Washington Post Editorial Board Deploys A Bunch Of Bad Arguments In Its Defense Of The Comcast Merger

from the fewer-companies-somehow-equals-better-competition dept

Searching beyond Comcast itself, it's hard to find too many people who have no objections to this massive cable company acquiring another massive cable company. Inside the Beltway, where it possibly matters most, you can find a few defenders, many of whom have pocketed Comcast's money during their legislative careers. But once you step outside of the insiders, you have a multitude of people who realize that, thanks to years of abusive behavior by incumbent service providers, making these companies bigger certainly won't make them better.

I'm not sure where the Washington Post's editorial board falls in terms of insider/outsider status, but it just issued an editorial supporting the merger. And, oh man, it's just a terrible set of opinions bolstered by some equally terrible assertions. The gist of it is that a massive cable company is no problem because regulators have done such a great job at ensuring a competitive playing field to this point.

The government’s smartest move is not to block the merger, but to make clear that regulators will respond if big industry players begin to violate basic principles of market fairness.

There's no question of "if." The violations are not only happening, they're ongoing. Incumbents have squeezed out upstart competitors by using their entrenched positions, pushing for favorable legislation and protecting it all with an army of lawyers that makes it almost impossible for new players to enter the market.

WaPo's board tries to deflect the arguments raised by merger opponents by deploying a combination of Comcast talking points and assertions that have no basis in fact.

[T]raditional cable television and wired broadband providers are in increasingly dire competition with online video services, wireless Internet providers and a cash-flush Google expanding its installation of high-speed fiber-optic cable across the country. Consolidation is the only way to ensure these companies have enough capital to invest in new and better technology that will keep their customers happy — or, at least, satisfied enough not to cancel their subscriptions.

Of everything that's wrong with this paragraph, the presentation of Google's fiber service as a serious competitor is perhaps the worst. Google's limited market entry only presents a direct threat to incumbents in the few areas it's selected to offer its service. At some point in the future, Google may expand the number of markets, but it's a stretch to call a handful of deployments a true competitor to the cable giants. Even the incumbents seem to realize they won't be going head-to-head with Google any time soon -- if at all -- judging from the number of "fiber to the press release" statements being issued.

And it's not as if the cable companies are lacking in capital. The biggest names in the business are also flush with money and they're certainly not spending it on "new and better technology." The supposed "wireless competitors" are giants themselves -- old school incumbents like AT&T that are divesting themselves of their landlines just as quickly as regulators will let them. These companies prefer wireless because it's more profitable, not because they have any desire to keep their customers happy. The maintenance costs are lower and the opportunity to deploy caps on calls and data keeps margins high. One needs only look at Verizon's post-Hurricane Sandy efforts in New York, which saw the provider tell customers it was inferior wireless packages or nothing and the service they once had wasn't going to be repaired.

More bad-to-inaccurate assertions follow.

Some criticism of the merger is misleading or speculative. Cable subscribers will not lose flexibility to get their television service from another company. The market is split geographically: Comcast and Time Warner Cable do not compete for customers.

The first part is only true because many cable subscribers already have little to no flexibility. There's very little for them to actually "lose." For many customers, the only "true" choice is Cable Giant A or DSL Giant A -- at best. That's not competition. That's an illusion of choice. In most markets, the number of competitors rarely rises above a very small number of interchangeable companies that work together to ensure their existing market share never dwindles. They act in concert to keep upstarts out and customers locked in.

That these two companies rarely compete directly for customers makes no difference. Turning two companies into one doesn't magically increase the number of options available to cable customers. Instead of simply aligning behind the scenes to preserve a duopoly, the unity of vision will now be out in the open. If anything, this will result in a more transparent screwing of customers, but that's hardly the sort of thing regulators should be giving their thumbs up to, or be encouraged by a responsible journalistic outlet.

Filed Under: broadband, competition, merger
Companies: comcast, time warner cable, washington post

The Guardian And Washington Post Win Pulitzers For Snowden Coverage

from the good-for-them dept

While various arbitrary prizes and awards may not mean much in the grand scheme of things, it's still quite heartening to see that the Guardian and the Washington Post were awarded a Pulitzer for public service for their reporting on the NSA via the Ed Snowden documents.

For a distinguished example of meritorious public service by a newspaper or news site through the use of its journalistic resources, including the use of stories, editorials, cartoons, photographs, graphics, videos, databases, multimedia or interactive presentations or other visual material, a gold medal.

Awarded to The Washington Post for its revelation of widespread secret surveillance by the National Security Agency, marked by authoritative and insightful reports that helped the public understand how the disclosures fit into the larger framework of national security.

and

Awarded to The Guardian US for its revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.

Glenn Greenwald, Laura Poitras, Bart Gellman and Ewan McCaskill (among others at both publications) should be congratulated for the work they put into the original stories and for all of the followup in the face of ridiculous levels of criticism from those who were embarrassed by Snowden's whistleblowing. Separately, with the Pulitzers recognizing that such reporting was a public service, can we finally stop people from claiming that Snowden was a "traitor" and admit that what he did was clearly whistleblowing in the furtherance of the public interest?

Filed Under: barton gellman, ed snowden, ewan mccaskill, glenn greenwald, laura poitras, pulitzer prizes
Companies: the guardian, washington post

DailyDirt: Journalism 2.0 Owned By Billionaires?

from the urls-we-dig-up dept

It isn't exactly news that newspapers are facing some serious business difficulties. But if you haven't been keeping up with the business of journalism (and who could blame you since most of the news is crap), you might have missed seeing that some tech billionaires are starting to invest in journalistic endeavors. Sure, billionaires have always owned all the major news organizations (eg. Hearst, Bloomberg, Zuckerman), but the key part here is that technology-savvy billionaires are getting into the game. Maybe that small detail will matter. Or Maybe it won't. In case you haven't been reading any of this news, here are some examples of this billionaire buying trend.

• Pierre Omidyar is the latest billionaire to invest in a journalistic enterprise and create a new kind of sustainable journalism. Omidyar was considering buying the Washington Post, but he decided to start from scratch, so he'll find out whether his millions would have been better spent on an existing news organization. [url]
• Jeff Bezos bought the Washington Post for $250 million, and everyone will be watching the natural experiment of how the Washington Post evolves, compared to Omidyar's new media startup. Will any Washington Post journalists cover this story? [url]
• Chris Hughes bought The New Republic last year, and he wasn't the first billionaire to buy a media outlet -- but he might be one of the youngest. TNR has re-designed its layout, and Hughes thinks editorial decisions can't be isolated from the business side of his magazine. Hughes aims to make the company profitable in the next few years.... [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: billionaires, chris hughes, jeff bezos, journalism, media trends, news, pierre omidyar
Companies: the new republic, washington post

Feds Begged Washington Post Reporter Not To Name Companies In PRISM, Because It Worried They'd Stop Cooperating

from the not-to-protect-national-security... dept

At a recent event held by the Cato Institute concerning the NSA's surveillance overreach, Washington Post reporter Barton Gellman, who broke the PRISM story and (of course) has been one of the three key reporters on all of the Snowden docs, noted that the feds begged him not to reveal the nine companies listed as participants in the PRISM program. Gellman and the Post refused, noting that the government's reasons for wanting to keep the names out didn't raise any legitimate security concerns, but rather had to do with making life easier for the NSA:

The thing that the government most wanted us to remove was the names of the nine companies. The argument, roughly speaking, was that we will lose cooperation from companies if you expose them in this way. And my reply was "that's why we are including them." Not in order to cause a certain result, or to get you to lose your cooperation but if the harm that you are describing consists of reputational or business damage to a company because the public doesn't like what it's doing or you're doing, that's the accountability we are supposed to be promoting.

Right. That's called journalism: revealing information that the public should know about in order to make its own decisions about what they're doing with their information and privacy, which has been kept from them. Yes, it makes sense for the press to refrain from revealing direct sources and methods of surveillance that create a real national security issue -- but keeping the public in the dark about how the government has been able to compromise these companies isn't a national security issue at all. As we've pointed out in the past, there are plenty of tools in the surveillance toolbox that the public knows exists, which don't make the methods useless any more. For example, traditional phone wiretaps. It's no secret that those exist, and the public can debate the standards under which they're used. And law enforcement still uses them because they're useful.

But that's not what happened with PRISM. Instead, the whole concept was kept entirely secret -- including the overbroad gag orders on the tech companies. That's the troubling part here. There was no ability to have a public discussion over the standards of use. There's a difference between having the press say "wiretaps exist" and "the feds are wiretapping so-and-so right now." The revelation of the PRISM members was more the former, rather than the latter, but the intelligence community keeps pretending it was the latter.

Filed Under: bart gellman, nsa, nsa surveillance, prism
Companies: washington post

Washington Post Makes Bizarre, Factually Incorrect Claims About Glenn Greenwald, Can't Figure Out How To Update

from the keep-working-at-it.. dept

The Washington Post's institutional jealousy towards the Guardian and its role in the Ed Snowden leaks continues to be quite bizarre. At the same time that some of the Post's reporters are doing excellent work on the story, including breaking a few of the stories themselves, the old timers seem to be reflexively attacking the Guardian for doing the same thing -- and, at the same time, attacking Snowden himself for being a source. The latest example is Walter Pincus, the octogenarian and long-term Washington Post "national security" reporter, who wrote a bizarre column "asking questions" of Ed Snowden, and by association, of Glenn Greenwald, filmmaker Laura Poitras (who has assisted both the Guardian and the Washington Post with the Snowden story) and Julian Assange. Pincus makes a bunch of "connections" that he finds concerning about the Snowden ordeal, suggesting strongly that the whole thing was somehow orchestrated in secret by Julian Assange.

The only problem with this is that a very large number of the factual claims made by Pincus are complete bunk. Not only that, but they're such complete bunk that even a basic fact check would have told you they were complete bunk. It's a perfectly legitimate journalistic practice to ask questions based on information presented -- but when those questions are based on complete falsehoods, it makes you wonder. Much of Pincus' piece is based on the incorrect claim that Greenwald has a close connection with Assange and Wikileaks, stating, falsely, that Greenwald "wrote for the WikiLeaks Press's blog about Poitras and WikiLeaks being targeted by U.S. government officials." That's completely untrue. Greenwald wrote his piece for Salon not for Wikileaks, and has never written for Wikileaks in any manner.

Greenwald confronted Pincus about this and other inaccuracies in the piece, leading Pincus to grudgingly admit that it was a mistake, but saying his confusion was because the Salon piece "was carried on the Wikileaks Press page without attribution to Salon as the originating venue." Except, that's not true. The blog clearly carries just an excerpt with a link to the full piece at the end. Still, Pincus promised that a correction would be coming but, despite being aware of the mistakes for at least a day, the Washington Post (at the time I'm writing this) still has not posted a correction. Pincus told the Washington Post's Erik Wemple (who has been doing good work on the story, and who rightly scolds Pincus for his actions) that a correction "is in the works." Not sure why it should take so long, through.

Of course, there are a number of other pretty big factual errors by Pincus, which he has refused to acknowledge. For example, the claim that Julian Assange "previewed" the first Snowden leak a week before Greenwald published it in the Guardian. However, as anyone following these issues knows, Assange was talking about a completely different NSA surveillance program (Stellar Wind), which had been leaked many years ago and was shut down a few years back. Instead of admitting this error, Pincus is doubling down, telling Wemple that perhaps his point was "badly phrased," but Assange and Greenwald were talking about the "same program."

Except, they're not. They are both NSA surveillance programs, but Stellar Wind was revealed years ago. The Greenwald revelations were much more detailed and were about very different programs, many of which came after Stellar Wind. Considering that Pincus is supposed to be the Washington Post's "national security" expert, you'd think he'd recognize that. Instead, he tells Wemple that the complaints are "argumentative." Pincus also, falsely, suggested that Snowden only worked at the NSA for 3 months, ignoring -- as has been widely reported -- that Snowden worked at the NSA as a contractor for four years. He merely switched which firm he was contracting for (from Dell to Booz Allen).

Again, asking questions is a perfectly reasonable activity. But those questions should be based on facts. And... when those facts are shown to be wrong, you issue a correction. And, once you've admitted you're flat out wrong, and say that you'll fix it, it shouldn't take over 24 hours to do so....

Filed Under: ed snowden, erik wemple, glenn greenwald, laura poitras, walter pincus
Companies: the guardian, washington post, wikileaks

Washington Post: Stop Us Before We Do Any More Real Journalism Like That Cute Little Guardian Paper

from the we-should-never-have-broken-watergate dept

Want to see how an out of touch editorial board works? The Washington Post -- which continues to be a key player in publishing documents leaked by Ed Snowden -- has written a bizarre and totally tone deaf post about how the leaks need to stop before they cause any real damages.

In fact, the first U.S. priority should be to prevent Mr. Snowden from leaking information that harms efforts to fight terrorism and conduct legitimate intelligence operations. Documents published so far by news organizations have shed useful light on some NSA programs and raised questions that deserve debate, such as whether a government agency should build a database of Americans’ phone records. But Mr. Snowden is reported to have stolen many more documents, encrypted copies of which may have been given to allies such as the WikiLeaks organization.

It is not clear whether Russia or China hasobtained the material, though U.S. officials would have to assume that Mr. Snowden would be obliged to hand over whatever he has to win asylum in Moscow. Such an exchange would belie his claim to be a patriotic American and a whistleblower. At the same time, stopping potentially damaging revelations or the dissemination of intelligence to adversaries should take precedence over U.S. prosecution of Mr. Snowden — which could enhance his status as a political martyr in the eyes of many both in and outside the United States.

Yes, this is an editorial board of a newspaper famous for breaking stories thanks to whistleblowers and leakers, including this very story, asking the government to stop them from being able to publish any more leaked documents. It's as if the Editorial Board of the Washington Post doesn't even realize that its own reporters have been key players in reporting on this story. Or, as Jack Shafer amusingly wrote: "Bart Gellman's stories are coming from INSIDE YOUR BUILDING!"

And then, in a bizarre article by Paul Farhi, the Washington Post appears to mock The Guardian, the famed British newspaper, which has been around for almost two centuries and is well known around the globe, as if it's some small upstart:

For a newspaper that's small and underweight even by British standards, the Guardian has a knack for making some big noises, both in its home market and across the pond.

Of course, as plenty of folks are pointing out, the Guardian is larger than the Washington Post in terms of readership:

The Guardian's global monthly unique visitors: 23.2 million 41 million in May, per Guardian press officer Gennady Kolker

The Washington Post's monthly unique visitors: 17.2 million

And, in terms of newsrooms, apparently, they have nearly identical staff sizes. Oh, and then there's this: while the Washington Post has beaten the Guardian to a few of these stories, the Guardian is generally cleaning WaPo's clock in terms of its overall coverage of the leaks. Perhaps the Washington Post shouldn't let its jealousy show quite so much.

Filed Under: ed snowden, editorial board, journalism, leaks
Companies: guardian, washington post

Mainstream Press Waking Up To DOJ's Massive Overreaction To Minor Computer Hacks

from the omg-it's-a-computer! dept

We've talked plenty about the government abusing the CFAA to pretend that some minor hacks were some giant criminal conspiracy, but now even the mainstream press is starting to recognize that an overactive Justice Department seems so freaked out by computers that it feels the need to use the CFAA over and over again against minor hacks. We've covered the various cases mentioned in the article in the past, but it's good to see a paper such as the Washington Post call the administration out for its silly overreactions. It's as if they see a computer and assume that something bad must be happening. At no point, when it comes to these cases, does the DOJ seem to step back and look at the actual seriousness of any of these cases.

Filed Under: cfaa, doj, hacking
Companies: washington post

Court, Once Again, Explains To AFP That Twitter's Terms Don't Give It The Right To Use Any Photo

from the stupid-lawyer-tricks dept

Nearly three years ago, we wrote about one of the most bizarre lawsuits we'd ever seen. AFP (Agence France-Presse), a news organization with a history of copyright maximalism (it once sued Google for linking to its stories), had sued photographer David Morel after he accused AFP of using images he had posted to TwitPic in their own news reports. Yes, you read that correctly. AFP used Morel's photos without permission (and actually credited them to someone else), and then AFP sued Morel (rather than the other way around). There were all sorts of confusing factors in the lawsuit (and counterclaims from Morel) that suggested neither party had even the slightest clue what they were talking about.

First off, both AFP and Morel seemed to not realize that TwitPic and Twitter were two totally different services with two totally separate terms of service agreements. Second -- and this is the key whopper -- the AFP insisted that the Twitter and TwitPic terms of service (once they realized they were two different services) granted a universal license for AFP to use those photos. This was a blatant misreading of the terms. Both sites had standard boilerplate licenses that allowed just those services to display content. Those terms only applied between the user and the service. But AFP insisted that because the user granted a license to Twitter and TwitPic, that automatically meant that such a license was granted to third parties like the AFP as well. That, to put it mildly, takes a special level of misunderstanding -- and I'm amazed that AFP had a lawyer willing to stand behind it. In fact, a judge explained all this to the AFP back in 2010. At the time, we expected AFP would just quickly settle. After all, it had clearly copied the images and it had bizarrely sued first on a ridiculous legal theory that a judge explained made no sense.

Instead, the AFP doubled down on that same argument, insisting that its reading of the terms of service was correct. We should be blunt here: there is simply no reasonable way to read the terms of service the way the AFP did. The terms are clear: users retain the rights to their content, and the license only applies to the specific services in question. There is no legitimate way to read the terms of service and believe it automatically grants a license to third parties.

So, once again, the court has needed to explain to the AFP that its legal theories are ridiculous.

The Court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it. Rather, it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case.... Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove the Photos-at-Issue from Twitter and license them to third parties, nor does it “necessarily require” such a license.... Indeed, this is the fatal flaw in AFP’s argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.

The court even points out that this very argument was rejected entirely in that earlier ruling we mentioned above, and appears perplexed that AFP would continue to advance an obviously faulty argument, which it had already been told was faulty.

Arguing for third party beneficiary status, AFP advances on this motion many of the same arguments that Judge Pauley has already considered and rejected with regard to the express language of the Twitter TOS. For example, the plain language of the Twitter TOS does not support finding a license covering AFP’s conduct, even as a third-party beneficiary. As Judge Pauley already explained, the Twitter TOS spell out expressly the entities to whom a license is granted, namely Twitter and its partners—and AFP does not contend that it is one of Twitter’s “partners.” Id. Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS. Indeed, if Twitter intended to confer such a benefit, it easily could have manifested this intent. Instead, the Twitter TOS specify that the license was granted to Twitter and its partners, that the license “includes the right for Twitter to make . . . Content available,” and that additional uses of this content “by Twitter” or its partners may be made without compensation. In short, rather than showing that the benefit AFP claims was “necessarily required,” ... by the Twitter TOS, the terms of this contract cut against finding that Twitter intended to confer the benefit of a license on AFP to sell licenses to the pictures posted on Twitter or TwitPic.

In addition, in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours – you own your content.” These statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.

So it is unsurprising that AFP loses that point yet again.

What's a bit surprising is that the AFP didn't even try to raise any other defense, such as fair use. While fair use might be a long shot it seems like a much stronger argument than the ridiculous claims about the terms of service. Having, once again, dispensed with the AFP's license argument, the court notes that it can rule in favor of Morel's motion for summary judgment against the AFP.

Morel had also sued both Getty and the Washington Post in this fight. The AFP had turned around and "licensed" the photos it had copied to Getty and the Washington Post had used them via its contract with Getty. There was some additional confusion, because the AFP first credited the photos to someone else -- another person who had copied Morel's photos and posted them to Twitter, claiming the photos were his own (though there were some indications that the AFP knew that the photos they were using had been copied from Morel, as they'd already reached out to Morel about them).

Getty tried to defend itself by claiming safe harbors under the DMCA, basically saying that if there was infringement, it was AFP's fault, and AFP is just a user, so Getty is protected as a third party under the DMCA. The judge, however, rejected this claim. This part of the ruling is actually fairly troubling. The court seems to ignore how "service provider" under the DMCA has been widely accepted as a broad definition. Instead, the court decides that a very limited definition applies, and Getty is not a "service provider" because it sells stuff, rather than provides what the court considers a "service." That is, the court tries to distinguish between selling goods and offering a service, and says that since Getty sells stuff, it's not a service provider, and thus not protected by the DMCA. If that interpretation stands, watch as copyright holders start citing it in attempts to block safe harbor claims from others. At this point, however, the court just says it's an issue to be determined at trial, rather than at the summary judgment stage.

As for the Washington Post, that situation is confused by the fact that Morel's lawyers sent a bunch of communications to the Washington Post about its use of the images, but they mostly chose to send them to general emails or addresses (sometimes mislabeled) which people at the Post claim were never received. Making matters even more complicated, when someone from the Washington Post did seek to delete the images, confusion over the Post's system meant that the person believed the images had been deleted, when they really had not been. Once again, these are issues that will be explored at the trial, assuming there's no settlement.

Of course, as we've explained during all of this, Morel's case isn't the greatest either. Beyond making some bizarre initial claims (including admitting that he never bothered to read the terms of service in the first place), he's been demanding crazy sums of money -- way beyond anything that he could have possibly hoped to charge for a license. In fact, he was demanding high statutory rates for each copy of the image that was used, rather than recognizing that the reuse of his image was all part of a single infringing action. As part of this, he was arguing that AFP and Getty were secondarily liable for each and every later infringement, and that they should each have to pay for every such case. That would add up to a ridiculous sum of money -- potentially over $100 million.

Thankfully, the court quickly disabuses him of such a crazy claim, pointing out that the language of copyright law is pretty clear that the statutory rates cover "all infringements" associated with an infringing action. It even points out that Morel's interpretation would be "absurd."

The statutory text is not a model of clarity on this issue but—on the whole—it favors Counterclaim Defendants’ interpretation rather than Morel’s. For instance, § 504(c)(1) provides for “an award of statutory damages for all infringements involved in the action, with respect to any one work.”... The intent of this statute therefore appears to be to constrain the award of statutory damages to a single award per work, rather than allowing a multiplication of damages based on the number of infringements. Morel’s interpretation would effectively bypass the limit of a single statutory award for “all infringements” of a work because it would hold Getty or AFP liable for multiple infringements of a single work. This conclusion is further supported by § 504(c)(1)’s provision that a group of defendants who are all jointly and severally liable with each other are also to be liable for only a single statutory damages award, suggesting that a copyright holder should not be allowed to multiply damages against an infringer based on the infringing activity of jointly liable thirdparties. Relatedly, as pointed out in McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, at *10 (W.D. Pa. June 4, 2007), the interpretation Morel offers “would render the word ‘any’ [in ‘for which any two or more infringers and jointly and severally liable’] superfluous, or alternatively, would rewrite the statute to impose a single award only where ‘all infringers are liable jointly and severally.’”

Also counseling against Morel’s proposed interpretation is that it would lead to absurd results.... First, as Counterclaim Defendants point out, Morel’s interpretation of the statutory damages provision could lead to awards of statutory damages that are massively disproportionate when compared to the actual harm caused by the infringing defendants. Indeed, as discussed above, Morel’s position in this case is that—notwithstanding the extent of the actual harm that Counterclaim Defendants may have caused—he is entitled to tens or hundreds of millions of dollars of damages. The Court finds it unlikely that Congress intended the statutory damages provision of the Copyright Act to create such a result.

Of course, that wasn't Morel's only crazy damages argument. He further argued that the parties were liable for each distribution of the image (separate from the claims above) because (he claims) they "circumvented" protection measures by removing his copyright information -- and that they had to pay statutory damages for each image distributed there as well. His ridiculous interpretation claimed that with all of the images AFP and Getty distributed, they owed him another $44.5 million for removing his copyright information. Yes. Million. On top of the other statutory damages he asked for above. Again, the court was not buying it:

The omission of the references to damages “per act” differentiates the damages available for violations of § 1202 from those available for violations of § 1201, and demonstrates that damages should not be multiplied based on the number of recipients of the Photos-at-Issue. Rather, damages should be assessed per violation—i.e., based on AFP and Getty’s actions in uploading or distributing the Photos-at-Issue, regardless of the number of recipients of these images.

As we've been saying from the very beginning of this lawsuit, neither side looks very good. Both are making ridiculous arguments -- and that may be part of the reason the case was not settled earlier. Someone at the AFP must realize that their licensing claims make no sense. But if Morel is arguing for hundreds of millions of dollars, you could see how they've been unable to reach an agreeable settlement. Now that the court has clearly rejected the key arguments on both sides, perhaps it means that AFP will finally fork over some money to Morel to settle the case -- and that the amount forked over will be significantly lower than the millions he's demanding.

Filed Under: daniel morel, photographs, terms of service
Companies: afp, getty, washington post

Faulkner Estate Keeps Suing: Sues Washington Post Over Ad That Quoted One Sentence

from the new-righthaven? dept

It appears that Faulkner Literary Rights -- the operation set up by the estate of William Faulkner to oversee his copyrights -- has really decided to go all in with the crazy lawsuits. Last week, we wrote about it suing Sony Pictures because of a Woody Allen movie (Midnight in Paris) in which the character played by Owen Wilson misquotes a Faulkner line (while also saying it was by Faulkner). The quote was all of nine words from a Faulkner book. I'm not quite sure what Faulkner's estate is thinking, but it seems they believe that anyone who quotes the bare minimum of Faulkner owes them money. The second lawsuit, filed Friday, was against the Washington Post and defense contractor giant Northrop Grumman. Why? Because Northrop Grumman ran an ad in the Washington Post that quoted (with attribution) a single sentence from a Harper's article that Faulkner once wrote.

The ad, which ran on July 4th, 2011, included: "We must be free not because we claim freedom, but because we practice it. -- William Faulkner." It had a giant image of an American flag and some more text celebrating July 4th. As of the time of this posting, Northrop still has a pdf of the ad on its site (pdf). Pretty harmless. But Faulkner's estate pulls out the same arguments it used against Sony Pictures against both Northrop and the Washington Post -- both copyright and trademark claims.

Once again, it appears that both companies have very strong defenses as either de minimis use or fair use -- though, again, I'd be worried about both companies deciding it's cheaper to pay off the Faulkner people than fight this.

Given two such crazy cases filed in two days, for such short quotations, how likely is it that these are the only such lawsuits the Faulkner estate intends to file? Stay tuned...

Filed Under: copyright, fair use, quote, trademark, william faulkner
Companies: northrop grumman, washington post

Washington Post: Yes, We Need To Give Up Liberty For Security

from the oh-really-now? dept

By now you've probably seen the paraphrase of a Ben Franklin quote that those who give up liberty for security, deserve neither (he said similar things a few different ways, but the standard actual quote is: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.") Whatever the actual quote is, there is quite a lot of truth to it. Giving up liberty for the sake of security rarely works out as planned. Either way, it appears that the editorial board of the Washington Post is either wholly unfamiliar with the quote, or believes it to be untrue. It has come out with an editorial arguing in favor of extending the FISA Amendments Act (and against an ACLU/EFF challenge to the law, to be heard today at the Supreme Court, even with the crazy weather) saying that it is perfectly fine to "give up liberty" for security:

Discomfort with the government’s capacity, technical or legal, to collect and retain massive amounts of personal information is understandable. But the 2008 FISA amendments sought a compromise between two essential goals: preserving American liberty and robustly defending Americans’ lives and property. We favored the law and believe that it should be extended.

That's somewhat ridiculous. After all, as we've noted over and over again, almost no one seems to understand what's actually in the FISA Amendments Act, in part because there's a secret interpretation of it that only the government knows. This means that many, many people, including those in Congress, are clearly misrepresenting what's in the law. The fact that the NSA refuses to say how often it has used this secret interpretation to spy on Americans should be a pretty big warning sign -- especially as politicians who are either clueless or ignorant claim that it can't be used to spy on Americans.

And really, this is the root of the "don't give up liberty for security" quote. Once you do that, you're cooked, because it's a situation that only expands in one direction. Those who seek to hold back liberty will always make use of scare stories and FUD to seek to be able to spy further. You would think that the editorial board of the Washington Post, which has been covering this kind of mess for quite some time, would actually have some sort of ability to look back at history. Apparently its historical knowledge is close to nil.

Filed Under: fisa, fisa amendments act, liberty, security, spying, surveillance
Companies: washington post