Backpage Kills Adult Ads On The Same Day Supreme Court Backed Its Legal Protections, Due To Grandstanding Senators

from the someone-teach-the-senate-the-law? dept

A few years back, we detailed how ongoing grandstanding and toothless legal threats finally forced Craigslist to shut down its "adult services" section. None of that did anything to stop prostitution or human trafficking online. It just moved to other sites -- which was particularly ridiculous, given that Craigslist had been proactive in working with law enforcement to help them track down the actual perpetrators of crimes via the site. And, the illegal behavior just moved on to somewhere else -- as did the ridiculous grandstanding. The main target since Craigslist shut down its services: Backpage.com, the Craigslist-alike site that spun off from Village Voice Media. And now, after an even more intense grandstanding and legal campaign, Backpage has also been pressured to shut down its adult section. If you go to it now, you'll see this instead: And here's the craziest part. This happened on the same day the Supreme Court basically said Backpage is legal and the legal claims against it are bogus. But the law is apparently meaningless in the face of a pair of grandstanding Senators who want their names in the headlines, pretending they care about human trafficking, while actually making the problems worse.

Last May, we wrote about an excellent 1st Circuit appeals court victory for Backpage.com, which (like nearly every other court before them) found that the site was clearly protected by Section 230 of the Communications Decency Act. As we've discussed many, many times, there are a number of people out there who would like to ignore the fact that while some users of Backpage may be violating the law to engage in prostitution, the proper response is to go after those actually breaking the law, and not the platform they're using. That's the very heart of Section 230, and it's exactly what many, many courts have realized. The case we wrote about last May (and also wrote about when Backpage prevailed at the district court level the previous May) involved three clear victims: women who were forced into selling sex as teenage runaways. Their situation is undoubtedly awful -- but it was the fault of those who exploited and abused them, and not the online service they happened to use.

On Monday, the Supreme Court effectively put its stamp of approval on the 1st Circuit appeals court ruling by denying the plaintiff's petition to hear an appeal on that ruling. While it's not quite the same as saying that the Supreme Court fully endorsed the opinion of the 1st Circuit saying that Section 230 clearly protects Backpage from being blamed for how people use the site, it certainly suggests that the court didn't see any major problems with the ruling.

But... there's just something about Backpage that makes politicians want to stupidly and misleadingly grandstand. Just hours after the Supreme Court effectively blessed the 1st Circuit ruling saying Backpage hadn't broken the law, Senator Claire McCaskill released a report (with Senator Rob Portman) that blasts Backpage for "knowing facilitation of online sex trafficking." This is in advance of a grandstanding Senate hearing that McCaskill/Portman have prepared to parade out the executives of Backpage to yell at them for facilitating sex trafficking, even just as the Supreme Court has basically said this entire line of argument is completely bogus.

The report is a joke. The crux of the report is that, via subpoena, the Senate staffers were able to determine that Backpage edits and or bans certain words that indicate an ad is for prostitution. Let me repeat that: the Senate is mainly annoyed that Backpage proactively looks for and blocks situations where it appears that the ads may be for prostitution -- especially involving children. Yet, the Senate investigators twist this to make it sound like a bad thing.

Over time, Backpage reprogrammed its electronic filters to reject an ad in its entirety if it contained certain egregious words suggestive of sex trafficking. But the company implemented this change by coaching its customers on how to post “clean” ads for illegal transactions. When a user attempted to post an ad with a forbidden word, the user would receive an error message identifying the problematic word choice to “help” the user, as Ferrer put it. For example, in 2012, a user advertising sex with a “teen” would get the error message: “Sorry, ‘teen’ is a banned term.” Through simply redrafting the ad, the user would be permitted to post a sanitized version.

I'm not entirely clear what they're complaining about here. You could also quite clearly see this as Backpage letting users know that it is not a place that should be used for sex trafficking, because it clearly alerts them to things that they don't want on the site. But the Senate staffers seem to have intentionally spun this to appear in the absolute worst light.

On top of that, Section 230 is again quite clear that any effort a platform does take to moderate stuff doesn't change the fact that a site is protected from liability. And that's to encourage exactly the type of behavior that Backpage is already doing: which is choosing voluntarily to block certain types of ads that they don't want. Now, I'm sure some will argue, as the Senate report tries to say, that because Backpage then allows another ad without the "banned" words through, that it's not stopping the underlying activity, but that's basically mandating that any online platform have incredibly adaptive and complex filters to make sure that anyone who tries to get around their filters cannot do so. That's a very dangerous precedent, and would basically make it impossible for any online service to exist, without being massive.

The report argues that the "editing" of posts by Backpage takes away 230 immunity:

Backpage and its officers have successfully invoked Section 230 in at least two other cases to avoid criminal or civil responsibility for activities on the site. In neither case, however, did the court have before it evidence that Backpage had moved beyond passive publication of third-party content to editing content to conceal illegality.

The argument here rests on the ruling in the infamous Roommates.com case from nearly a decade ago -- which remains the biggest case where a Section 230 defense failed. But that's a very different situation. Roommates.com failed because the Roommates system itself was asking questions deemed to be illegal under housing law (about racial preferences and such). That was part of the site that was fully created and controlled by Roommates.com. The difference here is that while Backpage may be running some of its posts through a filter, that's to moderate the content to remove descriptions of illegal sex trafficking or illegal prostitution. In other words, what Backpage is doing is actually moderating content, which is explicitly allowed and encouraged by the "Good Samirtan clause" of CDA 230, found in section (c). That part of the law says that the immunity applies even for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." It seems quite clear that Backpage editing posts to remove such content falls squarely into that bucket.

The report is also strange in that it uses Backpage's own helpfulness to law enforcement against it. It highlights how law enforcement regularly gets reports and details of child trafficking because of Backpage:

According to the latest report from NCMEC, 73% of the suspected child trafficking reports it receives from the public involve Backpage. According to the Massachusetts Attorney General, “[t]he vast majority of prosecutions for sex trafficking now involve online advertising, and most of those advertisements appear on Backpage."

In other words, one of the best tools out there for finding and stopping sex trafficking is... Backpage.com. And the Senators response is to blame Backpage and make them legally liable? How does that make any sense at all? Now that Backpage has shut down those ads, they'll scatter elsewhere. Sex trafficking won't stop and it will be harder for law enforcement to track down and find actual perpetrators or save actual victims. Let's be clear: Senators McCaskill and Portman, in an effort to get their names in the headlines, have just made sex trafficking easier, by making law enforcement's job harder.

The report also makes a big deal out of the fact that Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what? That's like the same claims that the legacy entertainment industry made about YouTube. Just because you know that a site can and sometimes is used for illegal behavior does not automatically make the site liable for that illegal activity. That's quite clear under Section 230, yet totally ignored by this report.

The Supreme Court got this right... while Senators Claire McCaskill and Rob Portman appear to be yet another set of politicians who are grandstanding by blaming a platform, rather than doing anything that will actually help stop sex trafficking. And the end result is that Backpage has shuttered that section. This won't stop or even diminish sex trafficking and prostitution online. Just as it moved from Craigslist to Backpage, it will continue to move elsewhere -- and that will probably be to a site that is even less willing to work with law enforcement to help track down and stop real illegal behavior. Similarly, this witchhunt has taught any new platform that any attempt to diminish the blatant use for sex trafficking and prostitution will be twisted to pretend that it's just trying to "hide" that activity.

This is a travesty. McCaskill and Portman will get their headlines, and sex trafficking will continue -- it will just be harder to help actual victims.

Filed Under: cda 230, claire mccaskill, grandstanding, rob portman, section 230, sex trafficking, supreme court
Companies: backpage

The Battle Over Public Performance Rights Of Old Music Heats Up: NY Rejects, Supreme Court Petitioned

from the not-done-yet dept

For many years now we've been covering the ridiculous legal disputes over pre-1972 sound recordings. Without going into all of the history, the short version is that while music compositions have long been covered by copyright, the actual sound recordings were not until the early 1970s, going into effect in early 1972. Under the legal regime at the time, the 1909 Copyright Act, it was widely accepted that sound recordings could not qualify for copyright under federal copyright law until that law was changed in the run-up to the 1976 Copyright Act. However, due to a lot of lobbying, many states set up either state-based copyright regulations, or a common law regime through the courts, that recognized certain copyright-like exclusive rights in sound recordings. These were all basically wiped out with the 1976 Act, which included a preemption clause that basically said all copyright is now federal and state copyright law is wiped out. That left a gray area, though, for pre-1972 sound recordings, which technically weren't covered by federal copyright law, but it was unclear if state law applied. That created some problems, including extending the length of copyright on those sound recordings way, way, way beyond when they would have gone into the public domain.

A few years ago, we wrote about how these state laws were potentially leading to the permanent loss of classic jazz recordings that might never reach the public domain, and which no one can actually listen to. There's an easy solution to this, which is just to extend federal copyright law to pre-1972 sound recordings and put them under the same regime as everything else (which has it's own problems, but it's better than the mess we're in now). But, of all things, the RIAA and record labels have rejected this, mainly because they see these state laws as a great tool to squeeze extra money out of companies (and to avoid those works ever reaching the public domain).

After years of arguing over what to do about pre-1972 works, the recording industry finally just started suing everyone over the use of pre-1972 sound recordings. The key issue was about public performance rights. To understand this, we have to wade further into the weeds. Federal copyright law gives copyright holders a number of "exclusive rights" under copyright. The ones you mostly hear about are the reproduction right and the distribution right. But there's also the right to prepare derivative works and the right "to perform the copyrighted work publicly."

That public performance right was a relatively new concept, and had never been seen in the various state copyright regimes prior to the 1976 Copyright Act that then (mostly) abolished state copyright laws. In fact, public performance rights in federal copyright explicitly excluded sound recordings -- until 1995 when a new copyright law extended public performance rights to sound recordings, but solely for digital radio services (and not to radio, restaurants, stores, bars, etc). But the recording industry's theory was that even if sound recordings weren't under federal copyright law, when federal copyright law created a public performance right, that right magically moved over into state copyright law as well... and, magically, it applied to all the stuff that federal copyright law said it didn't cover (though, at the same time, they insist that things like the DMCA's safe harbors do not translate into state copyright laws -- which is a neat trick).

The lawsuits to date have been a mixed bag. Sirius lost some early rounds, upsetting decades of consensus about copyright law. The first case it lost was in California, but soon after it lost a case in New York as well, even as the judge admitted this upset decades of consensus. A court in Florida eventually sided with Sirius, but the company then quickly settled with the RIAA.

However, the case in NY was appealed and Sirius has now won on appeal. This is a pretty big deal. The full ruling is long, but worth reading. As the court rightly notes (and as we did back when the original decision came out, only to be mocked by copyright maximalists) this would upset decades of widespread consensus over what state copyright laws covered, and that makes no sense at all:

Indeed, it would be illogical to conclude that the right of public performance would have existed for decades without the courts recognizing such a right as a matter of state common law, and in the absence of any artist or record company attempting to enforce that right in this state until now. The absence of a right of public performance in sound recordings was discussed at the federal level for years and became acutely highlighted in 1971, upon enactment of the Sound Recording Amendment, and again in 1995, upon enactment of the DPRA. At those times, all interested parties were placed on notice of the statute's limited rights for post-1972 sound recordings. Although parties do not lose their rights merely by failing to enforce them, the fact that holders of rights to sound recordings took no action whatsoever to assert common-law protection for at least the past four decades -- when the absence of a comprehensive federal right of public performance for sound recordings was clear -- supports our conclusion that artists and copyright holders did not believe such a right existed in the common law.

Instead, common sense supports the explanation, articulated by the Third Circuit, that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales

The court notes that, yes, the industry has changed due to technology, but that's no excuse for the recording industry to suddenly pretend that these rights existed for decades and everyone ignored them until now.

Simply stated, New York's common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now.

Given that, the court says, if there needs to be such a right, it should be created by the legislature through laws, not the court making it up as it goes along. The court further notes that Congress carefully analyzed this issue, and it would be wrong for courts to rush in -- especially since without the balancing act of legislators, it might create a right that (you guessed it...) the record labels would use to scoop of money without giving any to the artists:

We cannot ignore the fact that Congress studied the nature and scope of the right to the public performance of sound recordings for nearly two decades before revising the federal statutes to recognize a limited right. Indeed, in 1976, Congress "considered at length the arguments in favor of establishing a limited performance right, in the form of a compulsory license, for copyrighted sound recordings, but concluded that the problem require[d] further study".... As directed by the Copyright Act of 1976, the Register of Copyrights submitted a voluminous report in 1978, recommending that Congress enact a limited right to control public performances of sound recordings. Not until 1995 did Congress take action on that recommendation and enact any such right and, even then, the right it created was a narrow one circumscribed by a nuanced regulatory scheme limited to digital transmissions of post-1972 sound recordings.... Moreover, as part of that statutory scheme, Congress included a requirement that the copyright holder pay a portion of the royalties to the recording artist; even if we were to recognize a common-law copyright to public performance, there is no guarantee that the artists would receive any portion of the royalties, as many copyrights are apparently held by the record companies. Ultimately, it cannot be overstated that, if this Court were to recognize a right of public performance under the common law, we would be ill-equipped -- or simply unable -- to create a structure of rules to properly guide the application of that right.

There is a dissent, that says the court can just use federal copyright law's public performance rights and move them over to state copyright law, but the majority opinion points out what a mess that would create.

While the dissent notes that the federal law reflects Congress's balancing of the varied and competing interests involved, this only highlights that a legislative body -- not the courts -- should make decisions regarding such a right. Additionally, it would be highly unusual for this Court to simply adopt federal statutes as the embodiment of the scope of a state common-law right. Moreover, as a practical matter, not all aspects of the complex federal scheme can be directly incorporated under our common law. For example, in the DPRA, Congress provided a means of determining reasonable rates and royalty payments, including a dispute resolution system.... However, state courts have no authority to require the federal Copyright Royalty Judges to adjudicate challenges to royalty rates on pre-1972 sound recordings ... nor do we have the authority to create a New York State version of that dispute resolution system.

There's also a somewhat weird concurring opinion, that agrees that there's no public performance right, but based on nothing at all, theorizes that services like Spotify and Apple Music (which are not parties to this particular lawsuit) may have issues with violating the exclusivity in publishing rights.

With respect to the fourth step on my continuum, certain Internet broadcasters -- such as Apple Music, Spotify's premium subscription, Rhapsody, and Amazon's Music Unlimited offering -- permit users to peruse a catalog of millions of songs and to "call them up on any device, including [one's] phone, anytime [one] wants"....

In determining whether there is a common law right of public performance for recordings fixed prior to February 15, 1972, we necessarily have occasion to speak to the nature and the limits of such right. In the realm of federal copyright law, "publication" is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending".... To allow a user to regularly, specifically, and directly access an exact sound recording "ondemand" is not to facilitate the "public performance" of such recording, but to publish that work and therefore to infringe upon the right of the copyright holder to sell it ....

[....]

We must recognize that the rental or lease of sound recordings fixed prior to February 15, 1972 by Internet broadcasters who provide the public "on-demand" access to such recordings is a form of publication under copyright law.

It seems weird and unnecessary (in the extreme) for a judge to try to address a totally different situation, one that the court wasn't fully briefed on) involving parties who aren't even a part of the lawsuit. Obviously the concurring opinion has no precedential value, but it's troubling that the judge would jump to such a conclusion anyway.

Of course, with this ruling conflicting with other rulings, this still seems like an issue that the Supreme Court is going to have to weigh in on. And... just last week, the Supreme Court was petitioned to hear another case involving pre-1972 works. This is another one that we've been following as well, where the record labels sued the online video site Vimeo, mainly over employee uploaded "lipdubs" of various songs. Part of the issue in that case was whether or not the DMCA's safe harbors applied to those pre-1972 sound recordings. While a district court rejected most of the arguments by the label, it did accept that pre-1972 sound recordings might not qualify for DMCA safe harbor protections.

The 2nd Circuit appeals court overturned that ruling earlier this year, noting that it would make no sense at all for the safe harbors not to apply to pre-1972 works, because that would undermine the very purpose of the DMCA safe harbors. Capitol Records is asking the Supreme Court to overturn the 2nd Circuit on that issue -- which may or may not get to the other issues related to pre-1972 music... but it would be nice for the Supreme Court to sort this all out one way or the other.

Filed Under: copyright, music, new york, performance rights, pre-1972 sound recordings, public performance rights, supreme court
Companies: capitol records, siriusxm, vimeo

Supreme Court Will Hear A Case That Could Finally Shut Down East Texas As The Patent Troll Mecca

from the smack-that-cafc dept

Last year, we wrote about an important patent case concerning the common practice of patent trolls going forum shopping. We've been writing about how patent trolls have been flocking to East Texas for ten years now, and little has changed. In fact, as we noted last year, there's one judge in East Texas, Judge Rodney Gilstrap, who famously handled 20% of all patent cases filed in the country in 2014. One judge. And that's not all the patent cases that come into that court. The towns of Marshall, Texas, and Tyler, Texas, have built a giant industry out of being super friendly to patent trolls. And it's ridiculous. But there's a case that could put an end to it and the Supreme Court has thankfully agreed to hear it. The case is called In Re: TC Heartland, and -- somewhat ironically -- it is not about a case filed in East Texas, but rather in the second favorite patent troll destination: Delaware (which has become more friendly to patent trolls over the last few years -- apparently trying to compete with East Texas for the "business.")

The underlying issue in the case is whether or not a 1990 ruling by the Court of Appeals for the Federal Circuit (CAFC) in the VE Holding v. Johnson Gas case basically threw open the floodgates on jurisdiction shopping for patent plaintiffs. This ruling was ridiculous on multiple levels, not the least of which was because one of the driving forces in setting up a centralized appeals court (CAFC) to hear all patent cases was to stop jurisdiction shopping that was happening in the patent space, where patent holders were rushing to favorable courts in favorable circuits. And, yes, the end result has been significantly worse forum shopping than anything that existed prior to CAFC's existence. And when CAFC got a chance to review this bad decision in hearing the TC Heartland case earlier this year... it didn't. It left the earlier rule standing.

The good news, of course, is that when the Supreme Court agrees to hear a patent case these days, it almost always means that CAFC is about to get spanked for being ridiculously bad at its main job of properly interpreting patent law. So hopefully things are lining up to see another SCOTUS smackdown of CAFC... and with that smack, an end to East Texas (or any particular jurisdiction) as a patent troll haven.

Filed Under: cafc, east texas, patents, supreme court, venue shopping
Companies: tc heartland

Supreme Court Adds Yet Another Smackdown To Patent Court, Says It Misinterpreted Patent Law In Apple/Samsung Case

from the not-how-patent-law-works dept

It's becoming a fairly standard thing at this point: patent cases make their way up to the Supreme Court (after traveling through the patent appeals court at the Federal Circuit, better known as CAFC), then the Supreme Court smacks down the CAFC ruling and reminds the court that CAFC doesn't seem to understand patent law at all. It's happened many times, and now we've got another one with a short and sweet ruling that puts Apple's famous big patent win against Samsung at risk. As you recall, Apple sued Samsung over copying iPhone/iPad designs, and after a long jury trial, Apple prevailed and was awarded $399 million. CAFC had upheld the award, despite Samsung noting (correctly) that since the design patents only covered a small part of the device, it was ridiculous to give Apple all the profits from the entire device.

The Supreme Court, in a unanimous smackdown of CAFC written by Justice Sotomayor, points out that patent law does not require the profits to be on the entire device, but could be on separate components.

This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible "article of manufacture" for the purpose of calculating §289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with §289. We hold that it is not.

In short: just because one small piece of a larger product infringes, it doesn't mean the patent holder should get all the profits.

The more weedy issue here was the definition of an "article of manufacture" which is how damages are calculated under patent law. Apple argued (and the lower courts agreed) that the single "article of manufacture" here was the total device (phone or tablet). Samsung, on the other hand, argued that there are lots of different components, each of which could be an "article of manufacture" and since it only infringed on a few distinct components, not all of the profit should be lost. As the ruling notes, it's pretty clear that "article of manufacture" can refer to just components as well as to the full product.

"Article of manufacture" has a broad meaning. An "article" is just "a particular thing." J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 ("[a]n individual thing or element of a class; a particular object or item"). And "manufacture" means "the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man" and "the articles so made." Stormonth 589; see also American Heritage Dictionary, at 1070 ("[t]he act, craft, or process of manufacturing products, especially on a large scale" or "[a] product that is manufactured"). An article of manufacture, then, is simply a thing made by hand or machine.

So understood, the term "article of manufacture" is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture.

And, of course, there's the slap directed at CAFC's wacky and wrong interpretation of patent law:

The Federal Circuit’s narrower reading of "article of manufacture" cannot be squared with the text of §289.

Of course, in unfortunately typical fashion, the Supreme Court punts on some of the bigger questions -- including what is the proper "article of manufacture" here in this case. Instead, it just says that the lower courts used the wrong standard and kicks it back to them to try again. This means that this case, that has been going on for roughly half a decade, is going to go on even longer. Apple may still get its giant reward, but for now Samsung gets another chance to convince the courts to lower it to just the components, rather than the profit on the overall devices.

Filed Under: article of manufacturing, cafc, damages, design patents, patents, supreme court
Companies: apple, samsung

Appeals Court Reinstates 'True Threat' Conviction Supreme Court Overturned, Still No Answers On First Amendment

from the welcome-back,-Anthony dept

A case about where free speech ends and "true threats" begin has made it all the way up to the Supreme Court and back and the question still remains unanswered.

Anthony Elonis has been engaged in a long legal battle in hopes of proving that a bunch of truly nasty things he posted on Facebook weren't threats, but rather "rap lyrics" posted solely for entertainment purposes.

Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff's department, and any SWAT team that might come to his house.

Elonis claimed these comments have been taken out of context -- the context being that his persona online is larger-than-life and those reading these posts were well aware of his tendency to post inflammatory, outrageous rants. For those posts, Elonis was also taken out of context -- at least as far as leading a normal day-to-day life is concerned. He was convicted and received a 44-month sentence.

The Supreme Court had a chance to examine the First Amendment issue at the center of it and hand down a ruling that might have cleared up some of the muddiness surrounding the dividing line between free speech and threats. Instead, it bypassed the First Amendment question and found procedural grounds for overturning Elonis' conviction.

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

The case was remanded to the Third Circuit Court of Appeals with the conviction overturned and the First Amendment question unanswered. That doesn't mean Elonis is a free man. The Appeals Court has reexamined the case in light of the Supreme Court's extremely narrow finding and ruled [PDF] that it had been right the whole time.

Anthony Elonis was convicted of violating 18 U.S.C. § 875(c), which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. We affirmed his conviction on appeal, but the Supreme Court reversed our judgment. It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.

The sole issue the Supreme Court directly addressed and found to be significant enough to overturn the conviction is nothing but a "harmless error" in the eyes of the Third Circuit. No definitive answers on free speech protections, and Anthony Elonis gets nothing more than a very long tour of the US court system culminating in an appeals court shrug.

Filed Under: anthony elonis, first amendment, free speech, social media, supreme court

Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case

from the hmmm dept

The copyright case involving Stephanie Lenz and her dancing baby is one that may finally be nearing a conclusion after many, many years -- but it's not over yet. As you may recall, Lenz posted a very brief clip of her then toddler, dancing along to a few seconds of a barely audible Prince song. This was almost a decade ago. Universal Music sent a DMCA takedown, and that kicked off a big fight over fair use, with the EFF representing Lenz and arguing that Universal Music needed to take fair use into account before issuing takedowns. The case then bounced around courts for nearly a decade with a variety of rulings, eventually getting a huge confusing mess of a ruling from the 9th Circuit last year, followed by an only marginally better mess earlier this year in an en banc decision replacing the original one.

Both EFF and Universal Music asked the Supreme Court to hear different questions about the messy 9th circuit ruling, and lots of other folks weighed in with amicus briefs, including internet companies and the RIAA (not on the same side, as you might imagine). The general consensus seemed to be that it was a long shot that the Supreme Court would bother with the case, even as it was kind of a mess, but the Supreme Court this morning kept things alive by asking the White House Solicitor General to weigh in (on page 2 of the document).

LENZ, STEPHANIE V. UNIVERSAL MUSIC CORP., ET AL.

The Solicitor General is invited to file a brief in this case expressing the views of the United States.

So... now everyone gets to sit and wonder what the hell the Solicitor General is going to say. The fact that former MPAA lawyer Donald Verrilli is no longer the Solicitor General is at least mildly encouraging, since his views on copyright appeared to be positively draconian. But it's anybody's guess how the acting Solicitor General, Ian Gershengorn, and his staff will respond to the request. I don't think Gershengorn has much experience with copyright issues, but prior to jumping into the Obama administration, he did work at Jenner & Block, which was where Verrilli worked as well. And others on the staff have been shown to have some wacky ideas about copyright in the past.

But, for now, we'll have to wait and see -- but it also means that the case is still alive. With any luck, it'll be over before Lenz's "dancing baby" graduates high school.

Filed Under: copyright, donald verrilli, fair use, ian gershengorn, solicitor general, stephanie lenz, supreme court
Companies: eff, universal music

After Appeals Court Flip-Flop, Aaron Graham Asks Supreme Court To Examine Warrantless Access To Cell Location Info

from the one-more-time dept

Aaron Graham -- the defendant at the center of a Fourth Amendment dispute over the warrantless acquisition of cell site location info -- is hoping to get one more court to take a look at his case.

Last summer, the 4th Circuit Court of Appeals became the first appeals court to institute a warrant requirement for historical CSLI. As was noted then, the court found that the records generated by cell phones (and held by phone companies) had an expectation of privacy -- at least when obtained for a significant period of time. In Graham's case, the government obtained 221 days of historical cell site location data -- the sort of extended period the Appeals Court found troubling… originally.

The government appealed and attempted to differentiate its long-term, post-facto tracking of Graham's movements with eight months of CSLI from the Supreme Court's Jones decision -- which (sort of) found that deploying a surreptitious GPS tracker required the use of a warrant. It claimed this form of location tracking was completely different than the other form of location tracking, mainly because in Graham's case the tracking was done by the phone company. The government simply benefitted from the warrantless collection of records the phone company was already compiling.

The court bought the government's arguments the second time around. The short-lived warrant requirement was removed and the 1979 definition of the Third Party Doctrine (Smith v. Maryland) was reinstated. The dissent correctly pointed out that no cell phone user voluntarily turns over location data to service providers. It's just something that has to happen for phones to make calls or access data. It also pointed out that, unlike other third-party records, customers aren't allowed to access their own cell site location data. Only the phone company and the government can do that, even though it's the customer generating the records and paying for their collection and storage.

Graham is now petitioning [PDF] the Supreme Court to review the case. (h/t Gitmo Watch) If it does, things could get interesting. Unfortunately, there's no telling which version of "interesting" we'll get.

As it stands now, there's no cohesive stance on CSLI in the nation's courts. If there are precedential findings, most side with the government's Third Party Doctrine theory. A few lower courts have recognized an expectation of privacy in these auto-generated records, but at the Appeals Court level, nothing else has come down in favor of this finding. There are some open pending appeals, but no rulings have been handed down yet.

The cert petition notes that courts should not be so quick to extend a benefit of a doubt to law enforcement agencies who do everything they can to avoid filling out a search warrant application.

Leon explains that police officers who obtain a warrant that appears to satisfy the probable cause requirement can “literally” do “nothing more . . . in seeking to comply with the law.” Id. at 921 (internal quotation omitted). Suppressing evidence after a police officer conducts a search with a warrant in hand will not serve the exclusionary rule’s deterrent effect because suppression would not “alter the behavior of individual law enforcement officers or the policies of their departments.” Id. at 918.

The Fourth Circuit’s contrary conclusion misapplies Leon to the point of creating a direct conflict with this Court’s precedent. Here, in contrast, law enforcement easily could, but chose not to, follow the constitutionally secure path. They could have followed 18 U.S.C. § 2703(c)’s explicit warrant requirement, which clearly satisfies the Fourth Amendment, instead of taking their chances with the non-warrant procedure of § 2703(d). Unlike Leon, the prosecutor who sought and used the § 2703(d) order knew that the order was neither a warrant nor the equivalent of a warrant, and knew that the constitutionality of his choice was already in doubt.

Graham argues the evidence obtained should be suppressed, rather than put back into service on the back of the good faith exception and a multitude of conflicting court decisions. A deterrent only works if you actually apply it.

Indeed, suppressing the evidence here would alter the behavior of both individual officers and policies of departments and thus would serve the deterrent purposes of the exclusionary rule. Prosecutors and police departments would be put on notice that they should not always be looking for loopholes to the warrant requirement. They would know that in the future, documents that do not satisfy the Fourth Amendment’s warrant requirement more likely than not will not justify the search of a citizen’s person, papers, and effects.

Whether or not the Supreme Court will take also remains to be seen. The court has been rather schizophrenic on its Fourth Amendment decisions in recent years and it may not be in any hurry to handle something with this many future implications while it's still short a justice.

Filed Under: 4th amendment, aaron graham, csli, location info, scotus, supreme court

Why The Latest Supreme Court Ruling In Kirtsaeng May Have A Much Bigger Impact On Copyright & Fair Use

from the phrasing-matters dept

Earlier this month, we wrote briefly about the Supreme Court's second Kirtsaeng ruling, which focused on the issue of fee shifting in copyright cases. We didn't spend that much time on it (and hadn't covered the run up to the Supreme Court either). We had basically assumed that the first Kirtsaeng ruling from the Supreme Court, about whether or not the First Sale Doctrine applied to goods outside the US, was the real legacy of the Kirtsaeng fight, rather than a more mundane issue about fee shifting -- especially when the more recent Kirtsaeng ruling was basically just "courts need to look at more than just if the original lawsuit was 'objectively reasonable'" (but fails to give much guidance about what else should be looked at). Yes, we noted, this may ward off some bogus copyright lawsuits, depending on what standards the courts start to coalesce around, but there wasn't much big news in the ruling.

However, copyright expert Jonathan Band spotted something important that many folks missed. Buried within the ruling are some statements about the purpose of copyright that may become quite useful in future cases. Specifically, it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself.

The Court quoted its 1994 decision in Fogerty v. Fantasy that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Court then stated, “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.”

The Court’s focus on the subsidiary aim of “enabling others to build on that work” goes beyond its previous pronouncements concerning how to achieve the objective of enriching the public through access to works. In 1984, in Sony v. Universal, the Court recognized that defining the appropriate scope of copyright protection “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other…” In 1991, in Feist v. Rural Telephone, the Court stated that “copyright assures authors the right to their original expression, but encourages others to build freely on the ideas and information conveyed by a work.”

Thus, in these earlier cases, the Court discussed building on “the ideas and information conveyed by a work.” But in Kirtsaeng, the Court did not limit the reuse to “the ideas and information conveyed by a work;” rather, it more broadly addressed building “on that work.” Presumably the Kirtsaeng Court was referring not only to the ideas and information in the work, but also the expression in the work–to the extent use of the expression served “the purpose of enriching the general through access to creative works.” In other words, the Kirtsaeng Court was referring to fair use and other exceptions and limitations in the Copyright Act.

Band notes that hopefully this will help serve as a reminder to Congress about the important public interest objectives built into copyright. But I think it may start to show up in lots of other fair use lawsuits as well...

Filed Under: copyright, creativity, culture, fair use, legal fees, sudap kirtsaeng, supreme court

Twitter Deletes SCOTUSblog Twitter Account Briefly Thinking Its Running Of The Trolls Meant It Was Hacked

from the sarcasm-kills-twitter-accounts dept

We've mentioned and linked to the wonderful SCOTUSblog many times in the past, and have even mentioned its annual running of the trolls, in which the site's Twitter account responds sarcastically to people who think that it is the Supreme Court's twitter account, rather than a blog of some journalists and lawyers covering the court. Part of the confusion comes from the fact that the Supreme Court doesn't have its own Twitter feed, combined with Twitter's eagerness to suggest alternate accounts when people are assuming SCOTUS must have a Twitter feed. But, really, a big part of the problem is people tweeting inane things at SCOTUSblog without realizing it's not SCOTUS.

This year, however, the running of the trolls event went weird... because Twitter briefly deleted the entire SCOTUSblog Twitter account, perhaps thinking that the snarky responses showed the account had been hacked. Yes, it appears that even Twitter the company may have believed that the SCOTUSblog Twitter account was actually supposed to be SCOTUS itself.

Today we had our annual running of the trolls — wherein we respond to people who direct mostly hateful and sometimes cute things to our @SCOTUSblog account, thinking it is the official Twitter account of the Supreme Court. We’ve done this for several Terms without incident. But this Term, Twitter — probably through some automated system — decided that our account had been hacked. So it kicked us out of our account — thinking we were the hackers — and then blocked all the tweets, so they have disappeared.

Eventually Twitter realized its mistake and reinstated the account -- but once again we see the problems when social media sites try to "police" the content on those sites. They are often not in a position to know what is and what is not an appropriate tweet, or if an account has been hacked. And yet, so many people still seem to think that the platforms themselves have some sort of god-like knowledge powers that allow them to magically kill "bad" accounts while leaving good accounts untouched.

Either way, with the account back in good standing, for now, here's just a taste of its trolling. Go to @SCOTUSblog for more. It's too bad the trolling got interrupted though:

Filed Under: hacked, running of the trolls, supreme court, trolling, tweets, twitter accounts
Companies: scotusblog, twitter

Supreme Court Says, Yes, The Patent Office Can Review Crappy Patents Using Broad Standards

from the good-news dept

Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn't have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there's a "reasonable likelihood" that it will invalidate some of the patent claims due to the submitted evidence.

In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used "the broadest reasonable construction" of the claims rather than the "ordinary meaning as understood by a person of skill in the art." CAFC sided with the PTAB, saying that the law says that you can't appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.

In a rare instance of the Supreme Court not slapping down the CAFC's ruling, it agreed with the appeals court.

Like the Court of Appeals, we believe that Cuozzo’s contention that the Patent Office unlawfully initiated its agency review is not appealable. For one thing, that is what §314(d) says. It states that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)

For another, the legal dispute at issue is an ordinary dispute about the application of certain relevant patent statutes concerning the Patent Office’s decision to institute inter partes review. Cuozzo points to a related statutory section, §312, which says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.... In our view, the “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more.

On the question of what standard to use in reviewing the claims, again the Supreme Court sides with CAFC and the Patent Office and against Cuozzo -- once again pointing to the plain language of the law:

The statute, however, contains a provision that grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.”... The Court of Appeals held that this statute gives the Patent Office the legal authority to issue its broadest reasonable construction regulation. We agree.

The court notes that the "ordinary meaning" to those "skilled in the art" standard is what's used in court, but this is about the Patent Office re-examining the patent itself, at which point it gets to set the rules for what is patent eligible. And, further, it finds that the standard the PTAB uses is perfectly reasonable under its authority -- in part because of the public's "paramount interest in seeing that patent monopolies are kept within their legitimate scope." That's quoting a 1945 case, but it's always nice to see the Supreme Court properly noting that a patent is a form of a monopoly.

To some extent, this ruling doesn't change anything, as it is just accepting the standard that the Patent Office has been using for a few years now. So whatever whining and complaints you'll see from patent trolls and their supporters is overblown. But this is a good ruling just in creating more certainty and clarity in the fact that the Patent Office can and should continue to use this process as it has been to reject overly broad patents.

Filed Under: cafc, inter partes review, ipr, patent office, patents, ptab, supreme court, uspto
Companies: cuozzo speed technologies, garmin