Court To Twitter: No Time For Appeal, Hand Over Info Or You're In Contempt

from the ouch dept

We've been covering the legal fight concerning the government's desire to access Tweets and other information related to Malcolm Harris, an Occupy Wall Street protestor who was arrested. Twitter had jumped into the case to argue that users have standing to protect their own information, which the court denied. Twitter then said it would appeal, but it appears that NY State Supreme Court Judge Matthew A. Sciarrino Jr. doesn't care, claiming that its failure to hand over the info may put it in contempt of court:

The judge had asked Twitter to show why it wasn’t in contempt of court after refusing to produce information about Twitter posts by protester Malcolm Harris in response to a subpoena from Manhattan District Attorney Cyrus Vance Jr.

“I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” Sciarrino said.

Twitter and Harris's lawyers point out that this seems to completely ignore Twitter's right to appeal the ruling. Sciarrino again doesn't seem to think this is an issue, insisting that his original ruling was "fair" and Twitter has had more than enough time to comply with the order. Harris' lawyer notes that this appears to be an attempt at railroading, preventing due process from happening:

“It’s pretty outrageous that the D.A.’s office wants to prohibit Twitter from exercising its right to appeal,” said Martin Stolar, a lawyer with the National Lawyers Guild who represents Harris, after the hearing.

Unfortunately, that seems to be how things work these days...

Filed Under: appeal, due process, info, malcolm harris, new york, privacy
Companies: twitter

Marilyn Monroe's Persona Belongs To The Public; Estate Can't Retroactively Move Her To California

from the we-knew-she-belonged-to-the-public dept

Marilyn Monroe once said:

I knew I belonged to the public and to the world, not because I was talented or even beautiful, but because I had never belonged to anything or anyone else.

But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.

But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.

However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.

Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:

Monroe LLC also suggests that it has always believed that Monroe died domiciled in California, and that Frosch was simply mistaken in his belief and representations because he did not have access to some documents that allegedly contradict the materials and declarations he relied upon. This assertion by Monroe LLC is dubious, at best. Frosch had contemporaneous access to people knowledgeable about Monroe’s intentions, including Ralph L. Roberts, her close friend and confidant and reportedly the last person to see her alive. To the extent that there was any debate, Frosch represented, with significant evidentiary support, that Monroe’s intention was to remain domiciled in New York, though she temporarily relocated to California for a movie shoot. Another possibility, for which we have insufficient evidence, is that Monroe LLC’s present position on Monroe’s domicile is a knowing misrepresentation, or tantamount to a fraud on the court. In light of this irreconcilable conflict between diametrically opposed representations about Monroe’s intended domicile, the district court’s determination that Frosch intentionally misled the courts is supported by “inferences that may be drawn from the facts in the record” and is therefore not an abuse of discretion.

The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:

This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty." There is nothing pretty in Monroe LLC’s about-face on the issue of domicile. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from “playing fast and loose with the courts.”

Amazingly, even after this loss, her estate is still insisting that it retains control over her likeness. According to Reuters:

The star's estate, however, said it still retained exclusive rights to the film star's likeness under federal law.

Except, there is no federal publicity rights law. So now they appear to just be making stuff up. I imagine that won't play very well in court either.

Filed Under: california, marilyn monroe, new york, posthumous publicity rights, publicity rights

NY Considering Bill To Require Open Access To State Funded Research

from the six-months dept

We've talked about the various debates concerning open access to federally funded research, and while there are still debates going on about bills in one direction or the other at the federal level, it looks like some politicians in NY State want to take matters into their own hands.

Earlier this year, a bill was introduced in the NY State Senate to establish open access to publicly funded research:

Each year, New York State agencies distribute tens of millions of dollars in direct and underwritten funding to original research projects. Much of the time, these papers receive publication to peer-reviewed journals, However, while the internet has expanded the breadth of free information that is available to the general public, many peer reviewed journals maintain prohibitive cost barriers which block widespread public access.

New York State proudly supports its dedicated funding to research which helps create scientific, environmental, and cultural breakthroughs; however it is unacceptable that that the taxpayers who provide the money for this research should encounter any barrier in accessing it.

This bill will provide a window for 6 months of exclusive protection to the research, at which point it is only just that the general public be free to share in the information generated from the research. Passing this law will give New York the honor of being the first state in the country to require public access to research generated from taxpayer dollars.

I have no idea if this bill has any legs, but it's good to see such efforts being made.

Filed Under: new york, open access, research

Police Ticketing Informal Rideshare Participants Based On No Law, But To Protect Port Authority Revenue

from the sad dept

We've talked many times about how legacy industries and organizations seek to protect against competition they don't like. One example we've mentioned a few times involves taxi companies and bus companies trying to shut down upstarts such as ride-sharing/carpooling services as being "unlicensed" transportation offerings. What they really mean, of course, is that they're competition in a market with artificial barriers to entry, which artificially keep prices high -- sometimes astronomically high. But, of course, as with any attempt to defeat real competition, those in support of cracking down have some sort of sob story, and governments and law enforcement often fall for it with no evidence.

Aaron DeOlivera points us to a sort of twist on the situation described above, where the real issue is people paying less money to the Port Authority of NY. You see, if you are in a carpool (of at least 3 people) and cross the George Washington Bridge (between the Bronx and New Jersey) you save $6 on the toll. That's a decent-sized savings, so people have set up an informal sort of ride share, in that those who want to get across will wait at a nearby bus station, and drivers will swing by and pick them up for the ride. The riders get a free trip across the bridge... and the driver gets a lower toll. Win-win.

Except for the Port Authority. And apparently the police are helping out the PA by giving tickets to people picking up hitchhikers based on absolutely no violation of any law.

... the crackdown on carpools smacks of a revenue-grab by the Port Authority, which has been criticized for lavish pay and benefits. With extensive overtime, some toll collectors make more than $100,000, while salaries for several officers working at the bridge topped $200,000 last year.

Curious to see what would happen, Mr. Topyan [an economist who's been observing the practice] recently picked up two passengers in plain sight of a police officer—and was promptly ticketed. Having researched the law, he spent six hours in traffic court and won his case. “The prosecutor was jumping up and down in disbelief,” he says. He didn’t have to pay.

Even so, the report notes that the police still show up. Even if there's nothing illegal happening, just having the police show up -- and having people think that there might be something wrong -- causes people to worry about taking part.

Filed Under: carpooling, new york, police, port authority, rideshare, taxis

Who's The Coward? Thin-Skinned NY Politicians Try To Ban Anonymous Comments

from the wow dept

Last fall, we were absolutely amazed at a paper written by some NY state politicians arguing that we have too much free speech, and that we need a "more refined" interpretation of the First Amendment, that outlaws things like "leaving improper messages on online message boards." Well... as covered by Dave Kravets at Wired, some NY state politicians have introduced the same bill, in both houses of the legislature, that would outlaw anonymous speech online. The actual bill is not particularly subtle.

It lays out the purpose front and center:

AN ACT to amend the civil rights law, in relation to protecting a person's right to know who is behind an anonymous internet posting

Most of the "bill" is definitions, but the key part is as follows -- written in all caps like a true internet troll:

A WEB SITE ADMINISTRATOR UPON REQUEST SHALL REMOVE ANY COMMENTS POSTED ON HIS OR HER WEB SITE BY AN ANONYMOUS POSTER UNLESS SUCH ANONYMOUS POSTER AGREES TO ATTACH HIS OR HER NAME TO THE POST AND CONFIRMS THAT HIS OR HER IP ADDRESS, LEGAL NAME, AND HOME ADDRESS ARE ACCURATE. ALL WEB SITE ADMINISTRATORS SHALL HAVE A CONTACT NUMBER OR E-MAIL ADDRESS POSTED FOR SUCH REMOVAL REQUESTS, CLEARLY VISIBLE IN ANY SECTIONS WHERE COMMENTS ARE POSTED.

This will, of course, never become law (or if it does, would never survive a Constitutional First Amendment challenge). The Supreme Court has been pretty clear:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

You would think that lawmakers would know this, but apparently their fragile egos can't take people making fun of them online.

What's amazing is that the lawmakers behind this seem oblivious to the concerns about the bill, insisting that anonymous posting can only be used for negative reasons."

Too often, online bullies hide behind their anonymity as they inflict pain. My legislation turns the spotlight on cyber-bullies by forcing them to reveal their identity or have their post removed. Once a bully is identified, steps can be taken to end the harassment. Bullying is no laughing matter. The more we can do to combat this abuse, the better off we will all be as a society.

That's from Assemblyman Jim Conte, a sponsor of the bill, who should be forced to not only read the details of the McIntyre case, but also to produce a report about the importance of anonymous speech throughout US history, starting with the Federalist Papers and moving forward from there. It's scary that these people who govern us who don't seem to understand what they're talking about.

Oh, and separately, I kicked this post off by mentioning the paper from last year. It's worth noting that these bills are not actually being brought forth by the same politicians. We have a general policy here at Techdirt where we don't mention political parties unless the party itself is key to the story. When we wrote that original comment, someone in the comments accused us of "hiding" the fact that the paper was written by Democrats. As we noted, we would have written it exactly the same way if it were written by Republicans. So, I will point out that the politicians who introduced bill in both houses in NY are... Republicans this time, which I'm only bringing up because of the contrast from last time. This isn't about parties. It's about clueless politicians, and neither mainstream party has a monopoly on (or, even, a shortage of) them.

Filed Under: anonymous comments, first amendment, jim conte, new york

Wikileaks Truck Owner Arrested For Photographing Police; Told It Was Because He Was 'A Dick'

from the that's-not-how-this-works dept

There's a guy in NY, Clark Stoekley, who apparently owns a white panel van that he's painted with the Wikileaks logo to raise awareness of the plight of Bradley Manning (though he has no other connection to Manning or Wikileaks). There's a lot more info on the truck on his website. However, it appears that, unrelated to the truck, Stoekley has another issue to deal with: he was arrested for photographing police at Penn Station in Manhattan. He saw police in the station carrying semi-automatic weapons (an unfortunately common site in Penn Station), and he decided to photograph them with his phone. And from there, a familiar, if unfortunate, and almost certainly illegal incident ensued. As told by Pixiq:

Metropolitan Transit Authority police arrested a man for photographing them at Penn Station in New York City this afternoon – deleting his photo – before releasing him from a jail cell an hour later.

Clark Stoeckley was issued a summons charging him with “engaging in threatening behavior.”

“I was walking through Penn Station and I came across these MTA cops with semi-automatic weapons,” he said in a phone interview with Photography is Not a Crime.

“I stopped to take a photo and the cop came up to me and arrested me. I asked, ‘why am I being arrested?’

“’Because you’re a dick,’” the officer responded.

Of course, we've written tons of stories about police arresting the members of public for photographing or filming them while on duty. The MTA and New York may want to pay close attention to what happened up in Boston, where Simon Glik prevailed against the city of Boston and the Boston Police Department for violating his First and Fourth Amendment rights under very similar circumstances (though I don't even think they deleted the photos). In the end, the city of Boston had to pay Glik a large sum of money for violating his rights.

At what point will police finally learn that when they're in public, being photographed or video taped is fair game?

Filed Under: bradley manning, new york, penn station, police, wikileaks

Sad Statement: Senators Behind Two Largest Tech Communities In The US Support PIPA Against Those Communities

from the anyone-else-want-to-step-up? dept

Charlie O'Donnell has an excellent post noting just how ridiculous it is that New York's two Senators, Chuck Schumer and Kirsten Gillibrand, both support PIPA. He notes that NY has become an up-and-coming tech hub these days. Indeed, over the last decade, NYC has emerged as the widely agreed upon "second" hub of tech startups after SF/Silicon Valley. However, having both of NY's Senators support PIPA, despite near universal condemnation from the tech sector is an embarrassment:

It’s an embarrassment, frankly, to our tech community. If you support this bill, you are not supportive of us. All of our local politicians--our Senators, Mayor Bloomberg... and other policymakers need to be fighting this.

Chuck Schumer and Kristin Gillibrand need to switch their positions immediately on these bills, which should really aptly be named the “Stop Innovation on the Internet” bill. If NYC is going to fulfill its potential as an innovation hub, we can't have our senators supporting SOPA. They’re on the wrong side of history here, and they don’t understand enough about the internet and how it came to be to see why.

Of course, it's even worse than that for tech hubs. Here in Silicon Valley... we also have both of our Senators supporting the bill. Senators Feinstein and Boxer are both supporters, with Feinstein being so incredibly out of touch, she doesn't even realize that there are complaints about the bill.

This is a really sad statement on both politics and the nature of innovation in America today. For all the talk politicians say about how they're in favor of creating jobs, and despite multiple studies showing that startups are the ones who actually create the jobs... when it comes time to figure out actual policy positions to take, these Senators "follow the money" and support Hollywood's position, because Hollywood funds their campaigns. While perhaps you can make the claim that Feinstein and Boxer represent both Silicon Valley and Hollywood -- the fact that all four of these Senators support an anti-innovation, anti-tech, anti-jobs bill like PIPA is a huge travesty.

Filed Under: barbara boxer, california, chuck schumer, dianne feinstein, kirsten gillibrand, new york, pipa, politics, protect ip, sopa, tech hubs

NY State Senators Say We've Got Too Much Free Speech; Introduce Bill To Fix That

from the i-find-this-offensive dept

We've been pointing out a variety of attempts to push back on the First Amendment lately. One fertile ground for such attacks are local politicians carrying the "cyberbullying" banner, in various attempts to magically outlaw being a "jerk" online, usually by making it illegal to offend someone online. Of course, making someone's action illegal based on how someone else feels about it is all kinds of crazy. It also would seem to violate the very principles of the First Amendment, which bar Congress (and local governments) from passing any laws that take away one's right to free speech.

In the past, lawmakers pushing these laws have tended to simply ignore the First Amendment issue, and focus on screaming "protect the children!" as loudly as possible (never mind the fact that kids seem much less concerned about "bullying" than all these adults seem to think). However, it appears that some state Senators in NY are trying a new line of attack: going directly after the First Amendment and suggesting that current interpretations are way too broad, and it's not really meant to protect any sort of free speech right. In fact, it sounds as though they're trying to redefine the right to free speech into a privilege that can be taken away. Seriously:

Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.

Yes, that totally flips the First Amendment on its head. It is not a "more refined First Amendment." It's the anti-First Amendment. It suggests, by its very nature, that the government possesses the right to grant the "privilege" of free speech to citizens... and thus the right to revoke it. That's an astonishingly dangerous path, and one that should not be taken seriously. Of course, given their right to speak freely, state senators Jeff Klein, Diane Savino, David Carlucci and David Valesky have every right to put forth that argument -- but similarly, it allows others to point out their rather scary beliefs.

If you'd like to see the full report (pdf), I warn you that it is almost entirely written IN ALL CAPS (for no clear reason, there are a few chunks that revert to normal capitalization -- including a big chunk in the middle, that starts mid-section). I have no idea why so much of the paper is in ALL CAPS, but I'm kind of offended by it. Can we please remove their "privilege" to put out such things until they've learned to not maltreat capital letters?

The paper attempts to list out various examples of types of cyberstalking and cyberbullying -- some of which seem pretty ridiculous:

LEAVING IMPROPER MESSAGES ON ONLINE MESSAGE BOARDS OR SENDING HURTFUL AND DAMAGING MESSAGES TO OTHERS;

"Improper"? Seem a little broad to you? Does that mean the next person who comments here about something off-topic is a cyberbully?

“FLAMING” (HURTFUL, CRUEL, AND OFTENTIMES INTIMIDATING MESSAGES INTENDED TO INFLAME, INSIGHT, OR ENRAGE);

Whoo boy. An awful lot of you in the comments better watch out...

“HAPPY SLAPPING” (RECORDING PHYSICAL ASSAULTS ON MOBILE PHONES OR DIGITAL CAMERAS, THEN DISTRIBUTING THEM TO OTHERS);

Holy crap. 2005 wants its silly "crazy children" meme back. Yes, there were a few instances of this extremely brief "fad" that came and went in like a month half a decade ago. Then the next internet meme came along.

"TROLLING” (DELIBERATELY AND DECEITFULLY POSTING INFORMATION TO ENTICE GENUINELY HELPFUL PEOPLE TO RESPOND (OFTEN EMOTIONALLY), OFTEN DONE TO PROVOKE OTHERS);

Ooh, once again. Commenters beware.

EXCLUSION (INTENTIONALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP).

Seriously? If we don't let you into the club, it's now a form of cyberbullying? It makes you wonder what happened to these particular Senators when they were kids.

The paper also attacks "anonymity," again ignoring how anonymity can often be extremely helpful to kids who wish to discuss things and ask questions without revealing who they are.

As for where they're going with this? Well, you guessed it: they're planning to introduce new laws to deal with cyberbullying (even though NY already has such a law). The plan is to extend two existing areas of law: "stalking in the third degree" will now include cyberbullying, and "manslaughter in the second degree" will be expanded to "include the emerging problem of bullycide."

This is basically a "Lori Drew" law. And it's ridiculous. If I say something to someone and they then go commit suicide, should I be guilty of manslaughter? Do the folks behind this not realize that this doesn't help prevent suicides, but it encourages them in giving people who are upset by something someone said extra incentive to kill themselves to "get back" at the person who was mean to them.

The cyberstalking part is no less ridiculous. It's ridiculously broad. It does not require that the person accused of cyberstalking initiate the activity, it does not require intent to harm or frighten, and a single message can be a cause of action. Think about that for a second. Someone could send you a message, you could do a single reply with no ill will or bad intent... and be guilty of the crime of cyberstalking. Damn. Do the folks writing this bill not realize how widely this will be abused?

Hopefully no one is so offended in reading such a dangerous proposal that they go out and commit suicide. At least be comforted in knowing that it won't allow for the authors to be accused of manslaughter until after the bill passes.

Filed Under: cyberbulling, cyberstalking, david carlucci, david valesky, diane savino, first amendment, free speech, jeff klein, new york

Once Again NY Expands 'Anti-Piracy' Laws Based On No Evidence

from the but-of-course dept

You may recall a few years ago that the MPAA totally made up numbers about how big a "problem" camcording was in New York (if you added up their percentages, it came out that significantly more than 100% of all worldwide camcorded movies came from NY and Canada). But, it's not like New York politicians pay attention to the actual facts. After all, we're talking about the same folks who basically took an NBC Universal propaganda video and pretended it was their own. So, of course, the "anti-camcording" law passed.

As always, however, stricter laws are never enough for the folks at the MPAA and the RIAA. When those laws fail to change anything, rather than realizing that maybe (just maybe) they should be helping their member studios & labels adapt to the changing times, they instead focus on ratcheting up the laws even more. So, the news that New York has "expanded" its anti-bootlegging law to now include other forms of storage, including hard drives, flash drives and memory cards, is not surprising. It seems that bootleggers in New York were actually changing with the times (while the labels were not), and had moved on from selling bootlegs on discs.

Still, I really have to wonder if the "bootleg" trade is as big a problem as the industry likes to make it out to be. Considering all of this stuff is available online, who's really walking down Canal Street buying a hard drive of bootleg music these days?

Filed Under: anti-piracy, bootlegs, new york

NY Court Says Even Promoting Alleged Defamatory Content Is Protected By Section 230

from the broad-safe-harbors dept

Often when we discuss the broad safe harbors of Section 230 of the CDA, which make sure that service providers are not held liable for content created by users, we have commenters who insist that if the service provider does anything touching the content, that Section 230 doesn't apply. That's simply untrue. There's now a growing body of case law that protects third parties in such circumstances. For example, people forwarding an email from someone else -- even if they write an intro -- have been found to be protected by Section 230. A recent ruling in a NY state court of appeals appears to have taken that broad immunity much further, protecting a blog that reposted someone's (allegedly) defamatory comment as a post and then added a title, some commentary and a graphic to the work. And... they were still found to be protected:

Plaintiff Christakis Shiamili, CEO of Ardor Realty Corp. (Ardor), had brought a defamation suit against a competing company, The Real Estate Group of New York, its principal and his assistant (collectively TREGNY), who administered a blog about the New York real estate industry. A user of the TREGNY blog (who signed on as “Ardor Realty Sucks”) posted a comment to a discussion thread on the blog, making several allegedly defamatory statements suggesting that Shiamili mistreated his employees and was racist and anti-semitic.

TREGNY allegedly: (i) moved the comment from the discussion thread to a stand-alone post, “prefacing it with the statement that ‘the following story came to us as a … comment, and we promoted it to a post’”; (ii) added a headline, “Ardor Realty and Those People,” and a sub-heading, “and now it’s time for your weekly dose of hate, brought to you unedited, once again, by ‘Ardor Realty Sucks.’ and for the record, we are so. not. afraid.”; (iii) added an illustration of Jesus Christ with Shiamili’s face and the caption “Chris Shiamili: King of the Token Jews”; and (iv) pseudonymously egged on another commenter to provide additional dirt on Shiamili.

Despite these contributions by TREGNY, the Court of Appeals affirmed the dismissal of Shiamili’s defamation suit based on the immunity provided by Section 230.

The full ruling (embedded below) highlights that the additional content (header, intro text, image) etc. do not rise to the level of defamatory content on its own, and since the main crux of the content is provided by a third party, even if highlighted by TREGNY, the site is protected by Section 230. This is very much in line with previous rulings, and it's nice to see another court recognize this.

Filed Under: liability, new york, section 230