Rachel Dolezal's Copyright Follies: Sues CBS For Copyright Infringement In Case That Won't End Well

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine's attorneys called into question that "exclusive licensing agreement," Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself -- which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal's copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we'll probably cover only a few of them. However, I did notice that it wasn't Liebowitz who was representing her -- which makes sense since last we'd heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called "Copyright Justice" even though his law firm's website mostly focuses on real estate law...) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC ("LLF"), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it's not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz's is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn't yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don't think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened... in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there's an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it's unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can't show that she actually knew or should have known about the publication earlier.

But... that's still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the "damages" from 2018 through 2021... for an article published in 2015. It's hard to see much in the way of provable damages there.

And... despite the fact that copyright law has (insane) statutory damages, those aren't available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can't even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys' fees, which is also asked for.

We haven't even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the "author" of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don't see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it's the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn't seem like any would apply here.

And, finally, there's fair use. The image was used in conjunction with a news article and was relevant to the reporting. It's difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho... or Liebowitz.

Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs

60 Minutes Episode Is Pure Misleading Moral Panic About Section 230; Blames Unrelated Issues On It

from the oh-come-on dept

I have a browser open with about a dozen different bad and wrong takes on Section 230 that one day I may write about, but on Sunday night, 60 Minutes jumped to the head of the line with an utterly ridiculous moral panic filled with false information on Section 230. The only saving grace of the program was that at least they spoke with Jeff Kosseff, author of the book on Section 230 (which is an excellent read). However, you can tell from the way they used Jeff that someone in the editorial meeting decided "huh, we should probably find someone to be the "other" side of this debate, so we can pretend we're even-handed" and then sprinkled in Jeff to explain the basics of the law (which they would then ignore in the rest of the report).

It's almost difficult to describe just how bad the 60 Minutes segment is. It is, quite simply, blatant disinformation. I guess somewhat ironically, much of the attack on 230 talks about how that law is responsible for disinformation. Which is not true. Other than, perhaps, this very report that is itself pure disinformation.

What's most astounding about the piece is that almost everything it discusses has nothing to do with Section 230. As with so many 230 stories, 60 Minutes producers actually seem upset about the 1st Amendment and various failures by law enforcement. And somehow... that's the fault of Section 230. It's somewhat insane to see a news organization like 60 Minutes basically go on an all-out assault on the 1st Amendment.

The central stories in the piece involve people who (tragically!) have been harassed online. One case involves a woman that was falsely blamed by some nutjob conspiracy theorists of having brought COVID-19 to the United States. Because of that, she and her family received death threats, which is absolutely terrible, but has nothing to do with Section 230. 60 Minutes points out that law enforcement didn't care and said that the death threats weren't enough of a crime. But... uh... then shouldn't 60 Minutes be focused on the failures of law enforcement to deal with threats (which actually can be a crime if they fall into the category of "true threats")? Instead, somehow this is Section 230's fault? How?

And it gets worse. 60 Minutes trots out the bogeyman of "anonymous internet trolls," even though this comes right after 60 Minutes shows that the nutjob conspiracy theorist who started this has a name and is well known (as a nutjob conspiracy theorist). The whole setup here is bizarre. The death threats are awful, and if they are criminal, then the problem is with the police and the FBI who the show says did nothing. If they're not criminal, then they're not breaking the law. So, the reason there's "no one to sue" is not because of Section 230, but because no laws were broken. But that's not how 60 Minutes' Scott Pelley frames it.

Right about now you might be thinking, they should sue. But that's the problem. They can't file hundreds of lawsuits against internet trolls hiding behind aliases. And they can't sue the internet platforms because of that law known as Section 230 of the Communications Decency Act of 1996. Written before Facebook or Google were invented, Section 230 says, in just 26 words, that internet platforms are not liable for what their users post.

Over and over again, the report blames Section 230 for all of this. Incredibly, at the end of the report, they admit that the video from that nutjob conspiracy theorist was taken down from YouTube after people complained about it. In other words Section 230 did exactly what it was supposed to do in enabling YouTube to pull down videos like that. But, of course, unless you watch the entire 60 Minutes segment, you'll miss that, and still think that 230 is somehow to blame.

The second half is basically more of the same. It talks about two more unfortunate stories that actually suggest Section 230 is working correctly. The first involves Lenny Pozner, who has been fighting back against insane conspiracy theorists who have gone after him since his son was killed in the Sandy Hook shooting in 2012. But, again, Pozner's story shows that Section 230... works? After going on for a few moments about how legitimately awful Pozner's situation is, Pelley reveals that Facebook, YouTube and others have been super responsive to Pozner and are quick to pull down information that he, and a non-profit he set up, flag as problematic. The segment talks about how Pelley sent an open letter to Mark Zuckerberg, and then admits that since then Facebook has been super responsive:

After the letter, a Facebook manager called Pozner.

Lenny Pozner: It began a relationship with Facebook that helped them learn about the material that is being posted on their platform and how it is abusive, defamatory

Scott Pelley: Have you seen a difference, a practical difference in Facebook?

Lenny Pozner: Yes, it's almost all gone.

So, um, why are we blaming Section 230 again? It sounds like the system is working. The same is true in the next story. Andy Parker, the father of the tragically murdered Alison Parker -- a reporter who was murdered by a fired co-worker live on air in the middle of an interview. Parker has wanted those videos off of social media. And... that's basically what happened.

Lenny Pozner flagged Alison Parker videos for YouTube to remove.

YouTube wrote us, "There is no place on YouTube for content that exploits this horrendous act, and we've spent the last several years investing in tools and policies to quickly remove it." YouTube told us it now prioritizes all requests from Pozner's HONR Network.

But 60 Minutes says this is proof that the platforms moderation doesn't work?

Andy Parker: I really expected them to do the right thing. their motto was, "Don't be evil." And for a while, they did a pretty good job of it. But now, they are the personification of evil.

Huh? What? But...?

That's when the report finally admits that the first couple profiled, falsely blamed for bringing COVID-19 to the US, also were successful in getting the video pulled down. And... then they still blame Section 230 -- the same Section 230 that enables YouTube to pull down those videos:

Scott Pelley: Based on what you've had to learn about all of these things, what do you think the solution could be?

Matt Benassi: This is really, really hard, right? 'Cause Section 230. When that was written, it was probably done with the intent that social media companies would police themselves in some manner. And social media companies haven't done that very well.

Except... the segment shows they did police themselves.

And then the segment ends in the most bizarre fashion, trying to at least nod towards the point that Section 230 being revoked would completely change the internet, but... I mean... this is just word salad:

But making social media liable would also mean Facebook, Twitter, even Wikipedia and Yelp, couldn't exist as we know them. President-elect Biden wants to revoke Section 230. The federal government is already suing to break up Facebook and Google. No one can say what social media 2.0 will look like or whether the innocent will ever be protected from a world wide web of lies.

What do the antitrust lawsuits have to do with Section 230? Why mention that? It's a total non sequitur. And getting rid of Section 230 does not "protect the innocent from a world wide web of lies." Because most lies are protected by the 1st Amendment, not 230. And in the rare cases they are not, that's an issue for law enforcement, not Section 230.

It's really becoming difficult to not believe that major media companies are, themselves, choosing to air blatant anti-internet propaganda. You may recall that one of the revelations from the Sony hack a few years back was that the big movie studios got together to plot out a strategy for undermining the internet, which included using media properties they own to run a smear campaign of reports and articles. Whether or not that's the intention, it certainly has the same effect here. CBS provides no disclaimer about the fact that it is owned by Viacom, one of the companies who was involved in that plot.

Nor does 60 Minutes note that its own site is protected by Section 230. Nor does the segment point out that Section 230 protects free speech online and protects users themselves. The brief clip of Jeff Kosseff just gives a basic description of part of the law, but not any of the important nuance (that Jeff knows and explains literally every day).

It's pure propaganda. And it's an online piece that seems to be suggesting (falsely) that without 230, we'd no longer have misinformation online. It's bonkers.

And, finally, it's insane that a news organization like CBS, which has faced many defamation cases over the years, is more or less promoting more defamation cases. I've never quite seen anything like it. But CBS/Viacom and 60 Minutes should be ashamed of putting on this garbage. It's not informing people. It's misinforming them.

Filed Under: 60 minutes, abuse, cbs news, crime, defamation, misinformation, moral panic, propaganda, scott pelley, section 230
Companies: cbs, viacom

Stupid Cable TV Retrans Feuds And Blackouts Make Their Way To Streaming TV

from the meet-the-new-boss dept

For the last decade or so, U.S. cable TV customers have been plagued by a steady parade of content blackouts as cable providers and broadcasters bicker over new programming contracts. For the end user, so-called "retransmission feuds" usually go something like this: a broadcaster demands a cable company pay significantly more money to carry the same content. The pay TV provider balks, and one side or the other blacks out the aforementioned content. Consumers spend a few months paying for content they can't access, while the two sides bitch at each other and try to leverage consumer anger against the other guy.

After a while a new confidential deal is struck, customers face a higher bill, and never get any sort of refund for missing content. Wash, rinse, repeat. Over and over again. With regulators largely sitting on their hands as consumers get the short end of the stick.

While some might think the innovative streaming revolution is going to fix stupidity like this, evidence suggests that's not likely. While a different variety of feud, AT&T and Roku have been in a standoff preventing AT&T's HBO Max from appearing on Roku devices. And last week, Sinclair-owned CBS stations were pulled from Hulu completely because the two sides couldn't put on their big boy pants and agree to a new contract without taking it out on paying subscribers:

"Hulu is next in the line of cable providers and streaming services to lose locals due to disputes with broadcasters. Some viewers started receiving scrolling on-screen notices over the weekend, letting them know that their CBS station could be removed from Hulu."

This being Sinclair's particular brand of highly partisan, homogenized disinfotainment, many won't care that they lose access to these networks. Sinclair obviously cares, given that fuboTV, YouTube TV, and SlingTV (Dish Network) removed the company's costly regional sports channels last year from their own streaming lineups, contributing to a $4.18 billion loss for Sinclair in the third quarter. But this sort of stuff is only going to get more common and probably dumber, as broadcasters relentlessly try to extract more and more money from already frustrated consumers during an historic health and economic crisis.

For years, even Wall Street stock jocks have warned that the broadcast industry's relentless price hikes simply aren't sustainable. It's creating a sort of death loop where broadcasters demand more money, cable companies acquiesce and raise rates, and consumers, realizing they're better off skipping TV and reading a book or watching TikTok after several rate hikes each year, finally cut the cord. And while competition from streaming has certainly helped the sector in terms of more flexible choices and lower rates, many of the pay TV sectors dumbest and most self-harming tactics are starting to come along for the ride.

That means a steady parade of rate hikes that erode the value proposition of your monthly streaming subscription, and the routine blackouts and disputes that result in you paying more money for content you can't access. It would be relatively simple for a regulator to bar consumer-harming blackouts during negotiations (or at least ensure consumers are compensated for losing access to content they pay for), but this being a country where consumer protection policy is usually set by industry (which is why there often isn't any), that doesn't seem likely anytime soon.

Filed Under: content blackouts, hbo max, retransmission, streaming
Companies: at&t, cbs, hulu, roku, sinclair broadcasting

On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright

from the making-the-tardigrade dept

As one of the most beloved science fiction series in history, it's no surprise that the Star Trek franchise has seen its share of intellectual property flare ups. With Viacom manning the IP enforcement guns, it only makes sense that the series has been the subject of the company's failed attempt to pretend Fair Use doesn't exist, the company's failed attempts at copyright enforcement taking down an authorized Star Trek panel, and the company's failed attempt to actually be good humans to the series' adoring fans.

But this is not a story of Viacom failing at yet another thing. Instead, Viacom/CBS, along with Netflix, won in court, defeating an appeal by a video game maker that tried to claim that one episode of Star Trek Discovery infringed on the copyrights for a video game.

CBS and Netflix re-affirmed an earlier win in the U.S. Court of Appeals for the Second Circuit over a copyright infringement lawsuit filed against both companies due to a plotline in the first season of Star Trek: Discovery that a video game creator alleged infringed upon the plot of his unreleased game. The video game was about a giant tardigrade who traveled through outer space and a similar creature played a key role in Star Trek Discover Season 1.

After the Second Circuit lower court had already dismissed the claims, the Court of Appeals agreed in upholding the lower court ruling that both the video game and the TV show were relying on uncopyrightable scientific facts about tardigrades and their ability to survive in outer space.

While it's a wonder the lawsuit was ever filed in the first place, why in the world Anas Osama Ibrahim Abdin went on to appeal that initial ruling is a complete mystery. The issue at hand was a story arch in the first season of Discovery which dealt with a giant tardigrade. Tardigrades are real life, tiny creatures that typically survive within water droplets. The most interesting aspect of tardigrades is that they have been shown to have been able to survive in the vacuum of outer space. Abdin's video game also dealt with tardigrades that survived the outer reaches of space. On essentially this basis alone, Abdin filed both his original suit and the appeal.

This is yet another instance where the idea/expression dichotomy of copyright law comes into play. This dichotomy dictates that copyright can be afforded to specific expression, but not to a general idea. And certainly not to an idea comprised essentially of real life scientific discovery. So, if Discovery told the same story about the same tardigrade creature, merely having a tardigrade in its plot is not somehow infringement just because both works are set in space.

While "[t]he distinction between an idea and its expression is an elusive one," Crichton, 84 F.3d at 587-88, Abdin's space-traveling tardigrade is an unprotectible idea because it is a generalized expression of a scientific fact -namely, the known ability of a tardigrade to survive in space.

While the court's opinion is 40 pages long, that one paragraph does all of its work in affirming the lower court's ruling.

Filed Under: anas osama ibrahim abdin, copyright, discovery, star trek, tardigrade, video game
Companies: cbs, netflix

Do Your Part, Rights Holders: Open The Vaults!

from the help-the-people-out dept

For those who can stay at home, please do. We've all been advised to socially distance -- the safest thing anyone can do in their individual capacity.

Of course, stir craziness can set in quite easily. (I'm stuck in my apartment with my dog, and while he's good company he's not much for conversation.) This is a great time to catch up on all of the books, shows, movies, and video games you've been meaning to read, watch, play, etc.

While each of us is doing our part to stay indoors, rights holders can do their part to make these trying times a little less tedious for the home-bound. How? By making their content freely available for streamers and downloaders.

So we're clear, I'm not talking about independent artists or those who rely on touring income. These folks are most certainly going to take a hit, and would hopefully be covered by any kind of broad-based stimulus that comes from Congress. (This would also be an excellent time to consider Dean Baker's proposal to give every American a creative works tax credit to donate to an artist of their choosing. To qualify, the artist would have to make their works public domain).

No, I'm talking about the collectors of passive income, those who actually hold the rights to the content: Disney, Netflix, CBS, NBC, Amazon, etc. Rights holders for video games, like Bethesda Studios, Paradox, EA, and Activision could also help. Even if they don't want to release relatively new titles, this would be a great time to make older games free for all to stream, download, and play. Audible should also give everyone a few free downloads, and a few free months of Kindle Unlimited would go a long way.

Now would also be a great time to release the directors' cuts or other deleted scenes that never made it to the theater or online. I personally would love to see the older versions of Rogue One or the rumored J.J. Abrams's cut of The Rise of Skywalker, and I'm sure there are lots of other clips left on the cutting room floor that fans would love to hear.

More controversially, I implore all major rights holders to forgo prosecutions for torrenting, streaming, and other forms of infringement during these times. If illegally streaming keeps someone indoors, then let them stream.

The penalties for copyright infringement are astronomical and disproportionate, and simple peer-to-peer file sharing should be decriminalized in the first place (large torrenting sites and streamers are a separate case). But now is not the time for that -- a lot of people need just a little bit of joy, and the owners of infringed copyrights must appreciate this.

This is especially true when it comes to going after YouTubers and other online commentators who must make use of others' content when producing their own. A great deal of their use is fair to begin with, but dealing with a 512 notice or copystrike is the last thing they need on their minds.

This is a time where everyone must sacrifice both for their own personal safety and the safety of others. Rights holders should pitch in and forgo the benefits of the subsidy that has been given to them to make everyone else's sacrifice a little more bearable.

Filed Under: copyright, covid-19, culture, openness, sharing, vaults
Companies: amazon, cbs, disney, nbc, netflix

Bogus Automated Copyright Claims By CBS Blocked Super Tuesday Speeches By Bernie Sanders, Mike Bloomberg, And Joe Biden

from the copyright-as-censorship dept

Another day, another example of copyright out of control. The latest, as highlighted by Matthew Keys, is that bogus (almost certainly automated) copyright claims by CBS ended up blocking a live stream of a Bernie Sanders speech, but similar notices also interrupted speeches by Mike Bloomberg and Joe Biden.

It's not difficult to guess at what's going on here: most of these streams were using "pool" cameras that anyone can tap into and use. CBS was using the same stream as everyone else, but because copyright must rule everything, CBS assumes that anything it streams, it holds the copyright on -- and sends automated notices to places like Twitter and Facebook to stop people from streaming live off of CBS News. But, here, it was CBS using someone else's feed -- but thanks to the nature of copyright, we get a situation where Presidential candidates can't even live stream their own speeches.

This was the kind of thing we've warned about, specifically in the context of the EU's Copyright Directive, which will effectively require a filter like this to be functioning at all times on basically all platforms. The fact that it will inevitably catch the wrong things -- like here -- is something that never seems to concern the Hollywood types who push for these laws and technologies to be used. Yet here we have Presidential candidates not able to broadcast themselves.

This is especially ironic for Joe Biden, considering that he's long been one of Hollywood's biggest supporters when it comes to pushing ever more draconian copyright law. So, perhaps, he got what he deserved.

Filed Under: automated takedowns, bernie sanders, censorship, copyright, eu copyright directive, filters, free speech, joe biden, mike bloomberg, political speech
Companies: cbs, facebook, twitter

CBS Gets Angry Joe's YouTube Review Of 'Picard' Taken Down For Using 26 Seconds Of The Show's Trailer

from the make-it-no dept

Joe Vargas, who makes the fantastic The Angry Joe Show on YouTube, isn't a complete stranger to Techdirt's pages. You may recall that this angry reviewer of all things pop culture swore off doing reviews of Nintendo products a while back after Nintendo prevented Vargas from monetizing a review of a a game. The whole episode highlighted just how out of touch companies like Nintendo can be with this sort of thing, given how many younger folks rely on reviews like Vargas' to determine where they spend their gaming dollars. Coupled with the argument that these commentary and review videos ought to constitute use of footage as fair use and it's hard to see why any of this was worth it to Nintendo.

Or CBS, apparently. CBS recently got Angry Joe's YouTube review of 'Picard' taken down, claiming copyright on the 2 thirteen-second videos of the show's publicly available trailer that Vargas used in the review.

This is normally where some folks would suspect that ContentID or some automated system saw the images, resulting in an automated DMCA notice. Except that, as Vargas points out in his Twitter post, this was a manual block. Somebody at CBS saw Vargas' use of the footage and manually requested that the video be taken down on copyright grounds.

And that's crazy. First, the use of clips like this to discuss a review or critique of content is squarely within the grounds of fair use.

Based on the screenshot, it appears that Vargas was discussing the clips while they were on-screen and Vargas argues that this should constitute fair use – a provision in copyright law that allows copyrighted material to be used without permission from the copyright holder for transformative purposes such as commentary and criticism.

Add to that the clips were from the publicly available trailer footage and this makes even less sense. The trailers are out there for anyone to see. Hell, the entire point of trailers is to be widely disseminated to entice interest in the show. Blocking their use would seem to be at odds with the marketing goals of CBS.

And, yet, here we are, with CBS taking down a video for using trailer footage in a way that is clearly fair use. But some say YouTube doesn't have a copyright enforcement problem? Please.

Filed Under: angry joe, censorship, copyright, fair use, picard, reviews, trailer
Companies: cbs, youtube

Why Won't Creative Future's Members Comment About This Hollywood Front Group Smearing A Well Respected Law Professor?

from the a-tragically-rhetorical-question dept

If you look in the dictionary, the word "projection" has many different definitions. I find it particularly amusing that in Merriam Webster's dictionary, the following two are right next to each other:

• the attribution of one's own ideas, feelings, or attitudes to other people or to objects; especially : the externalization of blame, guilt, or responsibility as a defense against anxiety
• the display of motion pictures by projecting an image from them upon a screen

This is a story that kind of involves both of those definitions, because it's all about a front group, created and funded by Hollywood, very much "projecting" its own blame, guilt and responsibility onto one of the most respected and thoughtful copyright law professors. And... almost no one wants to comment on the organization's shameful tactics. Perhaps some of you might help in my ongoing efforts to get literally any of Creative Future's members to explain why it still supports the organization after its shameful smear campaign over the past few weeks and months.

Some of you may recall that during the run up to Hollywood trying to get Congress to pass SOPA, a terrible pro-censorship, anti-internet, mysterious Hollywood front group showed up called Creative America to advocate for SOPA. It was a Creative Disaster. While pretending to be a "grassroots" effort by "creatives," it came out that the organization was actually very much created by Hollywood's biggest studios:

CBS Corporation, NBC Universal, the Screen Actors Guild, Sony Pictures Entertainment, Twentieth Century Fox, Viacom, the Walt Disney Company and Warner Bros. Entertainment

The grassroots effort completely collapsed and Creative America received widespread mockery on the internet. In early 2014, the organization brought in new leadership and took on a new name: Creative Future, with the same Hollywood studios behind it, the same bogus "grassroots" rhetoric, but now lead by a former Hollywood studio boss. The board of Creative Future has remained staffed entirely by Hollywood big shots. The most recent filing from the organization shows that its Board of Directors includes: Alan Braverman (Senior VP and General Counsel at Disney), John Rogovin (Exec VP and General Counsel at Warner Bros.), Leah Weil (Senior Exec VP and General Counsel at Sony Pictures), Kimberly Harris (Exec VP of Comcast and General Counsel at NBC Universal), Jean Preweitt (CEO of the Independent Film & Television Alliance), Christa D'Alimonte (Exec VP and General Counsel at Viacom), Carl "Chip" Smith (Exec VP of Public Affairs for 21st Century Fox, at least until earlier this year when Disney took them over). It's notable that D'Alimonte only joined in April of 2017, at the same time as Michael Fricklas, who was Exec VP & General Counsel at Viacom, left both Viacom and the Creative Future board -- more or less confirming that Creative Future is a mouthpiece of the big Hollywood studios, and when one person leaves a studio (as Fricklas did), they're immediately replaced by a new person from Hollywood.

In other words, Creative Future is pure astroturf, and is 100% about representing the interests of Hollywood's biggest studios.

Over the last few years, it seems that Creative Future has gotten more and more unhinged in its conspiracy theory pushing. Earlier this year, for example, it attacked the DC think tank R Street, because it had provided a grant to us. Creative Future declared that this somehow proved that R Street was "anti-copyright," because (it claimed) we are "anti-copyright." This is wrong on so many levels -- in particular, because the R Street grant as specifically for our Working Futures project, and the money from the grant was used to pay authors to write creative science fiction stories. And, I would bet Creative Future's entire operating budget (of over $3 million) that the contract we gave to those authors (in which they retain the copyright to their stories and are told they can do whatever they want with those stories, including republishing them elsewhere) was a hell of a lot better than the contracts any of the companies on Creative Future's board signs with its "creatives."

But we're something of a sideshow here. The real anger from Creative Future over the past few years has been directed at EFF. For reasons that I cannot comprehend, a few extraordinarily confused Google haters, like to insist that EFF is a Google front group. Creative Future is one of the most vocal about this (see the above definition regarding projection). Creative Future actually is a Hollywood front group. The idea that EFF is a Google front group is crazy. Remember, EFF has regularly criticized Google's practices, including filing an FTC complaint about Google's privacy practices and is currently fighting hard against Google concerning how California's new privacy law will be implemented.

And, for all the talk of claims that Google "funds" EFF, Google gave EFF a grand total of $7,500 in 2018. That's out of the $15.1 million that EFF brought in, nearly $10 million of which came from individuals (either by themselves or their own personal foundations). In insisting that Google really funds EFF, Creative Future likes to point to various cy pres awards, in which a court forces Google to give money to EFF to atone for some sort of wrong doing. That's not, in any way, Google choosing to fund EFF. It's a court punishing Google over its failures, and having it fund EFF and others as punishment. Between Creative Future and EFF one of these organizations is a front group for a set of giant corporate interests, and it ain't EFF.

But Creative Future has its bogeyman, and so when news came down that EFF had appointed renowned and incredibly well-respected copyright law professor Pam Samuelson to be its new board chairperson, Creative Future went on the attack. It first published a hilariously full of "projection" blog post accusing Samuelson of being "anti-copyright." It's not even remotely worth debunking each of the points, other than to note that not a single one of them is accurate. It repeatedly frames reasonable positions taken on copyright as extreme. It takes statements of opinion -- including the claim independent artists (you know, the ones not supported by Creative Future's esteemed board of legacy Hollywood big shots) are put at "some disadvantage" in fighting piracy -- as "lying to lawmakers." What? It also (perhaps no surprise) claims that Samuelson's reasonable arguments regarding the copyrigtability of APIs in the Oracle/Google fight proves she's anti-copyright.

That last one is particularly stupid, given that Samuelson has been among the most knowledgeable experts on questions regarding the copyright of interfaces since before Google existed, and the idea that siding with Google in the Google/Oracle case is "anti-copyright" suggests a near total lack of understanding on the topic.

There's a lot more in there, but nearly all of it is projection a la the top definition that I quoted at the top of this article. Creative Future is a front group. Creative Future regularly lies. Creative Future always defends Hollywood's biggest studios, and not the interests of independent artists.

In response to this fact-free smearing of such a respected professor, Microsoft (who no one would ever claim is "anti-copyright") told Creative Future to remove its name from Creative Future's list of "members." Microsoft has chosen not to comment publicly on this issue, but two separate sources confirmed to us that the decision to leave Creative Future was 100% in response to the smearing of Prof. Samuelson, which people at Microsoft believed to be beyond any reasonable standard of decorum, even if the company still supports Creative Future's mission. Most organizations might stay quiet when receiving a rebuke like that, but Creative Future instead tried to brand Microsoft as anti-copyright, because apparently facts are completely optional in the delusional world of Hollywood.

Creative Future then decided to run a second article smearing Samuelson, literally blaming her for Microsoft deciding to disassociate itself with the organization:

We’re also unhappy because she asked Microsoft why their logo was on CreativeFuture’s website. In response, Microsoft emailed us asking us to remove their logo. Of course, we did so.

This statement is somewhat telling. For all of Creative Future's attempts to describe the hundreds of organizations on its website as "members," it seems quite clear that most of them are not "dues paying" members. They just have their logo on the website.

With that in mind, I began to wonder what were some of the other organizations on that same page of logos, and what they felt about their name being associated with flat out lies being used to smear one of the most respected law professors in the world. There are hundreds of logos on the page. Over the past few weeks I've contacted somewhere in the neighborhood of fifty of those members to ask for any comment on the situation. Below are all their comments.

...

Ha ha, just kidding. Not a single organization was willing to comment on the record. The vast majority completely ignored my request. A few sent back generic "no comments." One said the situation was "complicated." Oh really? The most startling to me, however, were the organizations on the list whose focuses are entirely about promoting women's voices, and fighting back against stereotypes about women. I figured, at the very least, those organizations -- including Women in Film, Women Make Movies and the Geena Davis Institute on Gender in Media -- would at least have something to say about an organization put together by Hollywood's biggest studios smearing such a respected female law professor.

But, nope. None of them wished to comment -- even after it was pointed out that Microsoft had left Creative Future over this mess.

Other organizations that I thought might have a bit of a spine, but who refused to comment: Alamo Draft House (I will find other places to watch movies, thanks), the American Film Institute, Comscore, Crackle (do they still even exist?), IMAX, the Jim Henson Company, Legion M, Miramax (you'd think, post Harvey Weinstein, they'd be more open to recognizing issues, but nope), National Hispanic Media Coalition (this one's especially disappointing, as they've been a staunch ally on net neutrality, and even posted a guest post on Techdirt earlier this year), PodcastOne, the Tribeca Film Institute, and many, many more.

And, of course, none of the giant Hollywood studios, which set up Creative Future and hide behind its "edgy" attacks on people, wanted to comment either. I wonder why, Disney, ComcastUniversal, Viacom, Sony, and Warner Bros., might want to ignore the fact that an organization that they set up and control, is out there smearing respected law professors? Actually, I don't wonder at all.

Anyway, I recommend that people scan Creative Future's big list of "logos" and see if you recognize any. Feel free to ask them (politely, of course) why they're willing to have their name associated with an organization smearing such a well-respected professor with outright lies?

In the end, though, this all comes down to pure projection -- and not the one that involves a screen. Creative Future is a front group for big businesses, pretending to be a "grassroots" group for creatives. As such, it can't even imagine that there really are legitimate organizations like EFF that are actually focused on protecting individual rights and are actually supported by individual members. And thus, they feel the need to project Creative Future's own sins upon such organizations. It also can't imagine that someone like Prof. Samuelson, with her decades of clear, careful, nuanced, and thoughtful writing and advocacy on better copyright law (i.e., copyright law that protects everyone's rights, not just big Hollywood studios, and includes in that the public's rights), could possibly come by her positions honestly.

This whole episode has been revealing. Not about Prof. Samuelson or EFF. But it's said an awful lot about the type of people who run the major Hollywood studios. Alan Braverman, John Rogovin, Leah Weil, Kimberly Harris, Jean Prewitt, Christa D'Alimonte and Chip Smith: this cowardly attack is on you. If you'd like to actually provide a real comment on this nonsense you've helped create, you know how to reach me.

Filed Under: alan braverman, chip smith, christa d'alimonte, hollywood, jean preweitt, john rogovin, lies, pam samuelson, projection, smear campaign
Companies: cbs, comcast, creative future, disney, eff, google, microsoft, nbc universal, sony pictures entertainment, viacom, warner bros.

Big Four Broadcasters Sue Streaming Video Provider Locast, Claim It's 'Aereo 2.0'

from the when-at-first-you-don't-succeed dept

The nation's four biggest broadcast networks (ABC, CBS, Comcast NBCUniversal and Fox) have filed suit (pdf) against a streaming video nonprofit they say is "illegally using broadcaster content." New York based Locast offers viewers access to over the air broadcasts via the internet to roughly 13 cities (about 31% of the US market). Its website notes the operation is funded by donations and that access to this content (again, already accessible for free via an antenna) should be a consumer "right" given that US consumers technically own the airwaves these programs are broadcast over.

Not too surprisingly, the big four broadcast networks disagree, something we had expected:

"Locast is simply Aereo 2.0, a business built on illegally using broadcaster content,” the lawsuit reads in part. “While it pretends to be a public service without any commercial purpose, Locast’s marketing and deep connections to AT&T and Dish make clear that it exists to serve its pay-tv patrons."

Aereo, you may recall, attempted to set up a bunch of cumbersome micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. The company's technical approach was intentionally designed to be arguably ridiculous in a bid to comply with the law and a number of historically just as ridiculous copyright case rulings. The Supreme Court ultimately demolished Aereo with a dubious ruling that made numerous assumptions and provided zero guidance for companies who wanted to enter the space but comply with the law.

Enter Locast. The company was developed by former FCC lawyer and media executive David Goodfriend, who, we noted previously, designed the service entirely from the ground up in a bid to try and comply with (and test the logic of) the current legal minefield. It's funded in part by AT&T and Dish Networks. But unlike Aereo, Locast is a non-commercial entity offering access to over the air broadcasts via the internet for free. In an interesting New York Times profile piece last January (a good read to fully understand what Locast does), Goodfriend had this to say:

"We really did our homework,” he said. “We are operating under parameters that are designed to be compliant within the law."

Of course Aereo also thought it had designed a system that would comply with the nation's muddy laws on this subject, and yet here we are. Goodfriend (quite correctly) notes that the public technically owns the airwaves and that initially, over the air broadcasts were designed as a free, public good, something that's been lost in a mad scramble for cash in the years since:

"Our society got way over-commercialized in the ’40s and ’50s, when media policy was being hammered out,” he said. “As a result, we don’t have stuff for the public anymore.”

“The American people have given you something really valuable, the airways, for free,” he said, talking about the broadcasters, his eyes popping at the word “free.” Slowing down for emphasis, he added: “So shouldn’t we get something back for free? Which is great television. That’s the social contract, right?"

The difference being that Goodfriend designed Locast after teaching the Aereo case to law students at Georgetown. It's built from the ground up with a solid understanding of what happened to Aereo, and the expectation that the operation would likely be sued. Whether that matters of course will depend entirely on the Judges that hear the case. The lawsuit leans heavily on the claim that because AT&T and Dish have helped fund the project, it's little more than a ruse to help some companies avoid paying retransmission fees (ignoring that both companies pay these fees to stream this content via other services already).

This should be a very interesting one to watch.

Filed Under: airwaves, broadcast tv, copyright, david goodfriend, free, public interest, spectrum
Companies: abc, aereo, at&t, cbs, comcast, dish, fox, locast