Judge Who Originally Approved Sketchy UNC 'Silent Sam' Settlement Now Voids Deal, Realizing 'Confederate' Group Had No Standing

from the maybe-shoulda-checked-earlier dept

Back in December, we wrote about the crazy situation in North Carolina, mostly unearthed by lawyer Greg Doucette, that the University of North Carolina had "settled" a lawsuit before it was even filed. The background story was crazy, and this is only the briefest of summaries. The "Silent Sam" statue was put onto the UNC campus by the "United Daughters of the Confederacy" in 1913 as part of a process that happened throughout the south many decades after the Confederacy lost the Civil War to try to put in place racist monuments and to pretend that there was some noble cause behind the war to defend enslaving people. As more and more people have recognized the racist purpose, history and intent of these monuments, many have been removed. Students at UNC toppled the Silent Sam statue a few years ago, and the University has basically just tried to avoid talking about it since, especially as racist-celebrating officials tried to legislate that such monuments to racism must stay put.

Then, the day before Thanksgiving, the Sons of Confederate Veterans (not the Daughters...) announced that it had "settled" a lawsuit with UNC, in which it would be receiving $2.5 million and the statue from the University, and would be building some sort of museum to house it off campus. But among the many oddities involved in this was that UNC had approved the settlement a few minutes before the lawsuit was filed, and then the judge in the case, Allen Baddour, had approved the settlement literally minutes after the case had been filed. It seemed pretty clearly that this was a coordinated effort to create a fictitious scaffolding on which to tell a face-saving story, rather than a legitimate use of the courts.

Indeed, as Doucette quickly turned up -- only to then face a bogus DMCA takedown notice over -- the head of the Sons of Confederate Veterans, Kevin Stone, had sent around an email to his group's members, flat out admitting that the group had no standing to sue. Since then, various students have tried to intervene in the case, which the Judge rejected. However, now, at this belated date, he seems to have recognized that the Sons of Confederate Veterans (as they themselves admitted) had absolutely no standing to sue, and thus has voided the settlement.

Orange County Superior Court Judge Allen Baddour — who originally signed off on that settlement — ruled Wednesday that the group lacked standing to bring its lawsuit in the first place.

The judge announced his decision at a hearing in Hillsborough, N.C., as five UNC students and a faculty member, represented by the Lawyers' Committee for Civil Rights Under Law, intervened to try to stop the settlement.

Incredibly, UNC is still defending its decision to not just give this monument to racism to a group that celebrates its racist history, but to give them a huge chunk of money as well:

"The Board of Governors knew from the very beginning that this was a difficult but needed solution to meet all their goals to protect public safety of the University community, restore normality to campus, and be compliant with the Monuments Law," Rand said in a statement. "The Board of Governors will move forward with these three goals at the forefront and will go back to work to find a lasting and lawful solution to the dispute over the monument."

While it is true that North Carolina's ridiculous Monuments Law might put the University in a difficult position with regards to complying with that law -- nothing in that law says they also need to fund a group with $2.5 million to celebrate a racist legacy.

Filed Under: greg doucette, kevin stone, sham lawsuits, silent sam, standing
Companies: sons of confederate veterans, unc

Sons Of Confederate Veterans Sued Over Bogus DMCA Takedown

from the well,-that-should-be-interesting dept

As you'll recall, earlier this month we wrote about this bizarre situation in North Carolina, in which the University of North Carolina agreed to give a bunch of racists $2.5 million to settle a lawsuit before the lawsuit had even been filed. The details of the story came out due to some inquisitive digging by North Carolina lawyer Greg Doucette. And, in response to him publishing the details, including a "victory" letter sent by the head of the North Carolina Sons of Confederate Veterans (in which it is admitted that they obviously had no legal standing to sue), Doucette's Dropbox account was blocked thanks to a bogus DMCA letter from the group. Doucette retained lawyer Marc Randazza, who sent the Sons a letter demanding they use the $2.5 million to fund scholarships for African American UNC students or face a lawsuit for the bogus takedown. That letter argued that the bogus DMCA notice violated Section 512(f) of the DMCA, which (in theory) is supposed to stop abusive takedowns by punishing "misrepresentations" in takedown notices.

As I noted at the time, Section 512(f) of the DMCA is effectively dead, as courts rarely enforce anything about it and, at best, have said that those issuing a DMCA notice simply only need to consider fair use and if they, in their minds, think it's not, can still send the takedown. However, Randazza and Doucette have decided to move forward anyway and have sued the NC Sons of Confederate Veterans, along with its leader Kevin Stone, and Dropbox (who blocked Doucette's account). As is fairly typical of a Randazza filing, it's an entertaining read:

Some claim that memorials like these are there to celebrate “southern heritage” rather than as memorials to the subjugation of African Americans.

When Silent Sam was unveiled in 1913, KKK supporter Julian Carr announced that the Confederate soldiers it honored had saved “the very life of the Anglo Saxon race in the South,” and told the following story:

“One hundred yards from where we stand, less than ninety days perhaps after my return from Appomattox, I horse-whipped a negro wench until her skirts hung in shreds, because upon the streets of this quiet village she had publicly insulted and maligned a Southern lady, and then rushed for protection to these University buildings where was stationed a garrison of 100 Federal soldiers. I performed the pleasing duty in the immediate presence of the entire garrison, and for thirty nights afterwards slept with a double-barrel shotgun under my head.”

With a metaphorical flamethrower taken to this myth of “southern pride,” student protesters tore the statue down on Monday, August 20, 2018. The University of North Carolina did not restore the statue to its former “glory.”

On November 27, 2019, the Sons of Confederate Veterans filed a lawsuit against UNC for its failure to return Silent Sam to his location, despite lacking standing (and knowing it) to bring such a suit. Despite the fact that the NCSCV lacked standing, seven minutes after the suit was filed, a state court judge approved a settlement between the parties.

The lawsuit has been filed not in North Carolina, but in Norther California (the other NC). The reasoning here is that because this lawsuit is over a DMCA takedown notice to Dropbox and Dropbox terms require users to consent to Northern California jurisdiction:

This Court has personal jurisdiction over Defendants because a) in using Dropbox, they consented to personal jurisdiction and venue in the state and Federal courts in San Francisco, California; and b) the sending of the takedown notice at issue constitutes sufficient minimum contacts under Cal. Code Civ. Proc. § 410.10 and U.S. Const., Amdt. XIV, where Defendants purposefully directed their acts toward California, committing an intentional act, expressly aimed at California, causing Plaintiffs harm in California as they have been deprived of the full use of their California-based Dropbox account.

This also appears to be the sole reason that Dropbox is listed as a defendant in the case. The complaint notes that it is not asking for any money from Dropbox, just to have Doucette's account restored:

Dropbox is named as a defendant herein only to achieve complete relief; Plaintiffs seek no damages against Dropbox.

Well, these are the stated reasons for filing in California. I am assuming that the actual reason for suing in Northern California is that probably the only two successful 512(f) lawsuits both came in the Northern District of California and the 9th Circuit has probably the most caselaw on such claims -- but that includes an appellate ruling that the "good faith" requirement is subjective. That is, if the takedown notice filer believes in their minds that the DMCA notice was legit, that's enough. Of course, one other possible reason for filing in Northern California rather than North Carolina? Folks in California might not be quite as sympathetic to the Confederacy as folks in North Carolina.

As much as I'd like to see better rulings on 512(f) (or for Congress to fix it so that it has some teeth), I find it unlikely that this case will get very far -- and, frankly, the California filing feels a bit like jurisdiction shopping. It's not totally egregious as such (Dropbox is here in northern California and there are legit arguments for why the recipient of the takedown may be the proper party for determining jurisdiction), but... it's still a stretch. The declaratory judgment for non-infringement seem like much stronger claims, though they won't generate monetary returns.

In the meantime, the situation with UNC and the statue itself is far from over. Outcry and protests over the sketchy deal has resulted in at least one UNC funder pulling a $1.5 million grant to the University. And it doesn't sound like the outcry and protests are calming down. Separately, a group of UNC students have moved to intervene in the original case (the one that was filed and settled in mere minutes) trying to have the settlement tossed and then the case dismissed entirely.

Filed Under: 512(f), 512f, copyright, dmca, greg doucette, kevin stone, marc randazza, takedowns
Companies: drop box, sons of confederate veterans, unc

Lawyer Asks Racists To Use Sketchy Millions They Got From UNC To Fund Scholarships For Black Students To Avoid Lawsuit For Bogus Takedown

from the unleash-the-kraken-who-says-fuck-a-lot dept

Last week we wrote about the sketchy, sketchy deal in which UNC gave some racists $2.5 million to settle a lawsuit that was filed after the agreement was made, and settled moments later. More and more details keep coming out, making the whole situation look even sketchier (and even less legal). However, for our purposes, we're focused on the copyright angle of this story. As you'll recall, the lawyer who tracked down many of the details, T. Greg Doucette, also got his hands on a letter from the racist group, the Sons of Confederate Veterans, explaining the whole deal, including them admitting flat out that they didn't have standing to sue, and any lawsuit would be thrown out almost immediately. That is, unless you've set it up so that the University has already agreed to give you millions of dollars. Doucette posted the letter to his Dropbox account, where he had posted other documents regarding this mess.

Then, the Sons of Confederate Veterans sent a DMCA takedown notice over the letter, and Doucette's Dropbox is (as I type this) still limited. However, late last week, Doucette hired lawyers Marc Randazza and Jay Wolman to send quite a letter to the Sons of Confederate Veterans, arguing that the DMCA takedown was a violation of 512(f) of the DMCA. The initial letter (linked here and embedded below) was sent to lawyer Boyd Sturges, who represented the Sons of Confederate Veterans in their "negotiations" with UNC. However, I've been told that Sturges refused to accept the letter, claiming he had nothing to do with this aspect, and so a second (though, nearly identical) letter has been sent directly to R. Kevin Stone, the "Commander" of the Sons of Confederate Veterans.

We'll jump straight to the punchline. After spending a few pages in typical Randazza-style flowery language explaining just how bullshit the takedown was (and just how sketchy the UNC deal was), Doucette (via Randazza) say that they will go to court to argue that the takedown violates Section 512(f) unless the following happens:

Should your client wish to avoid litigation, Mr. Doucette proposes the following: the $2.5 million your client did or will receive from UNC will be, instead, diverted to a scholarship fund for African American students at UNC, or other similar use, subject to our client’s approval. And of course, the DMCA notice must be immediately withdrawn. If you accept this offer, our client shall commit to oblivion the feelings your client’s actions engendered.

That's a bit attention grabbing -- as is the rest of the letter. The argument for why a suit could work is included here:

Mr. Doucette used the letter to expose and criticize the fraud you perpetrated on the Court, including suborning Mr. Stone’s perjury. After all, it was a verified complaint, notarized by you. While this might make more shams less likely, again, this is not a “market” for the original letter.

The misleading takedown notice was issued in bad faith, because it failed to consider Mr. Doucette’s fair use rights. See Lenz v. Universal Music Grp., 572 F. Supp. 2d 1150, 1154-55 (N.D. Cal. 2008) (“An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine … is sufficient to state a misrepresentation claim pursuant to § 512(f) of the DMCA.") Your client clearly made such a material misrepresentation, and my client will not allow it to go unpunished.

The NCSCV is liable to Mr. Doucette for his damages and attorneys’ fees under Section 512(f) of the DMCA. Mr. Doucette is prepared to file suit for this, as well as for a declaration of non-infringement and any other causes of action he may have, which are still being evaluated. Mr. Doucette is considering a lawsuit not out of bitterness or vindictive feelings, but because it seems that the NCSCV has tried to wrest from him his dearest rights. This will not stand, man.

Unlike your client’s other most recent litigation, this suit will be real. Important principles are at stake, and Mr. Doucette is a man of principle.

While all of the above is accurate, what also remains unfortunately true is that DMCA 512(f) remains mostly toothless. The one useful 512(f) case, the Lenz case cited in the above section, still ended badly for the person targeted with the bad DMCA notice. While the court says you have to consider fair use, it more or less set up the rule that as long as the issuer of the DMCA briefly considers fair use before issuing the DMCA notice anyway, it's not going to matter.

So even if this did go to court, I'm not at all confident that Doucette/Randazza would win. This is why, if anything, 512(f) should be strengthened, to stop the bogus use of these kinds of censorial takedowns. So, while the letter is amusing, and a fun read, I'd be surprised if it actually results in anything significant.

Filed Under: 512(f), 512f, censorship, copyright, dmca, greg doucette, marc randazza, scholarship, sons of confederate veterans
Companies: dropbox, unc

UNC Gave Racists $2.5 Million To Settle A Lawsuit That Hadn't Been Filed Yet, And The Racists Are Abusing The DMCA To Hide The Details

from the buckle-in dept

Last Wednesday, right before Thanksgiving, some very odd news broke about the University of North Carolina giving the Sons of Confederate Veterans $2.5 million and a bullshit confederate statue that had been torn down by protesters in 2018. The Sons of Confederate Veterans have a history of promoting racist ideas and movements, with a special focus on promoting Confederate monuments and symbols -- symbols of support for slavery from a bunch of literal traitors -- as well as promoting historical revisionism about the US Civil War. Contrary to the belief of some, those monuments -- including the one at UNC -- were put up many years after the Civil War, and were frequently put in place as a show of racist attitudes and beliefs, not as a historical remembrance. There's a reason so many places are choosing to take those down.

The NY Times story linked above had some oddities in it. It claims that UNC's Board of Governors agreed to hand the "Silent Sam" statue over to the group and give them $2.5 million, perhaps to build a museum to house the statue, to settle a lawsuit. But what lawsuit? And what possible standing could the Sons of Confederate Veterans have to sue over a statue it did not own and had no direct relationship with? There was one line that really stood out to me in the original story:

R. Kevin Stone, the commander of the Confederate group, said the settlement was fair. He said that his group was in possession of the statue at an “undisclosed location.”

He did not know specifically when his group had sued the university but said that negotiations had been going on for months.

The leader of the group doesn't know when they sued the University? Huh? It turns out that the same sentence caught the attention of tenacious lawyer, and producer of epic (and often impossible to follow) Twitter threads, Greg Doucette, who decided to investigate. Doucette discovered that the lawsuit was filed... Wednesday. Not some Wednesday in the past, but last Wednesday. The same day that the lawsuit was settled. And, even more insane? The UNC Board of Governors met an hour before they were served with the lawsuit to approve the settlement. That's... not how this is supposed to work. And then, UNC immediately filed an answer to the lawsuit, and then a settlement "consent judgment" was entered, and signed off on by the judge -- all on the day before Thanksgiving, all within a few hours. Oh, and as Doucette points out, the judge who signed off on the settlement, Superior Court Judge Allen Baddour, happens to be a UNC and UNC Law alum.

Doucette even points out that the University sent out a press release about the settlement before the lawsuit even existed. Which is... very, very odd.

Still, that's not usual Techdirt fare. What makes it worthy of Techdirt is what happened this week. Doucette has continued his digging (and continued to lengthen his Twitter thread). He went to the courthouse to scan all the court documents related to the lawsuit. He posted all of the documents to a Dropbox folder. Except, if you go to that link as I type this you see this:

What happened? The Sons of Confederate Veterans sent a bogus DMCA takedown notice to Dropbox, claiming that it violated their copyright. Their copyright on public court filings. I am assuming that Dropbox will get this sorted out fairly quickly, but all of this may make you wonder just why would such an organization file a completely bogus takedown notice to hide documents in their own damn lawsuit?

It seems what really, really pissed off the Sons of the Confederate Veterans was that Doucette had posted the "victory statement" which literally has the leader of this group giving away the entire game plan, including flat out admitting that they had no case at all, and everyone he spoke to agreed that any case would get thrown out of court:

As to option one, having the memorial restored to McCorkle Place at UNC, we have been trying for over a year to find a way to bring suit against UNC, the UNC Board of Trustees, and the UNC Board of Governors, and anyone personally, like Carol Folt, who could be held responsible. As we have mentioned dozens of times, despite consulting every known legal source, including those parties who have had success with SCV suits in Virginia and Tennessee, we could not get past the issue in North Carolina law of legal standing in the Silent Sam case so to bring a suit. Even if we had filed suit, our complaint would have been challenged and dismissed immediately without result. After extensive consultation (with judges, retired judges, etc.), we were 100% certain that this would be the outcome.

It also admits that the group and UNC had spent months negotiating this "deal" in secret, fearing that any media leak would torpedo the deal.

Prior to this point, we could not mention ANY of this to you at meetings or over the Tar Heel email list because all negotiations were required to be 100% confidential. For their part, knowledge by the media, the leftists, UNC faculty, and even other members of the Board not privy to the negotiations that their leadership was working with the SCV would have torpedoed the whole thing. On our part, with a minority of disgruntled and impatient members in our ranks, and those who have admitted that they gladly share information with our enemies, there was a very distinct risk that loose and uninformed talk would have ended the whole thing, and that nothing would be accomplished. A breach of this confidentiality would have killed the whole deal. This is why we could not share extensive details until now.

The statement also notes that it will reveal "more details than I will be giving the media and others," and boy does it ever. He more or less gloats over the fact that the University is literally paying them for this.

What we have accomplished is something that I never dreamed we could accomplish in a thousand years and all at the expense of the University itself. This is a major strategic victory, and I look forward to continuing to move the Division forward.

There's a lot more in the ongoing thread (as there always in Doucette's rather epic threads), but for the purposes of Techdirt, we'd just like to call out yet another example of how the DMCA is abused for censorship once again -- and how that sometimes backfires and helps draw a lot more attention to whatever it is that people are trying to hide (there's a name for that somewhere...).

What's truly hilarious about this whole thing is that, according to that "victory statement," part of the reason why UNC was so eager to do this deal was to... avoid bad publicity. That also explains why all of this went down the day before Thanksgiving. That strategy doesn't seem to be working out quite as intended, though.

Filed Under: censorship, confederate statues, copyright, dmca, north carolina, racists, silent sam, unc board of governors
Companies: sons of confederate veterans, unc

University Thinks Yik Yak Ban It Can't Possibly Enforce Will Fix Its 'Hate Speech' Problem

from the when-you-eliminate-the-impossible,-whatever-remains-won't-be-this-ban dept

How much stupid can you possibly fit into one policy decision? The range is infinite, but the University of North Carolina is aiming high.

Administrators at the University of North Carolina (UNC) at Chapel Hill are now considering a Yik Yak ban, at the request of some students. "People have been saying some very racist, very hurtful things," Ashley Winkfield, a UNC senior, told WRAL.com.

For those of you unaware of Yik Yak's existence, much less its purpose, Yik Yak is a social media app that allows anonymous postings. This anonymity tends to bring out the worst in some people, and Yik Yak has fielded plenty of criticism along these same lines over the past several months. But it's far from the only social media platform that allows anonymous postings -- which is only part of the stupidity inherent to the school's plan to ban this particular app.

First off, there's the issue with "hate speech." Some speech clearly falls under this heading. Other stuff tends to fall under the "well, I just don't like what this person is saying" heading. Far too many educational entities tend to frown on both, often with restrictive speech policies. That's where this is going with a full head of "we'll decide what's actually protected speech" steam.

Vice Chancellor of Student Affairs Winston Crisp said UNC-Chapel Hill officials are examining options for dealing with Yik Yak.

"I think it adds little to no value to our community and creates more problems for our students than it will ever be worth," Crisp said in a statement. "We want Carolina to be a place where people feel comfortable talking about race and other issues, and we are working hard to create opportunities for them to do that in a constructive and respectful way.”

UNC doesn't get to limit speech to only what's "constructive and respectful." Its authority doesn't extend past the First Amendment. But that's only the Constitutional problems. There are additional problems -- ones more firmly grounded in "bright line" areas -- that UNC doesn't seem to have considered… like logistics… or how powerless it actually is.

How could colleges possibly stop students from downloading or using a particular app? They can't. But they can make the app slightly harder to use on-campus by blocking it from school wireless networks. That this is largely a symbolic guesture hasn't stopped several schools, including New York's Utica College and Vermont's Norwich University, from doing so.

The best UNC can do is possibly inconvenience some of its students. Those who like to fill Yik Yak with hate speech (or just unpopular speech) will move to a platform that isn't blocked, or just take the (minimal) hit on their mobile data plan. At no point will this ban ever achieve its goal of "constructive and respectful" on-campus speech, in large part because the ban will indicate to students that the university has no respect for their First Amendment rights and believes its attendees are little more than misbehaving children who need to have their toys taken away from time to time. You can't nudge people towards respect by infantilizing them, no matter how ignorant some of their speech may be (or how loud their complaints are).

Furthermore, the students who wish to see the speech of others restricted are just as naive as the children the school apparently believes they are. As Elizabeth Nolan Brown points out, these students who are shocked by nasty anonymous messages apparently feel the off-campus world is full of constructive, respectful individuals.

I find it hard to believe that before seeing these sentiments expressed on Yik-Yak, Winkfield had no idea that any fellow students might be racists and assholes. But whatever. What's more mind-boggling is how she thinks banning Yik-Yak would help here.

And how will it help in the future? If you can't learn to combat ignorance and hate within the relative safety provided by the university, how will you possibly deal with it post-graduation, in a world where speech is much harder to constrain? This student's colleagues -- the ones spewing racist crap via Yik Yak -- will move on as well. The ban won't keep racism and other ugliness bottled up forever. More speech could help deal with this problem, but the pursuit of an app ban is nothing more than sliding a policy rug over a particularly unsightly stain on the carpet. And that only works until the next stain appears. Sooner or later, you run out of rugs.

And, of course, there are alternatives in teaching people how to deal with these things. It's become something of a cliche at this point that the best way to deal with "bad" speech is "more" speech, but it does seem to be pretty effective in many cases. Even with Yik Yak. Students at Colgate University were dealing with similar problems as those described above, and a bunch of professors decided to do something about it. They didn't try to ban Yik Yak or shut it down. They started posting positive messages to the service and signed their names to it. It didn't stop all the abusive comments, of course, but it did change the tone quite a bit, and made students realize that not everyone was a horrible bully on campus.

Our nation's colleges are, for the most part, cranking out incredibly insular individuals who believe the world can be bent to their whims, thanks to the excessive coddling of every person whose feelings have been rubbed the wrong way by the abrasiveness of real life. It's not enough that they'll graduate saddled in debt and possibly armed with a useless degree. They're also being dumped into a world where everyday nastiness can't be papered over by tutting administrators and futile bans. Sure, we all would prefer the world be filled with "constructive" speech and "respectful" people, but it doesn't work like that. By providing shelter rather than pushing students to take control of these situations, these universities are doing their students -- and the future of this country -- a huge disservice.

Filed Under: bans, free speech, universities
Companies: unc, yik yak