Corporations Not Happy Innovators Have 'Hacked' The Crappy U.S. Binding Arbitration System

from the dysfunction-junction dept

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators chosen and paid by the companies under fire unsurprisingly rule in favor of the party likely to hire them again a huge percentage of the time. Initially, the lower courts derided this anti-consumer behavior for what it was, critics highlighting that however brutally flawed the class action system can be, binding arbitration, at least the way we let companies design it, in many ways made things worse.

But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. The Supreme Court reiterated its position in 2015, and now most companies employ similar language in their terms of service fine print. Thanks, AT&T.

Shockingly, despite the telecom industry being a clear and obvious train wreck rife with endless examples of clear billing fraud, users aren't finding arbitration provides an effective path to justice. Despite having a combined 330 million video, voice, and broadband customers, just 30 people took AT&T and Comcast to arbitration last year. Driven in part by this, folks in recent years have been trying to find ways to help simplify the complicated process for pissed off consumers and employees, launching services like Radvocate and Fairshake.

As the NY Times notes, these systems are unsurprisingly driving up arbitration complaints as the process is streamlined and made more affordable for participants (consumers and employees often can't afford to take on corporations individually):

"Mr. Lidow, a Silicon Valley entrepreneur with a law degree, figured there had to be more people upset with their cable companies. He was right. Within a few months, Mr. Lidow found more than 1,000 people interested in filing arbitration claims against the industry. About the same time last year, Travis Lenkner and his law partners at the firm Keller Lenkner had a similar realization. Arbitration clauses bar employees at many companies from joining together to mount class-action lawsuits."

While the original arbitration idea may have been sound, corporations designed their vision of it with an eye on minimizing costs, tap dancing around accountability, and making it a costly uphill climb for employees and customers to battle them. And now that folks are actually trying to use the system, they're unsurprisingly not excited about it:

"There is no way that the system can handle mass arbitrations,” said Cliff Palefsky, a San Francisco employment lawyer who has worked to develop fairness standards for arbitration. “The companies are trying to weasel their way out of the system that they created."

AT&T, which helped kick this whole shift off with its sneaky bullshit mouse print, has been one of several corporations to hype binding arbitration as a more efficient alternative to class actions. Yet once folks actually began using the process thanks to these new services, companies like AT&T were caught flat footed:

"The companies were caught off guard. It took six months for many of the claims to move through arbitration. And some were still making their way through the system two years later. To Mr. Lidow, that seemed like a long time for two of the nation’s largest companies, with ample legal resources, that have vouched publicly for the efficiencies of arbitration over court."

Again yes, the class action system is broken, more often than not delivering new boats to attorneys and very little to those who are treated unfairly. But class actions most certainly have driven substantive change over the years (such lawsuits stopped cellular carriers from charging you long term contract early termination fees, for example). And the replacement system corporations built to replace the justice system is proving, as many predicted, to be decidedly worse.

Filed Under: arbitration, binding arbitration, class action lawsuits, lawsuits
Companies: at&t

RIAA Realizes It Sued Charter Over A Bunch Of Songs It Doesn't Hold The Copyrights For

from the oops? dept

It's been a year since the RIAA sued Charter Communications, using the same strategy it had used against smaller ISPs Cox and Grande Communications -- that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement. The RIAA has been plotting out this strategy for the better part of a decade.

For years, we've pointed out a number of problems with this, starting (most importantly) with the fact that accusations are not actual proof of infringement. And to kick people off of their sole access to the internet based solely on accusations would represent a real problem. As first noted by TorrentFreak, Charter has finally filed its answer, defenses, and counterclaims to the complaint. There's a lot of interesting stuff in there, but a key part: the RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to. That's kind of a big deal. Indeed, it reminds me of the revelation in the infamous Viacom/YouTube lawsuit that Viacom was suing over songs it had uploaded itself for marketing purposes.

From the counterclaims:

On January 15, 2020, Plaintiffs amended the list of works in suit, removing over 450 works from this case (the “Dropped Works”).

The Record Company Plaintiffs dropped 272 sound recordings and the Music Publisher Plaintiffs dropped 183 music compositions.

Upon information and belief, Plaintiffs dropped at least some of these works because they do not “own and/or control in whole or in part the copyrights and/or exclusive rights” the works.

Indeed, Plaintiffs dropped these works after they were ordered to produce further documentation relating to their purported ownership or ability to assert the works in suit in this case.

Despite later dropping these works the Record Company Plaintiffs, or their agent acting on their behalf, nevertheless sent notices to Charter in connection with the Dropped Works, claiming that they “have identified a user … reproducing or distributing an unauthorized copy of a copyrighted sound recording” and that the recipient of the notice “may be liable for infringing activity occurring” on Charter’s network. The Record Company Plaintiffs further claimed in their notices that the user’s “Internet account was used to illegally copy and/or distribute copyrighted music over the Internet” and that the notice contained “the details of the illegal file-sharing, including the time, date, and a sampling of the music shared.” The Record Company Plaintiffs’ notices “assert that the information in the notice is accurate” and that they “have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law.” The notices further stated that “[u]nder penalty of perjury,” “the RIAA is authorized to act on behalf of its member companies in manners involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.”

While the Music Publisher Plaintiffs did not send any notices for the music compositions in suit to Charter, the Music Publisher Plaintiffs’ infringement claims in this case purportedly rely on notices sent by the Record Company Plaintiffs to Charter, including those for the Dropped Works.

Upon information and belief, at least in connection with the Dropped Works, the Record Company Plaintiffs sent notices to Charter with inaccurate information, including but not limited to the misrepresentation that the RIAA was authorized on behalf of Plaintiffs to send a notice relating to these allegedly infringed works, that the Record Company Plaintiff on whose behalf the notice was sent owned or controlled the work, and that the actions alleged to have been taken by Charter’s subscribers constituted infringement of the Record Company Plaintiffs’ rights

The counterclaims go on to note that many of the works that have now been dropped due to the fact that the RIAA and its partners did not hold the copyright were the same songs that were previously used in the Cox Communications case:

Many of the same record companies and music publishers that are in this case pursued damages in Sony Music Entertainment et al. v. Cox Communications, Inc. et al, Case No. 1:18-cv-950 (LO/JFA) (E.D. Va.) (“Sony”) for certain of the Dropped Works, and the jury returned a verdict for certain of the Dropped Works in an amount of nearly $100,000 per work.

Yikes.

Now, some may claim that it doesn't really matter if the RIAA and its various partners held the copyright in these works, but it absolutely does for a whole variety of reasons. Most obviously, you can't sue over copyrights where you don't hold the copyright. But, it also shows the incredible sloppiness with which the RIAA and the labels and publishers go about determining "infringement." And that's why we keep pointing out that it very much matters whether you're kicking people off based solely on "accusations." When you're carpet bombing DMCA notices with an automated system, and no one competent seems to be overseeing the process, you get a ton of mistakes. And having people lose all internet access based on mistakes should be seen as a real problem.

The filing goes on to cite numerous examples of the RIAA and its partners mis-identifying infringement (including citing Techdirt), as well as the excellent and important study on DMCA takedown mistakes by Jennifer Urban, Joe Karaganis, and Brianna Schofield.

And, thus as part of the counterclaims, Charter is making a DMCA 512(f) claim of "knowingly sending materially inaccurate notices." As we've discussed for a while, 512(f) is mostly a dead letter, but it would be nice if someone actually got called on abusive takedown notices. The fact that the RIAA and its partners here, nearly a year after filing suit, suddenly dropped hundreds of songs after being asked to show proof that they actually hold the copyright... seems like as good a target as any.

The other parts of the counterclaims are also interesting. Charter makes the (important) point that it cannot and should not be expected to spy on every action by its users, and therefore it's silly to hold Charter liable for copyright infringement by its users. It would be nice if a court actually recognized that fact, but to date, it's been a struggle.

Filed Under: copyright, dmca, lawsuits, repeat infringer policy
Companies: charter, charter communications, riaa

Malware Marketer NSO Group Looks Like It's Blowing Off Facebook's Lawsuit

from the why-bother-being-accountable-in-any-minimal-fashion dept

In late October of last year, Facebook and WhatsApp sued Israeli surveillance tech provider NSO Group for using WhatsApp to deliver device-compromising malware. The lawsuit sought to use the CFAA to stop NSO from using WhatsApp as an attack vector.

The lawsuit is dangerous. It asks the court to read the CFAA to cover attacks targeting users' accounts, rather than attacks on the service provider itself. The CFAA is already problematic enough without this sort of expansion. WhatsApp users certainly appreciate the efforts the developers make to protect them from malware, but asking a court to reinterpret an easily-abused law just so Facebook can go after NSO isn't an acceptable solution.

NSO has been the target of non-stop criticism due to its willingness to sell malware and surveillance tech to countries with long histories of human rights violations. Its malware has also been observed targeting activists, dissidents, journalists, and critics of the governments that have deployed NSO malware.

Facebook's lawsuit is going nowhere fast. While it's not uncommon for there to be a delay between the filing of a complaint and the defendant's response, NSO hasn't filed anything -- not even a notice of appearance from its corporate counsel -- since the filing of the suit.

Facebook wants the court to take notice of this no-show. It's asking for the upcoming case management to be postponed indefinitely since it has heard nothing at all from NSO. But the administrative motion [PDF] is not just there to deal with a logistical problem. It's there to let the court know NSO isn't cooperating with the litigation.

After filing the Complaint, Plaintiffs promptly sought to serve Defendants under the Hague Convention, which was effected on December 17, 2019.Plaintiffs also contacted Defendants via email, physical mail, and hand service, but have not received any response. As of the date of this filing, no counsel has entered an appearance in this matter on Defendants’ behalf, nor have Defendants filed an answer to the Complaint. Thus, Plaintiffs cannot fulfill their obligations under the Court’s initial case management scheduling order (ECF No. 9), including the obligations to meet and confer regarding initial disclosures, early settlement, ADR process selection, and a discovery plan.

The NSO is certainly welcome to sit this one out. It's not like blowing off the WhatsApp lawsuit will do anything to its reputation that NSO hasn't already done to it by selling hacking tools to authoritarians. It's possible Facebook will receive a default judgment if NSO decides this is a waste of its time. Even if it did, what use would it be? NSO isn't going to stop marketing malware that can be deployed via messaging services and the governments it sells to aren't going to stop targeting WhatsApp users just because a court in California says it violates the CFAA.

This lawsuit is mostly for show. On the odd chance NSO decides to participate, discovery could expose some of its inner workings and the clients it sells this brand of malware to. NSO isn't going to risk that. It makes more sense to let Facebook flail away ineffectively with a civil suit that will have absolutely no effect on its business model.

Filed Under: cfaa, default judgment, lawsuits, spyware
Companies: facebook, nso group

How Years Of Copyright Maximalism Is Now Killing Pop Music

from the originality-is-a-con dept

Almost five years ago, we warned that years of copyright maximalists brainwashing the public about ever expansive copyright and the need for everything to be "owned" had resulted in the crazy Blurred Lines decision that said that merely being inspired by another artist to make a song that has a similar feel, even if it doesn't copy any actual part of the music, was infringing. We warned that this would lead to bad things -- and it has.

Over the last few years, we've been detailing story after story of similar cases being filed. It's become so common that we don't even bother to write about most of the cases. As we've said, though, this really is the industry reaping what they've sowed. It's gotten so crazy that even the RIAA (yes, that RIAA) has felt the need to tell courts that maybe their interpretation of copyright has gone too far in the direction of over-protecting copyright holders.

It's now become such a fact of life that the NY Times has a giant article on how copyright is basically eating pop music these days. It describes a bunch of these cases, and notes that merely "being influenced" makes you liable for copyright infringement, and how that's causing problems for the very concept of pop music:

That is, to put it plainly, bad news for pop stars, and the producers and songwriters who help them craft hits. They are now marks for frivolous litigation premised upon nebulous assertions as well as a complete and willful ignorance of how pop music is actually made.

Occasionally, pop innovates in a hard stylistic jolt, or an outlier comes to rapid prominence (see: Lil Nas X), but more often, it moves as a kind of unconscious collective. An evolutionary step is rarely the product of one person working in isolation; it is one brick added atop hundreds of others.

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.

The whole article is great, including this fantastic line:

It fails to make a distinction between theft and echo, or worse, presumes that all echo is theft. It ignores that the long continuum of pop revisits sonic approaches, melodies, beats and chord progressions time and again. It demands that each song be wholly distinct from everything that preceded it, an absurd and ultimately unenforceable dictate.

All echo is theft. That's definitely the argument that many copyright system supporters have made for years. And now it's coming back to bite them.

But here's the most frustrating part of all of this: even with that one RIAA filing admitting that sometimes copyright could go too far in over-protecting rightsholders, it's not stopping them or other copyright maximalist organizations from still pushing for more expansive, more draconian, more protective copyright reform. Get ready for it, because it's coming. There are efforts to import the EU's dreadful copyright directive, as well as a very strongly backed effort to get rid of the DMCA's safe harbors. And this is coming at a time when actual revenues for artists have continued to shoot skyward.

However, as with so much about copyright, this is all about third parties -- not the artists and creators themselves -- looking for their own monopoly rents. They're looking to figure out how to get a piece of the pie for literally doing absolutely nothing. But if something becomes successful, suddenly they all want a cut, and copyright maximalism has handed them the tools to get exactly that. And, as a result, pop music is under ongoing litigation assault. The labels are making money. The lawyers are making money... and, according to a new Rolling Stone article, the insurance companies are making money:

While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, ‘We’re going to take a piece of your contemporary hit.’ ”)

Under E&O policies, insurance companies can cover several million dollars of an artist’s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients — a roster of stars who already pay for tour insurance and other standard entertainment-industry policies — have recently shown interest in E&O coverage. “When a major claim is all over the press, we’ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,” Charles says.

Notice that all this is money that is not going to the actual artists. The entire premise of the Rolling Stone article is basically that having a hit song is simply too expensive these days, because of bullshit copyright lawsuits that actually have a chance because copyright law has gone insane. Something is clearly broken here, and supporters of the copyright system need to admit that maybe they've gone too far.

Filed Under: blurred lines, copying, copyright, inspiration, insurance, lawsuits, liability, pop music

'Give Til It Hurts,' Says The NYPD To City Residents While Racking Up A Half-Billion In Lawsuit Settlements In Two Years

from the $500-million;-zero-fucks dept

Time to start sending out some customer satisfaction surveys to New York City residents. After all, they're the ones paying for this. (via Boing Boing)

New York City taxpayers spent a whopping $230 million to pay off 6,472 lawsuits settled against the NYPD in the last fiscal year, according to an annual report released Monday by Comptroller Scott Stringer’s office.

The amount reflects settlements made from July 2017 through June 2018, and marks a 32% decrease from the prior year, when the city paid out $335 million for lawsuits against the police department.

This is the work of New York's Finest -- a police department that figures it's the FBI, CIA, and NSA rolled into one. When not bumptiously interloping as the East Coast wing of Team America World Police, the NYPD is busy back home violating rights and blowing off public records requests.

The department is infamous for its suspicionless surveillance of Muslims, its suspicionless searches of hundreds of thousands of young black men, and the occasional homicide.

The NYPD's spokeswoman apparently has only read the parts of the report she likes. Sgt. Jessica McRorie says the 32% reduction in claims shows the NYPD is serious about deterring officer misconduct. But the overall drop in claims is counteracted by the NYPD's 100% increase in police misconduct settlement payments over the past decade.

Roughly $108 million was related to allegations of police misconduct like false arrests and excessive force, more than doubling the $48 million paid out for such issues a decade ago.

No matter what spin is applied, the numbers speak for themselves. Since the middle of 2017, the city has paid out a half-billion dollars in settlements in lawsuits against the NYPD. The spokeswoman's cheery spin on $233 million in settlements as an indication of officers behaving $100 million better than last year doesn't say much about the force in general.

Granted, the amount of settlements will never reach $0, no matter the length of the timeline. But if the NYPD is serious about reducing misconduct and improving its relationship with the public, it can't keep allowing things like this:

[Peter] Valentin, a hard-charging Bronx narcotics detective whose online handle is "PistolPete," has been sued a stunning 28 times since 2006 on allegations of running slash-and-burn raids that left dozens of lives in ruins while resulting in few criminal convictions.

The city has paid out $884,000 to settle cases naming the stocky, 36-year-old detective, but he doesn't seem too concerned.

"I'm not aware of that," he scoffed at a Daily News reporter when told of his claim to shame. "Once it goes to court, I don't follow it."

This 2014 report showed 55 NYPD officers have been sued 10 or more times. If Valentin's shrug of indifference is indicative of the NYPD's collective mindset, lawsuits are no deterrent to misconduct. And neither are NYPD officials, even when they're claiming otherwise when issuing statements or holding press conferences. The same people who defend misconduct by saying it's just "bad apples" are the same people refusing to remove the bad apples from the barrel.

Being a repeat offender is bad news in every part of the criminal justice system except the component that initiates the process. Three strikes laws proliferate, exponentially increasing sentences for criminal violators. Meanwhile, those policing the streets are barely policed at all. Those that do manage to create enough headaches for their departments that they're terminated can usually find steady law enforcement work at another agency.

The message being sent to the public by the NYPD isn't the one its spokesperson is offering. It's actually saying it doesn't care how much of the public's money it has to spend to keep bad cops employed.

Filed Under: lawsuits, new york city, nyc, nypd, settlements, taxpayers

Man Sues Twitter For $1 Billion Claiming His Account's Suspension Violated His Right To Worship President Trump As A Demigod

from the suing-Twitter-to-own-the-liberal-construing-of-his-complaint dept

Several stupid lawsuits have been brought against social media companies. Some feature actual lawyers (but mostly from the same law firms) helping clients throw money away on allegations that Twitter and Facebook are at least indirectly responsible for terrorist attacks.

Others also use real lawyers, but lawyers willing to misread precedent to declare large social media platforms "public squares" and advance some very questionable arguments about First Amendment violations.

Then there's everyone else: the kind of people who think being temporarily suspended from a platform is a billion dollar Constitutional violation. (h/t Eric Goldman)

In this lawsuit, Adrian Rangel alleges his brief suspension violated the Constitution harder than it's ever been violated before. Rangel's Twitter account is no longer suspended and it's not because he emerged victorious from this lawsuit. It has already been tossed by the federal court.

Rangel's short-lived lawsuit [PDF] asked for $1 billion in damages for his brief suspension, which he alleges violated his First Amendment right to yell "HANG THEM ALL" in a crowded platform. While we can agree Rangel's heated response to "topics from the mundane to the comical" probably should not have resulted in a suspension, we can also agree Twitter's moderation call did none of the following:

Plaintiff contends that by suspending Plaintiff's account religiouserpico Defendants Twitter Foundation and Vijaya Gadde violated Adrian Rangel's constitutional rights to ( (1) freedom of speech, (2) freedom of expression, (3) freedom of religion, (4) freedom of assembly, (5) freedom against unlawful seizure, (6) due process, (7) substantive due process and (8) equal protection of the United States Constitution.

This despite Rangel's claim on his own Twitter feed that he is a "CONSTITUTIONALIST."

Rangel logically points out his "HANG THEM ALL" tweet was not a threat. It targeted no one and was a hyperbolic expression of Rangel's general exasperation with the status quo. (I'm construing his complaint liberally. Rangel doesn't actually reference the tweet his responded to, but judging the rest of the complaint, it probably had something to do with liberal politicians.)

Now, while you might be familiar with misguided assertions that moderation by private platforms violates First Amendment rights (including freedom of assembly), you're probably unaware that account suspensions also violate religious rights.

Before the Defendants suspended Plaintiff's account, Plaintiff used Twitter to proclaim his religious beliefs to the public of being a Born Again King James Bible Only Christian. Plaintiff included the being Born Again King James Bible Only Christian in his Twitter profile. ln addition, Plaintiff followed and was followed by a number of people on Twitter - one group being people of like-minded religious beliefs.

Tangentially, Plaintiff contends that President Donald J Trump was nothing short of miraculously elected by God into the Presidency; most specifically because of Donald Trump's victory in light of the tremendous media, political and social resistance to his election to the Presidency of the United States. Plaintiff used Twitter to support what Plaintiff contends is Donald J Trump's nothing short of miraculous election to the Presidency. As such, Plaintiff's religious beliefs are intertwined with Plaintiff's support of Donald J Trump as President of the United States of America.

Recourse options are limited for those who feel their cult-like admiration of elected leaders has been harmed by moderation efforts. "Limited" as in "zero." There are no options available to someone who has managed to "intertwine" their belief in God with their worship of a president.

Going from that surprising tangent, Rangel alleges the appeals process provided by Twitter doesn't approach the standards of due process provided by the Constitution. Of course they don't. They never will. Only the government has this obligation, much like the government's monopoly on First Amendment rights violations. The same goes for the Equal Protection clause, which is invoked in Rangel's lawsuit to make a perfectly valid point.

Plaintiff further contends that Defendants Twitter Foundation and Vijaya Gadde have illegally embarked upon an illegal circumvention of the United States Constitution in attempting to impose on United States citizens the legal cultures of foreign countries i.e. India, China, Russia, Germany, United Kingdom etc. Many of these foreign countries were once or still are considered third world countries because of their former or present totalitarian subjugation or colonizing regimes.

Unfortunately, valid points aren't the same thing as cognizable claims and the court has no jurisdiction or duty to prevent Twitter from aligning moderation efforts with foreign laws. I agree with Rangel that Twitter should not be humoring authoritarian regimes by complying with removal notices and/or suspending accounts, but a billion dollar lawsuit claiming a private company violated Constitutional rights isn't the place to make this argument.

Since there's no moving forward with the case, there will be no discussion of Section 230 immunity, which would have seen this case dismissed if Twitter (a "California nonprofit," according to the plaintiff) had needed to file a response. Love it or hate it, social media platforms can moderate as they please without violating Constitutional rights. Understanding this simple concept would save a lot of people time and money.

Filed Under: 1st amendment, account suspension, adrian rangel, content moderation, freedom of religion, freedom of speech, lawsuits, pro se, section 230
Companies: twitter

Nintendo's ROM Site War Continues With Huge Lawsuit Against Site Despite Not Sending DMCA Notices

from the nintendon't dept

Roughly a year ago, Nintendo launched a war between itself and ROM sites. Despite the insanely profitable NES Classic retro-console, the company decided that ROM sites, which until recently almost single-handedly preserved a great deal of console gaming history, need to be slayed. Nintendo extracted huge settlements out of some of the sites, which led to most others shutting down voluntarily. While this was probably always Nintendo's strategy, some sites decided to stare down the company's legal threats and continue on.

One of those sites was RomUniverse, which not only refused to shut down, but essentially boasted that it wasn't scared of Nintendo's legal attack dogs and would continue on. That stance is about to be put to the test, however, as Nintendo has filed a copyright lawsuit seeking enormous damages against the site.

In a complaint filed at a federal court in California, the Japanese gaming giant accuses the site’s alleged operator, Matthew Storman, of “brazen” and “mass-scale” copyright and trademark infringement.

“The Website is among the most visited and notorious online hubs for pirated Nintendo video games. Through the Website, Defendants reproduce, distribute, monetize, and offer for download thousands of unauthorized copies of Nintendo’s video games,” the complaint reads.

Nintendo states that the site, which has 375,000 members, offers downloads for nearly every video game system it has ever produced.

Now, to be clear, there is nuance to our stance here. Does this constitute copyright infringement of Nintendo's property? Hell yes. Can Nintendo sue over this on solid legal grounds? Of course! Should it do so? Well, that's a more complicated question. You have to wonder just exactly what Nintendo is going to get out of all of these lawsuits. Yes, it may succeed in shutting down this and other sites. But does that mean those that use ROM sites are suddenly going to buy a Nintendo console, retro or otherwise? It's not obvious that the answer to that is "yes." Instead, those pirates will probably just not play Nintendo games at all. Or, more likely, will find another venue for ROMs, and rinse and repeat that process as Nintendo goes on its whac-a-mole expedition.

And, given that Nintendo only recently really invested in making retro games available on its consoles, these sites actually did preserve gaming history for millions of people who would otherwise have never played these aged titles. Not to mention that ROM sites are also a place for home-brewed games on these older consoles, which themselves are not infringing.

And, finally, if Nintendo really just wanted to combat piracy in all of this, why not at least start with the DMCA process?

RomAdmin from RomUniverse informed us that he hasn’t received anything from Nintendo, no recent takedown notices either. The site does respond to takedown notices.

“We’ve always immediately taken down questionable material, per their take down notices,” RomAdmin told TorrentFreak.

Instead, Nintendo went straight to the nuclear option, with a lawsuit asking for potentially over $100 million in damages. Again, it can do this, but given how much money the company is already raking in off of retro gaming... why?

Filed Under: dmca, lawsuits, rom sites, romuniverse, threats, video games
Companies: nintendo, romuniverse

You Know That Mobile Phone Tracking Data You Used As Evidence In Over 10,000 Court Cases? Turns Out Some Of It Was Wrong, But We're Not Sure Which Yet

from the sorry-about-that dept

As many have pointed out, our mobile phones are the perfect surveillance device. Most people carry them around -- voluntarily -- while they are awake. Put this together with the fact that mobile phones have to connect to a nearby transmitter in order to work, and you end up with a pretty good idea of where the person using the device is throughout the day. No surprise, then, that police and prosecutors around the world turn routinely to phone tracking data when they are investigating cases. But as the New York Times reports, there can be serious problems with simply assuming the results are reliable. The Danish authorities have to review over 10,000 court verdicts because of errors in mobile phone tracking data that was offered as evidence in those cases. In addition, Denmark's director of public prosecutions has ordered a two-month halt in the use of this location data in criminal cases while experts try to sort out the problems:

The first error was found in an I.T. system that converts phone companies' raw data into evidence that the police and prosecutors can use to place a person at the scene of a crime. During the conversions, the system omitted some data, creating a less-detailed image of a cellphone’s whereabouts. The error was fixed in March after the national police discovered it.

In a second problem, some cellphone tracking data linked phones to the wrong cellphone towers, potentially connecting innocent people to crime scenes, said Jan Reckendorff, the director of public prosecutions.

It's not clear yet how serious these blunders will turn out to be -- it might only be a few, relatively minor cases. Or it might involve a large number of more serious crimes. Either way, it's a salutary reminder that however useful a technology might appear for the purposes of solving crimes -- and however straightforward its application seems -- things can and will go wrong. There's another approach that some people tend to view as infallible: the use of DNA sequencing techniques to identify suspects from material left at the scene of the crime. DNA is undoubtedly a powerful way of pulling information from tiny amounts of material, but there are a number of ways in which it can mislead badly. The same applies to mobile phone location data, as the Danish experience usefully underlines.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: denmark, evidence, lawsuits, location data, tracking data

Facebook's Triple Woes Over Cambridge Analytica Data Harvesting Scandal

from the privacy?-what-privacy? dept

Earlier this week, Techdirt wrote about a defeat for Facebook in the Irish courts. In fact, the case in question is not about Facebook itself, but about transatlantic data transfers. Facebook will certainly have some problems if the EU's top court goes on to rule against the Privacy Shield framework -- the real issue here -- but it won't be alone. Moreover, if that were the company's only problem, it probably wouldn't cause Mark Zuckerberg to lose much sleep. However, it is far from his only headache. Recently, no less than three decisions specifically about Facebook were handed down, all related to the by-now infamous Cambridge Analytica data harvesting scandal, and all going the wrong way for Zuckerberg.

As Bloomberg reports, a San Francisco federal judge indicated he won’t dismiss lawsuits brought against Facebook on behalf of tens of millions of users. They blame the company for allowing their private information obtained from their friends' accounts to be shared with Cambridge Analytica:

U.S. District Judge Vince Chhabria is overseeing dozens of suits alleging users have no real control over their personal information, and that the company has repeatedly misled users to continue mining it.

The suits have a long way to go before users stand a chance of claiming billions of dollars in damages. Chhabria isn't addressing the merits of the complaints, only deciding whether the allegations are legally sufficient to proceed. The next step will be for users to seek internal information from the company to back up their claims.

Reuters says that Facebook suffered a similar fate in Washington, D.C.:

A U.S. judge on Friday denied Facebook Inc.'s request to dismiss a lawsuit by the Washington, D.C. attorney general over the social media giant's improper sharing of 87 million users' data with British political consulting firm Cambridge Analytica.

The U.S. capital city sued Facebook in December, accusing it of misleading users because it had known about the breach for two years before disclosing it and had allowed third-party app makers to access user information without their consent.

Around the same time, a court in Delaware was also ruling against Facebook in connection with Cambridge Analytica, reported here by Forbes:

A court in Delaware sided with Facebook shareholders who are suing the company for access to internal information that might show wrongdoing relating to the company's various privacy issues. The investors want access to emails and other documents relating to Facebook providing Cambridge Analytica with data on some 87 million users.

It's important to note that in all three cases, the rulings are preliminary, simply allowing things to proceed to a full trial. But we do have a sneak peek of what one of Facebook's main arguments might be. Speaking before the judge in San Francisco, a lawyer for Facebook claimed as follows:

"There is no invasion of privacy at all, because there is no privacy," on Facebook or any other social media site, company attorney Orin Snyder told U.S. District Judge Vince Chhabria.

A month before that interesting statement, Mark Zuckerberg was telling everyone that "The future is private". Given what one of his lawyers is now insisting in court, that seems to imply that Facebook's social network is not the future.

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Filed Under: class action, data sharing, lawsuits, privacy
Companies: cambridge analytica, facebook

New York Saxophonist Latest To Sue Fortnite Developers For Supposedly Ripping Off His... 'Likeness'

from the business-model-composed-completely-of-question-marks dept

Because there's no shortage of people willing to believe someone else's millions can be theirs with minimal effort, another semi-celebrity has hopped aboard law firm Pierce Bainbridge's Fortnite-suing money train. Destination unknown.

The law firm has helped everyone from former sitcom star Alfonso Ribeiro to a sentient meme known as "Backpack Kid" throw money into a federal court holes over the past several months. Thanks to a recent ruling by the Supreme Court, most of its copyright infringement lawsuits are on hold because the plaintiffs have yet to actually have protection granted for their dance moves by the US Copyright Office.

It's not like this is just a matter of waiting out the Office. The Copyright Office has made it clear it will only extend copyright protection to dance moves showing sufficient creativity. It's not likely to find most of the dance moves being sued over worth protecting as most of them consist of only a "few movements or steps with minor linear or spatial variations." One of the first litigants to jump into the Sue Fortnite pool -- Alfonso Ribeiro -- has already been rejected by the federal government.

Unfortunately, the lawsuits continue, as Nick Statt reports for The Verge.

Fortnite creator Epic Games is facing a lawsuit from New York City-based saxophonist Leo Pellegrino, who claims the developer has used his likeness without permission when designing a saxophone dance in the game. The lawsuit was filed today in federal court for the eastern district of Pennsylvania.

The emote, called “Phone It In,” lets players whip out the brass instrument and play a quick tune while dancing. Pellegrino, best known for his Brass House band Too Many Zooz, says his “trademark moves have become inseparable from his persona and his life story” and that Epic had not previously asked for permission to use his likeness or “his signature moves.”

The law firm apparently submitted this video of Leo Pellegrino performing as evidence of Fortnite's ripoffery.

Firm staffers likely had to browse their way past this video, which seems to show Fortnite's developers are ripping off someone else entirely.

What makes this lawsuit even more sketchy than the others Pierce Bainbridge has filed is it's not a copyright infringement lawsuit. The lack of registration has halted its other lawsuits and, given the Copyright Office's response to one its many clients, it seems unlikely most of these will be refiled. So, Pellegrino is claiming it's his likeness that has been "misappropriated," which is definitely a stretch when the emotes can be performed by dozens of characters that look and dress nothing like Pellegrino. Oh, and also, even the saxophone is different. Pellegrino plays a baritone sax, and the Fortnite version appears to be an alto sax, so they're not even playing the same instrument.

All Pellegrino really has is an assertion that he's a dude who plays a saxophone enthusiastically and Fortnite has an "emote" featuring a different kind of saxophone being played enthusiastically by the player's avatar. Any similarities are probably coincidental, seeing as there's only so many ways someone can play a saxophone with far more enthusiasm than the instrument deserves.

Despite its 100% failure rate in Fortnite lawsuits, Pierce Bainbridge is still finding plaintiffs willing to ensure its partners keep collecting paychecks. And isn't that the greatest victory of all?

Filed Under: alfonso ribeiro, copyright, dance moves, fortnite, lawsuits, leo pellegrino, likeness, publicity rights
Companies: epic, pierce bainbridge