Dangerous Internet Jurisdiction Ruling Lets Penguin Bring Suit In NY, Despite No Evidence Of Harm In NY

from the this-is-a-problem dept

There have been plenty of legal jurisdiction questions raised by the internet over the years. Since the internet is available effectively anywhere, under whose jurisdiction do legal actions take place? To date, courts have come up with a mishmash of different rulings on the issue, and the rules are anything but clear. Unfortunately, a new ruling, in NY State's Court of Appeals seems to go against wider precedent and suggest that because something is on the internet, you can pretty much bring a case where the company is located, rather than where any actual harm takes place. This seems to directly contradict the court's own earlier ruling in Fantis Foods v Standard Importing Co., in which the court clearly stated that the plaintiff's location is not enough to say that it qualifies for jurisdiction in NY, if the "harm" is happening elsewhere:

In final analysis the only possible connection between the claimed conversion and any injury or foreseeable consequence in New York is the fact that Standard is incorporated and maintains offices there. It has, however, long been held that the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there

So how does the court get around this? It basically waves its arms around and says "but... but... the internet!" Because, suddenly, the internet makes everything different. It then follows that up with a simply incorrect (and troubling) analysis of copyright law. As for the internet changing everything, the court basically throws its hands in the air and says "well, on the internet, we have no idea where anything happens, so rather than requiring proof, we'll just say it's okay to sue in NY."

As a result, although it may make sense in traditional commercial tort cases to equate a plaintiff's injury with the place where its business is lost or threatened, it is illogical to extend that concept to online copyright infringement cases where the place of uploading is inconsequential and it is difficult, if not impossible, to correlate lost sales to a particular geographic area. In short, the out-of-state location of the infringing conduct carries less weight in the jurisdictional inquiry in circumstances alleging digital piracy and is therefore not dispositive.

I don't think that's either reasonable or accurate. It is, in fact, possible to show geographically where harm has occurred. Just because things might occur on the internet, it still involves actual people who live in an actual location. The court's decision to basically give up because it's on the internet suggests it is mystified by technology it does not fully understand.

As for the copyright claims, to further support the idea that it's okay to bring the suit in NY, despite the lack of evidence of harm in NY, the court relies on a bunch of copyright myths, including the idea that any harm to copyright means fewer works will be produced:

Based on the multifaceted nature of these rights, a New York copyright holder whose copyright is infringed suffers something more than the indirect financial loss we deemed inadequate in Fantis Foods. For instance, one of the harms arising from copyright infringement is the loss or diminishment of the incentive to publish or write (see Twentieth Century Music Corp. v Aiken, 422 US 151, 156 [1975]; see also Princeton Univ. Press v Michigan Document Servs., Inc., 99 F3d 1381, 1391 [6th Cir 1996], cert denied 520 US 1156 [1997] ["[P]ublishers obviously need economic incentives to publish scholarly works . . . If publishers cannot look forward to receiving permission fees, why should they continue publishing marginally profitable books at all? And how will artistic creativity be stimulated if the diminution of economic incentives for publishers to publish academic works means that fewer academic works will be published?"]).

That's a nice quote. Too bad the evidence suggests that it's plainly wrong. The first sentence of the quote that "publishers obviously need economic incentives to publish scholarly works..." may be true, but the implication that the only such economic incentive comes from copyright protection is false. This is a myth that we hear too often, where people say that without copyright there is no incentive. That's plainly wrong, yet courts and defenders of stronger copyright too frequently rely on such a claim. But, further to this point, there's a growing body of research that has shown that as copyright has become less respected as things like online infringement have grown, so has the production of new works. So the claim that he court relies on here, that if copyright is not enforced to the utmost degree, fewer works will be published, has simply not been supported by reality. And, honestly, shouldn't courts be making judgments based on reality, rather than disproved theory?

Either way, this ruling is troubling in any number of ways. While it's specific to NY, whose "long arm" statute is pretty aggressive, this should raise serious concerns in the various copyright "trolling" cases we've seen, where the jurisdiction issue has been successfully challenged when the defendants are far away from where the suit is being brought. A ruling like this, that effectively says that a case can be brought far, far away from where the accused lives/works, could put an undue burden on those being sued. That's especially troubling in the lawsuits where the entire goal is clearly to get defendants to settle. Based on this ruling, I wouldn't be surprised to see more copyright trolls start looking for ways to file cases in New York.

Filed Under: copyright, internet, jurisdiction, long arm, new york
Companies: penguin

Governor Cuomo's 'Best Social Media People Around' Claim Parody Account Is The Real Governor

from the if-they're-the-best-around,-expand-your-circle dept

Via Jeff Nolan, we learn that the new Governor of New York, Andrew Cuomo, who has a history of misguided attacks on social networks, apparently isn't very good with social media personally. In setting up the new website of the governor, the staff linked to a parody Twitter account as the official Twitter account of the governor. Rather than the real account, the supremely boring and corporate @NYGovCuomo, the website linked to @NYGovernor, which was an amusing parody account. Not surprisingly, whoever is behind @NYGovernor had a lot of fun with it, while people thought it was the official account.

While this may seem like a minor slip up, it's indicative of a larger problem. In the same article, Cuomo's staff apparently told reporters that "Cuomo did not have time to 'twitter on his own' and that the 'best web and social media people around' were now in charge of his personal account." Of course, those "best web and social media people around," apparently couldn't even figure out which account was their own, and have followed it up with perhaps one of the most boring Twitter feeds around. Perhaps Cuomo could take a lesson from Cory Booker, who despite working over 20 hours a day while helping to shovel people out of the recent blizzard, was still able to tweet basic updates.

Filed Under: andrew cuomo, new york, social media

NY Hotels Upset Over More Efficient 'Home' Competition; Gets Politicians To Try To Outlaw Such Things

from the not-this-again dept

We've seen it time and time again. The internet enables people to communicate directly with each other and create more efficient solutions than some larger (often regulated) industry, and that industry freaks out. Remember how a bus company freaked out about an online carpooling service and had it fined for being an "unregulated transportation company?" It looks like something similar, though in a different field, is happening in New York. With hotels in the Big Apple being ridiculously expensive much of the time, people have taken to Craigslist, as well as some specific services like AirBnB, Crashpadder and Roomorama, to find residents willing to rent out their rooms or apartments on a short-term basis -- for much lower prices.

But, of course, that upsets the hotels, which have their high prices and don't like the competition. So, it seems they've convinced politicians to try to effectively outlaw the practice:

This week, New York state senators vote on a bill that would make it illegal for any homeowner or renter to sublet for less than a month. The new law would be a blanket ban on short-term rentals -- no matter how ethical the renter is.

Of course, as we always see with these types of laws, the politicians couch them in terms of the need for regulation for things like "protecting tax revenue" or "safety standards." But, of course, there are plenty of other ways to deal with those issues outside of outlawing the practice entirely. The reality of the situation is that the internet has made it so that people can be more efficient in things like transportation or short-term housing, and the old guard doesn't like it one bit, so they come up with regulations like these to outlaw it, even though it greatly harms the public, who get more out of using such services.

Filed Under: homes, hotels, new york, short-term leases

Rather Than Blaming Twitter, NY Police Using It To Track Gang Activity

from the good-for-them dept

We've seen way too many stories of law enforcement officials blaming online tools like Craigslist, rather than using them proactively to help fight crime. Luckily, it appears that more and more folks in law enforcement are smart enough to know better. Robert Ring alerts us to a story about how gangs in New York are using Twitter to communicate and coordinate, but rather than blaming Twitter, the NYC Police Department is using it as a handy tool to find out what's going on:

Investigators are monitoring the traffic in hopes of sweeping up gangbangers before the bloodshed - and searching Twitter after attacks for clues.

"It is another tool ... just like old phone records," a police source said. "We can go through them [messages] to track these guys."

Nice to see these tools being used properly by law enforcement, rather than yet another public freakout over the wrong thing.

Filed Under: gang activity, law enforcement, new york, police, twitter
Companies: nypd, twitter

Jim Dolan's Lawsuit Against Cityfile Highlights The Need For Stronger Anti-SLAPP Laws

from the silencing-dissent dept

The Citizen Media Law Project has yet another story of bogus lawsuits being used to silence something someone doesn't want written about them. In this case, it involved Jim Dolan, known (but not particularly liked) to New Yorkers as the owner of Cablevision, the Knicks and Madison Square Garden. More recently, Cablevision bought the newspaper Newsday -- so you might think that Dolan would be a little more aware of why it's bad to sue a news publication claiming defamation over a clearly speculative piece. And, yet, sue he did. Dolan sued the blog Cityfile for posting a piece about rumors that Dolan was considering getting rid of the famous "Christmas Spectacular" involving the Rockettes at Radio City Music Hall in New York. As Arthur Bright points out, the original post doesn't seem all that different than speculative articles published all the time in pretty much every media outlet.

Unfortunately, facing a protracted legal fight, Cityfile agreed to settle and "retract" the story. Bright notes that this is silly, and any decent lawyer should have been able to get the lawsuit tossed on First Amendment grounds. The problem is the time and resources needed to fight such a thing.

Bright then points out how this highlights the need for stronger anti-SLAPP laws in New York. Anti-SLAPP laws let people fight back against such bogus lawsuits, whose purpose is only to silence speech (SLAPP stands for Strategic Lawsuit Against Public Participation). The problem, however, is that right now anti-SLAPP laws are at the state level, and only a few states have really strong ones. New York is not one of them. While Bright says this is evidence of why NY should strengthen its anti-SLAPP laws, a better solution might be a strong federal anti-SLAPP law, that shows a strong support for freedom of speech, and helps prevent bogus lawsuits whose only purpose is to allow those with more money to silence speech they dislike.

Filed Under: anti-slapp, free speech, jim dolan, new york

Cuomo Uses Craigslist To Bust Prostitution Ring... Still Blaming Craigslist

from the think-about-that-for-a-second... dept

Following Craigslist's big announcement last week on the changes to how it handles "adult" ads, Andrew Cuomo angrily denounced the changes, claiming that several weeks before, "we informed Craigslist of an impending criminal case that implicated its website." It seems the details of that case have now become clear, as a prostitution ring that solely worked via Craigslist was busted by Cuomo. Yet, rather than recognize that the information on Craigslist allowed them to track down and arrest this crew, Cuomo is still lashing out at the site:

"Unless craigslist gets serious about putting real protections in place, it will continued to be an environment where criminal operations thrive with impunity,"

Does Andrew Cuomo even realize what he's saying? He's saying that they'll operate with impunity right after he showed that's not true by arresting them. Given the fact that Craigslist cooperates with the police (and one assumes it did in this case as well, given that Cuomo approached them about it "weeks ago"), then Craigslist actually helped the police catch these criminals. Does Cuomo blame AT&T after AT&T helps him get a wireptap in a criminal investigation? After all, AT&T provided the phone system, which allowed the criminal operations to thrive with impunity.

Filed Under: andrew cuomo, new york, photo op, prostitution
Companies: craigslist

Andrew Cuomo Angry That Craigslist Stole His Photo Op

from the wow dept

This morning we posted the news about Craigslist giving in to angry Attorneys General who were misguided in their anger. In it, we discussed how this was a larger version of NY AG Andrew Cuomo's tactics to force internet companies to censor, despite no legal basis. However, it looks like Andrew Cuomo is pissed that others have taken his tactics and didn't give him a chance to be involved. Thomas O'Toole alerts us to this stunning statement from Cuomo who appears to be quite angry that this decision was made without him present:

"Several weeks ago, we informed Craigslist of an impending criminal case that implicated its website. Rather than work with this office to prevent further abuses, in the middle of the night, Craigslist took unilateral action which we suspect will prove to be half-baked."

O'Toole's summary is dead on: "Curses, you stole my photo op!" So when we wrote the original post wondering how soon it would be before AGs were upset with the new plan, we knew something like this would happen eventually. We just didn't think it would be a matter of hours.

Filed Under: andrew cuomo, new york, photo op, prostitution
Companies: craigslist

Train Operators Around The World Stopping Others From Helping Riders... Due To Intellectual Property

from the how-dare-you-help-people!! dept

What is it about folks who operate train lines that make them so confused when it comes to intellectual property? They seem to be focused on harming their own businesses in an effort to "protect" intellectual property. If enforcing your intellectual property makes you worse off, then why are you enforcing it? Just today, we received two separate stories of incredibly backwards thinking from those who operate train-lines -- which makes you really wonder why some people get so focused on protecting intellectual property that they lose sight of the fact that it's harming their business.

We've already talked about those who run trains in Germany and Australia cracking down on people creating their own iPhone train schedule apps, claiming they violated intellectual property rights of the train operators. This makes very little sense for a variety of reasons. First, it is still quite ridiculous that any sort of factual information can be covered by copyright -- but in Europe such "collections" of information can be covered by the database copyrights -- the idea that if you put factual information into a "database" that database then deserves copyright protection. Europe has this, while the US does not -- and studies have shown that contrary to what copyright supports insist, this increased right has actually hindered the database industry in Europe... but that hasn't made the law go away.

But, of course, even more idiotic than just the question of copyrighting facts, is the simple point that these apps make it easier for people to ride the trains, which should be exactly what the train operators are encouraging. Thanks to the mantra of certain copyright supporters that "free is bad," some folks seem unable to think out more than a single step. The fact is, that if people can make a great train schedule app that makes it easier to take the train, then that means more people will take the train, which is where the real money is for train operators. But, of course, the folks who only see one step out, think "wait, we should be making money on that data!" even if it means fewer people take the train, and the net benefit is less.

The latest to make that decision is the UK's National Rail Enquiries, who forced the creators of the MyRail Lite app to shut down (thanks to Donald for sending this in). MyRail Lite was a free iPhone app. NRE is offering its own app... for £4.99. So in the short-term rush to try to score a bit of money from a small group of people, NRE is making the overall rail system a lot more complex for the majority of people. Short-term thinking at its finest.

Unfortunately, the author of the article, Rory Cellan-Jones, starts out by agreeing that this is dumb, but then seems to change his mind, after reading the silly James DeLong article about newspapers where he (in typical DeLong fashion) insists that the use of "free" is what destroyed newspapers. The arguments are easy to debunk, but Cellan-Jones seems to have fallen for them. But it's easy to see how wrong it is in this case: the business NRE is transportation. If it gets people from point A to point B more efficiently, it will be able to make more money charging for that service. A free app that makes the process more efficient helps the bottom line. Trying to scrape up a bit of extra cash at the front end, while making the process more inefficient for more people is incredibly short-sighted.

But, that isn't the most ridiculous story we heard today about trains and intellectual property. Lucretious sends in the news that a group of four very nice women in New York City who have been voluntarily working to make public transportation in NYC more pleasant have been ordered to stop by the Metropolitan Transportation Authority. The women have set up a website, MTAService.org where they provide information on how to make your public transit in NY better. It's run by four women, who also ride the subways regularly (wearing their own made up uniforms) trying to help provide better service -- helping people find where they need to go, or helping mothers with strollers, for example.

But, of course, the MTA has sent them a cease-and-desist, demanding they pull down the information. You can see the trademark worries -- even though the website clearly states that the MTA Service Specialists (as they call themselves) are in no way affiliated with the MTA (they note "unfortunately.") But, rather than the MTA doing the smart thing, and seeing if they can actually associate themselves with these helpful women, the MTA just wants to shut them down. This is short-term thinking again. Sure, there almost certainly is a valid trademark claim here -- but if someone actually took the time to sit back and look at the facts of the situation, they would realize that a better response would be to see if they could sign these women up officially to help improve service on the subway. As the women note, they're just trying to improve the MTA's service, without costing the city any money at all.

Once again... we see how this aggressive believe in "we must protect our IP!" is actually being used to hinder service improvements, rather than help them.

Filed Under: intellectual property, new york, trains, uk
Companies: mta, national rail enquiries

Amazon's Suit Over NY Sales Tax Gets Tossed Out By Judge

from the closer-to-the-beginning-than-the-end dept

A judge in New York has tossed out suits from Amazon and Overstock which sought to overturn a state law there compelling them to collect sales tax on purchases made by New York internet users. The law was put into place last year and and immediately raised some eyebrows, as federal law allows states to collect local tax on internet purchases only if the retailer has a physical presence in that state. What set New York's law apart was that it considered internet retailers' affiliates, companies or even individuals that sell through the sites, to constitute a physical presence, giving the state the right to collect sales tax. It's highly unlikely that this is the end of the story with this law -- the suits will probably continue in another court, and it may become more common for internet retailers to ditch their New York-based affiliates until things get sorted out, or if the law is upheld. That's one problematic outcome of the law that's harmful to the people of New York; another issue is the dangerous precedent this law could set by allowing every locality to tax a wide array of internet purchases made by their residents, creating a morass of taxing jurisdictions for internet retailers to navigate.

Filed Under: new york, taxes
Companies: amazon, overstock

New York The Latest To Propose Taxing iTunes Downloads

from the for-no-reason-at-all dept

Earlier this year, some politicians in California, which is struggling with massive budgetary problems, proposed adding a tax to iTunes downloads. Now, Governor David Paterson in New York is proposing the same thing. There's no functional reason for this, other than the fact that the state desperately needs money, and so it's trying to add taxes to just about anything it can find. Of course, back in the old days, the point of a sales tax like that was to contribute to gov't-funded infrastructure (roads and such) that allowed folks to go and buy something. There's no such rationale for taxing internet downloads. It's a blatant money grab and Paterson seems to have no problem admitting that.

Filed Under: david patterson, downloads, itunes, new york, tax