Appeals Court Says Google Must Take Further Abuse From AG Jim Hood Before It Can Challenge Hood's Abusive Behavior

from the you-must-get-fucked-a-little-longer-before-we-can-examine-complaints-of-chafing dept

Towards the end of 2014, Google filed for an injunction against Mississippi Attorney General Jim Hood, whose close ties with the MPAA had led to a sustained campaign of harassment over Google's supposed lack of interest in policing the entire internet for infringing material.

Early in 2015, the district court granted Google's requested injunction against Hood's 79-page subpoena, which the court noted was a "burdensome fishing expedition" that went beyond the bounds of what a state AG could actually demand. Not only that, but the court noted that many of Hood's actions were blocked by Section 230 of the CDA because the content in question had been uploaded by third parties.

Unfortunately for Google, the Fifth Circuit Appeals Court has reversed the lower court's decision and vacated the injunction. It's being portrayed as a victory for the MPAA and its kept man, Jim Hood, but those actually reading the decision will find the reversal is just procedural. TL; DR: Google must face additional legal harassment from Jim Hood before it can challenge said legal harassment in a federal court.

We conclude that the district court erred in granting injunctive relief because neither the issuance of the non-self-executing administrative subpoena nor the possibility of some future enforcement action created an imminent threat of irreparable injury ripe for adjudication.

The decision also notes that it is passing no judgment on Hood's subpoena nor his other actions against Google.

We express no opinion on the reasonableness of the subpoena or on whether the conduct discussed in the parties’ briefs could be held actionable consistent with federal law.

Which works out in Hood's favor, as a great deal of the opening of the opinion details the many, many actions Google undertakes to address online piracy -- including its swift responsiveness to Hood's increasingly ridiculous demands. [emphasis added]

Google has made some changes in response to Hood’s investigation. It created a “trusted flag” mechanism through which Google promptly reviewed videos Hood’s office complained about. After being trained on that tool, Hood’s office flagged seven videos, six of which Google quickly took down. When asked by the district court, Hood’s counsel could not identify any investigatory efforts related to the videos his office flagged. His office has nevertheless asked that Google immediately remove flagged videos pending review and “consider implementing a more comprehensive content evaluation process.”

As for the broad subpoena the company is challenging, Google has already turned over 100,000 pages of documents in response. These documents showed the content targeted by Hood's office (but not, notably, by any investigation) was generated by third parties. This still wasn't enough for Hood, who refused to narrow the scope of the subpoena -- leading directly to Google's injunction request and the district court's grant of this request.

The Appeals Court -- while reversing the injunction -- notes that Hood's actions against Google do present possible First Amendment issues, but nothing about the actions taken by both parties to date brings it to the level where it feels it can uphold Google's request. The court similarly finds Hood's attempt to force the federal court system to resolve this (in his favor) by denying Google the right to bring its challenge of his actions to a federal court -- either at this point or at any point in the future.

We first reject Hood’s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction. Federal courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. We apply the “well-pleaded complaint rule” to determine whether a suit arises under federal law, asking “whether the plaintiff has affirmatively alleged a federal claim.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328 (5th Cir. 2008). As a corollary, “anticipated or potential defenses, including defenses based on federal preemption, do not provide a basis for federal question jurisdiction.” Id. Here, Google brings four claims under 42 U.S.C. § 1983 alleging violations of the United States Constitution and federal statutory law. This satisfies the well-pleaded complaint rule.

Focusing on Google’s claims for declaratory relief, Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong, as illustrated by our recent decision in NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015)

In the end, it boils down to Hood having to make some forward progress in his "investigation." As it stands now, Google is on the receiving end of an incredibly broad subpoena and has complied with portions of it. It has challenged the subpoena based on anticipated actions by Hood in the future if it fails to comply with all aspects of it, but Hood has not moved forward with any punitive actions as of yet. Until he does, the court is unable to support an injunction against Hood.

The statute under which this administrative subpoena was issued gives Hood no authority to enforce it; instead, if the recipient refuses to comply, the Attorney General “may, after notice, apply” to certain state courts “and, after hearing thereon, request an order” granting injunctive or other relief and enforceable through contempt.

[...]

Hood has not brought an enforcement action. And Google does not contest Hood’s assertions that it could raise its objections to the administrative subpoena if Hood ever brings an enforcement proceeding. The only real difference is that we have before us a state, not federal, subpoena. But we see no reason why a state’s non-self-executing subpoena should be ripe for review when a federal equivalent would not be. If anything, comity should make us less willing to intervene when there is no current consequence for resisting the subpoena and the same challenges raised in the federal suit could be litigated in state court.

In this as in any context, equitable relief is only appropriate when necessary to avoid an imminent irreparable injury. Because the administrative subpoena is not ripe for review, we hold that the district court should have rejected Google’s pre-enforcement challenge.

This ruling means Hood has to make the next move. Until he does, Google cannot seek an injunction as it cannot claim imminent irreparable injury when all Hood has done to this point is be an officious pain in the ass. If he seeks legal recourse for Google's failure to comply, Google can challenge the act with an injunction. Until then, both parties can do little more than glare at each other angrily. The MPAA thinks this is a win. It's not even a tie, and the court's depiction of the events leading up to the failed injunction request are hardly favorable to Jim Hood.

Filed Under: 5th circuit, injunctions, jim hood, legal process, mississippi, subpoenas
Companies: google

Appeals Court Rejects Prior Restraint In Defamation Case; Could Have Gone Further

from the make-it-so dept

As highlighted by the folks at EFF, Judge Richard Posner has ruled in an appeal on a defamation case, tossing out an injunction against two individuals who defamed two other people. The details of the actual case fall into the "somewhat nutty" category, involving some religious stuff that we'll skip over as not relevant. What you need to know is that two people (Patricia Ann Fuller and Paul Hartman) were sued and found to have defamed Kevin McCarthy and Albert Langsenkamp. Some of those people go by other names and titles (including Mr. Langsenkamp referring to himself as a Papal Knight of the Holy Sepulchre), but we'll leave that aside. The court found in favor of the plaintiffs and said that the defamation occurred. The only real issue on appeal was whether or not the judge's decision to issue a very broad injunction against Hartman and Fuller was appropriate.

And here we come to an issue that comes up semi-frequently in discussions of defamation cases: if you are found guilty of defamation, can you be (1) forced to take down the defamatory content and (2) barred from saying it again (or saying something like it)? For the most part, courts have said that you cannot have an injunction against defamation, because that's classic prior restraint in violation of the First Amendment. That is, the government cannot tell someone "you cannot say that." So, in most cases, the remedy for defamation is a monetary one (along with the satisfaction of a court ruling saying that what was said about you was false). There are some fairly narrow exceptions in some courts that have argued that it's okay to tell someone that they cannot repeat the very same statements found to be defamatory.

However, while there are a bunch of rulings on this topic, it's never quite gone to the Supreme Court, so there's at least some ambiguity. In this case, the District Court judge basically ignored all of that and issued a massively broad injunction. Without having the jury specifically determine which statements were defamatory, the judge issued an injunction saying that they couldn't publish any of the statements that the plaintiffs claimed were defamatory -- or "any similar statements" -- and further ordered Hartman to take down his entire blog.

That's pretty clear prior restraint, and indeed the three judges on the appeals court all agreed, throwing the case back to the district court. As Posner noted, the lawyers for Fuller and Hartman were... shall we say... not the most professional, which may have contributed to the result:

The conduct of the litigation in the district court by the lawyer representing Fuller and Hartman showed, as the district judge explained in granting the request for attorney’s fees, a serious and studied disregard for the orderly processes of justice. That disregard has persisted on appeal. Many of the grounds on which Fuller and Hartman seek reversal were waived, are frivolous, or are incomplete, with the important exception of the permanent injunction entered by the district judge, to which we devote the balance of this opinion.

Part of this included not filing a timely objection to the injunction, which in most cases would mean that this issue wouldn't be reviewed. However, Posner notes that given the seriousness of prior restraint and the First Amendment, it's still appropriate to explore this issue, especially since the public could be harmed:

Fuller and Hartman missed the deadline for responding to McCarthy’s motion for a permanent injunction, however, and ordinarily such a miss would have justified the judge’s rejecting any objection to the injunction as untimely. But the injunction in this case had the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.

Posner's main issue with the injunction is just how incredibly broad it is, and the fact that the jury never determined if each specific statement was defamatory. He stays away from the larger question of whether or not defamation can ever be enjoined, by noting that the broad nature of this injunction is reason enough to toss it:

But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were defamatory, and the plaintiffs didn't even ask the judge to address that absence, so he didn’t. As illustrative of the injunction’s resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech.

As Posner further notes:

An injunction against speech harms not just the speakers but also the listeners (in this case the viewers and readers). “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” ... The injunction in this case is so broad and vague that it threatens to silence Fuller and Hartman completely.

Unfortunately, Posner does not just toss out the injunction completely, but rather sends it back to the lower court to try again, meaning that the judge may get another chance to try an injunction.

There's a good concurring opinion from Judge Diane Sykes, who agrees with tossing out the injunction, but disagrees with sending it back to the lower court, making an even stronger argument in saying that injunctions are an inappropriate remedy for defamation, citing numerous cases that make this argument:

More fundamentally, the question whether an injunction is permissible at all in this context is a sensitive and difficult matter of First Amendment law. A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and “permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544, 550 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech—making any publication of the suppressed speech punishable as contempt—is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).

Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] … the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir. 2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Kramer v. Thomp-son, 947 F.2d 666, 677 (3d Cir. 1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV. 157, 167–68 (2007); Michael I. Myerson, The Neglected His-tory of the Prior Restraint Doctrine: Rediscovering the Link Be-tween the First Amendment and the Separation of Powers, 34 IND. L. REV. 295, 308–22 (2001).

The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of defamatory newspapers, magazines, or other periodicals. 283 U.S. at 702, 723; see id. at 712 (“[S]uppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute.”).

While Judge Sykes notes that some courts have allowed very narrowly tailored injunctions for the specific repetition of statements, she questions the wisdom of those rulings, stating "I'm not sure I agree with this modern trend" and then notes that the key cases where this has occurred have very distinct facts associated with them that "make it difficult to map their holdings onto defamation law." And, she notes, the key cases that are often cited aren't really defamation cases at all. And thus injunctions in defamation cases are tricky to accept:

Defamation by its nature is highly contextual. A statement that is defamatory in one circumstance, time, or place might not be defamatory in another circumstance, time, or place. A permanent injunction as a remedy for defamation does not account for constantly changing contextual factors that affect whether the speech is punishable or protected. If factual circumstances change in a way that affects the defamation calculus, the person enjoined must risk contempt or seek the court’s permission to speak. As the Court said emphatically in Near, “[t]his is the essence of censorship.”

And thus, she feels that sending the case back down only opens up another opportunity for unconstitutional prior restraint -- and, tragically, gives off the belief that this is okay:

By offering the district court an opportunity to craft a new injunction, my colleagues imply that such a remedy is constitutionally permissible—indeed appropriate in cases of judgment-proof defamers who might not be deterred by a damages award.... I cannot join this part of the court’s opinion. At the very least, it wrongly implies that a core liberty secured by the First Amendment—the right to be free from prior restraints on speech—does not protect people who lack the means to pay a judgment.

It's too bad this wasn't the actual opinion, but it's still better than nothing. Overall it's a good ruling, but it would be nice to have it confirmed once and for all that injunctions against future speech are, indeed, prior restraint.

Filed Under: 7th circuit, defamation, free speech, injunctions, prior restraint, richard posner

Court Says RIAA Can Just Tell Cloudflare Any Site Is A Grooveshark Clone... And Cloudflare Has 48 Hours To Dump Them

from the due-process? dept

Earlier this year, we were fairly concerned when a court ruled in favor of the RIAA in saying that Cloudflare had to automagically block any site that mentioned "Grooveshark" in the URL. Thankfully the court walked that back a bit, saying that the RIAA still had to inform Cloudflare of specific sites, but it still seemed problematic. The issue involved a few "fake" Grooveshark clones (sites pretending to be Grooveshark clones, but which actually were not). The RIAA can go after those sites directly, but the court's willingness to drag in a third party like Cloudflare was immediately problematic. That was a key part of SOPA -- the law that did not pass, yet judges keep pretending it did anyway.

Not surprisingly, whoever operated these sites ignored the lawsuit, leading to a default judgment in the RIAA's favor. That's to be expected when the defendants don't show up. But what's troubling is that the court keeps the injunction for Cloudflare in effect, basically letting the RIAA just designate any particular site as a Grooveshark clone, which Cloudflare then needs to dump within 48 hours. Even worse, if CloudFlare simply comes across a possible violation of the order by a customer, it has to proactively kick the site off its service. From the order:

IT IS FURTHER ORDERED that, in accordance with the terms of the Court's June 3, 2015 Order and its July 9, 2015 Order modifying same, CloudFlare is bound by this Order. Upon receipt notice from Plaintiffs or if CloudFlare otherwise has knowledge of an infringement or other violation of the Permanent Injunction on the part of one of its customers, CloudFlare shall cease providing its services to that customer as soon as possible, but no later than 48 hours after receiving such notice or obtaining such knowledge. CloudFlare may expeditiously notify its customers of any impending termination of their accounts as a result of this and related Court Orders.

This raises some fairly serious due process concerns. First off, Cloudflare certainly shouldn't be put in the position of determining what is and what is not infringing or violating this Court Order (in a case where it's not even a party). That puts tremendous burden on an unrelated party and it's a burden that almost certainly will pressure CloudFlare to kick sites off its service with nothing even close to resembling due process. Similarly it provides tremendous power to the RIAA to seriously damage website it doesn't like if they happen to use CloudFlare -- again with little to no due process.

That's not how the law is supposed to work. If there is infringing content, the DMCA allows the RIAA to file takedown notices, which have a clear process for notification and takedown of the infringing works. But what this order allows for is a vague standard, based on no clear law, to completely cut off services for a website, with no due process, no standard notification system and no clear appeals process.

As a default ruling in a district court this has basically no precedential value, but is quite worrisome nonetheless. Even if you believe that sites setting themselves up as Grooveshark clones deserve to be taken down, you should at least support basic due process before they can be killed off, right?

Filed Under: copyright, dmca, injunctions, sopa, takedowns
Companies: cloudflare, grooveshark, riaa

Elsevier Granted Injunction Against Research Paper 'Pirate Site;' Which Immediately Moves To New Domain To Dodge It

from the MOLE-WHACKING-PROGRAM-DEEMED-TEMPORARY-SUCCESS! dept

The academic open access movement has gained traction over the past several years as more researchers have noticed their work disappearing behind incredibly expensive paywalls. What could be used to further the scientific world is instead being used to keep companies like Elsevier in prime financial health. Even publicly-funded research is largely unavailable, even to other researchers. Elsevier's participation in the open access movement has been to charge readers for access to open access documents. Recently, the hashtag #icanhazpdf has been used on Twitter to encourage the sharing of paywalled documents between researchers.

Not officially part of the open-access movement are repositories run by Alexandra Elbakyan, a researcher born and educated in Kazakhstan. Elbakyan's first efforts to liberate documents from behind publisher paywalls were limited to fulfilling requests made by other researchers in online forums. When she saw the demand far exceeded the supply, she automated the process, stashing the documents at Sci-Hub.org.

Elsevier sued Elbakyan for copyright infringement back in June, seeking an injunction against several domains (including LibGen). A New York judge granted the publisher's request on October 28th. Not that it appears to matter much, as Quirin Shiermeier of Nature reports.

Access to the site’s web domain was suspended following the injunction. But Sci-Hub, which is advertised as a service “to remove all barriers in the way of science”, has since moved to a different domain. Its revamped site continues to provide unauthorized free access to millions of papers.

Other pirate services, including Libgen, which also allows users to freely download audiobooks, and BookFi, a free repository of more than 2 million books, have also resurfaced on different Internet domains.

Elbakyan, perhaps unsurprisingly, feels the new domain doesn't violate the injunction.

Elbakyan, who was born and educated in Kazakhstan and is now based in Russia, says she doesn’t think that reviving her site violates the New York court ruling, because Sci-Hub is not a US-based company, and she is not a US citizen or resident of New York.

As a Russian citizen, Elbakyan is free to raise dubious legal arguments. There's not much Elsevier can do other than waste its own money stamping out new domains as they emerge. Elbakyan was the only defendant to respond to Elsevier's lawsuit (via mail). Her responses were more idealistic expressions than legal arguments, due to her personal stance on the issue of paywalled information and her position as a pro se defendant.

To the extent that Elbakyan mounts a legal challenge to the motion for a preliminary injunction, it is on the public interest prong of the test. In her letter to the Court, she notes that there are "lots of researchers… especially in developing countries" who do not have access to key scientific papers owned by Elsevier and similar organizations, and who cannot afford to pay the high fees that Elsevier charges. Elbakyan states in her letter that Elsevier "operates by racket: if you do not send money, you will not read any papers. On my website, any person can read as many papers as they want for free, and sending donations is their free will. Why Elsevier cannot work like this, I wonder?" Elbakyan also notes that researchers do not actually receive money in exchange for granting Elsevier a copyright. Rather, she alleges they give Elsevier ownership of their works "because Elsevier is an owner of so-called 'high-impact' journals."

All good points, but unlikely to move a US federal judge. Elbakyan's spoofing of university IP addresses to download papers free of charge does seem more aligned with the work of Aaron Swartz than the Pirate Bays of the world. But either way, the US court system -- and the government itself -- punishes people for disseminating information certain entities would rather let gather virtual dust behind expensive paywalls. (Elsevier's complaint also alleges violations of the CFAA.) The fact that many researchers can't even download copies of their own works without paying for them is completely ridiculous.

Unfortunately, none of this changes the fact that the law views it as copyright infringement. And it doesn't change the fact that anti-infringement efforts like Elsevier's will do little to curtail this sort of file sharing. What it could do is take a look at its pricing. Sometimes trimming the profit margin has more impact on copyright infringement than a fistful of federal lawsuits.

Filed Under: alexandra elbakayan, copyright, injunctions, research papers
Companies: elsevier, libgen, sci-hub

Appeals Court: It Is In The Public's Interest That Samsung Not Be Allowed To 'Slide To Unlock' Devices

from the wait,-what? dept

The patent fight between Apple and Samsung has been going on for many years now with Samsung being told to pay a lot of money to Apple. But on one point Apple has been unsuccessful: getting an injunction barring Samsung from offering products for sale that include the "infringing" inventions -- such as the concept of "slide to unlock." I still have trouble understanding how "slide to unlock" could possibly be patentable, but there it is: US Patent 8,046,721 on "unlocking a device by performing gestures on an unlock image."

After bouncing around a bit, the question of the injunction landed at CAFC, the appeals court for the Federal Circuit -- which is the appeals court that handles all patent case appeals. It's also the court that has a pretty long history fucking up the patent system. Separately, some background on the whole injunction thing: for many years, it was believed that if you infringed on a patent, beyond monetary damages, courts would always award an injunction, blocking the manufacture or sale of the product without a license. This was based on the idea that patents give you an "exclusive right" and without an injunction -- but just monetary damages -- it could be (weakly) argued that this was a form of a compulsory license. That went out the window almost a decade ago when the Supreme Court, in the MercExchange case rightly pointed out that automatic injunctions are ridiculous and likely harm the public. The Supreme Court rightly found that an automatic injunction often went too far in hindering innovation and went against the public good.

In this case, the lower court denied Apple's request for an injunction -- pointing out (rightly so) that there's no "irreparable harm" in letting Samsung "slide to unlock," but CAFC disagrees and has sent it back to the district court to try again. The reasoning is... troubling, to say the least. It highlights, once again, how the judges on CAFC seem to be strongly influenced by the patent bar, and are so immersed in the world of patent lawyers that they're completely disconnected from the real world. They even go so far as to directly claim that an injunction better serves the public interest. Yes, removing a product so the public can no longer get it -- even if it's a good product and people want it -- somehow serves the public good... "because intellectual property."

Indeed, the public interest strongly favors an injunction. Samsung is correct—the public often benefits from healthy competition. However, the public generally does not benefit when that competition comes at the expense of a patentee’s investment-backed property right. To conclude otherwise would suggest that this factor weighs against an injunction in every case, when the opposite is generally true. We base this conclusion not only on the Patent Act’s statutory right to exclude, which derives from the Constitution, but also on the importance of the patent system in encouraging innovation. Injunctions are vital to this system. As a result, the public interest nearly always weighs in favor of protecting property rights in the absence of countervailing factors, especially when the patentee practices his inventions.

This is circular reasoning at best. What's funny is that CAFC briefly gets at the truth in noticing that, in most cases, an injunction will work against the public interest, and finds that truth so distasteful to its love of the patent system, that it says it must obviously be false. Yikes. But the reasoning here is tautological. The argument, when parsed out is basically "patents encourage innovation" -> "patents allow injunctions" -> "injunctions must be in the public interest." But that's wrong, because it falsely assumes that patents actually do encourage innovation or that patents themselves are, absolutely, in the public interest. There are some cases where they likely are, and many cases where they likely are not. To automatically assume injunctions must be in the public interest is just wrong.

There's also a long discussion about whether or not people were actually buying Samsung devices because of "slide to unlock," which seems pretty ridiculous, but the court actually thinks there are people out there who chose Samsung over the iPhone because of slide to unlock. CAFC sets up a ridiculous standard on that front, first saying that because it would be difficult to show that slide to unlock was the key reason that people bought a Samsung phone, it's okay to show that there is "some connection between the patented features and the demand for Samsung's product." But that standard is ridiculously low. And it allows the following analysis that basically says "because Samsung liked slide to unlock, it must be important."

The record here establishes that these features do influence consumers’ perceptions of and desire for these products. The district court wrote that there was evidence that Samsung valued the infringing features, including evidence that Samsung “paid close attention to, and tried to incorporate, certain iPhone features,” which was “indicative of copying.” ... This included evidence that Samsung had copied the “slide to unlock” feature claimed in the ’721 patent, such as “internal Samsung documents showing that Samsung tried to create unlocking designs based on the iPhone,”

But that's no standard at all. Under that standard, basically any infringement can be shown to have "some connection" to demand for the product. The court also does present a study -- done by someone hired by Apple, of course -- claiming that people wouldn't have bought Samsung's phone "without the infringing features," but that seems pretty dodgy. I'd like to find a single real life person who looked at a Samsung Galaxy device and though "gee, I would have bought this if only it had slide to unlock."

There's a concurring opinion from Judge Jimmie Reyna, in which he argues -- apparently with a straight face -- that not granting an injunction could harm Apple's reputation as an innovator. Really? Apple has a long-standing reputation as a very innovative company, but not based on its patents, but rather based on it taking many ideas (including many from others) and making much better, more desirable products out of them. Samsung coming out with copycat devices doesn't strip away Apple's reputation as an innovator, it enhances it, because everyone sees that Samsung is desperately trying to catch up to Apple.

Apple’s reputational injury is all the more important here because of the nature of Apple’s reputation, i.e., one of an innovator (as opposed to, e.g., a producer of low-cost goods). Consumers in the smartphone and tablet market seek out innovative features and are willing to pay a premium for them. Sometimes consumers in this market will even prioritize innovation over utility. A reputation as an innovator creates excitement for product launches and engenders brand loyalty. Samsung recognized the importance of such a reputation and set its sights not on developing more useful products, but rather to overcome the perception that it was a “fast follower.”

There is a dissent from the Chief Judge of CAFC, Sharon Prost (who has appeared to be much more reasonable than many of her colleagues in decisions) saying that "this is not a close case," and it's bizarre that the others on the court believe an injunction is appropriate. As Prost rightly notes, these are really minor features we're talking about and it's absolutely crazy to argue that there's irreparable harm if Samsung keeps using them.

This is not a close case. One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple’s iPhone—linking a phone number in a document to a dialer, and unlocking the screen.

Prost slams her colleagues for the procedural way in which they claimed the lower court made a legal error, pointing out that the majority fails to actually explain what that legal error was. Then, she points out that the majority basically makes up evidence that isn't actually in the record to support its position.

the majority’s “carriers’ or users’ preference” theory was not mentioned at all by the district court. The majority asserts that “[t]he district court acknowledged that Apple presented evidence that carriers (’721 patent) and users (’172 patent), not just Samsung, preferred and valued the infringing features and wanted them in Samsung phones.” ... The majority again quotes nothing from the district court’s opinion to show there is such an acknowledgement. Again for good reason: there is nothing. As the majority notes just two sentences later, the district court “failed to appreciate” that the evidence cited by Apple “did not just demonstrate that Samsung valued the patented features, but also that its carriers or users valued the features.” Id. The district court could not have “acknowledged” what it “failed to appreciate.” The majority reaches its creative interpretation of the evidence to find “carriers’ or users’ preference” all on its own.

Then she trashes the majority's argument that because Samsung copied Apple's features, it must be because those features were demanded by the market -- and points out it's especially ridiculous with one of the patents that Apple didn't even use in the iPhone.

the majority states that “[t]he district court wrote that there was evidence . . . ‘indicative of copying.’”.... The quotations upon which the majority relies, however, are not the district court’s findings. Rather, they are the district court’s recitation of Apple’s contentions, with which the district court disagreed. As the district court noted, “[w]hile indicative of copying by Samsung, this evidence alone does not establish that the infringing features drove customer demand for Samsung’s smartphones and tablets.”.... The district court, of course, did not mean that Apple proved copying for all three patents-in-suit. As the district court noted, Apple did not practice or allege copying of the ’172 patent.... The district court also rejected Apple’s only support for its contention that it practiced the ’647 patent... (finding Apple’s only evidence of its own use “did not directly equate asserted claim 9 of the ’647 patent with ‘data detectors’”). Without Apple practicing these patents, Samsung obviously could not have copied the patented features from Apple’s products.

Prost also notes that merely copying another's product is not enough evidence:

This conclusion is contrary to our precedent. As the district court stated, “the parties’ subjective beliefs about what drives consumer demand are relevant to causal nexus, but do not independently satisfy the inquiry.”

Finally, Prost takes issue with the claim by the majority that it's nearly automatic that an injunction is in the public interest, because "intellectual property." As Prost points out (as we did above), that's getting the issue totally mixed up in a tautological way:

I agree with the majority that the public’s interest in competition, without more, does not necessarily decide this factor against granting an injunction. But it does not follow that the public interest “nearly always” favors granting an injunction as the majority states.

She goes on to cite the MercExchange case, detailing how when the patents only cover a tiny part of the product, it makes little sense to issue an injunction, and further noting that the issue of irreparable harm is totally separate from the question of the exclusive right in the patent itself. In other words, just because we have the patent system, it doesn't automatically mean that injunctions are good, as the majority argued.

It will be interesting to see what happens next, but if this one goes back to the Supreme Court, it would seem like yet another opportunity for the Supreme Court to smack CAFC around for getting basic patent law wrong.

Filed Under: cafc, injunctions, patents, public interest, slide to unlock
Companies: apple, samsung

Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In 'Innocence Of Muslims'

from the took-'em-long-enough dept

Phew. For quite some time now we've been following the curious case of Cindy Garcia, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as "Innocence of Muslims" and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid and further ordered Google/YouTube to block every copy of the movie -- which most people thought was a clear case of prior restraint against the First Amendment.

After some back and forth, the 9th Circuit agreed to rehear the case with a full slate of 11 judges (en banc). The case was heard late last year and just today, the 9th Circuit dissolved its previous ruling and is now upholding the district court ruling against Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer: We filed an amicus brief in this case as well.

The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.

As pretty much everyone has noted, the court also points out that it's sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship.

We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied Garcia's attempt to copyright her performance. And, further, notes that if the court were to accept Garcia's claim it would create quite a mess for copyright law:

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”

Take, for example, films with a large cast—the proverbial “cast of thousands”—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to participate in this case.

Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright.

Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who "fix" the work in a tangible medium, and Garcia did, well, none of that:

Garcia’s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”) (emphasis added). According to the Supreme Court, “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” .... Garcia did nothing of the sort.

For better or for worse, Youssef and his crew “fixed” Garcia’s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed “by or under [her] authority.”

Finally, even though it notes it does not need to, the court addresses the question of "irreparable harm" which was a key part of Kozinski's original ruling. Here, the court rightly points out that, while Garcia may face harm, it's not because of the copyright and abusing copyright law to protect against such harm is not what the law allows.

Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.

In broad terms, “the protection of privacy is not a function of the copyright law. . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.”

The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate.

And then there's this:

Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a “right to be forgotten,” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.

And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

[....] The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech..... Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,”... and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

Well done, 9th Circuit. Of course, it's still bizarre it took you two tries to get it right.

There is a "concurring" opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the "irreparable harm" question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him.

And, finally, we get to Kozkinski's panicked defense of his own original ruling:

Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.

Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...

In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.

Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this ruling is what will create a true mess of copyright law:

The implications are daunting. If Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it?

I think the majority ruling does a damn good job responding to this point, by pointing out that it's "moral outrage and colorful language" more than legal analysis:

The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution.

All in all, while it's ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.

Filed Under: 9th circuit, alex kozinski, cindy garcia, copyright, free speech, injunctions, innocence of muslims, irreparable harm, prior restraint
Companies: google, youtube

Ferguson Police Arrest Yet Another Journalist, Ignoring Direct Court Orders

from the because-that's-how-they-roll-in-Ferguson dept

Back in the summer, we had a few stories about the police in Ferguson arresting reporters. In response to that, the police signed a court agreement promising not to interfere with the media -- which they ignored the very same day. More recently, a court found that the "5 second rule" that police had made up as part of enforcing a "failure to disperse" law was unconstitutional, but it would appear that the police still don't care.

Over the weekend, police in Ferguson arrested yet another journalist, Trey Yingst. The St. Louis County Police Department said he was arrested for (you guessed it) "failing to disperse" when commanded to do so. Specifically, the police say he was in the street and refused to leave.

@TreyYingst reporter from D.C. taken into custody for failure to disperse. Was asked to leave street by the commander and refused. #Ferguson

— St. Louis County PD (@stlcountypd) November 23, 2014

However, multiple eyewitnesses, including other reporters, dispute that claim and point out that he was on the sidewalk:

Police refused to say why reporter @TreyYingst of @news_2_share arrested In Ferguson. Was on sidewalk of S Florissant Rd along from the PD

— Jon Swaine (@jonswaine) November 23, 2014

Police arrested this man after he said he was a journalist standing on the side walk outside the ferguson police dept pic.twitter.com/AG46fMTyOv

— Alex Wroblewski (@alexwroblewski) November 23, 2014

This is false. He was on the sidewalk. #Ferguson https://t.co/VEOzCCWiq7

— Ryan J. Reilly (@ryanjreilly) November 23, 2014

Even worse, as Adam Steinbaugh points out, on Friday, there was a series of federal court orders telling the state, county and city police not to interfere with journalists doing reporting in Ferguson. According to the order [pdf], which covers the St. Louis County police:

IT IS HEREBY ORDERED that the [police] shall not enforce or threaten to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

One of the other orders, directly targeting the County of St. Louis states [pdf]:

IT IS HEREBY ORDERED that Defendant County of St. Louis, Missouri, its officers, agents, servants, employees, attorneys, and all persons under their supervision, or within their control, are permanently enjoined from interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

Of course, this is in Ferguson, Missouri, where people have been gathering all weekend to await the grand jury results concerning officer Darren Wilson, who shot and killed Mike Brown in August, setting off the widespread protests. And, in Ferguson, it seems that basic concepts in law no longer apply -- even when courts directly call the police out on them. And, of course, officials in Ferguson have been especially obnoxious towards the press. Beyond just basic stonewalling and threatening/arresting multiple reporters, officials in Ferguson have tried to avoid releasing documents by putting ridiculous price tags on FOIA requests and even requesting a no fly zone to block out press aircraft (while pretending it was for "safety"). Is it really any wonder they'd continue to ignore direct court orders in order to harass and intimidate journalists?

Filed Under: arrests, court orders, ferguson, injunctions, journalists, missouri, police, st. louis county, trey yingst

Australian Government Proposes New Copyright Law: Basically Hollywood's Wishlist

from the australia's-sopa dept

We've been covering the discussion around copyright reform down in Australia for a while, and it's continuing to get worse and worse. As you may recall, after a long and detailed process, involving careful input from a variety of stakeholders on all sides of the equation, the Australian Law Reform Commission (ALRC) came out with a set of proposals that were actually pretty good, including things like introducing fair use to Australia.

Of course, rather than pay attention to this detailed and thoughtful process, the current Attorney General, George Brandis, decided to only listen to Hollywood. This created quite a telling discussion when Senator Scott Ludlam asked Brandis if he had consulted any consumer rights groups or other copyright experts concerning his copyright plans, and Brandis refused to answer, instead getting angry and insisting that Hollywood's interest is the public interest. Brandis also claimed -- totally incorrectly -- that Australia has no laws against online piracy and is "the worst offender of any country in the world when it comes to online piracy." That's simply bogus, and appears to just be a Hollywood talking point.

Given all that, it was fully expected that Brandis would basically obey Hollywood's orders -- especially given that the main discussions he'd been having came with the "Australian Screen Association," which is a rebranded version of AFACT, which a Wikileaks State Department cable revealed was 100% controlled by Hollywood interests in the US.

And, indeed, Brandis has delivered his gift proposal to (or, should we say from?) Hollywood. It involves three main proposals, but the big one is overturning the important iiNet decision that highlighted that ISPs are protected from liability for users infringing, because they're not the proactive party. In other words, under that ruling, ISPs can't be forced to be copyright cops. Brandis' plan would wipe that out, requiring ISPs to spy on user activity and try to block any "bad stuff" from happening, or they would face liability:

The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there may still be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.

Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia's international obligations.

"Extending authorization liability" sounds so polite. But what it really means is "making ISPs into copyright cops" and encouraging them to spy on and block all sorts of activity, legal or not, to avoid liability from massive copyright infringement lawsuits (like the one against iiNet). Also note the famous "consistent with international obligations" line. We've been saying for nearly a decade now, whenever anyone brings up "international obligations," you know they're being intellectually dishonest.

The second part of the proposal is basically Australia's version of SOPA. It would allow for website blocking of "infringing overseas sites." And it would be like the original SOPA, with a "private right of action," allowing entire websites to be blocked on the say so of the copyright holder. A court would have to approve it, but it would likely be an incredibly one-sided hearing, as it's unlikely foreign websites will travel to Australia.

A similar provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement.

The final piece of the plan appears to be an attempt to buy off internet companies that are likely to oppose this plan, in that it extends safe harbor protections to more of them. Basically, this is a cynical ploy to try to split the obvious opposition of this plan. Without this, it would clearly be both internet companies and internet access providers (ISPs) opposing. But here the idea is that if they barely extend a few safe harbor protections to more internet companies, maybe those guys won't oppose this effort as strongly.

Either way, this is pretty much what was expected. It's an evidence-free proposal based on the fear mongering claims of Hollywood, and an attempt to turn ISPs into Hollywood's personal copyright cops, spying on your usage and doing anything to block infringement, even if that also wipes out plenty of legitimate speech as well.

Thankfully, Senator Ludlam (who exposed Brandis' unwillingness to even answer whether he met with consumer rights groups) has already spoken out about this proposal:

Such a move would unleash a wave of lawsuits as giant film and TV studios re-open legal action to try and get Australian ISPs to act as ‘copyright police' in penalising their customers for online copyright infringement.

The paper also discusses a range of other options for tackling the issue, including forcing ISPs to block websites, sending users warning notices, and even limiting the broadband connections of those who are only suspected of pirating content online.

What the discussion paper doesn't contain is any attempt to address the real reason why Australians pirate films and TV shows online - the ongoing refusal of giant corporations to make their content available in an affordable and timely fashion.

Just getting access to watch HBO's popular Game of Thrones show can cost Australians up to $50 a month - and the show is only available week by week from one source: pay TV giant Foxtel, which is co-owned by Telstra and Rupert Murdoch's News Corp.

The Greens believe the Abbott Government is trying to protect an outdated dinosaur of a business model where a small group of mega-corporations control all access to the content Australians want to access. This isn't a surprise, given the hundreds of thousands of dollars film and TV studios have recently donated to the Coalition.

Filed Under: australia, blocking, copyright, george brandis, injunctions, intermediary liability, safe harbors, scott ludlam

Copyright Lawyers Prime The Pump For The Return Of SOPA

from the because-of-course-they-would dept

Since the death of SOPA/PIPA two and a half years ago, Hollywood (and Congress) have tiptoed lightly over any proposed copyright reform, insisting that they've learned their lesson and that they won't try to bring back SOPA. Of course, with the big comprehensive copyright reform effort going on in DC, you can totally expect that the legacy copyright industry will do its best to put in place the parts of SOPA that it most wanted. That process appears to have kicked off in earnest last week, with the IP Section of the American Bar Association releasing a White Paper entitled A Call For Action For Online Piracy And Counterfeiting Legislation. I should warn you that, according to the genius intellectual property experts at the ABA's IP Section, clicking on that link may be a violation of their copyright. It's not, of course, but that doesn't stop them from claiming it is at the beginning of the paper:

© 2014 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright@americanbar.org or via fax at 312 988-6030, or complete the online form at www.americanbar.org/utility/reprint

Clicking on the link they put on their site would be "transmitting" the document by "electronic" means "without the prior written permission of the publisher," even if you could argue that they gave another form of permission by posting the damn thing. Oh, and of course, by copying that little tidbit and posting it here, I have also violated the bogus rules claimed in that very snippet.

You'd think that the IP Section of the ABA would understand things like fair use and copyfraud, but apparently not. Anyway, the document itself weighs in at a hefty 133 pages, and you can go through the whole thing, but it's basically setting the stage for trying to make internet companies copyright cops again, just as in SOPA. It talks up the problem of "Predatory Foreign Websites," (PFWs -- which is apparently the new nickname for "foreign rogue websites" that were the central focus of SOPA and PIPA. Then it talks about "intermediaries" (i.e., internet companies) and how those poor, poor Hollywood copyright lawyers can't really go after those "PFWs" and the best thing to do is to... put the liability on the internet companies themselves. Because of course that's been the plan all along: make Silicon Valley Hollywood's private copyright cops, and if they don't do a good job, fine 'em to hell.

First, it suggests that, even under existing law, courts could order internet companies to block infringing sites or activity under some unique, but barely tested, parts of the law. But, of course, it says this is not enough. It's main recommendations are summarized as follows:

Supplement the following civil remedies (which are already available under U.S. law to redress piracy and/or counterfeiting that occurs within U.S. borders) to redress online piracy and counterfeiting undertaken by PFWs, in cases where the intermediary(y)(ies) in question does not taken action voluntarily:

1. injunctions directing financial payment processors to freeze the assets of PFWs and to cease doing business with such websites;
2. injunctions preventing online advertisers from paying PFWs or from displaying further ads on those websites;
3. injunctions requiring search engines to remove PFWs from paid, sponsored links;
4. injunctions requiring website hosts to cease hosting PFWs;
5. injunctions permitting the seizure and destruction of counterfeit or pirated goods, or their delivery to rightsholders who are willing to bear the shipping and handling costs;
6. injunctions requiring the immediate removal of pirated works and/or content, counterfeit marks, logos, insignia, or trade dress that have been made available, displayed, or otherwise promoted by PFWs; and
7. monetary damages in the form of disgorgement of profits of the PFWs achieved as a result of the illegal activity, which shall be paid to the rightsholder from the assets frozen or advertising/sponsored links revenue that had been withheld by the intermediaries as described in points 1-3 above.

In short: make internet companies kill copyright infringement -- collateral damage, be damned.

It goes on to bring back the "private right of action" part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through. A "private right of action" would basically let companies declare some website a "Predatory Foreign Website," allowing them to then force internet companies to block them or take other actions against them, or risk significant liability. Basically, it's a private right of censorship that the entertainment industry could use against innovative website they don't like. While the paper admits that this was controversial in SOPA, it offers a modified "hybrid solution" that it thinks works better:

[T]he IPL Section recommends a hybrid solution, by which rightsholders would be allowed to seek direct remedies directly against PFWs (who would have notice and an opportunity to be heard, including as to any objection to being characterized as a PFW) and direct remedies against one or more of the U.S. intermediaries identified above. This provides full due process rights to the alleged PFW, both in cases where it is sued directly and in cases where its status as a PFW is critical to the issuance of an injunction against one or more of the intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it allows the site itself the maximum due process to defend itself against both the onus of being labeled as a PFW (and resulting liability) and the cutoff of financial support from U.S. intermediaries.

See? No problem. If you're running an innovative website out of, say, Malaysia, and a Hollywood studio declares you a "Predatory Foreign Website," I'm sure you can just hop on the next flight to the US to defend yourself in court, right? Easy!

The paper then looks at "government" solutions, and praises ICE for its infamous domain seizure program, which we've reported on extensively. At least the paper acknowledges the fact that this program resulted in the seizure and censorship of perfectly legal websites like Dajaz1 and Rojadirecta for over a year, but brushes them off as not that big of a deal, beyond being a potential PR problem:

The circumstances surrounding Dajaz1 and rojadirecta.com have achieved a level of notoriety among Internet freedom and civil liberties advocates that far surpasses their significance. Such incidents are few in number relative to the amount of seizures overall

I'm curious how completely shutting down and censoring a popular internet publication and a widely used internet forum full of protected speech, both for over a year, without any legal basis whatsoever, could possibly lead to people overstating its significance. It seems like those situations have been completely understated in significance. If they had been, say, an actual newspaper, and the government had gone in and seized the printing presses for over a year, without a reason or any recourse, and then the government just returned the presses over a year later without anything as much as an "oops, sorry," would people have just let it go, the way it happened with both of those other websites?

Besides, the ABA report conveniently leaves out that those weren't the only domains that were seized in a faulty manner. There were at least two others I know of that protested the seizure on the same basis, but last I'd checked, the government was still holding onto both of those domains and simply refusing to respond to the lawyers associated with either site.

The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.

There's much more in the paper, and it's well worth reading, to get a sense of what the ABA IP Section (a lot of entertainment industry lawyers are in there) are thinking about how to get a SOPA-like law through in the future (probably during the comprehensive copyright reform effort). To be fair, the paper is fairly comprehensive in its thinking, and at least mentions people being opposed to its reasoning and why (it even cites Techdirt multiple times...). It also pays some lip service to actually paying attention to those concerns, but nearly all of the actual recommendations bring back SOPA-like ideas. It's troubling to see that the overall lesson of SOPA was clearly not learned, and they're clearly planning to try, try again.

Filed Under: copyright, injunctions, intermediary liability, pfws, predatory foreign websites, private right of action, rogue sites, third party liability

US Government Praises Italy For Implementing SOPA Features The US Public Vehemently Rejected

from the questions-to-ask dept

It's no secret that the USTR has been pushing for copyright maximalist policies over the past few years (mostly done by a guy who recently went through the revolving door to become an MPAA lobbyist). However, one thing they keep claiming is that they're only looking to get other countries to match existing US laws, rather than expand them. That's clearly untrue if you look through the actual language being negotiated (only available via leaks). But, even so, it's pretty clear that the USTR is pushing an extreme maximalist approach. Last week, it released its latest Special 301 report, in which it names which countries are "naughty" about intellectual property. "Naughty" is not defined by any objective standard. Rather, the USTR asks various industry lobbyists to tell them which countries they dislike the most, and the USTR rewrites it into the list. The Special 301 process has long been a complete joke that even many maximalists recognize as silly (we heard the former head of the US Copyright Office once mock it).

The latest version of the report is more of what we've come to expect in previous reports. China has been naughty. India and Spain have been called out of class for a special extra review. Blah blah blah. But, it also notes that both Italy and the Philippines were removed from the Watch List "in recognition of their intellectual property rights accomplishments." Both countries have certainly become much more aggressive on copyrights recently -- and they've done so by being a lot more aggressive than the US. In fact, as we've been reporting, Italy made a dangerous move to allow an administrative agency to issue censorship bans on websites without any judicial process. And, in fact, it's already begun issuing questionable death sentences on sites, forcing ISPs to block access.

If this sounds like the approach originally considered in SOPA (actually, it's going even further than that), that was then massively rejected by the public, you'd be exactly right. So you would think that the USTR would, perhaps, chastise Italy for such an abuse of intellectual property for censorship in a manner that the American public (who the USTR is supposed to represent) have rejected. But, nope. The USTR praises this very approach:

Italy is removed from the Watch List in the 2014 Special 301 Report in recognition of the Italian Communications Regulatory Authority’s (AGCOM) adoption, on December 12, 2013, of long-awaited regulations to combat copyright piracy over the Internet.

In other words, here you have the USTR basically admitting that it approves of countries moving to an approach even more extreme than SOPA. Of course, the reality here is pretty transparent. If Italy and others implement SOPA, down the road, it can be negotiated into various international agreements, so that the US will claim that it has to implement SOPA to "comply with our international obligations." It's been done before. That's exactly how we got the DMCA. Congress initially rejected it, and so Bruce Lehman specifically went to WIPO to get the DMCA put into the 1996 Copyright Treaty... and, voila, two years later Congress said it had to pass the DMCA to comply with that treaty.

The USTR has long been a supporter of maximalist policies. Praising Italy for implementing an even more extreme version of SOPA just highlights how little concern the USTR has for the interests of the American public. Instead, it appears almost entirely focused on the interests of the most powerful lobbyists (who, not surprisingly, are also the USTR employees' likely future employers).

Filed Under: agcom, censorship, copyright, injunctions, italy, sopa, ustr