After Nine Years Of Censorship, Canada Finally Unmuzzles Its Scientists

from the justin-trudeau-strikes-again dept

Here's something we don't see enough of here on Techdirt: a long and dispiriting saga with a happy ending. Over the years, we've reported on how Canada's previous prime minister, Stephen Harper, tried to stifle dissenting voices among government scientists and librarians, all of whom were expected to self-censor, even outside their work. But as most people know by now, the new Canadian administration under Justin Trudeau has a rather different style, and fortunately that also applies to how it treats its scientists. As an article in Nature reports, things may be moving too slowly for some, but at least they are moving:

the [Canadian] government is loosening its grip on communications but the shift at some agencies has not been as swift and comprehensive as many had hoped. And with the newfound freedom to speak, the full impact of the former restrictions is finally becoming clear. Canadian scientists and government representatives are opening up about what it was like to work under the former policy and the kind of consequences it had. Some of the officials who imposed the rules are talking about how the restrictions affected the morale and careers of researchers.

As well as filling in the background to this welcome move, Nature explores some of the stories that are starting to emerge, like this one:

During the 1970s, [Ian Stirling, a prominent biologist with Environment and Climate Change Canada] had gone to meetings in Canada that were also attended by Soviet scientists. The visiting researchers would arrive, he says, "with a KGB guy, who would stand there with no smiles, a scowl on his face and arms crossed". Stirling still finds it unbelievable that the Canadian government used similar tactics at conferences. In 2012, for example, the Canadian news outlet CBC reported that media minders had shadowed scientists from Environment Canada at a meeting of the International Polar Year in Montreal.

It's important to remember that Canada is not alone in having these muzzling problems. The article notes that during the administration of President George W. Bush, US government scientists complained that inconvenient data was being altered or simply suppressed. More recently, the UK government unveiled plans to forbid its scientists from lobbying for changes in their own field. Although it has now introduced some exemptions from the controversial "gagging clause", these seem half-hearted and possibly temporary. It obviously needs to pay more attention to Justin.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: canada, dissent, free speech, justin trudeau, opinions, policy, scientists, stephen harper

Software Company Asks Users For Input On DRM; Goes Ahead And Institutes It Anyway Over Their Objections

from the by-'listening,'-we-meant-nodding-thoughtfully-while-moving-forward-with dept

Nothing does more damage more quickly to your community than deciding to place your fear of piracy over the the concerns of those who've already paid for your product. DRM is rarely, if ever, the answer. And yet, it remains an inexplicably popular "solution."

Daz 3D, which produces 3D art software as well as assets for use with third party software, has decided to do something about its perceived piracy problem. Last November, it had this to say:

[W]e feel the best way to fight piracy is make the convenience of doing something legally more so than the inconvenience of pirating. That is why we made finding, downloading, installing, and loading content in Studio as streamlined and easy as possible while making getting a pirate-able copy of the original product harder.

The solution to the problem, according to Daz 3D, was to have the software "phone home" at least once to obtain a key for content/software files, which would only arrive in encrypted form. Supposedly, this would be limited to once per computer but the new, encrypted files would pose problems for existing users.

Those on older versions of Daz's software would be unable to access any new content. Transferring old data could also result in problems -- something Daz acknowledged in a later post, noting that scripts and tools might not work with unencrypted content.

At the time of the announcement, no plan was in place to provide offline users with authentication keys, nor would it be possible to purchase new content without running through Daz's "Connect" service, which not only authenticates users but "assembles" newly purchased content for use with Daz software.

Daz did the right thing and put its proposals up for discussion. This generated dozens of pages of comments, many of which were from users opposed to the addition of DRM. Some were concerned about the Daz Connect DRM breaking content they'd already paid for. Others simply didn't like being treated like pirates when they'd actually paid for software and add-ons.

Daz's representatives were active in forum discussions and very straightforward about their reasons for looking into instituting DRM. The company is hoping a few extra installation hoops and another layer of authentication would deter casual pirates, leaving them only the diehard crackers interested in "capturing" a niche "market."

The willingness to listen and participate in the discussion separates Daz from many other companies who've added DRM to their products. Unfortunately, it appears the discussion had little effect on Daz's final decision. The post may be titled "You've been heard," but the content contained in it indicates the listening was little more than a formality. Daz will be moving ahead with its original plan, despite customers making it clear they'd rather have a product that doesn't introduce compatibility problems. Nor do they want to be limited to a single distribution system. And they're less than thrilled about the "phone home" requirement.

The new post, delivered four months after the original announcement, changes nothing about the DRM structure. While it does add some fail-safe measures (like third-party escrow that will prevent users from being locked out of their purchases if Daz goes out of business), the end result is still the same. DRM is coming to Daz and there's nothing users can do about it.

Currently Daz Connect gives customers the ability to install (among other things) encrypted content. Daz Connect also lets customers retrieve a Key to decrypt their content. Customers have raised the concerns of:

What if Daz is not available to provide the keys anymore, chooses not to, or starts charging an additional fee to get a key for previously purchased content?

Solution: We have developed and fully tested a utility which will decrypt, and save in non-encrypted formats, Daz products on a customer’s computer. We are also working out details with a software escrow company who will provide this utility to the public free of charge in the event that Daz is no longer in a business position to, or is unwilling to continue offering this as a free service. This will also be added to the Daz EULA to ensure customers of our commitment to enable them to always be able to use content that they have purchased a license for.

Obviously this does not address other issues such as scripts and tools that work on un-encrypted content. But those are solved in other ways. We are working (and will continue to work) with developers who have this need, in order to show them how to do it with encrypted content.

Apparently, "hearing" actually means ignoring concerns people expressed, including portability from older versions of Daz's software. And, as is nearly always the case when DRM to added to a previously DRM-free product, the company is presenting it as a win for paying customers.

Is the encryption associated with Daz Connect essentially Digital Rights Management (DRM)?

We strive to add great benefits to being connected while limiting the impact to the user experience. Although we have included file encryption to protect our artist community, the primary target is to provide a better experience for our users. Daz Connect delivers and updates products more efficiently but relies on the fact that files are in a location and format that is maintained by the application. In this sense, Daz Connect provides some measure of digital rights management.

So, Daz is thinking of its customers while simultaneously willing to ignore those customers to institute something it thinks will decrease piracy. While I can appreciate the fact Daz wants to protect its bottom line, it needs to be aware that instituting these new restrictions will result in actual lost sales -- something that may ultimately prove more harmful than the theoretical lost sales Daz attributes to piracy.

Filed Under: drm, opinions, users
Companies: daz 3d

Bob Costas Rails Against The Internet After Criticism For Going Nuclear On MLB Pitcher

from the standards dept

You would only really know this if you're a baseball fan, but Bob Costas went ahead and stepped in it recently while calling a Cubs vs. Cardinals game. You see, relief pitcher Pedro Strop came out to work from the bullpen and promptly crapped himself on the mound (not literally). This, of course, is only in good keeping with the Chicago Cubs tradition of sucking, but apparently Costas decided to go in pretty hard on Strop when the pitcher pointed at the sky as he exited the game.

Whoa. That's more than a little harsh relative to most MLB broadcasts and Costas heard about it from many internet sites and social media circles. Baseball fans tweeted, asking him what the deal was in delivering such a harsh line at a pitcher who simply had a rough outing. Websites, like Deadspin, offered up typically reasonable articles with equally reasonable headlines like "Holy shit, Bob Costas." As a result of all of this, Costas has said he would apologize for his remarks.

But this is still all the internet's fault, obviously.

“We can be disingenuous about it if we want, if it suits our purposes, but we all know this: We live in an age of faux outrage, of disproportionate outrage. Everything is shocking, over the top. ‘He savaged Pedro Strop’ — I mean, come on, come on. Let’s get a handle on this,” Costas said. “I could have done better and I will apologize. But . . . that’s just Internet stuff. I’m going to take care of it the same way I would have taken care of it if it was 1986. And that’s going to be that.”

In addition to those comments, the link includes an audio clip from a Costas interview on WFAN, in which he laments the fact that the internet took notice of his national broadcast and decided they didn't care for it all that much. Costas hit the usual chords whenever someone from a traditional media outlet rails against the internet and social media: something something overreaction, something something fake outrage, something something we're still the real media. But my favorite line was:

"The mainstream, which can be criticized, we have our own shortcomings, but we're supposed to hue to a higher standard, both of ethics and of quality. The idea that in some desperate attempt to remain relevant, and to get more clicks, that we should dumb ourselves down to adopting the ethos of the mob, that's something that I'm not good with."

Look, I know I don't really count as valid, because I'm from the internet, but I have a suggestion: it might not be the best plan to trot out the sacred and storied tradition of journalistic ethics in the broadcast media in reaction to a story about you going nuclear on a reliever, such that you, yourself, felt the need to apologize. Those two things mashed together don't make any sense. Come on, Bob, it ain't the internet's fault you came of like a jerk.

Filed Under: baseball, bob costas, criticism, internet, opinions, pedro strop

Erotica Publisher Sues Blogger For Exposing Its Financial Problems

from the because-suing-ALWAYS-WORKS dept

"Erotic romance" publisher Ellora's Cave doesn't like the way a certain writer has portrayed its business woes. Rather than attempt to address the theories advanced by Jane Litte at Dear Author, Ellora's Cave has decided to sue her for defamation.

Ellora's Cave has a problem with the post Jane Litte published Sept. 14th, entitled "The Curious Case of Ellora's Cave." In it, Litte questions the financial stability of EC. As she notes, EC is a powerhouse publisher in the erotic fiction world but its growth seems to have slumped at a time when it should have been expanding.

As the world began to catch on to digital books and the Kindle was launched creating a second wave ebook revolution, Ellora’s Cave seemed poised to launch itself into publishing super stardom. It had thousands of backlist titles and it had launched many of the bestselling authors today–Bella Andre, Lora Leigh, Christine Warren, Beth Kery, Lauren Dane, Jaci Burton, to name a few.

Yet something strange happened. Growth stagnated. In 2010, it was revealed that EC’s revenues were $5 million but a reported $6.7 million in 2006. How on earth was a digital publisher’s income declining in the biggest boom period of digital books?

Litte entertains a few theories.

Word of [Ellora's Cave co-founder Tine] Engler’s increasingly erratic behavior surfaced on odd places on the internet and then came the lawsuits. In 2008, former employee Christina Brashears iled suit for unpaid monies against EC. EC countersued. Brashears, Publisher and Chief Operating Officer, left and formed Samhain. Bad blood existed which culminated with EC agreeing to a settlement of undisclosed amount. The damages were alleged to be in the high six figures to low seven figures. EC’s behavior during this lawsuit was so egregious, the judge commented on it in his ruling ordering damages to be paid to Brashears...

In the Brashears lawsuit, EC was accused of inappropriately diverting funds to Tina Engler through overpayment of rent. In 2009, the prevailing market rent for the space EC was occupying in Akron Ohio was around $40K but EC was paying Engler close to $100K per month. EC was providing loans to various officers at no interest and there was no indication those loans were ever repaid.

Emails to EC authors seem to confirm the bad news. Ellora's Cave is struggling. Some authors have reported late or completely missing royalty payments. EC is now saying that no partial work will be paid for and has shut down its authors' portal where writers (but only a certain number of them) could check on royalty payments.

The most damning evidence that something's wrong at Ellora's Cave comes in the form of public records. According to Litte, these documents show that Tina Engler (the EC founder who had been receiving the allegedly diverted funds mentioned above) has had a tax lien placed against her by the state of Ohio for 5 of the last 6 years, ranging from $26,000 to $105,000 (nearly $400,000 total to this point).

The lawsuit filed against Jane Litte claims (of course) that none of Litte's allegations are true and that the post itself is libelous. [PDF link] It mainly has a problem with this paragraph, which encapsulates most of the claims it refutes.

A report from Ohio business record places Ellora’s Cave revenues at $15 million last year. So why is it that tax liens go unpaid as well as the salaries or royalties of creative individuals? It is unknown but it sounds like the money is being mismanaged at best and improperly diverted at worst.

What’s the result? Many people believe that EC will close its doors before the summer is over but at least by the end of the year. If it enters bankruptcy, author’s intellectual property rights are part of the estate and can be sold off to the highest bidder.

EC's attempt to stifle criticism (the suit asks for $25k in damages as well as a permanent injunction prohibiting Litte from publishing any further "libelous" content as well as demanding the removal of her Sept. 14th post. Litte has chosen to fight back, gaining not only the support of many authors and bloggers, but the valuable legal assistance of a name familiar to Techdirt readers.

Jane Litte, the pseudonymous editor of Dear Author, announced this morning that she had hired the big guns to defend her in this lawsuit, noting that:

"she has retained the services of Marc Randazza, and he and an Ohio colleague will provide the defense in this case. You can find out more about Randazza at his firm’s website, and in this piece at Popehat, Marc Randazza: First Amendment Badass."

That's possibly the worst news anyone filing a dubious defamation suit could hope to receive. Now EC will have to face Randazza on top of possibly having to do something it clearly doesn't want to: turn over its financial records.

As Litte noted above, a previous lawsuit filed against EC over owed monies resulted in a judicial smackdown of Tina Engler and her various legal representatives -- specifically related to their failure to produce requested information.

EC refused to give up documents such as tax returns and ledgers during the litigation.   The failure to respond the request for documents impaired Brashear’s ability to proceed with her claim.   EC blamed it on their first lawyer who they fired.   EC retained new counsel but the pattern of delay and duck continued.   Brashear filed a motion for sanctions (a request asking the court to punish EC for its delinquent behavior).   The court granted the motion after EC and its counsel failed to show up for a hearing.   EC asked the court to set aside the sanction and promised it would deliver the documents requested by Brashear.   EC never did.

The judge had this to say after both defendants and their new attorney failed to materialize for the hearing.

Defendants willfully evaded the production of discovery, resulting in unnecessary delays of this case and increased legal fees.   Defendants’ actions in this case have crossed the line from a zealous defense to malingering, malfeasance, sabotage and delay.

If Ellora's Cave wishes to demonstrate that Litte's claims are libelous (most of which appear to be delivered as opinions rather than statements of fact), it will have to present documentation of its royalty payments, as well as some detailing of Engler's discretionary spending. It wasn't interested in turning these documents over in 2009. There's no reason to believe (especially considering the ongoing tax liens against Engler) it's any more interested in doing so now.

This suit, despite being fairly articulate about what it disputes, still looks like an attempt to silence criticism. If Ellora's Cave wanted to take Litte to court over speculations about financial mismanagement, it had several opportunities to do so in the past. Litte's coverage of the 2009 lawsuit uses the same Forbes stats as her recent post and asks the same question: why is Ellora's Cave struggling at a time when it should be showing record growth? This 2010 post also speculated that EC didn't have the cash on hand to pay damages, much less pay the funds contractually obligated to the complainant. The only new wrinkles here are the questions about EC owner Tina Engler's spending habits and the (documented) tax liens against her. Given the fact that EC likes to withhold documentation, it probably the last part being made public (so to speak -- tax liens are public records) that irks Engler the most.

In asking for damages to be awarded, the lawsuit claims that this post is harming its relationship with its current writers and damaging its future earnings by warning authors away. Undoubtedly this is true, but a business owner with a half-decade of high-dollar tax liens would warn them away just as well, even without Litte's additional research and commentary. You can withhold royalties indefinitely (give or take a lawsuit) but you can't hold out on the government. If you do, your business is repo'ed and auctioned. and the slight possibility of this happening means authors' copyrights could end up in the hands of someone who feels even less obliged to pay off owed royalties, if they're even obligated to pay them at all. Those who were happy with EC may find themselves working for someone they don't like, but will be able to do very little about it.

Another troubling aspect of the lawsuit is the request to unmask anonymous commenters, delivered by this slightly ominous sentence.

Additionally, Plaintiff request that Defendants disclose the name of the anonymous commenters on the blog so that the spreading of the defamatory content can be stopped.

Not only is this request another attack on speech, but it's unlikely to do anything more than subject other people to EC's litigious efforts. The "spreading" has already begun and getting a list of commenters' names isn't going to change that. EC's decision to sue has already caused more harm to its reputation than Litte's post could have done on its own. The news that EC wants to target commenters will only generate even more negative coverage.

Filed Under: defamation, erotica, jane little, lawsuits, opinions, publisher, romance
Companies: ellora's cave

Roca Labs Lawsuit Gets Even More Bizarre: Now With An 'Unauthorized' Guest Appearance By 'TV Celebrity' Alfonso Ribeiro

from the hey-everyone,-it's-carlton-from-the-fresh-prince dept

The Roca Labs saga continues to get more and more bizarre -- and now it's got an "unauthorized" appearance by "television celebrity" Alfonso Ribeiro, perhaps better known as Carlton Banks from The Fresh Prince of Bel Air, whose Carlton Dance has become the stuff of TV legend. On Monday, Roca Labs filed a motion in a (failed, but we'll get to that) attempt to file an affidavit from Roca's "director of marketing," Don Juravin, supposedly about how the PissedConsumer site is acting unfairly. The affidavit repeats a bunch of claims from the original questionable lawsuit against PissedConsumer's parent company, Consumer Opinion Corp., but then adds the following:

On September 22, 2014 I purchased a promoted review on pissedconsumer.com for a monthly fee of $5.99 (See Exhibit C attached).

I placed an approved statement by television celebrity Alfonso Riberio [sic] who is currently a contestant on Dancing with the Stars about Roca Labs.

On September 22, 2014 I received a notice from Pissedconsumer.com that my review was canceled.... I received no explanation of why it was canceled.

Roca Labs is using this as a (rather weak) attempt to argue that PissedConsumer is engaged in some sort of unfair practices because it (Roca claims) "will not allow positive information to come forward."

This filing was quickly rejected by the court for procedural issues, focused on the failure of Roca Labs' lawyers to first confer with opposing counsel. However, before even that happened, Roca Labs filed another motion to "shorten time" for when Roca can file a motion for sanctions against PissedConsumer's lawyer, Marc Randazza. The reasoning behind the claim of sanction is not clear (it says a draft is attached, but it does not appear in PACER right now), but it seems to suggest that it's because of Randazza filing for a temporary injunction against Roca Labs threatening or suing the witnesses that have come forward on behalf of PissedConsumer and against Roca Labs. As we mentioned in our previous post, within days of PissedConsumer's legal response to Roca Labs, the company's "general counsel" had sent legal threat letters to all three former customers who had filed statements, even though Roca Labs hadn't had any dealings with two of them for over three years.

It's difficult to see how anything Randazza did was sanctionable (Roca Labs' lawyers' actions, on the other hand...). Either way, Randazza has now filed a rather revealing response, opposing the motion to shorten time, noting that it fails for the same procedural issue (and more) as the earlier filing and because there's basically no chance that the sanctions succeed. It notes that the court has reviewed his motion for the injunction and passed it along to a magistrate judge, who has asked Roca Labs to respond -- something that would be unlikely if the court felt his filing was somehow frivolous. It also fails to actually cite any legal authority for shortening the length of time.

And then there's this:

Finding its bullying tactics unsuccessful, Roca filed an unsupportable complaint, along with it, an unsupportable motion for injunctive relief. Thereafter, Roca began trying to intimidate witnesses. Then, Roca got even more desperate – submitting an affidavit... that contained demonstrable perjury – that the actor Alfonso Ribeiro (“Carlton” from “The Fresh Prince of Bel Air” and current “Dancing with the Stars” contestant) endorsed the Roca product..... See Exhibit A, a demand letter from Ribeiro’s attorneys attesting to the perjurious nature of Roca’s claims that their client approved any such statement.

Whoops. As can be seen in this letter, Ribeiro's lawyers appear rather upset about his likeness being used in this way and make it clear that it's unauthorized:

Ribeiro unequivocally is not, has never been and has no intention of ever becoming a paid spokesperson of the Product [Roca Labs]. Furthermore, Ribeiro has never personally used the Product and in no manner whatsoever endorses the Product.

The unauthorized Review and deceitful use of Ribeiro's name, image, likeness and falsely attributed quotes violates California Civil Code Section 3344, invades Ribeiro's common law rights of privacy and publicity, amounts to unfair competition, is an unfair business practices, and constitutes copyright infringement, among other causes of action.

I'm not sure that Roca Labs' usage would actually be "unfair competition" or "copyright infringement," but that might depend on other specifics. However, they make it clear that he has not and will not endorse the product, which would make this a total slam dunk publicity rights case (this is the exact type of situation that publicity rights law was designed for, even if people keep trying to stretch it). It is worth noting that the letter in question is to PissedConsumer, concerning its hosting of the review. That review -- which was up earlier this week when I saw it, has since been removed, noting the letter from Ribeiro's attorney.

Much more tellingly, a page that used to be on Roca Labs' own website showing the very same endorsement from Ribeiro has also disappeared from the site, though (as of this posting) it's still viewable via Google cache. Here's a screenshot to show that it absolutely existed: There is a photo of what appears to be Ribeiro holding Roca Labs' product -- so there may be some questions raised about whether he did or did not endorse the product at some point, but his lawyers seem fairly definitive in saying he did not. The fact that Roca has removed the page from its own site also says a lot (and none of it good for Roca Labs).

And, we're not done yet. Roca Labs' lawyer, Paul Berger, also sent threatening emails to Randazza himself, suggesting that Randazza had been "making defamatory comments" to the media. The email exchange, which Randazza filed as an exhibit with his filing, shows Randazza responding to Berger asking what specific defamatory quote he's talking about. Berger instead quotes PissedConsumer's legal filing (about calling Roca Labs' product "snake oil"), which we (and, I believe) other news publications, quoted. Randazza pointed out to Berger that it was not a quote from him but rather in his pleadings, and then asked (one assumes, sarcastically) if Berger is truly asking Randazza to retract a statement from his motion for preliminary injunction. I would assume that Berger is aware of the concept of litigation privilege, so either he didn't fully read Randazza's earlier filings, he forgot about litigation privilege, or he's just blustering for the sake of blustering. Randazza's latest filing suggests the latter may be the case:

The desperation continued with Roca threatening personal claims against the Defendants’ attorney for statements made in the course of litigation.

Also, for whatever it's worth, Berger accuses Randazza of distributing the filings to reporters, perhaps unaware that we reporters are also allowed access to PACER and can (and do!) download documents ourselves. Shocking, I know.

Either way, the Roca Labs case is taking on the stench of Righthaven- and Prenda-like desperation. Given what's happened so far, I imagine there are still more interesting things to come.

Update: And... just like that, the court has denied the motion to shorten time on the procedural issues around the failure to confer with opposing counsel.

Filed Under: alfonso ribeiro, endorsement, marc randazza, opinions, paul berger, publicity rights, reviews, sanctions
Companies: consumer opinion corp., pissedconsumer, roca labs

Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca In PissedConsumer Case

from the the-ultimate-in-sleazy dept

The Roca Labs story keeps getting more and more ridiculous. Each time you think the company couldn't act in a way that seems even more sleazy and questionable, it raises the bar. If you don't recall, Roca Labs sells a "dietary supplement" (they describe it as a "food additive" or a "nutraceutical") that, according to one doctor, "consists primarily of industrial food thickening agents" which the company claims is an "alternative" to gastric bypass surgery. More importantly, the company has some crazy terms of service that say if you buy the product the company will offer a "discount" in exchange for agreeing to never say anything negative about the product ever in any form (and requiring you to allow the company to showcase any positive results). One of our readers went through the ordering process and claims that the "discount" is a mirage -- as there appeared to be no way to order without the "discount" (i.e., without agreeing to the gag clause). Despite all this, there are numerous complaints about Roca Labs and its product both with the Better Business Bureau (which gives the company an F grade) and with PissedConsumer, where people have complained about both the company and the product.

In response, Roca Labs used some unique legal theories to sue PissedConsumer's parent company, Consumer Opinion Corp., claiming that it's "tortious interference" to solicit consumer reviews, given the company's gag order. PissedConsumer fought back, arguing that the gag clause was clearly unenforceable, questioning the quality of Roca's products, and highlighting the company's history of threatening lawsuits when people complained to the Better Business Bureau. On top of all that, we noted that Roca Labs decided, in the midst of all this, to sue a former customer for complaining to the Better Business Bureau. This lawsuit was filed the day after PissedConsumer responded to Roca's lawsuit, the timing of which will become more interesting as you read a little further.

If you're keeping score at home, among the questionable actions by Roca Labs (leaving aside any questions about the efficacy and safety of the product), we've got (1) a gag order that both demands silence if you're unhappy and compels endorsement if you are happy, (2) a questionable legal threat against a website that collects consumer reviews, and (3) legal threats and lawsuits against unhappy customers for merely complaining to the BBB about Roca Labs.

And now the company has taken it up to another level. As we noted, when PissedConsumer fought back, it included declarations from three former customers, all of whom had complained to the BBB. It had been a while since any of those former customers had heard from Roca Labs, but four days after PissedConsumer's response, all three of those customers received new letters from Roca Labs, threatening legal action for "breach of contract."

Marc Randazza, the lawyer for PissedConsumer, has now filed for a temporary restraining order against Roca Labs, claiming that the company is engaged in witness intimidation.

Via the attachments in the filing, you can see that Randazza had a ridiculous email conversation with Roca Labs' lawyer, Paul Berger, in which Randazza bent over backwards offering to allow the company to file such lawsuits if needed to avoid a statute of limitations, but otherwise asked the company to defer any such threats or legal action until after the court expresses an opinion on the legitimacy of Roca's gag order (which is expected next week). Berger appears unwilling to respond directly to what Randazza is clearly offering, and also makes some bizarre claims about not being able to respond as the legal representative of Roca Labs, despite his own email signature noting that he's the "independent general counsel" for the company and the fact that all the threat letters came directly from him (his reason: not being admitted to the bar in that part of Florida -- a meaningless excuse for the purpose of communications between lawyers, since that only concerns his ability to appear in court).

In the threat letters to the three customers sent on Monday morning, September 22nd, Berger directly references that one lawsuit he filed the previous Friday, September 19th, as evidence of the "seriousness" with which Roca takes these issues. So, the timeline: on Thursday, September 18th, PissedConsumer responds to Roca's lawsuit, including declarations from three former customers who complained to the Better Business Bureau, only to receive initial threats from Roca soon after, though no actual lawsuit (two of these happened in 2011, one earlier in 2014). On Friday, Roca sues a different former customer who complained to the Better Business Bureau. Then, early Monday morning, Roca sends letters to the three former customers whose declarations were part of the Thursday filing, pointing to the Friday lawsuit as evidence of how the company will sue customers who complain to the BBB. You can see all three threats embedded below.

As Randazza notes in his own filing, this appears to be a fairly clear attempt to "intimidate and harass defense witnesses." From the filing:

So far, three of Roca’s prior customers have agreed to serve as witnesses. Most others declined to respond, wishing to not get involved, out of fear that Roca would retaliate against them for testifying. Those concerns proved to be well-founded, as Roca threatened all three of the witnesses Opinion Corp. identified. The timing of its aggression against these three women makes its intentions transparent – Roca wants to intimidate them and any other potential witnesses in this case.

As for Ms. Walsh and Ms. Anderson, it has been in excess of three years since they lodged their complaints with the Better Business Bureau. Roca threatened litigation at the outset, demanding they retract their complaints. Roca then went completely silent for more than three years. However, after such a long period of dormancy Roca now seeks to threaten imminent legal action against these witnesses. Nothing could have motivated Roca to reach out to these women after such a long period other than to try and intimidate witnesses in this case.

The filing only seeks a rather brief temporary restraining order, asking the court to block Roca from any such threats or lawsuits until after the October 8th hearing in this case, when it's likely the judge will determine if the original gag order from Roca Labs is legit. As Randazza notes, the only possible "harm" to Roca is delaying a possible lawsuit by less than two weeks (which seems completely minor given that Roca Labs ignored the issue with at least two of the customers in question for over three years). Furthermore, Randazza asks for any and all communications with those and other potential witnesses in the case to make sure that there hasn't been anything else that might be deemed witness harassment or intimidation.

Filed Under: consumer reviews, evidence, intimidation, lawsuits, marc randazza, opinions, paul berger, reviews, tampering, threats, witness
Companies: consumer opinion corp., roca labs

California Outlaws Consumer-Silencing Non-Disparagement Clauses

from the seeking-redress-in-form-of-head-punching-tabled dept

In one state, at least, non-disparagement clauses like the one KlearGear tried to use to extract $3,500 from unhappy customers, will be illegal. California governor Jerry Brown has just signed a bill that will prevent companies from silencing customers with non-disparagement clauses buried in Terms and Conditions pages.

Here's the relevant text of the bill:

(a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

Violating this could result in a fine of $2,500 for a first violation (up to $10,000 for "flagrant" violations), which unfortunately means KlearGear (which is specifically referenced in the discussion of the bill) would still net $1,000 -- at least the first time it gets away with it. (Which it hasn't, and apparently never will -- that clause has been removed from its website. Also, no one can seem to find an actual human being connected to the company selling so much stuff it can barely be described in a ridiculous press release.) Since most companies aren't willing to charge the equivalent of a low-end used car for negative reviews, this bill pretty much ensures no one will be seeking to enforce non-disparagement clauses in California. Simply having the clause -- even if it's never enforced -- could result in a fine.

This is a win for consumers, at least as far as it can be enforced. As has been noted here, there's more than a few companies combining crappy service with hefty fines that don't seem to actually exist outside of a Mailboxes, Etc. addresses. Laws are tough to enforce when you can't find anyone to hold accountable. The worst part is that by the time most consumers discover they're dealing with a company that will charge them for negative reviews, these companies already have their credit card information and can start adding these charges to their balances.

The good news is that it's illegal in this state. Preemptive action can be taken to uncover these illegal terms and conditions in order to either push the companies towards complying with the state law or (better) getting them to drop these clauses altogether.

A law preventing these is good, and there needs to be more of them, but the best steps are still preventive. Plenty of sites keep an eye out for consumers and are usually the first to call out this behavior. Enough public outcry and these sites are either blackballed or shuttered completely. The threat of enforcement may be enough to deter some behavior, but when it comes down to it, the entity that best serves the public's interests is still the public.

Filed Under: california, free speech, non-disparagement clauses, opinions, reviews
Companies: kleargear

Canadian Librarians 'Owe Duty Of Loyalty To The Government,' Must Self-Censor Opinions Even In Private

from the maintaining-awareness dept

Librarians can play an important role in any society that depends increasingly on access to information to function. One of their jobs is to help people find what they are looking for, in a neutral, objective way, without imposing their own ideas or values in the process. Sadly, it looks like that won't be possible in Canada any more, now that librarians are expected to sign up to a new Code of Conduct imposed on them by the Canadian government. Here's one problematic section:

Employment in the public service involves certain restrictions. Public servants owe a duty of loyalty to their employer, the Government of Canada. This duty derives from the essential mission of the public service to help the duly elected government, under law, to serve the public interest and implement government policies and ministerial decisions. The duty of loyalty reflects the importance and necessity of having an impartial and effective public service in order to achieve this mission.

"A duty of loyalty to their employer, the Government of Canada": I think Stalin would have approved of that. Although there is a token invocation of "the importance and necessity of having an impartial and effective public service", it's clear that obedience to the ruling powers overrides any misguided desire to be impartial. That imposition of an overtly political line to everything librarians do in their jobs is bad enough, but it gets worse:

As public servants, our duty of loyalty to the Government of Canada and its elected officials extends beyond our workplace to our personal activities. Public servants must therefore use caution when making public comments, expressing personal opinions or taking actions that could potentially damage LAC [Library and Archives Canada]'s reputation and/or public confidence in the public service and the Government of Canada. They must maintain awareness of their surroundings, their audience and how their words or actions could be interpreted (or misinterpreted).

"Maintain awareness of their surroundings" is a particularly fine Orwellian phrase that basically means: watch what you say, or else there will be trouble. Of course, one famously dangerous environment is the online world:

With the current proliferation of social media, public servants need to pay particular attention to their participation in these forums. For example, in a blog with access limited to certain friends, personal opinions about a new departmental or Government of Canada program intended to be expressed to a limited audience can, through no fault of the public servant, become public and the author identified. The public servant could be subject to disciplinary measures, as the simple act of limiting access to the blog does not negate a public servant's duty of loyalty to the elected government. Only authorized spokespersons can issue statements or make comments about LAC's position on a given subject. If you are asked for LAC's position, you must refer the inquiries, through your manager, to the authorized LACspokesperson.

Yes, you see, even that private little blog where you make a witty remark about the stupidity of some of Canada's glorious leaders could cause you to be subject to "disciplinary measures" (and please, do remember that parts of Canada are just as cold as Siberia....)

The attempt to dress up this pompous control-freakery as moderate and reasonable -- "through no fault of the public servant" etc. etc. -- would be rather amusing were it not part of a much larger move by Canada's rulers to stifle dissent. Canadian scientists, for example, have been subject to these kind of humiliating restrictions for some time, as the BBC reported last year:

The allegation of "muzzling" came up at a session of the AAAS [American Association for the Advancement of Science] meeting to discuss the impact of a media protocol introduced by the Conservative government shortly after it was elected in 2008.

The protocol requires that all interview requests for scientists employed by the government must first be cleared by officials. A decision as to whether to allow the interview can take several days, which can prevent government scientists commenting on breaking news stories.

Sources say that requests are often refused and when interviews are granted, government media relations officials can and do ask for written questions to be submitted in advance and elect to sit in on the interview.

Adapting some words penned in a much more serious situation, we might say:

First they censored the scientists, and I did not speak out, because I was not a scientist.

Then they censored the librarians, and I did not speak out, because I was not a librarian.

Then they censored me, and there was no one left to speak for me.

Now might be a good time for Canadians to say "enough is enough"....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: canada, censorship, free speech, librarians, loyalty to the government, opinions

RIAA/IFPI Explored Possible Lawsuit Against Google For Not Ranking iTunes Above Pirate Bay

from the good-luck-with-that dept

Over the years we've seen a few lawsuits against Google because companies are upset that they don't rank high enough in search results. Those companies seem to think there's some sort of legal right to being ranked where they want to be ranked. Pretty much all of those lawsuits have resulted in dismissals. Google's search rankings are an opinion and thus protected under the First Amendment.

Of course, most of those suing over this are kooks... but apparently a much larger potential lawsuit on this issue has been considered. The IFPI and the RIAA supposedly have asked for a confidential legal analysis concerning the legal issues if they sued Google for sometimes showing unauthorized sites above authorized sites in its search results. In other words, in the mind of the RIAA/IFPI if Google shows The Pirate Bay over iTunes... that must be illegal:

“Google continues to fail to prioritize legal music sites over illegal sites in search results, claiming that its algorithm for search results is based on the relevance of sites to consumers,” the document states.

“With a view to addressing this failure, IFPI obtained a highly confidential and preliminary legal opinion in July 2011 on the possibility of bringing a competition law complaint against Google for abuse of its dominant position, given the distortion of the market for legitimate online music that is likely to result from Google’s prioritizing of illegal sites.”

Of course all of this shows a massive misunderstanding of how Google works. The IFPI seems to honestly think that Google employees are making a conscious choice that "let's rank these unauthorized sites higher." They don't seem to understand how algorithmic search results work.

The fact that no lawsuit has appeared since July suggests that (hopefully) the "legal opinion" explained to the IFPI that any such lawsuit would likely be laughed out of court. Hell they just had to look at the dismissal of the myTriggers lawsuit in September if they wanted to understand why such a legal strategy is destined to fail miserably.

Filed Under: free speech, opinions, rankings, search
Companies: google, ifpi, riaa

Insanity: Getting Worked Up Over One Company's Slight Change Of Opinion In The Creditworthiness Of The US

from the it's-an-opinion dept

You may have heard (or, at least, I hope you heard) that, late Friday, S&P downgraded the US's credit rating from AAA to AA-plus, causing all sorts of hair pulling and worry. Here's the part that makes no sense: S&P's rating of the safety of US debt is simply an opinion. It's certainly a high profile opinion, but it's still an opinion. What I can't figure out is why anyone is making a big deal of one private company making a slight change to its opinion. People are acting as if this change is a change in facts. They're acting as if an S&P downgrade actually makes US debt less trusthworthy. It does not. The US may very well not be that trustworthy on its debt (in fact, I find that argument quite compelling these days), but having one company say that is meaningless.

We've discussed this before. For absolutely no good reason, the US government decided to put the opinion of various rating agencies into law, requiring certain institutions to maintain certain percentages of "highly rated" bonds in order to engage in certain activities. The insanity is that it effectively forced the world to think about ratings from S&P and Moody's as if they were fact, even though they're really just opinions. And to do all of this even if their ratings go against one's own opinion. And, of course, we all know that the ratings agencies are far from perfect, and have an unfortunate history that suggests that, at times, they've succumbed to pressure.

So, even if you believe that the US government's financial position is a disaster (and, again, a case can be made for that), it's crazy to pretend that one company changing its opinion (just slightly) has any actual meaning. Most of the market can and does make its own decisions on the creditworthiness of US debt, no matter what S&P says. In other words, the (slim) risk of the US actually defaulting is already priced in. The S&P saying what people are already thinking doesn't mean that anything fundamental changed... other than its opinion.

Markets are made based on the interaction of buyers and sellers. Not the (sometimes questionable) opinions of just a few firms.

Filed Under: debt, economy, opinions, ratings, united states
Companies: s&p