Rep. Tom Graves (R-Ga.), argued that members needed to be "really, really careful with this." He noted that CRS was an arm of Congress, and he didn't want members to be afraid to ask CRS to prepare reports on controversial issues for fear that their requests would become public. But, that's meaningless in the context of this bill, which wouldn't apply to the smaller reports done in direct response to questions from Congressional members. It would only apply to the larger reports that CRS creates for every member of Congress. Rep. Debbie Wasserman Schultz similarly made completely bogus claims about this bill, saying that it would slow down the research that CRS does: "I have serious concerns about changing the role that the Congressional Research Service plays," Wasserman Schulz said, arguing that it would not help members to have CRS go through a "long and arduous approval process." This is bullshit for a bunch of reasons starting with the fact that the work is paid for by taxpayers and is in the public domain. Wasserman Schulz is showing pretty blatant contempt for the public with this claim. But, also, her claims are not true. Since any CRS document already has the chance of being released to the public, CRS already goes through a careful review process. Dan Schuman from Demand Progress has the details: In fact, CRS already puts reports through an arduous, multi-stage review process because they know the reports will become publicly available. Thus, equal public access would not change the process at all. She also argued that releasing the reports would change the role of CRS in providing advice to members of Congress at the discretion of the Member. In fact, the general distribution reports that are the focus of the bill have nothing to do with confidential advice to Members. So, again, it makes you wonder, why is Congress so intent on hiding this taxpayer funded research -- which has a history of being credible, factual and useful -- from the public? Could it be that an informed public is considered a bad thing to many members of Congress?Permalink | Comments | Email This Story

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At the recent Copyright Office roundtable on the DMCA, a representative from Fox was adamant about pushing for stronger punishment for sites that hosted infringing content. But she also made sure to respond to a point raised earlier about abusive takedowns. Someone had pointed out that in 2013, Fox had issued a bogus DMCA notice that took down a copy of Cory Doctorow's excellent book Homeland, because its robotic censors couldn't distinguish Cory's novel from its TV show of the same name. Before launching into her speech pushing for expanding copyright laws to provide more power for censorship, she wanted to "explain" what happened with Cory's book, and said that it happened because Doctorow's book "was on torrent sites" -- as if this made it okay. That leaves out the kind of important fact that Doctorow released the book under a Creative Commons license that allowed it to be shared anywhere, including torrent sites. So given that bit of background, I do wonder what the excuse from Fox will be for this latest fuckup, in which Fox used someone else's YouTube video of a bug in the old Nintendo basketball game Double Dribble for a large clip in the show Family Guy... and then after the episode was added to ContentID wiped out the original: Yes, of course, after TorrentFreak posted about this late last week and the news started to spread, the takedown was lifted -- either by Fox or by YouTube itself -- but it again highlights the problems with these demands for automated filtering or notice-and-staydown systems. They don't work very well in many, many situations. And they create complications like this one -- and not everyone will get a site with a large following to write a story about it, getting enough attention to get the situation fixed. So many people on the copyright legacy side of things keep insisting that it's "easy" to just take down actually infringing stuff. Yet, time and time again, that's been shown to be wrong. There are lots of mistakes, and when you're talking about expression, we shouldn't tolerate systems that allow someone to automatically censor speech.Permalink | Comments | Email This Story

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Another defamation lawsuit against a parody account has failed, brought on by a lawyer who should have known better but didn't. Todd Levitt -- self-proclaimed "Badass Lawyer" -- has a verifiable history of bad decisions that perhaps made this sort of bogus litigation a foregone conclusion, however. Levitt tried to fire up his own reality show, which would have presumably covered such lawyeriffic behavior as singing karaoke with college students, inviting comparisons to TV's sleaziest lawyer (Saul Goodman of Breaking Bad), creating a Top College Lawyers website solely for the purpose of awarding himself the title of "Top College Lawyer," and somehow mistaking alleged defamation for a criminal offense. Levitt sued the person behind the Todd Levitt 2.0 Twitter account, which parodied the original Levitt's more "badass" qualities, like partaking in excessive amounts of drinking/drug use, as well as the lawyer's Skill Crane-esque grasp on the nuances of the law. According to Levitt, the parody account, which clearly stated on more than one occasion that it was a parody account, was resulting in lost clients. A Michigan court dismissed his lawsuit last February. Levitt appealed the decision only to find the Michigan Appeals Court no more sympathetic to his weak claims. (via The Volokh Conspiracy) The court spends some time discussing Levitt's own behavior, as it's definitely relevant to the supposed "harassment" he "endured" at the hands of the short-lived, barely-followed parody account. Todd Levitt is an attorney and a former adjunct professor at Central Michigan University (CMU). Allegedly, university students are a primary clientele of plaintiff law firm. Levitt was actively involved in marketing his law firm on various social media platforms, including Twitter. His since-deleted Twitter account represented that he was a “badass lawyer.” In addition to promoting his law practice on Twitter, Levitt admittedly made several posts which referenced marijuana and alcohol use. For instance, he posted a tweet about serving alcohol in a class he taught at CMU, and in another, stated that “Mr. Jimmy Beam just confirmed a guest appearance in class next week.” In other tweets, he reminisced about his days as a student at CMU, stating that he “tore it up” in the 1980s, and warning students not to “jump [while] drunk” in the elevators at a certain dormitory. He tweeted about being a guest bartender at a local bar and about throwing an end-of-semester party. He also referenced marijuana in several tweets; in one tweet he posted an ode to “mommy marijuana,” who “always put me at ease.” In addition, he tweeted that if marijuana were legal in Mount Pleasant, Michigan, the CMU “dorms would look like they were on fire.” With this much ammo being provided by the plaintiff, it's hardly surprising that a less-than-impressed CMU IT employee (Zachary Felton) would issue tweets like these from the Todd Levitt 2.0 account. 1. “What’s the difference between the internet and my tweeted legal advice? A: none. They’re both 100% accurate!” 2. “Buying me a drink at Cabin Karaoke will get you extra [credit], but it’s not like that matters because you are guaranteed an A in syllabus.” 3. “Partying = Defense Clients[.] Defense Clients = Income[.] If I endorse partying, will my income grow? It’s like a Ponzi scheme for lawyers!” 4. [email protected] should either meet me at 4/20 in my satellite office or take a hiatus from the medical card” and “#inToddWeToke” and “4/20 = Pot smoking holiday[.] Possession of marijuana = Client[.] Client = Income[.] In the words of Snoop Dogg: smoke weed every day. #inToddWeToke[.]” Why these tweets would "attack Levitt's credibility" more than anything Levitt himself had posted is something only Levitt comprehends. The Appeals Court, however, finds in favor the First Amendment and parody accounts -- especially those clearly defined as parody accounts. When read in context, defendant’s tweets are a parody and cannot reasonably be interpreted as coming from Levitt, an attorney and college professor. The cited tweets ridicule and demean the legal profession, as well as Levitt’s status as an attorney and a college professor. In particular, some of the tweets encourage followers to commit alcohol and drug-related offenses in order to further Levitt’s business. As aptly stated by the trial court, “[i]t would be quite foolish for an attorney to outright state by way of self-promotion that he wants college students to drink and use illegal drugs so that he can increase his income by defending them in court.” Other tweets suggest that Levitt’s students can earn extra credit in his class by buying him a drink. Surely this statement cannot be interpreted as coming from a college professor. As noted by the trial court, when the challenged tweets are read in the context of Levitt’s own tweets, a reasonable person would see defendant’s tweets as attempting to ridicule and satirize Levitt’s tweets about alcohol and marijuana use. Moreover, the idea that the tweets were a parody is soundly reinforced by several disclaimers posted to the imposter account stating that the account was indeed a parody. At the outset, the account itself was styled as “Todd Levitt 2.0,” which has come to be commonly accepted jargon for describing an upgrade of an original concept. Thus, “Todd Levitt 2.0” signals that the account was identifying itself as a superior or upgraded version of Levitt, which hints at the notion that it is a spoof. Further, defendant’s tweets expressly stated, on multiple occasions, that the account was intended as a parody. For instance, one tweet read that the account was “[a] badass parody of our favorite lawyer . . . .” Another gave a “gentle reminder to potential seekers of Todd Levitt: This is not him. This is a parody account. You can find the real Todd(ler) @levittlaw.” (Emphasis added). In light of these statements, a reasonable reader could not have interpreted the account as stating actual facts about Levitt. Levitt's worst enemy isn't a parody Twitter account. It's himself. And it's been that way since long before a CMU student started mocking his outlandish behavior on social media. Levitt is still pursuing a defamation lawsuit against Digital First Media for its coverage of his Twitter lawsuit and, at one point, had Felton's lawyer listed as a defendant. That lawsuit is currently awaiting a decision from the Court of Appeals. Permalink | Comments | Email This Story

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