Sony Pictures, Defenders Of The Creative Industry, Appears To Be Using Fan Art Without Giving Credit

from the that's-theft,-right? dept

It will come as no surprise that we have done many, many posts at Techdirt that involve Sony. While not all of those posts are critical of the company, many of those posts deal with Sony wielding IP law about while claiming it is doing so to "protect creators" of content. We've also discussed instances where some of these IP-wielding companies, that are supposedly the vanguards of the creative community, also have managed to use the art created by their own fans without bothering to credit them. To be clear, that likely doesn't run afoul of copyright law, given that the fan art typically uses IP owned by these companies. But it doesn't change the fact that it's both quite hypocritical to not bother even crediting the fan that created the art, as well as being just plain shitty.

So back to Sony: the company appears to be both quite hypocritical and just plain shitty to one fan that seems to have found his fan art used on a movie poster for Venom: Let There Be Carnage.

Reddit user RealJohnGillman posted to r/Spiderman and several other Venom and movie-related subreddits a day after the poster's release, claiming the poster art was "traced from fanart." The fan art in question, posted to DeviantArt in October 2018, depicts Michelle Williams' She-Venom, who appeared briefly in Venom. The character poster teases Williams' return in the sequel. The Reddit post shows a zoomed-in version of the poster next to the fan art to emphasize the similarity. The poster art appears to be a silhouetted version of the fan art; however, some areas, like the curve of the shoulders, don't completely match up.

You can see the images in question below, including a zoomed in image of the part of the poster in question. Poster on the left, fan art on the right.

You can say the images don't match up precisely if you like, but they're certainly very damned close. As mentioned about similar past cases, this likely isn't a copyright infringement issue; the fan artist doesn't own any rights to the character he drew. But, again, if the copyright industries are going to do their maximalist routine under the guise of protecting those that create content, well, fan art is content. And if we stipulate that copyright isn't at issue here, we should certainly be able to agree that Sony or its sub-contracted marketers could at least have given the original artist credit if they were going to use his art, no?

Commenters on the post were quick to discuss the possible copyright-related consequences of the alleged theft. "Whelp, someone is getting an unexpected paycheck," one user wrote, while another replied, "Um... no. You have no ownership over an image you create using a licensed character you don't own; it's unethical to use it without compensation, I'll agree, but they own the character."

It's hard to imagine any argument that any of this is ethical on the part of Sony. Protector of creators though it claims to be, it seems the company is also happy to just use art created by others if it suits them.

Filed Under: copyright, culture, fan art, venom
Companies: sony pictures

Shut Up David Boies, You Hypocritical, Censorial Oaf

from the don't-even-start dept

NPR has an incredible story about the media and Jeffrey Epstein. You should read the whole damn thing, because no summary here will do it justice. It covers multiple attempts by various large media organizations, including Vanity Fair, the NY Times and ABC to report on Jeffrey Epstein over the years, and how Epstein, intimidated, coaxed and even potentially bought off reporters to get more favorable coverage, or to kill stories outright. It's horrific and awful and everything along those lines. Go read it.

But, I'm going to focus on the fact that NPR quotes David Boies throughout the piece, acting horrified at how the media fell down on this. He's 100% correct about that, but he's the wrong fucking messenger given his own long history doing pretty much exactly what Epstein is reported to have done regarding the media in this particular piece. Boies is defending some of Epstein's victims, and good on him to be a strong advocate for his clients and against Epstein. But this quote is not one David Boies should be making:

"We count on the press to uncover problems, not merely to report on when problems have been prosecuted and when people have been indicted, but to uncover problems before they reach that stage," says David Boies, an attorney for several of Epstein's accusers. "And here you had a terrible problem. A horrific series of abuses."

Shall we review some of the record on David Boies and his attempts to intimidate and silence the press when they tried to "uncover problems before they reach that stage"? As you may recall, one of David Boies' big clients was... Harvey Weinstein. And, as Ronan Farrow at the New Yorker reported in great detail, Boies and his firm seemed to work very, very hard to stop anyone from revealing Weinstein's problems with multiple women.

That article covers how Weinstein hired a bunch of former Mossad and Israeli intelligence officers who had set up a firm called "Black Cube" to try to "extract information" on various Weinstein accusers.

Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan. The same operative, using a different false identity and implying that she had an allegation against Weinstein, met twice with a journalist to find out which women were talking to the press. In other cases, journalists directed by Weinstein or the private investigators interviewed women and reported back the details.

The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories. Weinstein monitored the progress of the investigations personally. He also enlisted former employees from his film enterprises to join in the effort, collecting names and placing calls that, according to some sources who received them, felt intimidating.

You might ask, what does that have to do with Boies? Well, according to the New Yorker, it was Boies who hired Black Cube and signed the contract with them to run this operation to silence Weinstein accusers and block negative stories. He even did this despite a clear conflict of interest (he was trying to suppress a NY Times story while representing the NY Times in a separate case):

In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses, while his firm was also representing the Times, including in a libel case.

And that's not all. Remember the big Theranos scandal and mess, which turned out to be a pretty massive fraud? That only came to light thanks to some whistleblowers at the company who went to a reporter at the Wall Street Journal with their concerns. And can you guess what happened there, too? Yup. In a big Vanity Fair article we learned about an incredibly aggressive campaign to silence the whistleblowers. There's some irony here given that, in this new NPR piece, Boies is criticizing Vanity Fair as one of the publications that "failed" to publish information about Epstein's crimes. But the Vanity Fair piece shows that Boies was heavily involved in the campaign to discredit and silence the whistleblowers:

Shortly after reading the article, Carreyrou started investigating Theranos’s medical practices. As it turned out, there was an underside to Theranos’s story that had not been told—one that involved questionable lab procedures and results, among other things. Soon after Carreyrou began his reporting, David Boies, the superstar lawyer—and Theranos board member—who had taken on Bill Gates in the 1990s and represented Al Gore during the 2000 Florida recount case, visited the Journal newsroom for a five-hour meeting. Boies subsequently returned to the Journal to meet with the paper’s editor in chief, Gerard Baker.

It also notes very threatening letters from Boies' firms to multiple whistleblowers at the company, claiming imminent legal action merely for talking to reporters:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.” Others who spoke to the Journal were met with similar threats.

Rochelle Gibbons, if you haven't read the story, was the wife of a Theranos scientist who had tried to whistleblow within the company, saying the technology didn't work, and had protested internally the fact that Elizabeth Holmes had publicly announced that the tech worked and that they'd be opening "Theranos Wellness Centers" at Walgreens. As he kept talking internally, he was ordered to go meet with Holmes. Fearing he was about to be fired, he tried to take his own life, and died a week later in the hospital. This leads to the following:

When Rochelle called Holmes’s office to explain what had happened, the secretary was devastated and offered her sincere condolences. She told Rochelle Gibbons that she would let Holmes know immediately. But a few hours later, rather than a condolence message from Holmes, Rochelle instead received a phone call from someone at Theranos demanding that she immediately return any and all confidential Theranos property.

The report also notes that Elizabeth Holmes' two day "war room" strategy to figure out how to deal with this reporting exposing the corporate fraud involved multiple "lawyers from Boies, Schiller & Flexner." It does not say that Boies himself was in that room, but given that he wasn't just a lawyer for them, but a member of the board, it would not be surprising to find out that he was a key strategist in that meeting.

And that's not all. While perhaps not nearly as serious as efforts to kill stories about Harvey Weinstein's accusers or Theranos whistleblowers, Boies also personally sent a bunch of totally bogus, censorial letters to basically every publication that wrote about the contents of the hacked Sony Pictures emails. He even sent one to me. The letter, ridiculously, demands that publications not write about the contents of those emails to "help [protect] the First Amendment." Convincing news organizations not to report on news is not protecting the First Amendment, David.

So, yes, Boies is right that it's a travesty that Epstein was able to convince powerful media organizations not to run stories exposing Epstein's misdeeds, but for Boies of all people to be bitching about that is particularly rich, given his own well-documented efforts to do similar things.

Filed Under: david boies, elizabeth holmes, free press, harvey weinstein, jeffrey epstein, stifling free press
Companies: abc, ny times, sony pictures, theranos, vanity fair

Sony Finds Itself In Court After Bullying Film Studio Over Supposed 'Slender Man' Copyright Infringement

from the copypasta dept

The last time we discussed Slender Man on this site, it was when two young girls stabbed their friend and blamed it on this internet ghost story, leading to the site Creepypasta feeling it needed to remind everyone that fiction is fiction and not the writings of a Satanic cult. Only briefly discussed in those writings was the origin of the Slender Man meme, which started as a Lovecraftian ghost story on the Something Awful forums by Eric Knudsen, who produced two photoshopped images of people being stalked by a faceless slender creep-bomb and added some fake quotations to make something of a story out of them. From those two photos and brief captions, the internet essentially took over, building entire stories and lore around Slender Man to the point where the whole thing is a wildly popular internet meme and ghost story staple.

So of course Sony Pictures bought the rights to the story from Knudsen and will now presumably ruin it all in a major motion picture. And that would be only mildly irritating, except Sony is also trying to bully a smaller studio, Phame Factory, out of producing its own horror movie, claiming it now has the copyright and trademark rights for Slender Man. This has resulted in Phame Factory suing Sony to get a court to declare its work not infringing.

The plaintiff in the case is Phame Factory, which had planned to digitally distribute a movie titled Flay only to get served with several cease-and-desist letters from Sony, which alleges that the main character in Flay blatantly copies the mysterious Slender Man, its bigger-budget horror flick set to be released Aug. 10. Phame Factory is now seeking a declaratory judgment that its promotion, distribution and advertisement of Flay doesn't infringe Sony's trademarks and copyrights. What's more, Phame Factory asserts that Sony's IP rights "are either indefinite, encompass free to use by all public domain property or lack the requisite legal requirements to be protectable and enforceable."

What makes this case so intriguing is the origins of "Slender Man."

There are all kinds of reasons why the court should side with Phame Factory here. The most straight forward of those reasons is that its own movie, Flay, doesn't actually directly name or pertain to the Slender Man mystique that Knudsen developed. Yes, it features a similar generic character as the "monster", a thin, faceless man. But that's about as generic as it gets in ghost stories. Hell, the whole reason why Knudsen's minimalist creation took off in wider internet culture was because of how vague a lump of clay it was for the creation of others.

And the creation of others is very much the second factor in all of this, not to mention the question about exactly what Knudsen had the rights to actually sell. The filing itself is essentially a repetition of Phame's repeated request to Sony to explain what in the hell exactly it thinks is infringing in any of this, where Sony has refused to reply with anything other than, essentially, Flay's existence. The problem for Sony here is two-fold. The bad guy character in Flay has marked differences with the Slender Man character other than a generic creepy appearance. On top of that, of all of the lore around Slender Man and that character archetype, the vast majority of it was not created by Knudsen, the person who signed over the rights to Sony.

If the Phame Factory case goes far, there could perhaps be similar exploration about who contributed what — and under what licensing scheme — back in 2009 on a message board. For now, Sony heads into a film release with an intriguing challenge to its intellectual property.

Here's the summary that can best sum up how absurd Sony's bullying is. Sony is now in court after threatening the makers of a film depicting a character that isn't the same, over depictions that aren't copyrightable generally, and over a character it bought the rights for from a person who barely created it in the first place.

Copypasta.

Filed Under: copyright, eric knudsen, fairy tales, idea expression dichotomy, memes, slender man
Companies: phame factory, sony pictures

Story About Ex-Sony Pictures Boss Magically Disappears From Gawker; His Lawyer Tells Reporters Not To Talk About It

from the right-to-be-forgotten? dept

Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it.

However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive:

A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures.

The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media.

Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like.

This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack.

And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story.

But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will.

Filed Under: michael lynton, right to be forgotten, threats
Companies: gawker, snap, sony, sony pictures

Good Ruling In California Protects Anonymity Of Online Critics -- Even When The Information Was False

from the anonymity-is-important dept

Over and over again we've seen people try to interpret anything someone says about them that they don't like as defamatory. But just because you don't like what's said, that doesn't make it defamatory -- and that can also apply even if the statements actually were false.

We've written a lot in the past about the importance of protecting anonymous speech online, so it's good to see a good ruling in California protecting the anonymity of an online critic (found via Eriq Gardner's story at The Hollywood Reporter). The story involves an anonymous email that was sent to a Sony exec and a producer working on the movie Goosebumps, raising some issues about a visual effects company, named Vitality, doing work on the film. There's a lot of background here that can get confusing so I'll try to detail it here as simply as possible:

1. A few years ago, a special effects house named Hydraulx did visual effect work on a Sony Pictures film, Battle: Los Angeles.
2. At the same time, Hydraulx was producing an entirely separate (non-Sony) film Skyline that had some similar plot points (aliens invade LA).
3. There was a fairly public dispute in which Sony accused Hydraulx of a variety of things stemming from this apparent conflict of interest. Eventually that dispute was settled.
4. Sony and the producers of Goosebumps hired a visual effects company named Vitality to work on the effects in that movie.

There's some more in there, but that should cover the key establishing facts. This lawsuit was against an anonymous person who sent an email to Sony and a producer of Goosebumps suggesting Vitality is actually the same company as Hydraulx and expressing surprise that Sony would work with them again after the earlier dispute -- and also wondering if perhaps Vitality had hidden the Hydraulx connection in getting the job. Here's the email:

I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx. I was surprised to see ‘Goosebumps’ on Vitalitys [sic] IMDB as Vitality is co-owned by Greg and Colin Strause of Hydraulx and I thought neither you nor Sony had a good relationship with the Brothers after Skyline/Battle L.A.

Vitality and Hydraulx share owners (Greg & Colin), their Exec Guy Botham works for both companies - Vitality and Hydraulx even share L.A. and Vancouver offices, hardware, and infrastructure.

If Vitality misinformed you or Sony as to its ownership or profit participants in any way, please take my email into consideration.

I am a concerned vfx professional whom, myself, has been burned by Greg and Colin and I do not like people perpetuating what I consider bad business practices.

Thank you for your time in reading. I hope this email helps.

Regards,
A concerned VFX recruit.

Separately, Hydraulx and the Strauses were already engaged in a defamation lawsuit against some anonymous critics who had sent emails to a movie studio that Hydraulx was working with, claiming that the company was on the verge of financial collapse. Perhaps thinking this new email was from the same, or a related, individual Hydraulx added this person "Doe 2" to that lawsuit and went about trying to discover who it was. Doe 2 filed an anti-SLAPP claim under California's (pretty good) anti-SLAPP law.

A state trial court recognizing (correctly) that you can't reveal anonymous speakers without showing a prima facie case of defamation looked at the various statements in the email and determined that they were enough to show defamation -- and then ordered discovery to go forward to identify Doe 2. To establish the defamation case, there were statements from the various people behind Hydraulx and Vitality insisting that the Strause brothers had no ownership at all in Vitality (there are separate statements in the ruling suggesting that Hydraulx had sold its old equipment to Vitality, but it's never addressed if that's true or not) On appeal, the appeals court has rejected that pretty soundly, noting that a variety of points. But, most importantly, it finds that even though the statement about the same ownership may be false, that isn't enough to reveal an anonymous speaker.

The key to rejecting the defamation claim: most of the statements aren't actually about Hydraulx, but Vitality. On top of that, all of the statements can be seen as either statements of opinion or simply not defamatory at all. There's a big discussion on whether or not the use of the word "whistle-blow" implied some sort of criminal activity on the part of Hydraulx, but the court says it does not:

The trial court expressed a concern that “in the language of the law,” “whistleblower” implied Hydraulx engaged in criminal or wrongful conduct: “People don’t whistle-blow fun, nice things that are meaningless. People whistle-blow wrongdoing. . . . And the word whistle-blow . . . causes me to read it in a different light.” While we agree that, in the context of litigation, the term “whistle-blow” can imply an allegation of criminal or wrongful conduct, we must consider the word in the context of Doe 2’s emails and measure its use “not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of [the] reader.”...

The specific wording of the emails, and the order in which the information is communicated, are instructive. Doe 2 opened his emails with cautionary language, saying, “I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx.”... The words “hoped” and “might” before “whistle-blow” signal that Doe 2 is using the term hyperbolically to introduce a communication of specific information that the recipients may not know. In context, the term explains why he is writing and introduces the information about Vitality and Hydraulx’s supposed shared ownership, which, in and of itself, is not defamatory.

The court also notes that just because the common ownership of the two companies, even while false, is not defamatory:

Although Greg Strause’s and Bothman’s declarations were sufficient to make a prima facie showing of falsehood with respect to the statements associating Hydraulx with Vitality, the allegation of common ownership is not defamatory on its face and Hydraulx has not offered any extrinsic facts supporting a defamatory innuendo. To the contrary, because Hydraulx’s complaint and declarations portray both companies in a positive light, there is no indication that the inaccurate attribution of common ownership was defamatory.

On top of that throughout the email, it's pretty clear that the individual is sharing information that he felt that producers/studio might not know, rather than making defamatory claims. Specifically, the emailer wasn't making new claims that were defamatory but calling attention to previously known information:

Hydraulx argues that Doe 2’s offer to “whistle-blow” and references to “bad business practices” and being “burned” imply a defamatory accusation Hydraulx engaged in dishonesty or wrongful conduct beyond the conflicts of interest addressed in the emails. We find that in context, the term “whistle-blow” was used hyperbolically to introduce the disclosed and non-defamatory allegation of common ownership and that Doe 2’s reference to “bad business practices” reasonably referred to the known or disclosed facts: Hydraulx’s Skyline conflict of interest and Vitality’s potential conflict if it failed to disclose common ownership. In context, the only reasonable interpretation of “bad business practices” is in reference to facts known to the recipients of the emails (Hydraulx’s prior conflict of interest) and facts disclosed in the emails (the false allegation of common ownership and Vitality’s potential conflict of interest involving Goosebumps .)

Got that? Because the only bad behavior the emailer was referencing by Hydraulx was the already known dispute -- and the only false claim wasn't defamatory, there's no defamation here. Hydraulx isn't claiming that the original stories of conflict of interest around Skyline/Battle:LA are defamatory (because it probably can't), so it can't really say this is defamatory here.

Also hurting the defamation case -- the emailed discussions among the folks working on Goosebumps in response to these emails was basically that they didn't even believe it in the first place.

The court also finds that the phrase "bad business practices" is so broad and vague that it also cannot be found to be defamatory:

The same is true in this case because behavior one person regards as a “bad business practice” may be acceptable to another person and conduct causing one person to feel “burned” may not affect another person at all. Someone might regard something as trivial as failures to return telephone calls as “bad business practices.” Another person might use “bad business practices” to describe fraudulent or unlawful conduct. Similarly, a person might feel “burned” by any range of behavior, from a social snub to a fraudulent transaction. Without some reference to the type of undisclosed misconduct, e.g., “In my opinion, John Jones is a liar,” these comments are too vague and uncertain to be actionable as conveying a defamatory accusation.

This is potentially an important ruling on a number of different levels. Sometimes we get so caught up in the "true/false" dichotomy that we don't step back and look at the bigger picture. Indeed, my first impression on reading through the ruling was that the email might, in fact, be defamatory because of the false claims of ownership in Vitality. It was only after walking through the court's careful reasoning that I realized that the court is right here. Just because that claim is false, that doesn't automatically make it defamatory. Defamatory speech needs to not just be false, but false and injure someone's reputation. In this case, the email was clearly trying to portray Vitality in a bad light (and, to a lesser extent, Hydraulx), but the statements making them look bad were either based on factual claims or statements of opinion. The only statement deemed as false didn't harm Hydraulx's reputation at all.

It's good to see the court take the time to carefully parse the email this way and break it out. This will provide more protections for anonymous online critics in the future as well.

Filed Under: anonymity, california, critics, defamation
Companies: hydraulx, sony pictures, vitality

Irony: Sony Pictures Sued For Failing To Stop Piracy

from the shoes-on-the-other-foot dept

For many years now, the MPAA and the various studios that make it up have filed various lawsuits against various internet platforms for not waving a magic wand and making piracy disappear. This also appears to be their big complaint against Google, which has bent over backwards trying to appease the industry and it's still not enough (of course, that may be because what the industry really wants from Google is money, not stopping piracy). But now the shoe is somewhat on the other foot as Sony Pictures is being sued for failing to stop piracy. Really.

The case stems from the infamous Sony hack from a year and a half ago, where all of Sony Pictures' emails were released onto the internet. Possibility Pictures is suing Sony claiming the hack created a breach of contract in its failure to stop piracy of its film, To Write Love On Her Arms (TWLOHA), a 2012 movie starring Kat Dennings, based on the true story of the struggles a woman went through leading to the founding of her charity (which goes by the same name as the movie). While most people focus on the emails from the hack, it should be noted that before those emails were released, the hackers released some pre-release films... including TWLOHA. And that, Possibility claims, is a breach of Sony's contract.

Reading through the full filing, the key breach appears to be of Section 16.7 of the contract, which includes an "anti-piracy authorization" stating: So that's kind of amusing, since the clause is clearly designed to give Sony the power to send out threat letters and takedowns and use DRM and other such stuff -- but Possibility is basically turning it around on Sony and arguing that its failure to stop piracy shows that it did not use "appropriate technical measures." I'm not sure a court will go for this kind of judo move in flipping the anti-piracy authorization clause around to suggest that it puts certain contractual requirements on Sony Pictures, rather than simply authorizing it to do certain things as the language is clearly designed to do.

The lawsuit goes on and on about all of the great marketing plans Possibility had for the film (Justin Bieber's mother was going to tweet about it!), but apparently that was all ruined when the hackers, whoever they were, leaked the film. It also highlights Sony's earlier security problems, focused on the famed PSN hack, even though that's an entirely separate subsidiary from Sony Pictures. And then it spends a lot of time pointing to reporters who pointed out that Sony Pictures' computer security was abysmal. That's true... but it's not clear that's against the law. Basically, this lawsuit is mostly "Sony incompetent" and then "because of that our contract was breached."

Possibility then tries to show damages from the leak of the film.

The direct and proximate result of the foreseeable and avoidable Data Breach just four months prior SPWA's planned release of the Picture was an extreme dilution of the otherwise viable market for Plaintiff's Picture. The November 2014 Data Breach resulted in the unauthorized release of the Picture on multiple sites worldwide and destroyed the audience demand for the Picture. Following the Data Breach and worldwide pirated release of the Picture, SPWA abandoned the social marketing plans and lost all interest in promoting and marketing the Picture since it was otherwise available for free as a result of its failure to maintain adequate security of the Network. As an isolated sample of the damage caused the anticipated video-on-demand ("VOD") revenue stream of the Picture, note that in the first six days alone following the Data Breach, the stolen Picture master was downloaded-for-free a reported 19,949 times (an average rate of over 3300 illegal, revenue-free downloads per day).

So... a few things on this. First, downloads don't equate to lost sales, generally speaking, so the attempt to suggest that here without further evidence is pretty silly. Second, less than 20,000 downloads is... kinda weak. It certainly suggests there wasn't much interest in the film in the first place. Third, the idea that there's no market for a movie that's available for free online is easily debunked by the numerous movies that do quite well at the box office and in the home video market despite also being pirated online.

However, the more interesting bit is that this puts Sony Pictures in the fairly awkward position of potentially having to argue that piracy isn't really that damaging to a picture. I'm guessing that Sony Pictures and the MPAA want no part of that argument ever being filed in a court, because it will boomerang back to hurt them.

Either way, the filmmakers are demanding almost $9 million:

The amount of that revenue for which we seek payment, less amounts paid to date, is $8,738,331...

For a movie that not that many people seemed interested in?

Separately, Possibility notes that Sony pointed out that there's a binding arbitration clause in their contract, and Sony has already said that if there's a dispute it must be handled by such an arbitration setup. Possibility tries to get around this, but (unfortunately!) courts have tended to accept these binding arbitration clauses as valid.

If I had to put odds on it, I wouldn't give this lawsuit much of a chance of surviving. The attempt to turn an anti-piracy authorization clause into some sort of requirement to block piracy is a massive stretch. The mandatory arbitration clause is also a problem. Plus, the overall lawsuit is pretty weak. The claim itself is not very well backed up. Chances are Sony can get this tossed out quickly -- but it will be amusing to see if it has to argue that piracy isn't really that damaging. That would be fun.

Filed Under: breach of contract, lawsuit, movies, piracy, sony hack, to write love on her arms
Companies: possibility pictures, sony, sony pictures

Sony Pictures Legal Affairs VP Files Bogus DMCA Notice Because His Salary Is Listed On Wikileaks

from the it's-$330,000-by-the-way dept

Yeah, so the Sony Pictures hack is basically old news at this point. People have gone through it for all the juicy details and it's been out of the news for quite some time. So, apparently, one Sony "legal affairs" exec decided that perhaps he could engage in a little copyfraud to try to hide some info without anyone noticing. As TorrentFreak first noticed, however, Sony Pictures Legal Affairs VP Daniel Yankelevits wasn't particularly subtle in sending a DMCA notice to Google, asking it to delist the Wikileaks page with a search engine for all of the Sony Hack emails. The full DMCA notice is as stupid as it is faulty: There are oh so many things wrong with this -- many of which you'd think a "legal affairs" VP at a giant entertainment company would know about before sending it. But, to be fair, Yankelevits appears to be more of a contracts / "dealmaker" legal exec, rather than an intellectual property expert. But, still...

Yankelevits gets almost everything wrong with this bogus takedown. Let's count the ways:

1. This is not a legitimate DMCA notice by any means. He does not specify what copyright is being infringed (because none is).
2. "It's not right" is not a claim of infringement.
3. His salary info ($320,000 possibly rising to $330,000, by the way) is not copyright covered material.
4. His clueless request asks for "https://wikileaks.org/sony/emails" to be removed. That's the front page for Wikileaks' archive of all the leaked Sony emails. That means that the actual email wouldn't even have been removed from Google's Index if Google had complied (which it did not).
5. Clearly, Yankelevits does not hold the copyright on the email in question, which was not written by him.
6. Yankelevits sent the bogus DMCA takedown on behalf of Sony Pictures, despite there clearly being a personal motive behind it. It makes you wonder if Sony Pictures lets any exec just file DMCA notices in its name.
7. Yankelevits lists the actual email URL as the "original URL" which makes no sense. The "original URL" is supposed to be where the content was copied from.

So, here we have a Sony Pictures legal exec filing a DMCA notice so stupid that it fails to make a copyright claim, fails to list the infringing work, and instead points to the email he really wants taken down as the "original" work, and demands a different URL (which doesn't have the info he's trying to hide) get taken down -- and it's all because he doesn't want his salary posted, because "it's not right" which is, you know, not how copyright law works, at all.

But it does give you some enlightenment into how a top lawyer at Sony Pictures actually recognizes that the DMCA is a tool for censorship, yes? Well, that and the caliber of the legal minds working at Sony Pictures in their "dealmaking" division.

Filed Under: censorship, copyfraud, copyright, daniel yankelevits, dmca, salary info, sony hack, takedown
Companies: google, sony pictures, wikileaks

Sony's New Emoji Animated Movie At Trademark Odds With Guy Who Trademarked Emojis

from the sad-face dept

It probably goes without saying that the word "emoji" is now a full member of the popular lexicon. So popular, in fact, that Sony is apparently going to release an animated film called The Emoji Movie, which will follow the "lives" of a bunch of emojis, for reasons I cannot possibly fathom. But, as the release of the film is currently in the works, Sony is also apparently preparing to fend off a trademark claim from Marco Husges, a game developer and emoji creator.

According to The Hollywood Reporter, however, the studio may also be preparing for a legal battle as one former game developer says he owns the merchandising trademarks for more than 3,000 emoji.

Marco Husges, who worked on the MMO Shadowbane, and on Starbreeze Studios'Enclave, filed for commercial trademarks of the word "emoji" back in 2013. As such, Husges doesn't own the rights to the emoji images people use on their iPhones (which are trademarked to Apple) or Android devices (trademarked to Google), but he does own the rights to his own designs. He also owns the rights to certain words, like "emojitown" and "emojiworld."

Now, were Sony to be insane enough to pilfer unique creatively designed emojis and simply use them in its film, Husges would appear to have a straightforward copyright and/or trademark claim. But there's almost zero chance that Sony would do that, as well traveled as the company is in intellectual property dispute circles. What appears to be more at issue here is Sony's production of a movie with "emoji" in the title at all, not to mention should it attempt to do any merchandising around the film.

"I am curious how Sony would want to produce a movie under that name and do accompanying merchandising, especially given the fact our brand has already been successfully established with license partners and retailers all over the world," Husges told The Hollywood Reporter.

Husges added that the reason he trademarked certain aspects of emoji back in 2013 was to eventually adapt the pictograms for film and television use. He said he believed emojis could be the next Teenage Mutant Ninja Turtles or Minions if the right stories were applied.

Sony has indicated that it will move forward with the movie, with Husges responding that he's ready to take the film studio on in court. Sony, for its part, has begun working with a licensing firm to ensure that the film's characters themselves won't run afoul of any IP issues.

But what of the title of the film itself, or the use of the term "emoji" on merchandise? Can that word really be the subject of a trademark action when it is clearly descriptive? The etymology of the word "emoji" will travel you down the path of the Japanese language and the portmanteau of the terms for picture and character. Emoji is a literal descriptive term for a picture-character. How does that limited use of the word qualify for trademark protection?

To be clear, longer film titles like The Emoji Movie might qualify for trademark protection for films and merchandise, but that isn't what Husges is arguing. Even were Husges to make good on his promise of his own emoji-based animated productions, that doesn't itself render emoji non-descriptive. Given its recent emergence in popular language, it will be interesting to see how the courts view this dispute, should it ever get that far.

Filed Under: emoji movie, emojis, marco husges, movie, trademark
Companies: sony pictures

Sony Pictures, Which Hyped Up 'Harm' Of Hack, Now Tells Court No Harm Done To Employees

from the thread-that-needle,-sony... dept

In the wake of the Sony Pictures hack, the company went somewhat ballistic in trying to describe just how "harmful" the hack was. It brought on famed lawyer David Boies to threaten anyone who published any information from the hack, claiming that it was a violation of the First Amendment (yes, it told the media that publishing news was a violation of the First Amendment). The company also (ridiculously) threatened to sue Twitter, claiming that Twitter would be held "responsible for any damage or loss arising from such use or dissemination by Twitter." Thoughout it all, Sony kept arguing that this hack was a complete disaster and incredibly harmful.

However, now, in court, Sony is suddenly forced to tap dance around those claims and argue that there has been no harm at all done to the employees of the company, who have filed a class action lawsuit against Sony Pictures for failing to protect their data. In a filing first highlighted by Eriq Gardner at The Hollywood Reporter, Sony Pictures insists that basically there has been no harm whatsoever and mocks the employees who say otherwise, noting that their "PII" (Personally Identifiable Information) disclosed was not particularly private in the first place.

Plaintiffs’ experiences in the wake of the cyberattack are entirely consistent with the empirical consensus just discussed. To start, the PII disclosed for each Plaintiff varies widely.... For example, Mathis asserts only that her name, SSN, and former (not current) home address were disclosed.... (Even on that score, she appears to be wrong. Plaintiffs cite no evidence that her SSN was disclosed. The sole document they cite... has the SSN of a different Mathis.) For his part, Forster believes an array of his PII was disclosed, including his SSN and birthday, as well as outdated bank information, an invalid driver’s license, and former medical insurance information (which he admits are “useless” or “worthless”)....

What is more, some Plaintiffs maintain active online presences, which means that much of the PII they claim was disclosed in the cyberattack already had voluntarily been made available online. For example, while Forster complains that his title, place of work, and dates on which he joined and left SPE were disclosed, he acknowledges that he had posted that information to LinkedIn and thus could not be harmed by its disclosure.... Levine likewise admits that he has “put a lot of [his] life online.” ... For him and others, a wide range of PII was available online prior to the attack.

The other line of defense? If there is any harm, who can really say that it actually came from the Sony hack, rather than any other recent hack?

Plaintiffs (and, undoubtedly, unnamed classmembers) have been exposed to multiple breaches and incidents of identity theft involving various permutations of their PII.... To prove that any injury—or even risk of future injury—is attributable to the cyberattack, each classmember would have to show that this cyberattack, and not another event, caused any incident of identity fraud.

The other problem is that the only actual loss that any of the plaintiffs show right now was an unauthorized purchase on a credit card, but the filing points out, this employee was fully reimbursed (i.e., no loss) and it's also not at all clear that it happened because of the Sony hack.

Similarly, while Corona claims that somebody made an unauthorized purchase using his credit card after the cyberattack on SPE (for which he was fully reimbursed), he acknowledges that he also had unauthorized purchases on his credit card before the cyberattack, and that he could only “guess” at the connection, if any, between the more recent unauthorized purchase and the cyberattack.

To be honest, Sony's argument here is pretty strong. Courts have pretty consistently rejected class action lawsuits over data breaches when there are no actual losses, or where the losses are purely theoretical. It seems very likely that the former Sony employees here are going to lose.

But... it does seem rather amusing to see Sony -- which went on and on and on about all the "damage" the leak was going to cause -- now have to argue that its own employees experienced no harm at all...

Filed Under: class action, damages, emails, hack, harm, lawsuit, sony hack
Companies: sony, sony pictures

Vimeo Should Take Some Of The Blame For Simply Accepting Massive Bogus DMCA Takedown Over The Word 'Pixels'

from the nice-work,-geniuses dept

I was going to start off this post by noting that, over the weekend, Andy at TorrentFreak had the story of how Columbia Pictures appears to have hired the "worst anti-piracy group" around to issue DMCA takedowns, but that's wrong. This kind of thing is all too common. Columbia Pictures appears to have hired basically your standard clueless "anti-piracy" group, and it's resulted in a DMCA takedown letter that took down basically every video on Vimeo with the word "Pixels" in the title, all because of Columbia's mega flop Pixels, an Adam Sandler film that is being called "one of the worst movies of the year."

The DMCA notice sent by Entura International on behalf of Columbia Pictures, is so bad that whoever the genius was at Entura who put it together even notes in the "description" the full names of the videos it's taking down -- which should have been an indication that perhaps these were not the same videos as the Adam Sandler film. One of them is even clearly labeled as "the official trailer" of the Adam Sandler film. Also, as some have noted, this takedown effort includes the critically acclaimed film that inspired the Adam Sandler film. Columbia Pictures bought the rights to Patrick Jean's video in order to make its own film, but those "rights" did not include being able to DMCA the original. It also took down other completely unrelated projects as one created by a Cypriot filmmaker for a non-profit NGO, a Hungarian student's final project for his degree, and a personal project involving Pantone paint swatches.

The TorrentFreak article notes that the NGO, named NeMe, has protested the takedown, pointing out that this is ridiculous and asking for help -- only to have Vimeo staff say that the only way to deal with it is to file a counternotice: And while that is the official process, counternotices often scare people off, because if the other side disagrees, the next step in the DMCA is for the other side to file a lawsuit -- and many don't even want to take that chance.

And, yes, obviously, much of the blame for this ridiculous set of circumstances should fall on Entura International for being terrible at its own job in issuing bogus takedowns. And some of the blame should fall on Columbia Pictures for hiring Entura -- a company that clearly has no business sending out DMCA takedowns. But, also, much of it should fall on Vimeo for simply giving in and accepting the obviously bogus takedown requests. Just recently, we noted that Automattic (the company that makes WordPress) had published in its transparency report that it had rejected 43% of the DMCA takedown notices it had received -- and we suggested other companies start paying attention. Google also is known for rejecting bad DMCA takedowns.

However, it appears that Vimeo doesn't bother. Send a takedown, no matter how ridiculous, and apparently the company will comply and take it down -- and if you complain to support staff, the company tells you that you need to go through the legal process of sending a counternotice, rather than reevaluate its own faulty review process. Of course, if the story of bogus takedowns gets enough press attention then Vimeo might act and and ask Entura for an explanation leading the company to withdraw the takedowns and try to wait out the ridicule. But, really, that's ridiculous. Vimeo should be standing up for its users' rights and it did not. Vimeo failed.

Yes, we can argue that it's ridiculous the way the DMCA safe harbor process creates incentives for Vimeo to do exactly what it did here (in that it grants full liability protection for taking down any work if you receive a valid notice), but more and more companies are at least doing cursory reviews. Vimeo has clearly chosen not to do so, which, at the very least, should raise questions among users about if that's the right platform for them to use, when the company doesn't seem even remotely interested in making sure its own works are protected against bogus takedowns.

Filed Under: adam sandler, copyright, dmca, pixels, takedowns
Companies: columbia pictures, entura, sony pictures, vimeo