County Attorney Formally Asks ACLU To Stop Saying Factual Things About Pending Drug Legislation

from the please-stop-undermining-my-spin dept

A state prosecutor who claims to be supportive of lowering drug possession incarceration rates is mad at the ACLU for pointing out the legislation she's backing doesn't support this position at all. The ACLU's activism has led to the county attorney's unfortunate decision to send a formal letter to the group kindly asking it to knock it off. (via the ACLU's Will Gaona)

In response to an online campaign, Pima County Attorney Barbara LaWall sent a letter to the American Civil Liberties Union of Arizona asking that it “cease and desist from disseminating a misleading solicitation.”

The ACLU was “dumbfounded” by the letter, which it found to be without “legal merit,” a spokesman told the Star.

Earlier this month, the civil-rights group urged people to contact LaWall and ask her to withdraw her support for House Bill 2241, which would increase penalties for people convicted of several crimes involving certain opiates, including heroin and fentanyl.

“This is a dangerous bill that will force Arizonans suffering from drug addiction into prisons for years without treatment,” a March 19 ACLU of Arizona Facebook post reads. “Take action now and tell Barbara LaWall to publicly withdraw her support for HB 2241!”

As cease-and-desists go, LaWall's is pretty low-key. The letter [PDF] notes LaWall is not complaining about the people who've contacted her office as a result of the ACLU's post. She's also not requesting the ACLU say nothing more about the issue. Instead, she's asking the ACLU to correct its "misinformation."

Contrary to the statement disseminated in the ACLUs solicitation, HB 2241 does NOT punish individual drug users who possess or use these drugs to feed their addictions, and it is highly misleading to suggest that HB 2241 would punish drug users by sending them to prison. This Bill increases the sentence for convicted drug traffickers and drug dealers who flood our community with the deadly poisons of fentanyl, carfentanyl, and heroin. It docs NOT punish those who are arrested for simple drug possession.

This is not even technically true. Under LaWall's guidance, the county has already incarcerated people for possessing as little as one-tenth gram of heroin. Statewide, more than 20% of drug felony cases involve less than one gram. The ACLU's opposition to the bill stems from the lack of language separating those who sell small amounts to fund their own habits from those actually "flooding" communities with large quantities of opioids. Even drugs traded for anything of value -- no matter what quantity -- would trigger mandatory minimum five-year sentences for those convicted.

LaWall's letter has prompted an angry response from the ACLU, which believes the letter was sent to intimidate it into silence. All the ACLU has done is point out the flaws with the bill and that it runs contrary to LaWall's publicly-stated support for reducing drug-related incarcerations. LaWall's response to the ACLU's criticism -- no matter how mildly stated -- is still a demand the ACLU stop making factual statements about the bill she supports.

It's not that LaWall is unaware of these criticisms. Earlier debate on the bill produced the same criticism the ACLU is now being asked to stop: that the bill would result in more incarceration and less diversion of addicts to resource that may allow them to kick the habit and return successfully to society.

But anything drug-related -- especially bills attempting to address drug overdoses -- is going to be propelled more by emotion than logic, as is evidenced by this statement from a supportive state legislator.

Explaining his vote in support of the bill, state Rep. Mark Finchem, R-Oro Valley, said: “I don’t care how much one person hands off to another. If somebody is selling dope to my kid, I want them in prison.”

Well, let's hope your kid doesn't get caught with any purchased drugs, Mr. Finchem. If they do, the new law does them no favors. Considering prosecutors are viewing amounts less than a gram as felonious -- with the possibility of tacking on distribution charges if Finchem's child has shared or sold any to others -- his offspring could be facing five years minimum just for purchasing enough drugs to feed their own habit. The bill doesn't absolve purchasers, nor make it any easier for them to end up in a diversion program, rather than in jail.

The ACLU's criticisms are valid. The county attorney's request the ACLU stop portraying the legislation as opposed to LaWall's stated beliefs is not. Fortunately, neither the bill nor LaWall's demands are moving forward at this point. It's always a bad look when public servants start telling members of the public to exercise their First Amendment rights less. But it's even worse when this attempt starts with the public servant calling facts "misinformation."

Filed Under: arizona, barbara lawall, cease and desist, criminal justice, free speech
Companies: aclu

Lawyer Behind Failing Sham To Protect Sketchy Patents Sends Bogus Copyright Cease & Desist To Blogger

from the a-bit-sensitive,-michael? dept

You may recall a story we had last fall on a really, really obnoxious and cynical scam to protect sketchy patents by "selling" the patents to Native American tribes. The details here are complex, and that original article has a longer explanation, but the very short version is that in 2010, Congress created a special appeals board to review patents to see whether they never should have been granted. This Patent and Trademark Appeals Board (PTAB) has actually been quite useful in getting rid of sketchy patents, which is why people with sketchy patents hate it, and are trying to get it declared unconstitutional by the Supreme Court.

But, while everyone waits on that some lawyers came up with a fairly devious plan to avoid PTAB review. It started when the PTAB agreed to dismiss some reviews of patents held by the University of Florida, after the University claimed that it had sovereign immunity as a state organization. The lawyers for the University of Florida, from the law firm of Shore Chan DePumpo based in Dallas, apparently sensed an opportunity. Realizing that a state-controlled organization could apparently avoid the entire PTAB process by claiming sovereign immunity, it realized that companies facing challenging PTAB reviews could potentially avoid doing so entirely by "selling" the patents to a "sovereign" organization, which would then license the exclusive rights back to the original patent holder. Effectively, the patent holder would pay a bit of money to some sort of sovereign operation, but would retain all of the rights as before, just structured as an exclusive license.

The big example of this from last fall was the pharmaceutical company Allergan, which seemed likely to lose some of its patents for the drug Restasis under PTAB review. So right before the PTAB was going to rule, the same lawyers engineered a "sale" of the patents to the St. Regis Mohawk Tribe. Allergan would pay the tribe $13.75 million basically for one purpose only: to magically exempt it from the PTAB process. As we noted at the time, this really does appear to be a sham sale for no other purpose than to avoid the PTAB.

The sham not only didn't work, it has backfired spectacularly. In February, the PTAB denied the tribe's motion, clearly recognizing what was going on:

Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the Tribe's participation in view of Allergan's retained ownership interests in the challenged patents. The Tribe's Motion is therefore denied.

Not only that, but the publicity of all of this woke up Congress, which introduced the PACED Act, which is directly designed to stop this kind of activity:

Senator Tom Cotton (R-Arkansas) and Senator Claire McCaskill (D-Missouri) along with Senators Pat Toomey (R-Pennsylvania), Joni Ernst (R-Iowa), David Perdue (R-Georgia) today introduced the Preserving Access to Cost Effective Drugs (PACED) Act, which restores the power of the Patent and Trade Office and federal courts, and the International Trade Commission to review patents regardless of sovereign immunity claims made as part of sham transactions.

In short, this scam hasn't worked out all that well. And it appears that the lead partner at Shore Chan DePumpo, Michael Shore, is a wee bit sensitive about all of this. Roy Schestowitz of the site Techrights.org has been writing about all of the PTAB shenanigans in numerous posts on his site. For example, here's a post he wrote on March 18th, about the anti-PTAB movement. That post, along with earlier posts about the PACED Act included a headshot of Michael Shore, the lawyer mentioned above.

Last week, another lawyer from Shore Chan DePumpo, Shukri Abdi, sent Schestowitz a laughably ridiculous cease and desist letter, claiming that Schestowitz was infringing on Shore's copyright in using a thumbnail of his headshot in those stories.

It has come to our attention that you are responsible for unlawfully publishing Michael Shore's photograph on the website www.techrights.org, as the named registrant and creator of the website, in violation of the United States Copyright Act. 17 U.S.C. § 101 et seq. We demand that you immediately cease such infringing activity, desist from such infringing activity in the future, and comply with the requirements set forth in this letter.

As you are no doubt aware, Mr. Shore has exclusive rights in his photographs, which you have widely reproduced, published, and/or distributed without permission. Your unauthorized reproduction, distribution, publication, and/or transmission of Mr. Shore's photograph on www.techrights.org, including the following webpages, constitutes copyright infringement.

The letter goes on to demand Schestowitz cease and desist from doing anything with the photograph and gives him until the end of this week to respond. In an abundance of caution, Schestowitz has done so. But he shouldn't need to. Abdi, a recent law school grad, specializes in patent and trademark issues, but considering she worked at the Intellectual Property Law Clinic in law school, one would hope that at some point someone taught her about Section 107 of copyright law, regarding exceptions to copyright law, including fair use. That starts out by noting that using works "for purposes such as criticism, comment, [and] news reporting" can be considered fair use, and thus non-infringing.

Indeed, there is a case that is directly on point on this issue, Dhillon v. Does, in which a lawyer named Harmeet Dhillon was upset about a website, called MungerGames, that published an article critical of her that included one of her own headshots that she had posted on the web. In other words, an identical situation to the one here. The court there found it to easily be fair use. And, of course, we won't even get that deeply into the open questions of whether or not Shore actually holds the copyright in this image. Abdi's letter states that Shore "has exclusive rights in his photographs" which is not entirely accurate. It's unclear who took this photo, but it clearly was not Shore. It is possible that there was an assignment of the copyright in the photo to Shore or that it was done under some sort of explicit work-made-for-hire agreement, but nowhere does the letter state that. Indeed, it seems to imply (incorrectly under the law) that Shore has exclusive rights in photos taken of him rather than by him. Notably, nowhere in the letter does Abdi suggest that Shore registered the copyright in the photo, which would be a necessary prerequisite to suing for statutory damages (there simply are no actual damages here anyway).

Of course, it's possible that Abdi knows all this and was just doing what the partners at her firm asked her to do, which was to send a purely bumptious, censorial threat to a blogger for daring to call out the sketchy legal practices of the law firm Shore Chan DePumpo in trying to craft sham patent sales for the sake of avoiding questionable patents getting invalidated by the PTAB. Of course, sending such a threat might just backfire, in the same way that Shore's plan to "sell" (wink, wink) patents to Native American tribes has backfired. Indeed, it might call attention to just how thin-skinned Michael Shore is, and how he's willing to have associates at his firm send out completely ridiculous, legally nonsensical threats in a weak attempt to try to scare off someone who was criticizing him.

And because this very story is about the headshot, and because using headshots is fair use, and because we're discussing it clearly, here is the headshot of Michael Shore:

Filed Under: bullying, cease and desist, censorship, copyright, fair use, michael shore, patents, ptab, roy schestowitz, shukri abdi, slapp, sovereign immunity
Companies: shore chan depumpo

Scammy Lawyer Award Company Sends C&D To Website For Pointing Out Its Scammy Behavior

from the when-u-find-the-truth-defamatory dept

Appealing to someone's ego is profitable. Lawyers of Distinction names many, many lawyers to its "distinction" list every year. Some people believe this actually means something. But it doesn't, as Kelsey Butchcoe explained late last year in a post for marketing blog Mockingbird. A lawyer getting a letter from Lawyers of Distinction announcing their selection to the vaunted "top 10%" is, in reality, getting nothing more than unsolicited marketing materials.

Following up with Lawyers of Distinction provides curious attorneys the opportunity to spend $425-775 annually to obtain plaques, "crystals," and backlinks to their law firm websites from LoD. Following up further, as Butchcoe did, also uncovers the fact Lawyers of Distinction's prestigious awards emanate from a UPS Store in Las Vegas, Nevada.

This post did not make Lawyers of Distinction happy. The "in-house counsel" of Lawyers of Distinction, "Jesse Brodsky ESQ," fired off an emailed cease-and-desist to Conrad Saam of Mockingbird, demanding Saam do some impossible things -- like take the threat seriously and remove the post "from the internet." The email is embedded below, but we'll quote it in full here because:

A. It's really short
B. It's really dumb
C. It closes with a threat ensuring the body of the email will never be taken seriously.

It has been brought to our attention that you published an article titled "When the Top 10% Means Nothing." In this article, you include which is defamatory toward Lawyers of Distinction, Inc.

Your article is actionable and we will be initiating lawsuits against the author individually, as well as Mockingbird Marketing if this post is not immediately removed from the internet. Your post is rife with false and misleading information regarding Lawyers of Distinction, Inc.

For instance, you refer to our offices as being in a strip shopping center, when in fact we have a corporate office in a traditional office building. This is merely a small example of your intent to knowingly publish false and defamatory information, which is meant to harm Lawyers of Distinction's reputation and economic well being, at the same time trying to create a pecuniary gain for your marketing company.

If this article is not removed from the internet on or before the close of business on October 10th, 2017, we shall file a lawsuit seeking appropriate actual, compensatory and punitive damages. You have been warned and placed on notice. Every day of delay in removing this article will increase the damages we shall be seeking. Please govern yourself accordingly.

Conrad Saam has broken down the best parts of the C&D at Mockingbird, not the least of which is the demand the post be "removed from the internet," as though that were a thing people could actually do. I'm sure Brodsky ESQ meant "delete it from the Mockingbird website" but that just doesn't sound as (vaguely) threatening (and completely unenforceable) as "delete it from the internet." Combine that with "govern yourself accordingly," and you have some poorly-written fluff blustering about noisily in hopes of being mistaken for saber-rattling.

Saam has not removed the offending post from Mockingbird nor the internet beyond. Equally unsurprising, Brodsky and his strip mall law office have not filed any lawsuits over the supposedly defamatory post. Saam did reach out for some legal advice before posting the C&D, asking Florida lawyer Brian Tannebaum if he should be concerned about this lawsuit threat.

Here's what Tannenbaum suggested Saam be worried about in the context of this angry email from Lawyers of Distinction's in-mall counsel:

If I were you, the thing I’d be worried about right now is what you are going to eat for breakfast. After that I’d start concerning myself with lunch and then plans for the weekend. I’d put worrying about what you wrote right below whether you are soon to run out of toothpaste.

Being threatened by a lawyer who speaks for an entity that sells plaques to narcissists is low on the list of things to be worried about. There's nothing remotely actionable in the post targeted by the C&D. Nor is there anything actionable is Saam's follow-up posts, which provide more details about LoD's inner workings, as well as successful attempts to get a chicken and a dog recognized as "Lawyers of Distinction." (This is not the first dog to receive top lawyerly accolades from Lawyers of Distinction.)

Anyone receiving unsolicited emails from LoD should immediately flag them as spam, because that's all they really are. Or, if so inclined, an attorney could imagine it to be something flattering, and plaster his website with as many meaningless accolades as possible, as this Cincinnati lawyer has. Searching for "lawyers of distinction" reveals a great many lawyers have chosen to republish LoD's meaningless announcements, press releases, and supposed "top 10%" designations. This doesn't prove Lawyers of Distinction is legitimate. All it proves is appealing to egos is guaranteed to separate fools from their money.

Lawyers of Distinction certainly seems like an easy way for lawyers to waste their money. It will apparently allow almost anyone (or anything) to claim membership in the "top 10%" of lawyers stratosphere -- and it will autobill recipients $425-775 annually should anyone desire some overpriced memorabilia commemorating the time they got suckered on the internet. The "top 10%" designation means nothing, except to those willing to part with a chunk of their money and reputation. The problem is unsuspecting people looking for representation might believe this "award" -- bought and paid for by an attorney -- actually signifies better-than-average lawyering. Those are the people taken in by "services" like these. Those paying for plaques are only victims of their own hubris.

Filed Under: cease and desist, censorship, threats
Companies: lawyers of distinction

Miami City Attorney Tries To Erase Photos Of Fired Firefighters From The Internet

from the this-isn't-how-this-problem-gets-fixed dept

Six firefighters fired over a racist incident are the possible, but unlikely, beneficiaries of Florida public records law. Here's how they ended up fired, via the Miami Herald, which broke the story. (h/t Boing Boing)

Miami’s fire chief on Thursday blasted six fired firefighters accused of draping a noose over a black colleague’s family photos, and released images of the “egregious and hateful” vandalism.

Photos of the scene at Fire Station 12, located on Northwest 46th Street near Charles Hadley Park, show that someone took a black lieutenant’s family photos out of their picture frames, drew penises onto the pictures, then reinserted them in their frames and placed them on a wood shelf next to a teddy bear figurine. Someone also hung a noose made of thin, white rope over one of the photos.

Five more firefighters are still under investigation. The six firefighters -- Capt. William W. Bryson, Lt. Alejandro Sese, David Rivera, Harold Santana, Justin Rumbaugh and Kevin Meizoso -- were all terminated after the completion of a Miami police investigation. We know their names and what they look like, thanks to the Miami Herald's reporting and an apparent misstep by a Miami government agency.

On Thursday, ahead of a press conference scheduled for Friday morning with Miami’s mayor, Miami Fire Rescue also released the fired firefighters’ department photos even though Florida law exempts pictures of current and former firefighters from disclosure under the state’s broad public records laws.

Now, the city -- facing a possible lawsuit from the firefighters union -- is throwing CTRL-Z notices at local news agencies.

Just after midnight Friday morning, an assistant city attorney wrote an email to multiple news outlets demanding that the media “cease and desist from further showing the firefighters pictures in your coverage of this event.” Jones said the photos of the six men had been released accidentally.

“As former first responders, their photos are confidential and exempt under Florida’s public disclosure law and should not have been released,” wrote Kevin R. Jones.

Too bad. That's a problem for the city, not journalists. The Miami Herald will be keeping the photos up. So will WPLG, which interviewed the victim of the racist acts. It's been relegated to a sidebar, but the photos are still there.

ABC News has also kept the photos up, albeit as an image that lasts only as long as it takes for the autoplaying video to load. Those looking for a longer-lasting image will have to make do with the sidebar thumbnail.

The images are already out there. Telling the media to unpublish the photos is a ridiculous move. The union plans to sue the city for releasing the photos, but that's not going to do anything to return the internet to the state it was in prior to the accidental photo dump.

As for the firefighters inadvertently left unprotected by this "violation" of Florida's open records law, it would seem the best way to keep your photo from being displayed in stories about racist acts by public servants is refraining from engaging in bigoted acts while employed as public servants. Trying to turn online media sources into self-serving time machines only ensures maximum visibility.

Filed Under: alejandro sese, cease and desist, david rivera, firefighters, harold santana, justin rumbaugh, kevin meizoso, miami, photos, racists, reporting, streisand effect, william bryson

What Netflix's Congenial Trademark 'Threat Letter' Says About Everyone's Tolerance For Trademark Bullying

from the progress dept

Readers of this site will be well-versed in trademark threat letters. With the sorts of trademark stories we cover here, our discussion about threat letters typically take the form of trademark holders going out of their way either to overstate their rights or to act as aggressive and threatening as possible. Or, of course, both of those things at the same time. But not every company goes full bully when sending out trademark cease and desist notices, as exemplified by Netflix this week, when it sent out a notice to a Chicago popup bar called The Upside Down, an obvious reference to Netflix's hit show Stranger Things.

Writing to request an end to the use of its trademark, Netflix did not address the bar's owners in threatening terms or legalistic language. Instead, it appealed to the owners' appreciation of creativity and engaged with their shared appreciation of the Stranger Things brand, inserting references to characters and phrases from the show throughout the letter.

"Look, I don't want you to think I'm a total wastoid, and I love how much you guys love the show", the letter opens, "but unless I'm living in the Upside Down, I don't think we did a deal with you for this pop-up". It continues: "You're obviously creative types, so I'm sure you can appreciate that it's important to us to have a say in how our fans encounter the worlds we build";. Making its point firmly and clearly, but humorously and politely, the letter states: "We're not going to go full Dr Brenner on you, but we ask that you please 1) not extend the pop-up beyond its 6 week run ending September, and 2) reach out to us for permission if you plan to do something like this again."

The letter checked all the right boxes to not come off as bullying. The letter was both humorous as well as transparent in its effort to incorporate the fandom of the show into its language. It didn't promise punishment for any past acts, instead simply asking that the bar not extend its run even further and asking that it seek permission for its name for any future endeavors. Netflix didn't treat its fans as the enemy, but managed to act human while at the same time asserting its trademark rights.

For this, the company not only got the bar to agree to its request, but the letter received praise both in the media and on social media.

Netflix elicited a torrent of internet praise for its handling of the situation. Local news website DNAinfo reported on the "super classy letter", describing it as "adorably nerdy", and emphasizing Saul's lack of hard feelings towards the corporation. There was also positive coverage in the Sydney Morning Heraldand Fox News, while one blog lauded it as "the best cease-and-desist letter you've ever seen".

On social media, where reaction can often be the most negative, the responses similarly lauded Netflix for its enforcement approach. On Reddit, one user commented that the move was "totally reasonable and nice of them", with another calling the move "brilliant", adding: "In the age of Twitter, you don't want to anything to be used against you. Now it makes the pop-up look like bad guys for not reaching out to them."

What is most interesting to me about this story isn't Netflix's letter itself, although it was certainly nice to see a company get this so right. More interesting was both the media's and public's reactions to the letter, which seems to indicate that on some level the media and general public are waking up to trademark bullying and the fact that there are other ways to handle trademark issues beyond being a jerk. While I cover trademark issues all the time, I don't expect the everyman to have an understanding of ways to protect trademarks that goes beyond, "Company X has a trademark, so of course their lawyers sent out a threat." The reaction to this story seems to indicate that the public is beginning to understand that enforcing trademark law doesn't have to equal acting like a jerk. And that's a good thing.

If lawyers finally understand that being an overaggressive jerk can backire, it will make them think twice about using that approach. It will also convince lawyers that being congenial can go viral in ways that a company does want. These are good things that will be propelled by a public starting to understand that not every C&D has to be all threat and nothing but.

Filed Under: cease and desist, fandom, fans, friendly letter, stranger things, the upside down, trademark
Companies: netflix

Canadian Rapper Sends Rap Video Cease & Desist Letter To Coca Cola For 'Jacking' His Catchphrase

from the our-for-a-sip? dept

So we've seen some unique and amusing trademark disputes in the past, but this one beats them all. Canadian lawyer Rob Kittredge got to send a rap video cease-and-desist to Coca Cola. Yes, you heard me correctly. A rap video cease and desist. Not a cease and desist letter about a video. The video is the cease and desist letter. Check it out:

And... yes, it appears that Rob is, in fact, the lawyer in the video as well. As background -- if you somehow missed it -- a few years ago, there was a virally popular rap song and video, by Brendan "B.Rich" Richmond, called Out for a Rip, spoofing Canadian culture/stereotypes. It got over 12 million views, and has become a bit of an anthem.

So, yeah. Coca Cola is using the phrase "out for a rip" on its Coke bottles and Richmond and his lawyer Kittredge decided the best way to respond was to write a song calling out Coca Cola on this and then recording a whole video. At the end of the video there's an actual letter (part of which is dictated in the song itself) which is also pretty damn amusing:

Dear Coke,

I represent Brendan (B.Rich) Richmond (a.k.a. Friggin' Buddy). You jacked his catchphrase, but you already know that.

Buddy owns the registered trademark "OUT FOR A RIP" in Canada (TMA934277). The music video for buddy's original composition "OUT FOR A RIP" has been viewed more than 12 million times. Canadians associate the phrase "OUT FOR A RIP" with him.

Personally, I'm pretty psyched about this once-in-a-career opportunity to send a demand letter in the form of a rap video. Nonetheless, unlicensed use of OUT FOR A RIP violates my client's rights. From what I understand, you guys do fairly well for yourselves - at least in comparison to most other multinational corporations, the GDP of most countries, or, say, the average musician, right? No room in your budget to clear IP rights?

Contact me no later than August 1, 2017 to discuss settlement of this matter. If you do not wish to discuss settlement, we require that you immediately cease using the OUT FOR A RIP mark, recall all OUT FOR A RIP bottles, and take immediate steps to preserve all relevant evidence in anticipation of possible litigation.

Regards,
Rob Kittredege

So... yeah. I have no idea if this is a valid trademark claim, though it certainly sounds plausible. The trademark certainly exists, and does cover the phrase on "mugs, coffee mugs, travel mugs, cups, drinking cups and beer steins." I've seen some people complain that "out for a rip" was in common usage going back decades, but in searching for the history of it, the phrase does show up in Urban Dictionary... but entered by "B. Richmond" about a week after the original song was released.

So it certainly seems pretty credible that the public associates the phrase with Brendan Richmond. Either way, I actually think this kind of response is pretty clever, no matter what. Despite being a legal cease and desist, it certainly doesn't come off as bullying -- and actually does a pretty good job of just publicizing Richmond and his music -- no matter what happens with Coca Cola. If Coke is smart -- and I'm hoping its lawyers are -- I would imagine that responding along the lines of what's suggested in the video would be the best way to settle this situation with everyone coming out of it looking good.

Filed Under: b.rich, brendan richmond, cease and desist, out for a rip, out for a sip, rap video, rob kittredge, trademark
Companies: coca cola

Zillow Still Doesn't Get It: Second Letter About McMansion Hell Is Still Just Wrong

from the not-fixing-things dept

One of the big stories of the week so far was Zillow's mind-numbingly bizarre decision to have a recent-hire lawyer send out a completely bullshit threat letter to the website McMansion Hell. Things have not gone well for Zillow in the wake of this. Multiple news articles have been mocking Zillow's decision, and my own Twitter feed has been filled with people saying unkind things directed at the company. And then there's whatever this is:

Given that, as we discussed in our original post, there is no legitimate legal claim here, the only thing that the threat letter seems to have done is piss off a ton of people about Zillow. That's bad.

And it doesn't seem to be getting better. Rather than doing what I thought the company would do on Tuesday (i.e., admit that it fucked up, slap the lawyer on the wrist, apologize profusely and promise to put in place better processes to avoid this sort of thing from happening again), the company is trying to justify its decision. The Verge has the followup letter that was sent by Zillow's VP of Communications & Public Affairs, trying to better "explain" the reasoning for the original letter. It doesn't help. It actually makes things worse.

Dear Kate,

Over the past day, we’ve had a lot of questions from the media about the cease and desist our legal team sent to you. I understand why – your blog is well-loved by its many fans.

Okay. There's no apology in that first line, so we're already off on the wrong foot. And... seeing as Zillow admits the blog is "well-loved," didn't anyone at Zillow think that maybe sending a ridiculous and misleading threat letter was a bad idea?

I wanted to write to both thank you for taking down the photos, but also to give you a little bit of context around the request.

She didn't take down the photos. She took down the whole blog. Because you sent a completely bogus threat letter than never should have been sent.

Mostly, though, I want to stress that we do not want you to take down your blog. We hope you will be able to resume your writing and find other sources for photos.

Except... it's totally reasonable for someone scared by a bogus threat letter to pull down the whole site, rather than go back and individually ruin each story which all rely on images.

Second -- and more importantly -- she doesn't need to find other sources for photos because (1) Zillow has no copyright interest here and should shut up about the copyright and (2) FAIR USE protects what she is doing. So this letter is just... still wrong.

As for why we requested you remove the photos from Zillow – we do not own the rights to many of the photos on our site, and therefore can’t give permission for third parties, such as yourself, to take the photos from our website for any purpose. We get them from brokerages and MLSs who are advertising homes for sale and through those agreements we have an obligation to protect the interest of the copyright holders who license the images to Zillow.

And this paragraph... makes things even worse. First off, you didn't "request" that she remove the images, you sent a silly, misleading and simply wrong legal threat letter. That's a massive difference. It wasn't a "hey, please could you..." it was "if you don't do this we're going to sue you and ruin you." Second, you're admitting again that you don't hold the rights, which means you also don't need to worry about "giving permission" to others, because it's not yours to give. Third, thanks to fair use, no one needs to give or even ask for permission. So what's your point here other than that Zillow doesn't seem to comprehend the most basic concepts of copyright law?

Fourth, since Zillow freely admits that it has no copyright in these images, then, no, it does not have any "obligation" to protect the copyright holders. In fact, under the DMCA you can get into trouble for falsely trying to represent a copyright holder when you have no legitimate right to do so. And, fifth, just because it covers this line too: FAIR USE means that you're not protecting the interest of copyright holders anyway.

We are happy to answer any questions about this, and I sincerely hope you are able to find other sources for photos.

Best,

Katie Curnutte

She doesn't need to find other sources. Fair use means she can do what she's doing and Zillow should shut up, other than maybe offering an apology.

Meanwhile, another organization that does understand copyright and fair use much better than Zillow is EFF. And EFF is now representing McMansion Hell. I get the feeling Zillow is going to keep regretting this until someone there grapples with just how dumb the company has been this week from both the legal and the communications side.

Filed Under: cease and desist, cfaa, copyright, mcmansion hell, threats
Companies: mcmansion hell, zillow

Wikileaks Attempts To Bully Wikileaks Documentary With C&D Notices

from the about-face dept

The history of Wikileaks and its founder Julian Assange is a tortured one, to be sure. Once the darling of the left for exposing important misdeeds by the American government, the site then became a tool for the right in the last Presidential election with the publishing of emails stolen in a hack of the DNC. From there, some have accused Wikileaks of being an arm of Moscow's intelligence efforts, while the America government has made noise about prosecuting the site and Assange under the Espionage Act. Still others support the site for its efforts in exposing the secrets governments wish to keep hidden from the citizens to whom they are beholden.

Through it all, Assange and Wikileaks have remained firm in their mission to expose information and secrets that were previously kept from the public. Except, it seems, when that information has to do with Wikileaks itself. According to the makers of a documentary about Wikileaks entitled Risk, on the topic of Wikileaks, Wikileaks is chiefly interested not in open journalism and unvarnished truth, but rather on its own image. And apparently the site is willing to wield legal threats and lawyers in a way that is almost absurdly hypocritical.

We are the producers of Risk , a documentary film about Julian Assange and WikiLeaks. We unequivocally defend WikiLeaks’ journalistic right to publish true and newsworthy information...We were disturbed, however, to learn that Julian Assange and WikiLeaks sent cease and desist letters to our distributors demanding they stop the release of Risk: “We therefore demand that you immediately cease the use and distribution of all images of the Named Participants and that you desist from this or any other infringement of the rights of the Named Participants in the future.”

From there, the filmmakers go into what lengths they went to work directly with Wikileaks and Assange on the film starting back in 2011. Assange himself provided content to be used in the film and even signed a licensing agreement to use Wikileaks footage for it. Some people involved with Wikileaks requested not to be in the film and the filmmakers complied. People from the site and their lawyers have been shown screenings of the film before every regional release, including as recently as April of this year. There is no claim made thus far that any of the content of the film is false.

So, what is the weighty harm over which Wikileaks is firing off C&Ds? Its image and the image of Assange.

Since 2016, Assange and his lawyers have repeatedly demanded that we remove scenes from the film in which Assange speaks about the two women who made sexual assault allegations against him in 2010 and Sweden’s investigation which has since been discontinued. WikiLeaks’ comments have consistently been about image management, including: demands to remove scenes from the film where Assange discusses sexual assault allegations against him; requests to remove images of alcohol bottles in the embassy because Ecuador is a Catholic country and it looks bad; requests to include mentions of WikiLeaks in the 2016 U.S. presidential debates; and, requests to add more scenes with attorney Amal Clooney because she makes WikiLeaks look good.

The opinion that Assange is an egomaniac has been floating around for some time. With actions like these, there seems to be some evidence of that. But that charge aside, what should be abundantly clear is that the ideals of the site appear to have fallen by the wayside when it comes to a simple documentary that has refused to cinematically stroke Wikileaks to the degree it wishes. That's not a good look for a site that survives on people's belief that it is committed to open and honest information.

In fact, this looks to be the sort of thing that the Wikileaks from years gone by would have dug into and exposed.

Filed Under: cease and desist, documentary, julian assange, risk, truth, wikileaks
Companies: wikileaks

SLAPP Threats And The Grenfell Fire: Why We Must Stop Attacks On Free Speech

from the these-things-matter dept

You've probably heard about the horrific tragedy in the UK of the Grenfell Tower fire that killed many people. There are all sorts of awful stories related to the tragedy, but there is one that hits close to home: the use of SLAPP threats to silence residents who warned about fire dangers in the building. You see, a group of residents in the building who were concerned about safety issues, calling themselves the Grenfell Action Group have been blogging about problems in the building for years -- including this horrifyingly prescient blog post from last November, which included the following paragraphs:

It is our conviction that a serious fire in a tower block or similar high density residential property is the most likely reason that those who wield power at the KCTMO will be found out and brought to justice! The Grenfell Action Group believe that the KCTMO narrowly averted a major fire disaster at Grenfell Tower in 2013 when residents experienced a period of terrifying power surges that were subsequently found to have been caused by faulty wiring. We believe that our attempts to highlight the seriousness of this event were covered up by the KCTMO with the help of the RBKC Scrutiny Committee who refused to investigate the legitimate concerns of tenants and leaseholders.

We have blogged many times on the subject of fire safety at Grenfell Tower and we believe that these investigations will become part of damning evidence of the poor safety record of the KCTMO should a fire affect any other of their properties and cause the loss of life that we are predicting

Yikes. There are many more similar blog posts as well. And apparently, the building management -- the Kensington and Chelsea Tenant Management Organisation (KCTMO) -- decided years ago that the best way to deal with the blogging tenants... was to threaten them with a lawsuit if they kept blogging. In a letter posted to Twitter by a bunch of people (not sure who posted it first), back in 2013, the KCTMO threatened the bloggers with defamation lawsuits if they kept it up:

The image is a little blurry, but here's a transcript of the key part:

I would also ask that you remove from the blog unfounded accusations against named individuals which are your personal opinion and are likley to be considered defamatory and also likely to be perceived as harassment by the individuals concerned. I should be grateful if you could contact Vinal Sarna immediately to confirm that you have removed the offending blog and that you will refrain from making unsubstantiated accusation of criminal behaviour and personal comments about an individual's performance or actions while working on or for the Estate Management Board.

And, of course, UK libel laws are much stricter than in the US, so it's quite reasonable that these kinds of letters would have significant chilling effects on the authors of the blog, who might fear that calling more attention to problems with building management and threats to safety might, in fact, be met with a lawsuit. At least one publication is noting that at least two women who died in the fire were among those threatened with legal action for calling for better fire protection in the building, though the exact details of those threats are not entirely clear.

Either way, this hearkens back to the early days of anti-SLAPP laws in the US, where many were designed to deal with building developers threatening activists or suing them to silence them entirely. Having strong free speech protections in the UK might have helped to make tenants in the building more willing to speak out and have their voices heard, rather than threatened into silence for upsetting the management of the building to the point of having a lawyer send out threat letters.

The fight to protect free speech is about more than just people wanting to say stuff that might upset people -- it's about not being afraid to speak out when it's necessary.

Filed Under: cease and desist, free speech, grenfell, grenfell fire, slapp, threats, uk

If Net Neutrality Dies, Comcast Can Just Block A Protest Site Instead Of Sending A Bogus Cease-And-Desist

from the comcastic dept

It appears that a vendor working for Comcast sent a totally bullshit cease-and-desist letter regarding a pro-net neutrality site: Comcastroturf.com, created by our friends over at Fight for the Future. The Comcastroturf website was set up as a tool to see if someone filed bogus FCC comments in your name. As you probably recall, there is a bot that has been flooding the FCC comment site with bogus anti-net neutrality comments, filed in alphabetical order. Reporters contacted some of the individuals whose names appear on these comments, and they had no idea what it was about. People are still trying to track down who is actually responsible for the bogus comments, but Fight for the Future set up this neat site to let you check if your name was used by whoever is behind it.

And, of course, the name "Comcastroturf" is pretty damn clever, given the topic. Kudos to Fight for the Future for coming up with that one. It is, of course, totally legal to use the domain name of a company that you're protesting in your own domain. There are numerous cases on this issue, normally discussed as the so-called "Sucks Sites." There's clearly no legal issue with Comcastroturf, and any reasonably informed human being would know that. Unfortunately, it would appear that Comcast hired a company that employs some non-reasonably informed humans.

The cease-and-desist letter was sent by a company called "Looking Glass Cyber Solutions" (no, really), which used to be called "Cyveillance" (only marginally less bad). We've written about Cyveillance twice before -- and both times they were about totally bogus takedown requests from Cyveillance that caused serious problems. The most recent was the time that Cyveillance, working for Qualcomm, filed a bogus DMCA notice that took down Qualcomm's own Github repository. Nice move. The earlier story, however was in 2013, and involved Cyveillance -- again representing Comcast -- sending a threatening takedown demand to some more of our friends over at TorrentFreak, claiming (ridiculously) that public court filings were Comcast's copyright-covered material, and threatening serious legal consequences if it wasn't taken down. Eventually, Comcast stepped in and admitted the cease-and-desist was "sent in error." You'd think that maybe this would have caused Comcast to think twice about using Cyveillance for such things. But, nope.

The rebranded Looking Glass Cyber Solutions has told Fight for the Future that "Comcastroturf" violates Comcast's "valuable intellectual property rights" and that failure to take down the site may lead to further legal action around cybersquatting and trademark violations. (Update: Turns out it wasn't a "rebranding" but Looking Glass bought Cyveillance...).

Of course, there's no way that Comcast would actually move forward with any legal action here. In fact, I'm pretty sure it already regrets the fact that the numbskulls at this vendor they hired to police their brand online just caused (yet another) massive headache for their brand online. Maybe, this time, Comcast will finally let Cyveillance/Looking Glass Cyber go, and find partners who don't fuck up so badly. Meanwhile, the fact that Looking Glass Cyber can't even figure out that Comcastroturf is a perfectly legal protest site makes the company's website -- which is chock full of idiotic buzzwords about "threat mitigation" and "threat intelligence" -- look that much more ridiculous. The only "threat" here is Looking Glass/Cyveillance and their silly cluelessness sending out censorious threats based on what appears to be little actual research.

Of course, without true net neutrality, if Comcast really wanted to silence Comcastroturf, it would just block everyone from accessing the site...

Filed Under: cease and desist, comcastroturf, cybersquatting, net neutrality, takedown
Companies: comcast, cyveillance, fight for the future, looking glass cyber solutions