Analysis Suggests More Than Half Of Google & Microsoft's Patents Likely Invalid Thanks To The Supreme Court

from the good-news dept

Over the last few months, since the Supreme Court's ruling in Alice v. CLS Bank, we've been noting the good news that the courts seem to be interpreting the ruling to invalidate a ton of software patents. Even some trolls have decided to just give up after seeing how the Alice ruling is being interpreted.

A new analytical study of patents held by big tech companies, done by ktMINE, suggests that more than half of Google and Microsoft's patents are invalid under Alice. The biggest loser of all, however, may be Oracle, with an astounding 76% of all of its patents vulnerable to the ruling. Twenty five companies are listed -- and there are some interesting ones. Rockstar -- which is a patent troll "privateer" set up by Microsoft and Apple has 31% of patents at risk. Intellectual Ventures has 24% of its patents at risk (I would have expected more). IBM -- which has a tremendous patent portfolio -- has 49% at risk.

The article suggests that this may have a major impact as these companies lose "vitally important strategic assets," but that's generally almost entirely bogus. Other than for the trolls, where these patents are their only "asset" (if you can call them that), for operating companies, patents have always been much more of a hindrance than a benefit. Many of the companies in the list have a huge patent portfolio mainly for defensive, rather than offensive reasons, and the patents have little to do with day to day operations. They have almost no impact on how the company is actually innovating or growing. In fact, as we've seen, patents are generally only useful for companies that are on the downswing, as they lash out at innovators who are on the upswing. If there were a real concern here, it's likely that we would have seen it in the stock prices of these tech companies -- but most of the companies on the list shrugged off the decision (or are even happy about it) because they can just focus on innovating, rather than bogus, wasteful lawsuits.

In fact, it might make for an interesting study to look at the impact of the Alice decision on the stock prices of these companies, and note how little the patent portfolios they hold are really worth, given the likelihood that so many are invalid.

Filed Under: business methods, patents, software, subject matter, supreme court, tech, validity
Companies: alice, cls bank, google, ibm, intellgectual ventures, microsoft, oracle, rockstar

Conan Doyle Estate Asks Supreme Court To Put Sherlock Holmes Back Under Copyright

from the the-case-of-the-missing-public-domain dept

For a while now, we've been following the lawsuit concerning whether or not Sherlock Holmes is in the public domain. Back in June the 7th Circuit appeals court ruled that Holmes was in the public domain, followed up by a more thorough slamming of the Sir Arthur Conan Doyle Estate in a follow-up ruling concerning rewarding attorneys' fees. We saw some reporters claim that the case was now "over," but that was clearly not true. The Estate had made it clear it intended to appeal, having already asked the Supreme Court to block the appeals court ruling from taking effect (a request that was quickly denied). But that was clearly the preamble to a request to the Supreme Court to hear the case.

That request has now come, with the Estate arguing that there are serious questions still in play. Specifically, the Doyle Estate raises three questions for a potential Supreme Court hearing. As a bit of background, the case was not directly started by the Estate, but rather author Leslie Klinger, who filed for declaratory judgment saying he wasn't infringing since the character was in the public domain. In the past, Klinger's publisher had felt pressured into taking out a license, and Klinger felt that this demand was unfair and unjust. The Estate tried to argue that even though all but one book of Holmes stories were published before 1923 (which puts them in the public domain), the fact that another book was published after 1923 with new facets to the character meant that the entirety of the character of Holmes (and Watson) were still covered by copyright. The argument was, more or less, that as long as the character is still "developing," and not complete, the copyright clock can be kept ticking. The courts completely rejected this argument and pointed out that the public domain is the public domain.

However, the Estate is making one last go of it, with a two-pronged attempt to get the Supreme Court to reconsider:

1. Whether it was reasonable to rule on the case prior to Klinger finishing his book. This is a bit of misdirection. The Estate argues that the case shouldn't have been decided until Klinger finished his book since you can't determine if something isn't infringing if it hasn't been produced yet. This question was easily dismissed by the courts because (1) the Estate had been agitating for a license already, and that had created publishing issues for Klinger and (2) the courts made it clear that they were just saying that the early works were in the public domain -- and if Klinger's eventual book infringed on anything from that final (still copyrighted) Holmes book, the Estate could bring a specific case on that issue.
2. The big question: whether or not a "dynamically developing character" can continue to extend the clock on copyright. Here, the Doyle Estate claims that there's a circuit split, in particular with a ruling from the 8th Circuit (which we covered here) concerning the Wizard of Oz (and people making t-shirts out of images from a movie poster that clearly was in the public domain). Admittedly, that was a terrible decision -- effectively allowing some reclamation of the public domain by copyright law. If the Supreme Court takes this case, hopefully it will be to just smack down that 8th Circuit decision and bring it into compliance with the 7th Circuit's point that things that were in the public domain stay in the public domain.

The Supreme Court is not always clear in indicating which cases it will take and which it will pass over, and I wouldn't recommend betting in favor of the Court taking this case. Chances are it will pass. However, if it does take on the case, hopefully it will only be to protect and preserve the public domain.

Filed Under: 7th circuit, 8th circuit, copyright, leslie klinger, public domain, sherlock holmes, supreme court, wizard of oz
Companies: conan doyle estate

Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court

from the another-one-gone-and-another-one-gone dept

We've written a few times lately about the fact that the Supreme Court's decision in Alice v. CLS Bank seems to have finally broken the dam in getting courts to recognize that most software isn't patentable. We've covered three post-Alice cases where courts cited Alice in dumping the patent as covering unpatentable subject matter. And the numbers keep going up. Tim Lee, over at Vox, has now noted that there are at least 11 such rulings in the past few months, which reject patents, citing Alice. He's got the list of all 11, but my favorite is the one from just a few days ago, where the court not only rejected the patent citing Alice, but also pointed to the movies Superman III and Office Space. If you hadn't guessed by now (or if you hadn't seen those movies), the patent involved shaving a tiny bit off of a whole lot of transactions by "rounding up" and then making use of the extra pennies or fractions of pennies. The court points out that this is an abstract idea, and one that has been around for a long, long time. Simply putting it on a computer is not patentable.

As if slamming home just how important this decision is, former top patent judge Randall Rader, who left the court earlier this year in the midst of an ethics scandal, has apparently spoken out about how awful a decision he believes Alice to have been. Though, he's even more down on the ruling in Prometheus Labs v. Mayo Clinic, which was where the Supreme Court rejected patents on medical diagnostics, setting up the ruling in Alice, effectively rejecting most software patents. Rader is apparently furious about these decisions:

When asked how he would feel if he were a software developer, he commented: “I find the landscape for software innovation protection after Alice to be much more disturbing and less encouraging.” He also compared the opinion in Alice to the Supreme Court’s opinion in Mayo v Prometheus which he described as “probably the single most disappointing case in world patent jurisprudence”.

“It causes me great pain to recognise the worst case in patent law history doesn't come out of India or Pakistan or Vietnam or China even, it comes from the United States as recently as a few years ago,” Rader stated.

And yet, here in Silicon Valley, where there are plenty of software developers, most seem to be rejoicing about the newly found freedom to innovate without having to worry about being hit by a bogus patent lawsuit (or, at the very least, having a reasonable chance of beating it back, thanks to these decisions).

Filed Under: patents, randall rader, software patents, supreme court
Companies: alice, cls bank, mayo clinic, prometheus

The Judicial System's Blessing Of Police Use Of Excessive Force Makes It Nearly Impossible To Hold Bad Cops Accountable

from the the-courts-have-cops'-backs,-but-who-has-yours? dept

It's not just the thin blue line insulating bad cops from accountability, it's the entire judicial system. From lower-level judges treating statements from police with amazing amounts of credulity even in the face of past misconduct or contradictory recordings to the nation's top court, the judiciary branch, giving police officers built-in defenses that far exceed those available to the public.

An op-ed by Edwin Chemerinsky (lawyer and Dean of Law at the University of California, Irvine) notes that recent decisions by the Supreme Court have put even more distance between bad cops and accountability. Earlier this year, the nation's top court essentially gave police officers permission to open fire on anyone deemed a threat and not stop firing until they determined the threat to be neutralized.

A suspect that led police on a 100-mph chase met his end when police officers fired 15 bullets in his vehicle, killing him and his passenger. Although other methods may have ended this chase without resulting in the suspect's death, the Supreme Court found nothing about this use of force was "excessive."

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

While the police have access to a wide variety of tactics and less-lethal weapons when dealing with "public safety risks," there's really no need for them to use anything but their guns. (Which they do… with gusto.) The Supreme Court's decision turns any perceived threats to "public safety" (practically speaking, "officer safety") into blank checks for excessive force.

Federal courts aren't much better than the Supreme Court when it comes to prosecuting excessive force. Amanda Taub at Vox, writing about the ongoing investigation into Ferguson police officer Darren Wilson's killing of unarmed resident Mike Brown, notes that while officers can find themselves facing both local and federal charges, Officer Wilson's chances of walking away from this situation intact are still very high.

Simple murder is not a federal offense, but it is a federal crime for a police officer to deprive someone of his rights under the Constitution. If a victim dies, the perpetrator can be sentenced to life in prison or even the death penalty. That means the DOJ could prosecute Wilson under federal law for violating Brown's civil rights, if the evidence supports that charge.

Federal civil rights prosecutions are rare, though, and convictions are even rarer. A study from Syracuse University's TRAC program found that between 1986 and 2003, fewer than 2 percent of civil rights matters referred to the DOJ were ever prosecuted. Out of 43,331 referrals, 690 were actually prosecuted — and of those, 423 resulted in a conviction.

If pursuing criminal charges seems futile, Wilson could still face a civil lawsuit, with only a slightly greater chance of success. This, too, can be traced back to the Supreme Court.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

We already know the Ferguson Police Dept. believes Wilson's actions to be defensible. Statements released by the department claim that Mike Brown got into an altercation with Officer Wilson and tried to grab his gun. It has also claimed that Officer Wilson suffered injuries from Wilson's attack (although it has released no photos or medical information to back up these claims). The courts have repeatedly shown that officers claiming to fear for their safety are fully justified in deploying deadly force. In the absence of any start-to-finish recordings of the incident, it becomes the police department's word against the words of Mike Brown's legal representatives. And the department will have some form of immunity as well as "officer safety" to deploy in its defense.

With all of this in play, it seems unlikely that there will be a satisfactory resolution to the Ferguson situation. And, despite all appearances otherwise, Officer Wilson may truly be justified in his shooting of Mike Brown. But the legal roadblocks erected by every level of the judicial system makes it extremely difficult to combat the use of excessive force. Even when the system comes together to punish officer wrongdoing, it's rarely the officer that bears the burden. Whether it's a settlement or a prison sentence, it's still the public footing the bill.

Filed Under: accountability, bad cops, courts, excessive force, police brutality, safety, supreme court

Court Finds Aereo Competitor FilmOn In Contempt For Claiming To Be A Cable Service

from the thumbing-your-nose-not-such-a-good-idea dept

We had mentioned in passing that wacky Aereo-wannabe FilmOn, run by the eccentric and frequently ridiculous Alki David had declared itself a "cable service" following the Supreme Court's Aereo ruling -- though we pointed out that anything that FilmOn or Alki David says should be taken with a very large dose of salt. Unlike Aereo, who is trying to follow all of the procedures to make sure that it can be classified as a cable service to pay retransmission fees under Section 111, FilmOn just announced that it was a cable service and kept on streaming. And, not surprisingly, one of the courts that had already ruled against FilmOn has found the company in contempt. It probably did not help that the case was before the very same judge who ruled that ivi couldn't qualify as a cable company.

The judge here... is not happy. Judge Naomi Reice Buchwald totally dismisses the idea that the Supreme Court's ruling in Aereo (where it says Aereo is a cable company) actually means that any internet company qualifies for Section 111 compulsory retransmission rates. Basically, we're back to the quantum CATV where it's a cable system for some parts of the law, but not for others.

FilmOn’s second argument is also unavailing because it hinges on a mischaracterization of the holding in Aereo. Defendant is correct that, throughout the Aereo opinion, the Court likened Aereo to a cable company.... But defendant attaches far too much importance to the Court’s analogizing. A series of statements that Aereo (and, by extension, FilmOn, ...) is very similar to a cable system is not the same as a judicial finding that Aereo and its technological peers are, in fact, cable companies entitled to retransmission licenses under § 111 of the Copyright Act. Defendant may argue that the Supreme Court’s language in Aereo implies that FilmOn may be entitled to a license under § 111, but an implication is not a holding.

Once again, it seems that David's brazen and brash responses to legal setbacks are leading to bad law. It's been suggested more than a few times that David's real role here is to be the buffoonish version of Aereo, basically underminding Aereo's much more sound legal reasoning and arguments at every turn, and that may be true again here. The court slams FilmOn for basically lying to the court in claiming that it didn't mean to stream its content into NY where the injunction from this court blocked it. However, the court points to FilmOn's own press release... which "boasts that defendant's mini-antenna technology continued to make available to FilmOn subscribers across the country the local broadcasts of eighteen major American cities, including New York."

The court, at the very least, points out that Aereo seems to understand how this process works, and has temporarily shut down its operations, but FilmOn just kept streaming. Furthermore, the court points out that, as Aereo is attempting to do, to make use of Section 111, you need to first get a license from the Copyright Office.

FilmOn does not have, and has never had, a license from the Copyright Office. Indeed, defendant admits that it did not even apply for a cable license until July 10, 2014, after plaintiff submitted this order to show cause -- a fact that undermines any claim by defendant that it was truly committed to complying with the letter of the law.... Fundamentally, FilmOn cannot choose to ignore the Injunction merely because it anticipated someday being able to retransmit plaintiffs’ content legally.

The court then goes on to point out that the Copyright Office itself has said it doesn't think the Supreme Court's ruling has any impact on the ivi ruling and rejected FilmOn's (and Aereo's) request to be granted a license.

Not only is hope no defense to the violation of an injunction, but defendant’s faith that the Copyright Office would grant it a cable license was misplaced. On July 23, 2014, the Copyright Office, citing ivi, expressed its view that FilmOn, as an internet retransmission service, “falls outside the scope of the Section 111 license,” and that the Office did not “see anything in the Supreme Court’s recent decision in [Aereo] that would alter this conclusion.” ... Thus, not only was FilmOn’s expectation of a license irrelevant, but it was erroneous as well. Moreover, even if the Copyright Office had granted a license to FilmOn, this development would not have excused defendant’s decision to preemptively stream content in violation of the Injunction. The Copyright Office’s decision does, however, provide additional support for our conclusion that FilmOn’s use of the mini-antenna technology clearly falls within the ambit of the Injunction, and defendant should be held in contempt for willfully violating its terms.

The judge also calls out David himself for contempt, and in the end orders FilmOn to pay $10,000 per day for nine days. It calculated the nine days from the day Aereo shut down its service until FilmOn also shut down it's offering. Thus a total of $90,000, but it also says the networks can get attorneys' fees as well, so that could add up.

There are legitimate legal questions about whether or not the ivi ruling is still valid, and whether or not an internet streaming company can qualify for Section 111 retransmission rates. But the last company that should be in court defending that position is FilmOn.

Filed Under: alki david, cable service, contempt of court, naomi recie buchwald, section 111, supreme court
Companies: aereo, filmon, ivi

Supreme Court Ruling Over Mobile Phone Searches May Really Be The First 'Internet Of Things' Ruling

from the scotus-iot dept

Advocates of digital privacy scored a major victory when the Supreme Court recently ruled that police need a warrant to search cellphones. In Riley v. California and United States v. Wurie, two cases that pivot on the legality of searching personal computing devices, what is becoming a tech-centric high court recognized not only the pervasive role technology is playing in modern society, but also the growing personal data that exists as we digitize larger swaths of our everyday lives.

With this decision, the court confirmed what most of us have known for some time: modern cellphones are more than just a technological convenience or device for making phone calls, they're sophisticated "minicomputers" that hold for many of us "the privacies of life." The risks of harm to arresting officers or destruction of evidence do not exist when digital data is concerned. Rather, the justices said, searching the "vast quantities of personal information" on a smartphone is an invasion of privacy that far exceeds the Fourth Amendment protections against unreasonable searches of a person's physical property upon an arrest. Writing for the court, Chief Justice John Roberts noted, "a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form."

Fittingly, the opinion comes in a year when, according to Consumer Electronics Association (CEA) research, smartphone sales will eclipse 1 billion units for the first time ever. Today, nearly two-thirds of U.S. households own at least one smartphone, and that figure is projected to climb to 71 percent by 2017 as new manufacturers like Amazon and Blackphone enter the market. For many of us, our smartphones have become extensions of ourselves. They hold our favorite songs, house our favorite pictures and are home to the names and addresses of just about everyone we love -- even your background picture has a personal story to tell about you. Roberts was even more direct, noting cellphones are "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

The court's opinion reveals an unwillingness, in this realm at least, to simply extend pre-digital precedents to new technologies -- especially when those extensions encroach on the fundamentals of our founders' views on liberty. The ruling follows the unanimous 2012 opinion in United States v. Jones that law enforcement's use of GPS-enabled devices to track suspects' vehicles is considered a search. In that case, the concurring opinion by Justice Sonia Sotomayor held that police needed a warrant in order to attach a GPS device to monitor movements by a suspect's car. The Court recognizes that the many capabilities of today's technological innovations continue to unfold. More, the technologically-infused life is still in its infancy. Smartphones that double as GPS devices are just the beginning. Soon, wearable technologies like activity trackers and health monitors could provide the government with our most personal data.

Traditionally, the court has held that people have no reasonable expectation of privacy regarding information they show to third parties, so no warrant is required to obtain that information. But today's technology is eroding pragmatic limits on law enforcement's ability to track and trace us. Legal scholars believe that case planted a seed that could transform Fourth Amendment rights in light of modern technology.

In his opinion concurring with the court's decision on cellphone searches, Justice Samuel Alito noted the court is not in a position to evaluate the implications on privacy posed by searching cellphones, considering the amount of information about the lives of Americans that can be gleaned by the government and private entities, and the fact that many Americans are choosing to make so much information available to the public. He suggests that lawmakers are "in a better position… to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future" with legislation to govern the scope and limits of privacy rules involving modern technology. Regulators must take note of the vast ways in which technology will touch our lives in the future.

As technology enables the digitization of more elements of our lives, private information is becoming one of the key components in the market for developing devices that increase connectivity. The court's opinion is perhaps the strongest legal defense of privacy in a world dominated by technology. And it comes at just the right time, because it's not just our phones that are getting smart.

Soon, just about everything we touch will capture data about us. Our cars. Our watches. Our clothing. The fundamental privacies at stake in this ruling transcend far beyond phones. The Supreme Court needed to write its decision with the bigger picture in mind, and it did.

Ultimately, this ruling can arguably apply to the millions -- and eventually billions -- of physical objects that are being connected at an increasing clip to the Internet of Things. And whether the justices realized it or not, this court has now provided important privacy protections that will foster the continued, rapid technological growth our innovation economy demands.

Shawn DuBravac is the chief economist of the Consumer Electronics Association (CEA), the U.S. trade association representing more than 2,000 consumer electronics companies. Follow Shawn on Twitter @Twoopinions.

Filed Under: internet of things, iot, mobile phones, privacy, supreme court, technology

Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain

from the well-that-didn't-take-long... dept

Well that did not take long at all. We just wrote about the Sir Arthur Conan Doyle Estate begging the Supreme Court to issue a stay on the appeals court ruling that determined (easily) that Sherlock Holmes was in the public domain. The Conan Doyle Estate wanted the Supreme Court to issue a stay on the decision while it prepared an appeal. That stay would effectively block the publication of the book that Leslie Klinger was planning -- which was at the center of the lawsuit.

Justice Elena Kagan, who received the request for the stay from the estate has already rejected it with no comment or explanation. She did so without consulting with her fellow justices or without asking (or waiting) for a filing from Klinger. She has every right to just make this decision, but it certainly suggests that the Supreme Court (well, at least Kagan) finds the appeals court ruling to be quite persuasive, and is not at all convinced the estate has a legitimate argument. I'm sure that the estate will still ask the Supreme Court to rehear the case, but at least this initial response suggests that the Supreme Court is not interested. Chalk up another (small) victory for the public domain.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

Aereo: Okay, Fine, If You Say We Look Like A Duck, We'll Quack Like A Duck

from the let's-pay-up dept

In the wake of the Aereo ruling, I'd been meaning to do a post questioning whether or not the ruling had effectively overturned the ruling in the ivi case from a few years earlier. We had seen some people in our comments point out that, following the Aereo ruling, Aereo had an easy solution: just start paying retransmission fees. Except... that's exactly what ivi had tried to do, and the court had shut them down, using almost the opposite reasoning as the Supreme Court. Specifically, the Second Circuit appeals court (the same that had decided in Aereo's favor) ruled that internet services were not cable companies under the law, and couldn't just pay retrans fees:

Congress did not, however, intend for Section 111's compulsory license to extend to Internet transmissions. Indeed, the legislative history indicates that if Congress had intended to extend Section 111's compulsory license to Internet retransmissions, it would have done so expressly -- either through the language of Section 111 as it did for microwave retransmissions or by codifying a separate statutory provision as it did for satellite carriers. See 17 U.S.C. §§ 111, 119.

Extending Section 111's compulsory license to Internet retransmissions, moreover, would not fulfill or further Congress's statutory purpose. Internet retransmission services are not seeking to address issues of reception and remote access to over-the-air television signals. They provide not a local but a nationwide (arguably international) service.

Accordingly, we conclude that Congress did not intend for Section 111's compulsory license to extend to Internet retransmissions.

So, uh, which is it? Aereo has now decided that if the Supreme Court is going to call it a duck for looking like a duck, it's damn well going to quack like a duck too. It has told the lower court that it intends to pay retransmission fees under Section 111, more or less claiming directly that the Supreme Court overruled the ivi ruling. For what it's worth, Aereo's "wacky" (but seriously questionable) "competitor" FilmOn, already made a similar declaration of being a cable company, though as we've learned with FilmOn, you should take almost every claim it makes with a huge grain of salt.

Of course, this is a big problem with the Supreme Court's ruling. By coming up with this wacky "looks like a duck" test, it's encouraging companies like Aereo to use that test in a variety of ways, even though copyright law has never worked that way. Lots of things that "look like" each other face different rules: think of terrestrial radio and internet radio stations. Under the "looks like a duck" test, internet radio stations should be able to declare themselves the same as terrestrial radio stations and stop having to pay performance fees to musicians.

And, of course, the networks themselves don't like Aereo embracing the duck, even though the company is only doing so because of the network's own lawsuit.

On July 1, however, its counsel suggested that Aereo has rethought its entire legal strategy and will raise before this Court a brand new defense based on Section 111 of the Copyright Act. Aereo never before pled (much less litigated) Section 111 as an affirmative defense. Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a “cable system” under Section 111 given its prior statements to this Court and the Supreme Court.

But it's not Aereo that made that decision. It's pretty clearly the Supreme Court and its stupid "looks like a duck" test. The entertainment industry might want to be careful what it wishes for. It applauded the dreadful looks like a duck test, and now it's freaking out when Aereo actually tries to apply it.

Filed Under: cable company, cable tv, copyright, retransmission fees, section 111, supreme court
Companies: aereo, filmon, ivi

Feds Ignore First Amendment, Supreme Court Precedent In Seizing Domain Of Social Network For Sex Workers

from the based-on-what? dept

The disturbing trend of the federal government seizing domain names without regard to the First Amendment continues. The FBI, along with the IRS, apparently seized a number of websites associated with MyRedbook.com, and arrested the operator of the site. The FBI notes that the site, which was a social network and resource for sex workers, included advertising that "facilitated prostitution." It also accused the site of money laundering.

However, as the EFF is noting beyond the question of whether or not the FBI should even be in the business of targeting sex workers, there are serious First Amendment questions around such a seizure of a website:

MyRedBook and its companion sites served a large and diverse community of sex workers. The sites functioned as social media platforms, with discussion boards for users in topics from politics to financial tips. It also served as a resource guide with information ranging from explanations of the law as it pertains to sex work to health information. For archived versions of the forums sex workers no longer have access to, click here.

These sites were essential tools for First Amendment protected speech and association—especially important for a community that values its privacy for a variety of legitimate reasons. This platform has been pulled out from under the feet of this community.

As we've discussed many times in the past with regards to the government's seizure of websites, these appear to be classic cases of prior restraint -- the effective equivalent of the government rushing in and smashing the printing presses for a publication. In Ft. Wayne Books. v. Indiana, the Supreme Court is quite clear that the government can't just go in and seize protected speech based on related illegal activity, especially without first holding an adversarial hearing to explore the First Amendment implications. The court noted:

...our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.

The court is quite clear that the only purpose for which seizure is appropriate in such circumstances is to procure a single copy for the sake of evidence, but not to remove protected speech entirely from circulation. While that case was about RICO claims of racketeering, and this case is about money laundering and prostitution, the same principles should and do apply:

At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, ... that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.... Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed.

I can't see any legitimate way that the DOJ/FBI can defend this seizure under such a standard. It clearly took down significant aspects of protected speech based merely on the assertion of related criminal activity, without any sort of adversarial hearing. The First Amendment, and the specific statements of the Supreme Court in this case, clearly forbid such actions.

Filed Under: domain seizures, fbi, first amendment, free speech, irs, money laundering, prostitution, sex workers, social network, supreme court
Companies: myredbook

SCOTUSblog's Best Trolling Of People Who Think Its Twitter Account Is The Supreme Court Itself

from the the-failures-of-autocomplete dept

We've written a few times about SCOTUSblog and the trouble it's been having getting a press pass for the Supreme Court due mainly to institutional jealousy from reporters at more mainstream publications -- who rarely do nearly as good a job covering the Supreme Court. However, for years, SCOTUSblog has faced a different issue: the fact that many people on Twitter quickly assume that the @SCOTUSblog account on Twitter is actually the Supreme Court itself, rather than a private news organization that covers the Supreme Court.

That can create some ridiculous situations, especially when lots of people have a rather passionate opinion about a particular Supreme Court ruling and (of course) rush to Twitter to vent their frustrations (or joy). Assuming you haven't been living under a rock, you may have heard about the Supreme Court's ruling in Burwell v. Hobby Lobby. That ruling hits on a whole variety of hot button issues likely to bring out very strong opinions: religion, health care, health insurance, women's rights, free speech, regulations on how companies can act, etc. And, not surprisingly, this lead a bunch of people to lash out at the SCOTUSblog Twitter account, without recognizing that it wasn't actually the Supreme Court itself. And, then, SCOTUSblog decided to play along, retweeting some of the crazy attacks and responding to them in a hilarious, trolling fashion. Here are just a few of the best ones:

Um…… -Amy. RT @VictoriaaC0418: Hey @SCOTUSblog … Thanks for treating women like second class citizens.

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Noted. -Scalia MT @ypiddle: @SCOTUSblog You sided with the crazies. Good job!! Tell your boys to keep their thingies in their pants.

— SCOTUSblog (@SCOTUSblog) June 30, 2014

When you start reading our description. MT @ProgressivesWin: @SCOTUSblog When will you start honoring the constitution. #5OldBigots

— SCOTUSblog (@SCOTUSblog) June 30, 2014

File a petition MT @yenisargueta: Thanks for not giving me the choice to my own body @SCOTUSblog Can I get carrots banned cause I want to?

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Whoa, “uninformed”? MT @Nicole_Cameron: Wow. @SCOTUSblog what a way to wake up in 1950s. Giving healthcare to the uninformed, the prejudiced

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Or eating the cheap Kung Pao Chicken MT @NYCPainter1: Of all the bad decisions @SCOTUSblog made the last few years, #HobbyLobby is the worst

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Lost our copy, apologies. MT @opinali: @SCOTUSblog today you have f@cked up real hard. Go read the f@cking First Amendment again, OK?

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Seriously people, read MT @Devilsmirk: Does anyone actually read how @SCOTUSblog comes to their decisions? Read the actual ruling.

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Come at us, bro MT @mazurslovedogs: @SCOTUSblog manages to screw up or endanger everyone’s life. Maybe someone needs to discuss impeachment!

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Needed a place to put it MT @TheResPublicaBK: Today is the day @SCOTUSblog allowed religion to be above the law. Congratulations

— SCOTUSblog (@SCOTUSblog) June 30, 2014

We prefer them as our editor & manager. RT @Allout1 I guess @SCOTUSblog wants women barefoot, pregnant and cooking dinner.

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Or when bloggers decide the law? MT @alyssaanton: @SCOTUSblog proves democracy cannot work when leaders are appointed instead of elected.

— SCOTUSblog (@SCOTUSblog) July 1, 2014

Thurs. No, wait—Fri MT @Closetrighty: @SCOTUSblog can you at least tell me when your agents will confiscating my gf’s birth control.

— SCOTUSblog (@SCOTUSblog) July 1, 2014

Really? Let’s let twitter decide. Ok? MT @The_Itch: @SCOTUSblog How do I become a justice? Pretty sure I’m smarter than 5 of you.

— SCOTUSblog (@SCOTUSblog) July 1, 2014

#2: read a twitter bio RT @bradleytroth: @SCOTUSblog things a real person can do a corporation can’t: adopt a child.

— SCOTUSblog (@SCOTUSblog) July 1, 2014

Affirmed: holy cows now protected MT @crashandcarry @SCOTUSblog, holy cow did you men mess up. Shame on u!

— SCOTUSblog (@SCOTUSblog) July 1, 2014

And then, of course, some of those same (and different) angry people started to notice the mocking tweets from the blog. And rather than recognizing their own mistakes... they doubled down, screaming about how crazy it is that the Supreme Court would tweet that way to people, leading to yet another layer of hilarity:

The passive aggressive way @SCOTUSblog is answering right now is horrible considering the position they just put women in. Not okay.

— Dumb of the Day (@WollyWollenberg) June 30, 2014

Drops mic. RT @sayyeslena: Have y’all seen what @SCOTUSblog is tweeting? #MyGovernmentIsBeingPassiveAggressive #Awkward

— SCOTUSblog (@SCOTUSblog) June 30, 2014

You have no idea MT @ZwielichtFunkel: I’d have thought that @SCOTUSblog is a parody account. Is douchebaggery by government accounts normal?

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Beat heads on desks RT @USUfacts: @MattAHorton @SCOTUSblog pretty sure it’s their blog as run by their clerks. check your facts.

— SCOTUSblog (@SCOTUSblog) June 30, 2014

Sry MT @calph7: Hilarious that @SCOTUSblog is mocking lay persons’ opinions. They don’t care, they’re their own branch of gov’t!

— SCOTUSblog (@SCOTUSblog) June 30, 2014

FTW RT @tory_dube @SCOTUSblog decisions upset so many people & all they are doing on twitter is mocking those people. That’s just disturbing

— SCOTUSblog (@SCOTUSblog) July 1, 2014

Now let’s watch you try MT @noahtron watching @SCOTUSblog spin trying to cover their asses after today’s ruling is unrepentant visible smarm

— SCOTUSblog (@SCOTUSblog) July 1, 2014

And… scene. Goodnight MT @seanmcdh: was the @SCOTUSblog account hijacked by an angry 14 year old male? wow! So much for ”…by the people.“

— SCOTUSblog (@SCOTUSblog) July 1, 2014

No -Ginsburg RT @notsalome shouldn’t @SCOTUSblog sign its tweets with the justice’s name who wrote the tweet?? #tcot

— SCOTUSblog (@SCOTUSblog) July 1, 2014

Life in the Twitterverse can get a little wacky sometimes, it seems. Frankly, it seems that the Supreme Court should figure out a way to give SCOTUSblog a press pass just as an apology for having to deal with all of those angry tweets...

Filed Under: confusion, scotusblog, supreme court, trolling
Companies: hobby lobby, twitter