Radiohead has always taken a more thoughtful, less kneejerk approach to how it handles the kinds of situations that many others in the recording industry tend to respond to by freaking out. Back in 2007, in the midst of the worldwide freakout over piracy, Radiohead released a surprise album, telling fans they could pay what they wanted to download it (while also selling a more expensive "box set", giving its biggest fans a good reason to pay extra. The band has also been supportive of file sharing and even leaked some of its own tracks via BitTorrent.
So perhaps this following story shouldn't be seen as too much of a surprise (though, I imagine it was a surprise to whoever hacked Radiohead frontman Thom Yorke). As noted in that parenthetical, someone apparently hacked Yorke, and somehow got access to a set of 18 minidiscs of somewhat random/eclectic material that Yorke had recorded in the 1996/97 timeframe, when the band was working on its seminal Ok Computer album. The hackers apparently then asked Yorke/Radiohead for $150,000 not to release the material. The band chose not to give in to the hackers, who then did leak the material. However, soon after the material was leaked, the band announced (via Radiohead guitarist Jonny Greenwood's Instagram) that the band was now officially "releasing" that material on Bandcamp for £18 (or more) and donating any funds raised to Extinction Rebellion (a climate change advocacy group).
Greenwood's writeup -- titled "Walter Sobchak vs Bunny's toe, as an amusing nod towards the extortion attempt in The Big Lebowski -- is worth reading:
Subject: Walter Sobchak vs Bunny's toe
We got hacked last week - someone stole Thom's minidisk archive from around the time of OK Computer, and reportedly demanded $150,000 on threat of releasing it.
So instead of complaining - much - or ignoring it, we're releasing all 18 hours on Bandcamp in aid of Extinction Rebellion. Just for the next 18 days. So for £18 you can find out if we should have paid that ransom.
Never intended for public consumption (though some clips did reach the cassette in the OK Computer reissue) it's only tangentially interesting. And very, very long. Not a phone download. Rainy out, isn't it though?
And yes, the file is quite large -- approaching 2GB -- and the band itself says it's not that interesting. But, of course, fans are interested, because that's what fandom is about. In fact, it's quite interesting to see that a bunch of fans have put together a crowdsourced Google Doc creating a track listing and annotation of what's in the files (though, they also have to explain that they weren't the ones who hacked Yorke's stuff in the first place). The notes themselves are kind of interesting:
As with all such things, this could easily have turned into the band just complaining about a situation that basically everyone agrees is unfair and unpleasant. However, Radiohead, of all bands, appears to have been quick to turn what is undoubtedly a crappy situation into a positive one that both supports a charity they like and builds tremendous goodwill with fans (while making the hackers look awful).
There's a key point in all of this that is worth noting, and it's one that we've tried to make for years about piracy: we're not arguing that piracy is somehow a good thing. However, we have argued that piracy happens. The question is how you respond to it, and whether or not you can turn it into a positive situation. Too many in the music industry have taken piracy and turned a bad situation into something worse -- pissing off fans, annoying people, and doing damage to their own brand. Radiohead has long realized it's better to do the exact opposite. That's not cheering on the hacking (or piracy), but noting that when a bad thing happens, you might as well figure out how to make the best of it.
Radiohead has done that. I wish many others in that industry would do the same.
Just a few weeks ago, Qualcomm and Apple settled a massive patent dispute on the eve of a trial. In the run-up to the settlement, Apple had made a really compelling case that Qualcomm's practices involve blatant abuse of its patents to jack up prices to insane levels and to limit any real competition. Just recently we wrote about how media-tracking giant Nielsen was abusing patents for anticompetitive purposes, but they looked like blatant amateurs compared to Qualcomm. As we noted in that post, our founding fathers worried quite a bit about the impact of patent monopolies and how they would stifle innovation and competition. James Madison said:
"But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good."
And Thomas Jefferson, who grudgingly ran the patent system for a while (and where he tried to institute rules to prevent abuse) seemed to regret the entire concept of patents:
... generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
But one quote regarding such monopolies that sticks most with me is that of UK Parliament member Thomas Macauley, who gave a famous speech in 1841, in which he declared:
Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad...
He further noted that if there is a case that the only way to remunerate people is through such a monopoly they may grudgingly be granted, but warns of the evil this will enable if allowed to do more than incentivize the original creation:
It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
I'm thinking about these quotes, yet again, in relation to Qualcomm. Just a month after settling the lawsuit with Apple, a federal judge in an ongoing antitrust lawsuit filed by the FTC, laid out in massive detail just how evil Qualcomm has been in using its monopoly powers to stifle innovation and competition. The 283-page ruling is incredibly damning -- and if you don't feel like reading the whole thing, Tim Lee over at Ars Technica has an only slightly shorter summary of just how Qualcomm's shake down scam worked.
I read every word of Judge Koh's book-length opinion, which portrays Qualcomm as a ruthless monopolist. The legal document outlines a nearly 20-year history of overcharging smartphone makers for cellular chips. Qualcomm structured its contracts with smartphone makers in ways that made it almost impossible for other chipmakers to challenge Qualcomm's dominance. Customers who didn't go along with Qualcomm's one-sided terms were threatened with an abrupt and crippling loss of access to modem chips.
"Qualcomm has monopoly power over certain cell phone chips, and they use that monopoly power to charge people too much money," says Charles Duan, a patent expert at the free-market R Street Institute. "Instead of just charging more for the chips themselves, they required people to buy a patent license and overcharged for the patent license."
Qualcomm -- which it should be noted has been one of the most aggressive agitators against patent reform (and sometimes in favor of making patent law much, much worse) -- is basically the world's largest patent troll, and it loved every minute of it.
Qualcomm's patent licensing fees were calculated based on the value of the entire phone, not just the value of chips that embodied Qualcomm's patented technology. This effectively meant that Qualcomm got a cut of every component of a smartphone—most of which had nothing to do with Qualcomm's cellular patents.
"Qualcomm charges us more than everybody else put together," Apple executive Jeff Williams said. "We've never seen such a significant licensing fee tied to any other IP we license," said Motorola's Todd Madderom.
And, of course, Qualcomm leveraged its position to hold everyone over a barrel:
These high royalties reflected an unusual negotiating tactic called "no license, no chips." No one could buy Qualcomm's cellular chips unless they first signed a license to Qualcomm's patent portfolio. And the terms of these patent deals were heavily tilted in Qualcomm's favor.
Once a phone maker had signed its first deal with Qualcomm, Qualcomm gained even more leverage. Qualcomm had the right to unilaterally terminate a smartphone maker's chip supply once the patent licensing deal expired.
"If we are unable to source the modem, we are unable to ship the handset," said Motorola executive Todd Madderom in a deposition. "It takes many months of engineering work to design a replacement solution, if there is even a viable one on the market that supports the need."
That made Qualcomm's customers extremely vulnerable as they neared the expiration of a patent licensing deal. If a customer tried to negotiate more favorable terms—to say nothing of formally challenging Qualcomm's patent claims in court—Qualcomm could abruptly cut off the company's chip supply.
And, of course, Qualcomm used this power to crush the competition and stamp out any kind of non-Qualcomm innovation.
Qualcomm's first weapon against competitors: patent licensing terms requiring customers to pay a royalty on every phone sold—not just phones that contained Qualcomm's wireless chips. This gave Qualcomm an inherent advantage in competition with other chipmakers. If another chipmaker tried to undercut Qualcomm's chips on price, Qualcomm could easily afford to cut the price of its own chips, knowing that the customer would still be paying Qualcomm a hefty patent licensing fee on every phone.
Also notable: right after Apple and Qualcomm settled their legal dispute in April, Intel announced it was exiting the mobile 5G chip space, and admitted it was entirely because of that settlement:
“In light of the announcement of Apple and Qualcomm, we assessed the prospects for us to make money while delivering this technology for smartphones and concluded at the time that we just didn’t see a path,” [Intel CEO Bob] Swan said.
And the ruling a month later made clear, Qualcomm's patent attack against Apple was very much driven by fear of competition from Intel:
Freed of Qualcomm's chip supply threat, Apple began to challenge Qualcomm's high patent royalty rates. Qualcomm responded by cutting Apple off from access to Qualcomm's chips for new iPhone models, forcing Apple to rely entirely on Intel for the cellular chips in its 2018 models. Qualcomm sued Apple for patent infringement in courts around the world, while Apple pressed the Federal Trade Commission to investigate Qualcomm's business practices.
And, of course, Qualcomm has long used its patents to directly stifle any competition as opposed to the indirect versions described above:
Chipmakers are ordinarily expected to acquire patents related to their chips and indemnify their customers for patent problems. But Qualcomm refused to license its patents to competitors, putting them in a difficult position.
"The prevailing message from all of the customers I engaged with was that they expected us to have a license agreement with Qualcomm before they would consider purchasing 3G chipsets from MediaTek," said Finbarr Moynihan, an executive at chipmaker MediaTek.
If a chipmaker asked to license Qualcomm's patents, Qualcomm would only offer a promise not to sue the chipmaker itself—not the chipmaker's customers.
As Tim Lee highlights, Qualcomm was so comically evil in executing this plan, it literally laid out the details of how to starve MediaTek (MTK) in a PowerPoint presentation:
This is summarized in the judge's opinion:
The slide includes the strategy “make sure MTK can only go after customers with WCDMA SULA,” with an arrow leading to “Reduce # of MTK’s 3G customers to ~50.”... The next strategy is “Formulate and execute a GSM/GPRS strategy to destroy MTK’s 2G margin & profit,” with an arrow to “Take away the $$ that MTK can invest in 3G.” .... Thus, Qualcomm’s refusal to license MediaTek was designed to (and in fact did) limit MediaTek’s customer pool and reduce MediaTek’s revenue base to invest in future cellular generations.
There's a LOT more in the ruling by Judge Lucy Koh and it basically lays out a road map of pure evil by Qualcomm, allowing it to skim a ton of (literal) monopoly rents off the entire mobile phone market, even when its own innovations were a minimal part of that market -- while at the same time abusing its patent position to deliberately stifle competition and innovation. The court order says that Qualcomm needs to renegotiate its licenses, and can no longer use its "no license, no chip" deals that block customers from buying Qualcomm chips if they don't have a license.
Of course, Qualcomm won't go down without a fight, and has announced that it's appealing the ruling. So this will go on for some time. But if you ever want a pure example of the "evil" created by excessive patent monopolies, Qualcomm is about as pure an example as you can find.
As we've discussed plenty of times in the past, when the federal government creates something that could be covered by copyright law, US copyright law requires it to be put into the public domain for the benefit of the public. I've never quite understood why the same is not true for patents. Instead, the US government does big business licensing off patents. While some may argue that this is a good revenue generation scheme for the US government (which theoretically should lower taxes elsewhere), it has significant downstream effects. And that's especially true in the healthcare market.
As we've discussed before, you'll often hear big pharma insisting it needs patents because it takes some ungodly sum to research and bring a patent to market. That number goes up every year. By a lot. In the early 2000s, the numbers was clocked at $800 million. Last year, drug companies were now claiming $2.7 billion. But much of that is a total myth. Indeed, research shows that big pharma is often adding up the costs that the federal government itself spends on encouraging new drug development and adds it to the total cost as if that cost is borne by the pharmaceutical industry, rather than the taxpayer.
And yet, even though the US taxpayer tends to pay for a significant share of the research and development in new drugs, big pharma companies which take over the project down the road get to keep 100% of the profits -- and, thanks to a totally broken patent system that gives them a literal monopoly, they jack up the prices to insane levels (and this works because of our idiotic healthcare setup in which no one ever knows the cost of what we're buying, and insurance companies act as weird middlemen).
I'm reminded of all this in reading a new piece by Dr. Eugene Gu, talking about the absolute insanity of Truvada, an important drug for HIV patients, which is controlled by pharma company Gilead Sciences. Gu outlines a story that reflects exactly what we discussed above. Gilead charges impossibly high fees for Truvada even though most of the development was paid for by US taxpayers:
While the generic version of Truvada is available in many countries outside the United States for around $840 annually per patient, Gilead uses its patent on the drug to charge Americans close to around $24,000 annually per patient. That’s for the exact fixed dose combination of tenofovir and emtricitabine that costs around $60 annually per patient to produce.
[....]
What's infuriating is that American taxpayers funded much of the research and development for Truvada. So much, in fact, that according to the Yale Global Health Justice Partnership it's the CDC that actually owns the patent for the drug. So Gilead has basically been making $3bn a year selling a drug that actually belongs to Americans themselves.
And, as Gu notes, the situation gets even more ridiculous and more corrupt:
And that’s not all. Gilead recently partnered with Secretary of Health and Human Services Alex Azar and President Donald Trump to roll out a public relations scheme to fool the public. During this, Gilead declared that it would be donating enough Truvada to treat 200,000 patients each year until 2030. While it sounds great on the surface, that basically means it will donate around $12m a year while making billions in profitsand getting a tax break.
There are all sorts of reasons why our healthcare system is truly messed up, but the fact that taxpayers pay for the development of critical life saving drugs, but then the government allows big pharma companies to effectively control the patent, extract massive monopoly rents, and then give them tax breaks for donating a tiny percentage... seems particularly fucked up.
By now, we should all be aware that YouTube's ContentID system is not great. What was supposed to be an efficient way for content owners to report when their content is being used without permission instead represents essentially the worst from all worlds. It's bad from a operating technology perspective, since the system manages to flag non-infringing content as infringing content on the regular. And it's bad from a operating human standpoint, since YouTube puts so little emphasis on staffing around copyright claims that the appeals and review processes are a joke. The result of all this is a system that is wide open for both mistaken collateral damage and outright abuse. That abuse typically takes the form of people who either don't understand how copyright works, or who are interested in merely trolling others.
A Youtuber called ObbyRaidz, who makes videos about Minecraft, has found himself having received two copyright "strikes" on Youtube from a blackmailer calling themselves VengefulFlame, who has demanded "$150 PayPal or $75 btc (Bitcoin)" or equivalent "goods/services" to have the strikes removed. If ObbyRaidz doesn't comply, VengefulFlame could send one more complaint to Youtube and have ObbyRaidz's account -- and all the videos he's created -- permanently deleted.
ObbyRaidz says he's been unable to get any help from Youtube, despite repeated complaints and entreaties.
This isn't some one-off instance, either. It turns out that this sort of extortion is a somewhat regular occurrence. And even that shouldn't really matter, because it's plain as can be that a system that even allows for the possibility of this kind of abuse is a system that is too broken to be allowed to continue. If anything, the demonstration of a flaw of this magnitude should result in the immediate reformation of YouTube's policies. It's permanent deletion policies, at the very least, should be top of the list to reform as its users are currently in danger of losing access to the platform that is choosing not to support them.
And we should keep this in mind given what's going on in the EU, where the government there appears to want to roll out this avenue for abuse to everyone, for everything, all the time.
The extortion attempt is a timely reminder of what's at stake in the fight over the EU's Copyright Directive, which mandates a much broader version of ContentID, but for every service and every type of copyrighted work, from tweets to Minecraft skins. Under the proposal, anyone could add anything to the databases of blocked content, and get anyone else's work censored; while this could be used simply to suppress information that a fraudster doesn't like (say, reports of political corruption or complaints about a scammy business), they could also be used as fuel for extortion.
It's going to be a fucking mess, mostly because the over-sized government is seeking to kneel before the content industries by serving them a half-baked plan to create some copyright database that simply is going to be abused, full stop. The lesson of ContentID is in what shouldn't be done, not what should. And certainly not what should be done on the scale of a continent.
I will never tire of judges handing down benchslaps to IP trolls. Perhaps I'll never tire of it because it just doesn't happen often enough. Or perhaps it cannot happen often enough, given the sheer amount of troll litigation judges preside over. Not every dismissed case can be given the court's full attention. But this opinion, from Judge Royce Lamberth, should certainly get Strike 3 Holding's attention.
The brutal nine-page opinion [PDF] opens with this caustic appraisal of the porn company's business model. (h/t Eric Goldman)
Strike 3 is [...] a copyright troll. Its swarms of lawyers hound people who allegedly watch their content through Bittorrent, an online service enabling anonymous users to share videos despite their copyright protection. Since Bittorrent masks users' identities, Strike 3 can only identify an infringing Internet protocol (IP) address, using geolocation technology to trace that address to a jurisdiction. This method is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another. [...]
Simply put, inferring the person who pays the cable bill illegally downloaded a specific file is even less trustworthy than inferring they watched a specific TV Show. But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address's subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.
The court goes on to point out it isn't copyright law that vindicates the plaintiff but rather "the law of large numbers." Strike 3 has filed 1,849 copyright infringement lawsuits across the nation (according to Judge Lamberth's count), resulting in an untold number of settlements. And that's all this really is: another attempt to force someone, anyone, to cough up some money rather than face off in court. As Judge Lamberth notes, copyright trolls "consume 58%" of the federal court system's copyright lawsuit docket. They're a burden on the courts and a burden on the public. Judge Lamberth calls Strike 3 on its copious bullshit:
These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don't seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: fie a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.
Rather than be an accomplice in Strike 3's shady game, Judge Lamberth denies its request for discovery. Without further discovery, Strike 3 can't serve anyone with a lawsuit, which will prevent Strike 3 from refiling in this court at least, even with a dismissal without prejudice that leaves that door open.
No copyright troll is going to try to keep a case alive in Lamberth's court, not after this damning summation of their collective efforts:
Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM.
This will limit Strike 3's litigation in this particular jurisdiction. But that's what venue shopping is for. At least defendants have another opinion to quote when fighting back against trolls like Strike 3.
As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and ChangeMyReputation.com, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.
Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Roommates.com. Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.
Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.
The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":
In this case, the Supreme Court has never recognized that the CDA applies in state criminal actions. The Supreme Court has never indicated circumstances that would qualify a state criminal defendant for CDA immunity. Absence of applicable Supreme Court precedent defeats the contention that Petitioner is entitled to CDA immunity under clearly established federal law...
federal circuits have not applied CDA immunity in state criminal actions or indicated circumstances that would qualify a state criminal defendant for CDA immunity. Petitioner cannot satisfy § 2254(d)(1) with district court opinions applying CDA immunity in state criminal actions.
I've routinely blogged about the application of Section 230 to state criminal prosecutions, and I even wrote a lengthy discourse on why that was a good thing. Still, I can't think of any federal appellate courts that have reached this conclusion, so perhaps the court's factual claim about the jurisprudential absence is correct.
The court adds that even if Section 230 qualified as "clearly established federal law," the appellate court ruling didn't necessarily contravene that law:
the California Court of Appeal performed an exhaustive and comprehensive analysis of the applicable circuit court decisions before concluding Petitioner is an information content provider under Roommates. The state court reasonably interpreted Roommates and Jones, and reasonably concluded that Petitioner "developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA."
This passage reinforces the deficiencies of the appellate court's Section 230 discussion. "[R]equiring users to input private and personal information as a condition of posting the victims' pictures" is not the encouragement of illegal content, as referenced by Roommates.com, as that information isn't actually illegal; and the Jones case rejected an "encouragement" exclusion to Section 230 while ruling for the defense. Do those deficiencies support the extraordinary relief of habeus corpus? Apparently not.
You may recall that the Swedish Pirate Party recently declared war on copyright trolls operating within Sweden. The party's newfound efforts, which had remained far too dormant for far too long, come on the heels of an explosion in so-called "settlement letters" being sent out to Swedish citizens. Those letters, as is typical elsewhere, are armed merely with an IP address and a claim of infringing behavior. Despite this, Danish law firm Njord Law has been able to collect millions of dollars in "settlments" after sending out notices to tens of thousands of account holders of IP addresses alleged to have engaged in copyright infringement. Njord Law was able to get this data from Swedish ISPs by spending a great deal of time in court, claiming that it needed this customer information in order to get justice for the copyright holders it represents.
What makes that stated goal somewhat odd is that Njord Law appears to spend almost no time in the courtroom for literally anything else beyond getting this customer data. Despite the firm's own admission that nearly half of the recipients of these letters don't even bother to respond, the firm has brought exactly zero of these cases to the courtroom.
After trawling records held by the Patent and Market Court and all those held by the District Courts dating back five years, SVT did not find a single case of a troll taking a citizen to court and winning a case. Furthermore, no law firm contacted by the publication could show that such a thing had happened.
“In Sweden, we have not yet taken someone to court, but we are planning to file for the right in 2018,” Emelie Svensson, lawyer at Njord Law, told SVT.
Njord Law has made promises of courtroom appearances in the past as well, which have yet to materialize. And that really should tell you everything you need to know about the copyright troll business model. Whatever noises trolls might make about justice and the law, they have no interest in actually engaging the accused in the courtroom. Such litigation is expensive, for starters, compared with simply scaring people into handing over small settlement amounts essentially for free. Also, it would be in the courtroom that any challenge as to the quality of evidence being used to extract these settlements would occur.
The reality is that these trolls want to exist in something of a copyright DMZ, tossing out legal threats while never actually ending up in a courtroom battle. If that sounds like a species of blackmail to you, you aren't alone.
“There is a risk of what is known in English as ‘legal blackmailing’,” says Mårten Schultz, professor of civil law at Stockholm University.
“With [the copyright holders’] legal and economic muscles, small citizens are scared into paying claims that they do not legally have to pay.”
Why the political representatives of the citizens of Sweden would choose not to outlaw these sorts of tactics is an open question. Surely a political party called The Pirate Party cannot be the only group opposed to the legal blackmailing of the Swedish public.
Earlier this month Ars Technica reported on the arrest of the alleged operators of Mugshots.com, a website that does what it says on the tin: hosts mugshots. The issue is, the site operators didn't just host mugshots; they also charged people to have their mugshots removed from the site through a companion site, Unpublisharrest.com.
Assuming the arrest warrant is fairly stating things, the site's operators may not have had the best of intentions in running their site the way they did. According to the facts alleged they were more interested in making money by charging people to have their pictures removed from their site than in serving as any sort of public records archive.
But it shouldn't matter why they pursued the editorial policy that they did. First of all, mugshots are generally public records, and for good reason. As South Dakota's attorney general Mark Jackley noted last year, when South Dakota declared them to be public records:
"The release of criminal booking photographs to the public will result in greater transparency in the criminal process, enhance public safety, and will further assist the media and the public in the proper identification of individuals in the criminal process."
People are ordinarily allowed to share public records on their websites, just as they may share any other lawful information. People are also free to be arbitrary and capricious in how they choose what information to share. They are even free to be financially motivated in making those decisions.
But according to authorities in California, if the decision on what information to share is linked to a profit incentive (from the arrest warrant: "The motive behind posting the damaging material is financial gain."), and that information is a mugshot, you go to jail. In the case of the Mugshots.com operators, authorities have predicated their arrest on some alarming statutory language:
As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. By posting the booking photograph online, and requiring a fee to have it removed, the owners and operators of Mugshots.com and Unpublisharrest.com are operating their websites for an unlawful purpose.
In addition, the authorities construed what the operators of Mugshots.com did as identity theft:
California Penal Code Section 530.5 defines identify theft, stating: "Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose. . . without the consent of that person, is guilty of a public offense. Section 530.55 identifies a 'person' as a natural person, firm, company, corporation or any other legal entity. The section defines 'personal identifying information' as any 'name, address . . . or other unique physical representation.' Because Mugshots.com and Unpublisharrest.com have used, and continue to use, the booking photographs and PII of individuals for purposes of selling the service of removing the photographs and information, the owners are in violation of California Penal Code Section 530.5, identity theft, a felony."
Taken together, the arrest warrant concludes, the site operators are guilty of extortion and conspiracy to commit extortion. But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn't pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators' purported "victims" of a crime, and its having done so is no secret. The state's accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn't already revealed.
This apparently sloppy reading of the extortion statute, compounded with the 2015 statutory language giving mugshots a sort of magical status that prevents them from being treated as an ordinary public record, represents a chilling incursion on protected First Amendment activity. It's one thing to impose liability for publishing content that isn't lawful, perhaps because it's defamatory, infringing, or somehow intrinsically wrongful unto itself. But it's another thing entirely to impose liability for publishing content that is entirely lawful – especially, as in this case, when it is not only lawful but a public record.
California authorities would likely argue that the prosecution is not about liability for speech, but liability arising from the decisions about what speech got spoken. (Or, more particular to this case, remained spoken, for the state is not prosecuting the site operators for having posted the mugshots in the first place.) But this is a distinction without a difference. Indeed, decisions about what we choose to say can be as expressive as anything we actually do say. The government ordinarily does not get to come in and force us to make those decisions in any particular way. Freedom of expression means that we are at liberty to decide what to say, and then what not to say, for whatever reason we might decide. Even when these expressive choices are guided by a profit motive.
Were that not the case, think of how chilling it would be to profit-driven news media if their editorial decisions had to be free from any financial concern in order to retain First Amendment protection. Even in terms of mugshots themselves, think about how chilling it would be if others could not freely use them to tell us about the world around us, if there was money to be made in the process. As case in point, the very same week the arrest warrant was used to extradite the site operators back to California, the New York Times ran a story about the efforts of journalist and photographer Eric Etheridge to document the lives of Freedom Riders.
Among the important artifacts of this historic campaign are more than 300 mug shots taken of the Freedom Riders in Jackson, now the subject of “Breach of Peace: Portraits of the 1961 Mississippi Freedom Riders” (Vanderbilt University Press). In it, the journalist and photographer Eric Etheridge provides visual and oral histories of these courageous men and women, juxtaposing vintage mug shots with short biographies, interviews and contemporary portraits. Originally published in 2008, this expanded edition, with updated profiles and additional portraits…
It is a book that is for sale, so it would seem there is a profit motive somewhere. But consider whether this important historical work could be released if authorities in California – or, perhaps more saliently, in Mississippi, where the mugshots are from – could scrutinize the expressive decisions that went into the book's use of the pictures because it profited from that use.
Yet that's what the California authorities have decided they are entitled to do with the Mugshots.com site. The arrest warrant is dismissive towards the free speech interests of the site's operators, accusing them of "using freedom of speech theories in justifying the activity." Of course, that's what the First Amendment is for, to protect expressive activities that authorities do not like. And authorities really don't like what happened here.
As noted above, the optics in this case are not great. People felt desperate to have their mugshots removed from the Internet, and the site operators profited from that desperation. It feels criminal, but just because they may have had nefarious intent does not mean that they committed a crime. Just reading about the arrest brought to mind the Monty Python sketch where a bunch of gangsters connived a devious plot to go to a jeweler's to obtain an expensive watch - that they paid for.
Sure, it looks like they are up to no good, but to determine whether a crime has been committed we can't just consider how it looks. We have to look closely at the underlying lawfulness of the activity, not the optics surrounding it, and for the very same reason that California authorities are now interested in policing the use of mugshots: to prevent unwarranted inferences of criminal culpability. As the New York Times wrote about the Freedom Riders book:
If these mug shots inadvertently captured the humanity and special qualities of their principled subjects, as Mr. Etheridge observed, their intention was nefarious: to publicly impugn and humiliate people whose only crime was to advocate equality through peaceful protest. No matter their purpose, mug shots inevitably imply aberrance or delinquency, whether or not the people they depict are eventually found to be guilty.
But that's what the California prosecutors have done: impute "aberrance or delinquency" to draw unwarranted inferences about criminal culpability from an act that the law cannot constitutionally criminalize. This inference has already been used to strip the site operators of their constitutional right to express themselves anonymously due to at least three search warrants that were served on their service providers. These warrants were issued upon probable cause, but the only probable cause that can be construed here is that the site operators engaged in expressive activity authorities did not like. Efforts by these authorities to now extradite, further prosecute, and potentially leave the site operators vulnerable to civil damages should not be cheered by anyone who might prefer not to experience the same as a result of their own lawful expression.
A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a "patent troll." The court ruled [PDF] that the phrase "patent troll" and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities – or "trolls" – are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.
The case began back in December 2016 when patent assertion entity Automated Transactions, LLC ("ATL") and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL's litigation in a way that was defamatory. The court summarizes describes the claims as follows:
The statements the plaintiffs allege are defamatory may be separated into two categories. The first consists of instances in which a defendant referred to a plaintiff as a "patent troll." The second is composed of characterizations of the plaintiffs' conduct as a "shakedown," "extortion," or "blackmail."
These statements were made in a variety of contexts. For example, ATL complained that the Credit Union National Association submitted testimony to the Senate Committee on the Judiciary [PDF] that referred to ATL as a "troll" and suggested that its business "might look like extortion." The plaintiffs also complained about an article in Crain's New York Business that referred to Barcelou as a "patent troll." The complaint alleges that the article included a photo of a troll that "paints Mr. Barcelou in a disparaging light, and is defamatory."
ATL had filed over 50 lawsuits against a variety of banks and credit unions claiming that their ATM machines infringed ATL's patents. ATL also sent many demand letters. Some in the banking industry complained that these suits and demands lacked merit. There was some support for this view. For example, in one case, the Federal Circuit ruled the several of ATL's asserted patent claims were invalid and that the defendants did not infringe. The defendants did not infringe because the patents were all directed to ATMs connected to the Internet and it was "undisputed" that the defendants' products "are not connected to the Internet and cannot be accessed over the Internet."
Given the scale of ATL's litigation, it is not surprising that it faced some criticism. Yet, the company responded to that criticism with a defamation suit. Fortunately, the court found the challenged statements to be protected opinion. Justice Brian T. Tucker explained:
[E]ach defendant used "patent troll" to characterize entities, including ATL, which engage in patent litigation tactics it viewed as abusive. And in each instance the defendant disclosed the facts that supported its description and made ATL, in the defendant's mind, a patent troll. As such, to the extent the defendants accused the plaintiffs of being a "patent troll," it was an opinion and not actionable.
The court went on to explain that "patent troll" is a term without a precise meaning that "doesn't enable the reader or hearer to know whether the label is true or false." The court notes that the term could encompass a broad range of activity (which some might see as beneficial, while others see it as harmful).
The court also ruled that challenged statements such as "shakedown" and comparisons to "blackmail" were non-actionable "rhetorical hyperbole." This is consistent with a longline of cases finding such language to be protected. Indeed, this is why John Oliver can call coal magnate Robert Murray a "geriatric Dr. Evil" and tell him to "eat shit." As the ACLU has put it, you can't sue people for being mean to you. Strongly expressed opinions, whether you find them childish or hilariously apt (or both), are part of living in a free society.
Justice Tucker's ruling is a comprehensive victory for the defendants and free speech. ATL and Barcelou believe they are noble actors seeking to vindicate property rights. The defendants believed that ATL's conduct made it an abusive patent troll. The First Amendment allows both opinions to be expressed.
To be fair to our neighbors to the north, Canada really tried. Amidst calls to implement something like the "notice and takedown" system for copyright infringement claims that we have in the States, Canada instead did what Canada does and tried to implement a nicer version of this, called "notice and notice." The idea was that ISPs and service providers, rather than simply taking down content or banning people from the internet over copyright violations, would instead notify users that their behavior had been reported as infringing. More specifically, it allowed copyright holders to pass along these messages, with ISPs acting as the go-between. The theory was that when internet users -- or in many cases family members of those internet users, such as parents -- learned that potentially infringing activity was occurring, the notifications would cause the behavior to cease.
As our own Karl Bode noted in 2014, this theory was backed by the ISPs, who claimed these notices helped curb a majority of piracy. We also noted in that post that the "notice and notice" system appeared to be preferable to our "notice and takedown" system because it appeared to be a less likely avenue for abuse by copyright holders and trolls. Sadly, that was immediately disproven by Rightscorp, with abuse of the system continuing up to the present. When eighty-year-old women are getting settlement shakedown threats from copyright trolls over video games, the aims of educating the public have clearly been subverted.
And it seems some in the mainstream press are finally waking up to it. The CBC published a post detailing that shakedown story along with a few others, before openly wondering whether this system is working as intended.
The so-called "notice-and-notice" system came into effect at the start of 2015. It requires internet service providers to forward copyright infringement notices to customers suspected of downloading unauthorized content such as movies, TV shows and video games. Internet providers must forward the notices because the accusers can't, on their own, determine the identities of the people they're targeting.The notice system was supposed to educate abusers and discourage piracy. But that's not the main message many Canadians are getting.
CBC News asked the federal government what it's doing to address concerns about settlement fee demands. Innovation, Science and Economic Development Canada explained that the notice regime is up for review in late 2017. Spokesman Hans Palmer said the review will allow it to "take stock and consider whether desired policy objectives are being met."
That's going to be an awfully hard circle for Palmer's agency to square, I think, given how often these stories of threat letters are made public. And you can certainly believe that the actual number of these types of shakedowns that occur is a multiple of those that get reported. Laudable though the goals of this Canadian system may have been, in practice it has clearly become just another opportunity for abuse.
