Court Tells Trumpian Head Of US Agency For Global Media That He Can't Fire People From The Open Tech Fund (At Least For Now)

from the keep-your-hands-off dept

So, this is interesting. Last month we wrote about how Trump had appointed Michael Pack (a protege of Steve Bannon) to head up the US Agency for Global Media, which controls the various independent US overseas broadcasting operations: Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and Middle East Broadcasting. USAGM also oversees the Open Technology Fund, which is basically a government agency funding a ton of really important open source tools for getting around internet censorship and surveillance. OTF may sound like a misfit compared to the broadcasting operations, but it was spun out of Radio Free Asia, so its connection to USAGM is sort of a legacy one.

The story making the rounds was that Pack wished to turn all of the broadcasting operations into a sort of state-sponsored Breitbart, basically destroying their reputations. His first order of business was to essentially fire the heads of all of those organizations. Meanwhile, the backstory on the OTF side is that a bunch of wealthy Republican donors are pushing for OTF money to go towards a pair of sketchy closed source VPN products that actual security experts say are highly questionable.

In response to this, OTF folks sued Pack and now the DC Circuit appeals court has issued an injunction telling Pack he can't fire folks at OTF and that those who were in their roles prior to Pack's moves to fire them should remain in their roles for now:

ORDERED that the motion for injunction pending appeal be granted. The government is hereby enjoined from taking any action to remove or replace any officers or directors of the Open Technology Fund (“OTF”) during the pendency of this expedited appeal. The officers and directors of OTF that were in those roles prior to the government’s actions on June 17, 2020, shall continue in their normal course throughout the pendency of this appeal.

As the court notes, OTF has shown a likelihood of success, and that it does not appear that Pack has the authority to remove OTF staff:

Initially, appellants have demonstrated a likelihood of success on the merits. At this juncture, it appears likely that the district court correctly concluded that 22 U.S.C. § 6209(d) does not grant the Chief Executive Officer of the United States Agency for Global Media, Michael Pack, with the authority to remove and replace members of OTF’s board. OTF is not a broadcaster, is not mentioned in § 6209(d), and is not sufficiently similar to the broadcast entities expressly listed in § 6209(d) to fit within the statutory text. As for the government’s argument that the bylaws authorize such intervention by Mr. Pack, they appear at this juncture only to reference the exercise of statutory authority, which does not seem to include control of OTF’s board or operations.

If you're wondering, 22 USC 6209(d) says that the "officers and directors" of the various broadcast sections "serve at the pleasure of and may be named by the Chief Executive Officer of the Board." But, here, the court is saying that since OTF is different, it's not covered by that section. Frankly, this does feel like a strained reading of the law. The law specifically says:

Officers and directors of RFE/RL Inc., Radio Free Asia, and the Middle East Broadcasting Networks or any organization that is established through the consolidation of such entities, or authorized under this chapter, shall serve at the pleasure of and may be named by the Chief Executive Officer of the Board.

Since OTF came out of Radio Free Asia, I can actually understand the argument in the other direction, that Pack has authority to remove officers and directors, even if I don't like it. Still, the court went the other way, and I'm happy with that result.

The court further notes that the injunction is necessary because of the irreparable harm that may result if Pack is actually allowed to insert his own people at OTF:

Appellants have also demonstrated irreparable harm because the government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety.... Further, absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist.

So, I'm at least cautiously optimistic about this result, though I'm not sure I agree with the logic behind it. The ruling will be almost certainly be appealed, so it may go the other way eventually, but at least there's a temporary breather and OTF remains protected for now.

Filed Under: injunction, michael pack, otf, usagm
Companies: open technology fund, otf

FanX, Previously Salt Lake Comic Con, Ordered To Pay $4 Million For San Diego's Con's Attorney's Fees, Barred From Calling Itself A Comic-Con

from the by-any-other-name dept

It's the trademark story that simply won't go away and in which the legal system appears to get everything wrong. The saga of the San Diego Comic-Con's legal adventures against what was formerly the Salt Lake Comic Con (now rebranded as FanX Salt Lake Comic Convention) has been brutally frustrating. The whole thing started when the SDCC decided somewhat out of the blue to begin enforcing a trademark it had been granted for "Comic-Con" against the Utah production. The trademark original sin of this story began all the way back with the USPTO, which absurdly granted the SDCC its trademark for a purely descriptive term, one which is only unrecognizable as such due to the shortening of the second word from "convention" to "con." Despite that, the trademark suit brought against the Salt Lake Comic Con somehow ended in a win by jury for the SDCC, which was awarded only $20k. In the trial, SLCC had pointed out several times that the term "comic-con" was both descriptive in nature and clearly had been abandoned by SDCC, evidenced by the long list of other comic conventions going by the term carried out throughout the country.

Deep breath.

Well, after getting its five-figure award for a lawsuit that ran the course of nearly half a decade, SDCC realized that it sure would suck to be stuck with its $4 million in legal fees at the end of the day, so it petitioned the court to force SLCC/FanX to pay those fees. Oh, and in accordance with the jury's finding that there was trademark infringement, it asked the court as well to ban FanX from calling itself a comic con, a "comic convention", or any phonetic versions of those terms. Such a request itself validates the claim that SDCC's trademark is descriptive. If a comic convention cannot call itself a "comic convention" due to an existing trademark, that trademark is descriptive, full stop.

Unfortunately, because the world doesn't make sense any longer, the judge in the case did issue an injunction against FanX calling itself a "Comic-Con" and ordered FanX to pay SDCC $4 million in attorney's fees.

A California court has ordered FanX Salt Lake Comic Convention, and FanX creators Dan Farr and Bryan Brandenburg to pay nearly $4 million in legal fees to San Diego Comic Con-International (SDCC).

The judge also issued a permanent injunction against FanX, barring it from using the "Comic-Con" brand including reminding consumers that it used to be known as Salt Lake Comic Con.

First, the attorney's fees are awarded based on the judge's ruling that this was an "exceptional" trademark case. That designation has typically been reserved for when an infringement is deemed willful or malicious. In this case, the jury's low award was based on its determination that SLCC's infringement was neither. However, the law is quite vague and carves out space for the court to deem a case exceptional based on perceived bad behavior by the defendant or its lawyers. This is where the judge details a long list of complaints about how SLCC litigated, how it responded or failed to respond to the court's requests, and how it handled procedural process. It originally ordered the legal fees be paid, only to agree to delay while FanX appealed the case. This most recent ruling reaffirms the attorney's fees payment, even as the appeal is ongoing.

Meanwhile, the ruling also orders the injunction against FanX calling itself a "comic-con" or any variation therein. The court did not, fortunately, go so far as to bar the use of "comic convention", however.

Battaglia, in his order on an injunction, has enjoined Salt Lake from "Comic Con" and "Comic-Con" and any phonetic equivalents (i.e. ComiKon). Additionally, Farr and Brandenburg can't operate any social media site that incorporates the trademark, nor can they even advertise how the festival they run was "formerly known as Salt Lake Comic Con."

On the other hand, the judge rules it would go too far to prevent the phrase "comic convention" and won't require defendants to destroy all of their already-made merchandise and marketing materials bearing the banned phrases.

But, again, all that really does is point out just how absurd this all is to begin with. The daylight between "comic con" and "comic convention" is so thin as to be laughable. Both are descriptive and there is nothing original or unique about the shortening of a single word of the phrase. It's still descriptive and does not serve as a source-identifier. And, yet, seven letters make all the difference?

The real key to all of this is the appeal of the trademark case. Depending on how that goes, this all may be moot. But given how nothing in any of this has concluded with results that make any sense thus far, I'm not holding out much hope.

Filed Under: comic convention, comic-con, comicon, injunction, trademark
Companies: fanx, san diego comic-con, sdcc, slcc

Court Realizes It Totally Screwed Up An Injunction Against Zazzle For Copyright Infringement

from the oops dept

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

The Court finds that there is a “manifest showing” of the Court’s “failure to consider material facts presented to the Court” because the Court did not provide any justification for the permanent injunction.

Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.

For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.

In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:

Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at trial, facts which the Court did not consider when it granted the initial motion for a permanent injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81. Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the manufacture and distribution of physical goods, or also to display of images on the Zazzle website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images on its website as well as its manufacture of products. The Court did not consider these material facts in determining the scope of the permanent injunction; upon reviewing these facts, the proposed injunctions go beyond the issues at trial.

It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.

But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:

The Court recognizes that it failed to consider material facts in granting the permanent injunction in October 2017. The Court also recognizes that it provided no rationale for the permanent injunction, manifestly showing the failure to consider such facts. Upon considering those facts, the Court finds no basis for a permanent injunction in this matter.

Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.

Filed Under: copyright, dmca, injunction, mea culpa
Companies: zazzle

Dennis Prager Seeks Injunction To Keep YouTube From Administering Its Own Site While YouTube Seeks Dismissal

from the free-speech-is-for-everyone dept

Late last year, we brought to you the story of Dennis Prager, noted conservative commentator, suing YouTube, noted place where you can watch videos, because the site had put some of his videos into restricted status to keep them from the eyes of younger users. The case is still ongoing and is still strange for many reasons, including Prager asserting his lawsuit on First Amendment grounds, his insisting that YouTube is a public forum and not a private company, and his belief that the Section 230 protections that protect YouTube from every last bit of this somehow don't apply.

But now he is upping the ante, requesting the court grant him a preliminary injunction against YouTube to keep it from operating its filters on its own site when it comes to his video content.

Presenting U.S. District Judge Lucy Koh with a free speech issue of "profound importance," Prager on Friday even nodded in court to the thoughts of net neutrality supporters.

"Among others, legal scholars Professors Jeffrey Rosen and Timothy Wu warn that private corporations like Defendants 'have more power over free speech and privacy than any president, king, or Supreme Court justice,'" states a court brief. "Because the First Amendment is 'centered on the problem of wrongful discrimination in communications' these scholars point out that 'anyone who wants to understand free speech in the twenty-first century needs to know how the concept has expanded over time' to include the vast and concentrated power over speech wielded by purportedly private internet intermediaries. And, with the recent curtailment of net neutrality by the FCC, the unprecedented concentration of power over speech by private intermediaries will necessarily be 'followed by an effort to crush ... political opponents and favor ... political supporters.'”

Let's just start out by noting that the nod to the repeal of net neutrality feels rather odd coming from someone who does't support net neutrality to begin with. On top of that, the complaint that YouTube has built a great platform for speech that many, many people enjoy using does not somehow put it under the scope of the First Amendment. To get there, Prager's legal team continues to suggest that YouTube is a public forum rather than a private entity, relying mostly on YouTube's own statements about being a forum for speech to do so. This will almost certainly not work, however, as a statement like that doesn't magically strip a private entity of its rights and transform it into a public forum. Worth noting too is that for all the talk of "censoring" in Prager's complaints, his videos are still on the site for anyone wishing to see them. They are just differently searchable having been flagged as restricted. Given that this all comes down to subjective filtering by a private entity, and given that Prager's restricted videos tackle subjects such as rape and abortion, it's hard to see how his claim that this is all the work of a liberal conspiracy to shut down his conservative speech is going to survive.

Google, not surprisingly, has likewise moved to have all of this thrown out on its own First Amendment basis.

Just as Prager was filing a bid for an injunction, YouTube's parent was moving to dismiss the case that alleges that Prager's videos are on lockdown while liberals like Bill Maher and Lady Gaga are allowed to speak freely on YouTube without being restricted in kind.

According to Google, "restricted mode" merely means that the video has been determined to contain "potentially mature" content that may not be suitable for all audiences. "Decisions about which videos fall into that category are often complicated and may involve difficult, subjective judgment calls," write Google's lawyers, adding that none of the videos are removed from YouTube, and all of them can be viewed by users who want to find them.

Google argues that Prager's claims are barred by Section 230 of the Communications Act as well as the First Amendment.

While the Section 230 argument is more than enough to make this lawsuit fit for the dismissal pile, note that what Prager actually wants is to strip YouTube of its own First Amendment rights by asserting his, all while he continues to enjoy YouTube's product,whcih is hosting his videos and which, again, are still on the site. This sort of pretzeling of one of the key laws governing our country would be sad from anyone, but Prager's own noted interest in protecting the First Amendment makes this all the more eyebrow raising.

I don't expect any injunction to be levied against YouTube.

Filed Under: dennis prager, first amendment, free speech, injunction, videos
Companies: youtube

Chinese Billionaire Got A US Court To Issue An Unconstitutional Gag Order On A Critic

from the this-is-bad dept

Eugene Volokh has an incredible -- and incredibly disturbing -- story about how Jia Yueting, a Chinese billionaire, appears to have convinced a Washington state court to issue an unconstitutional gag order against a critic who lives in Washington state. Jia is famous for his company LeEco in China, as well as his attempt to create an electric car giant competitor to Tesla in the US called Faraday Future. Almost exactly a year ago, we wrote about how Faraday Future was flailing with a series of incredible stories leaking out of the company. A large number of top execs were fleeing the company and there were reports of questionable activities, including Jia demanding that Faraday Future employees design a car for LeEco, without payment or credit. In the past year, it does not appear that things have gotten much better for Jia, and he was just ordered to return to China to deal with debts that appear to be piling up.

China has ordered a tech tycoon to come home and face the music.

The country's markets watchdog on Monday demanded LeEco founder Jia Yueting return to China before the end of the year to fix his business empire's financial woes.

The China Securities Regulatory Commission said that Jia, whose whereabouts are unknown, has not made good on earlier promises to provide interest-free loans to the embattled company.

Not surprisingly, there are many online critics of Jia. One of them is a resident of Washington state, named Yingqiong Gu who criticized Jia on WeChat, the ever-present social network/communications app that is insanely popular in China. Back in October, Jia sued Gu to try to get the criticism to stop. As Volokh notes, it is entirely possible that Gu made defamatory statements about Jia. But the First Amendment tends to reject any attempt to silence speech. While some states will allow injunctions against defamatory speech, that tends to be only after the content has been determined by a court to actually be defamatory. Here, however, the court agreed first to a temporary restraining order less than a week after the complaint was filed, and a preliminary injunction a few weeks later.

Now, some of what's described in the complaint goes beyond speech, and includes what could be considered harassing behavior:

Defendant has further followed Mr. Jia while he goes about his daily activities, including investor meetings Mr. Jia attends and the Los Angeles-area restaurants he has visited. Finally, Defendant has identified and publicized sensitive personal information, including Mr. Jia's current address and photos of his family.

I'm not sure if that's enough to constitute "harassing" behavior, but maybe. If the restraining order were limited to that, perhaps it would be acceptable. But it appears the real target of the gag order is to silence Gu and his criticism of Jia. Here's the crux of Jia's complaint:

Defendant has been publishing defamatory statements concerning Plaintiff on social media platforms and to journalists, in an effort to harm Mr. Jia's reputation and sow distrust among potential investors and employees of Faraday while Mr. Jia is in the process of trying to raise capital to fund Faraday's continued growth. These defamatory statements include claims that Plaintiff has engaged in money laundering, cheated investors as part of a Ponzi scheme, attempted to evade Chinese authorities by relocating to the United States, created shelters to protect assets from creditors, and raised money from Chinese-national investors in a purported racist scheme to transfer wealth to non-Chinese individuals. The publication of these false statements has harmed Mr. Jia's and Faraday's reputation at a critical time for the company as it continues to raise capital needed to begin mass production of its vehicles.

The filing in Washington follows on a similar filing Jia made against Gu in California, in which another temporary restraining order was put in place against Gu's apparent "harassing, harmful activities." Jia's complaint in Washington claims that Gu is violating that order because he "continued to publish defamatory statements." But, again, speech and actions are not the same. Publishing criticism is not harassment, and if the content has not yet been judged to be defamatory, a court can't block it.

But it did.

The restraining order is quite broad. Rather than just barring any harassing activities it orders Gu to remove content he's posted:

Defendant, including his agents, employees, or representatives or anyone acting on their behalf, are required to immediately remove posts on WeChat.com that contain defamatory statements concerning Plaintiff and/or reveal private information concerning Plaintiff and his family...

And it blocks him from writing more:

Defendant including his agents, employees or representatives or anyone acting on their behalf, are further enjoined from publishing or causing to be published any posts or commentary concerning Plaintiff or his family on WeChat.com, TouTiao.com or any other internet location or website.

That language was in the requested TRO. There's a handwritten, barely legible, exception which states that he can post "objective facts from public records" but "may not include any commentary, editorial comments, or other statements that attack plaintiff's credibility or reputation."

That already appears to be unconstitutional. Commentary and editorial comments that attack someone's credibility or reputation can be perfectly protected free speech -- such as if they are true or are based on stated evidence. It is blatantly unconstitutional for a judge to order someone to stop attacking someone's credibility if those attacks are not defamatory. Even worse, in the preliminary injunction, the judge even removes the exception for posting "objective facts from public records."

As Volokh notes, this is problematic. While some courts will allow injunctive relief against defamatory speech, it first has to be shown to be defamatory, and then can only apply to that specific speech. The order here goes way beyond that:

Here, there was no trial, no "final determination" and no "decision on the merits" — only a judgment of likelihood of success on the merits following a 15-to-20-minute-long hearing. I don't think it's permissible to order someone in such a situation to take down criticism of a prominent businessman's business practices (criticism that might ultimately be proved false, proved true, or found to be opinion).

And this is concerning a well known public figure. We've talked a lot about how the powerful and wealthy are abusing the court systems to silence critics. The courts should not be helping.

Filed Under: criticism, first amendment, free speech, gag order, injunction, jia yueting, temporary restraining order, yingqiong gu
Companies: faraday future, leeco