Yes, A Facebook 'Like' Is Protected By The First Amendment

from the free-speech-ftw dept

Last year we wrote about a troubling case, in which a district court ruled that Facebook "likes" were not protected speech under the First Amendment. The full details of the case are fairly complex, but the short version is that some employees of a local sheriff were fired after Facebook "liking" the sheriff's opponent in an upcoming election. The employees appealed. Both Facebook and the ACLU weighed in, urging the appeals court to reverse... and it has now done so in clear and concise language, noting that of course "liking" something on Facebook is a form of expression:

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy.

Of course, this doesn't mean you can't be fired for liking something (First Amendment protections are from government activities, not from what a private employer does concerning its employees -- though for government employees it can protect them). However, having a clear ruling that a "like" is a form of protected expression will likely come in handy in other cases in which others try to claim that certain forms of online expression are not protected.

Filed Under: expression, first amendment, free speech, like
Companies: facebook

Man Who Gave Police The Finger Gets Federal Case Reinstated

from the digitus-impudicus dept

The middle finger, or flipping the bird, or digitus impudicus, is a wonderfully universal way to let someone know what you think of them. We recently told you the story of a delightful woman who fashioned her Christmas lights into the gesture as a way to help her neighbors get into the holiday spirit. What I didn't realize is how many stories there are of people giving the bird to the police while driving around on streets. Quite frankly, it never occurred to me to be driving past someone who has the ability to make me miserable in so many different ways and give them the finger.

But that's exactly what Vietnam veteran John Swartz of New York did, flipping off an officer and his speed gun as he drove past in 2006. He was subsequently pulled over and arrested for disorderly conduct. He's apparently been fighting back ever since and now his court case has been reinstated by a federal appeals court, who didn't believe the arresting officer's explanation that he pulled the car over because he thought the middle finger was meant as an alert that the female driver, Swartz's wife, needed assistance.

From the three judge panel:

Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

On the one hand, it's good that a court recognized that there is no law against flipping off the police and that free speech should be protected from hysterically reaching justifications for revenge arrests like this. On the other hand, it's a little sad that a federal appeals court has to delve into such territory at all. Of course, none of this should be read as some embrace for flipping off police in general, but speech is speech and it should be protected. In any case, this isn't over yet and no date for trial has yet been set, so we'll have to wait for a verdict.

Filed Under: driving, expression, middle finger, speech

Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing

from the fair-use,-learn-it,-love-it dept

To Silvie van Etten:

Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences. First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law. In fact, it leads one to wonder if you even read the post in question before sending your letter.

Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false. It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called "Copyfraud" by legal scholar Jason Mazzone.

While you appear to be in Germany, I note that Human Synergistics International is actually based in the US. We, too, are a US company, with US servers, targeting a mostly US audience. As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism. According to your LinkedIn page, your law degree is from the somewhat infamous Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular. While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours. As such, we reject your claim that we have violated your copyrights as well as your request to remove the quoted sections from our blog. When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding.

Our use is fair use and not infringing. While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law. Looking over those four factors, our use is without a doubt fair use.

The first factor is the "purpose and character of the use." Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three. We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise. We further commented on the matter, using the text in particular to show why your original claim of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds. Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event.

Furthermore, courts will often look at whether or not the use is "in the public interest" (see Online Policy Group v. Diebold). Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with. Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair. In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text. This, too, supports the fair use argument.

Courts also explore whether or not the use is "transformative," (see: Cambell v. Acuff-Rose). Once again, the answer is a resounding yes. At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transformatively different from the purpose you appear to envision for the text.

The second fair use factor is "the nature of the copyrighted works." Again, this prong supports our claim that the use is fair and not infringing. Our original post talked about how your company appears to abuse the purpose and the letter of copyright law to threaten and bully anyone who quotes a very tiny portion of a common "group training" exercise, involving stranded travelers and a small list of items which need to be prioritized for travel and survival. As we noted in our original post, there are a variety of similar exercises, all based on the same premise. That, alone, suggests that the short description of the exercise -- consisting of 4 sentences and 64 words -- has, at most, only weak copyright protection on the few new creative elements. Furthermore, the "list" of items is, not unlike a "recipe," merely a list of facts and, for the most part, not copyrightable under US law. Finally, part of the text that you ask us to delete is, in fact, something that we wrote, "she then lists out the items," rather than something from the text you claim copyright over.

The third factor is "the amount and substantiality of the portion used." Here, again, it supports that our use -- the tiny segment of the exercise that was quoted in our blog post -- is fair. As anyone who has done one of these exercises knows full well, the point of the exercise is not the 4 sentence description, nor the list of items, but the actual group prioritization effort, combined with the "expert" prioritization that is often revealed at the end of the exercise in addition to various explanations of what the exercise means / what participants should have learned. Since the amount that we copied was such a tiny part of the larger exercise, and a minor part of it, at that, this again weighs in favor of fair use. Furthermore, even if you were to argue that we somehow did use a substantial portion, your argument would fail. As the Supreme Court makes clear in Harper & Row, Publishers, Inc. v. Nation Enters, "substantial quotations might qualify as a fair use in a review of a published work or a news account." Our use clearly was a news account.

Finally, the last factor is "the effect of your use upon the potential market for the copyrighted work." It's important to note here, (again referencing back to the Campbell case) that the courts are clear here that they are not addressing whether or not the criticism harms the market, but whether or not the direct use harms the market. We freely admit that our criticism of your despicable copyright practices may lead organizations to think twice about doing business with your company. But, as the Supreme Court noted, while "a scathing theater review kills demand for the original, it does not produce a harm cognizable under the Copyright Act." In our case, the specific use of the text clearly does not harm the potential for your market, because we were not using it in a competitive manner at all. No one would read our post and use that to administer the exercise in question.

It's that last point that is the most bizarre in all of this. The original blog post, by Patti O'Shea, which we were commenting upon, said nothing negative about your organization or the exercise, which she seemed to enjoy. Most reasonable persons would actually have read it as an endorsement of the exercise itself, which would reflect well on you and could lead more people to wish to hire your organization or license the specific exercise details. Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet. In response, you received criticism from us. And, rather than change your ways, you have now dug yourself an even bigger hole by threatening us with what appears to be a clearly bogus threat. So you have gone from one mostly positive blog post to an increasing series of negative blog posts criticizing your activities.

It is unclear how that series of responses from you furthers Human Synergistics' business interests, which must be a part of your job.

Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

While I hope that this response, posted publicly on our site and sent to you directly, constitutes the end of this discussion, I have had this letter reviewed by multiple lawyers who are experts in copyright, fair use and free speech. If you wish to continue this fruitless effort, I will be happy to put you in touch directly with lawyers who will be representing us in having a court disabuse you of your misunderstanding of copyright law.

Sincerely,

Michael Masnick
CEO and Editor
Floor64 Inc. and Techdirt

Filed Under: copyright, desert survival scenario, expression, fair use
Companies: human synergistics international

Once Again, If Someone Has The Same Lame Story Idea You Had, It's Not Copyright Infringement

from the just-saying dept

Over the years, we've noted time and time again that people seem to think that if a book, movie or TV show comes out that has some basic similarities to a project they worked on, it simply must be copyright infringement. But, of course, copyright is supposed to apply to specific expression, rather than mere ideas. As we've noted, over the years, the line on this is unfortunately blurry, but for some cases, it's pretty clear that there's no infringement at all. Such is the case in a legal fight over a Disney movie (direct to video, of course) about a dog who helps Santa Claus. Three guys came up with a similar idea, which they wrote as a short story (it took three guys to come up with such an idea?) and then decided that the movie must have infringed on their copyright. It did not. I'll let THREsq's summary explain:

The court acknowledged that the short story and the Disney movies had some elements in common: they all feature a threat to Christmas and a talking dog; all feature a dog named Paws, Santa Paws or Puppy Paws; they all have magical icicles; etc. There also is some similar dialogue. However, "apart from these abstract similarities, the remaining elements of the plaintiffs' short story and defendants' movies are substantially dissimilar," the court notes. "Furthermore, most of the aforementioned similarities between plaintiffs' short story and defendants' works are not protected by copyright law."

While we can point to cases like this and say that the system is working, just the fact that such cases so often get filed shows a real problem. We've so built up this perception of copyright-over-all and "ownership society" that people really do think that anyone having the same idea as them must have infringed -- and are so sure of it that they're willing to go to court. That's a symptom of a much bigger problem with the system and the way people view it today.

Filed Under: copyright, expression, idea, stories

Tweets... In... Space....

from the an-art-project dept

I was just recently listening to Radiolab's excellent episode about "Space", which contains a really great talk with Ann Druyan, the widow of Carl Sagan, about how they worked together to produce a "record" that was shot into space with the original Voyager expedition (and about how they fell in love while doing so). One of the things that's striking about that is how much thought went into figuring out what exactly to "send into space" and how much effort it took to then launch that message. But, these days, it's getting easier and easier to communicate and easier and easier to send stuff into space. So a pair of artists, Nathaniel Stern* and Scott Kildall, are doing something of an art project to see if they can launch a bunch of tweets into space:

Tweets in Space beams Twitter discussions from participants worldwide towards GJ667Cc – an exoplanet 20 light years away that might support extraterrestrial life. Simply add #tweetsinspace to your texts between 8:30 and 9PM Mountain Time on September 21st 2012, as part of the International Symposium on Electronic Art in New Mexico (ISEA2012). We will collect your tweets and transmit them into deep space via a high-powered radio messaging system. Our soon-to-be alien friends might receive unmediated thoughts and responses about politics, philosophy, pop culture, dinner, dancing cats and everything in between. By engaging the millions of voices in the Twitterverse and dispatching them into the larger Universe, Tweets in Space activates a potent conversation about communication and life that traverses beyond our borders or understanding.

Perhaps it's not nearly as impressive as the record on the Voyager, but in some ways that's the point. One of the amazing things about the communications revolution we're living through today is how anyone can communicate just about anything, no matter how banal. Of course, mixed in with all of that are also some amazing insights and stories. And they don't need gatekeepers choosing who passes them along. Even if the likelihood of this project actually getting any tweets read by alien life forms is close to nil, conceptually, it's a fun idea that highlights how quickly the world of communications is changing.

* Disclosure: Stern and I went to college together and I consider him a friend, even if I haven't seen him in something like fourteen years.

Filed Under: art, expression, tweets in space

Couple Arrested For Dancing On NYC Subway Platform

from the waltz-the-problem-with-dancing? dept

Perhaps some day, if I manage to live long enough, somebody somewhere will be able to explain to me why the seemingly benign combination of dancing, cameras, and police tends to result in threats, beatdowns, and arrests. Recall a year ago when I had the privilege to write about protestors getting bodyslammed at the Jefferson Memorial for the horrific crime of silently dancing on the premises?

Well, Yakko Warner writes in with the story of two nefarious characters, code named George Hess and Caroline Stern, who had the gall to dance on a New York City subway platform and were taken to the ground and arrested for their trouble. As that New York Post piece explains, the couple found themselves near a musician playing on steel drums:

“We were doing the Charleston,” Stern said. That’s when two police officers approached and pulled a “Footloose.”
“They said, ‘What are you doing?’ and we said, ‘We’re dancing,’ ” she recalled. “And they said, ‘You can’t do that on the platform.’ ”

And so, as their training manuals surely instructed them to do, the officers demanded to see their IDs. Because they were dancing. Where someone was playing the drums. In the most cosmopolitan and culturally-rich city in America. In any case, when Hess could only produce a credit card (which had his name and photo on it), this happened:

"The officers ordered the couple to go with them — even though the credit card had the dentist’s picture and signature. When Hess began trying to film the encounter, things got ugly, Stern said.“We brought out the camera, and that’s when they called backup,” she said. “That’s when eight ninja cops came from out of nowhere.”

The ninja cops then alledgedly tackled Hess to the floor, cuffed both of them, and detained the pair for twenty-three hours. The initial charge was apparently impeding the flow of traffic of what is reported to have been three other people on the platform. The police then added other charges, such as resisting arrest.

All charges were subsequently dropped when the paperwork was finally reviewed by the NYPD's Not Crazy Department. The couple are now suing in Manhattan courts, but maybe it's time a national memo went out to law enforcement agencies reminding them that dancing people with cameras don't necessarily need to be tackled?

Filed Under: arrest, dancing, expression, nyc, overreaction, subway

Author Discovers Assassin's Creed Uses Same Cliche'd SciFi Trope As His Book... Sues For Infringement

from the genetic-history?-really? dept

Ah, ownership society. We see this all the time with successful books, movies and TV shows -- where suddenly someone (generally a complete nobody) discovers that a popular media vehicle is based on a similar generic idea that they once wrote about too... and they insist that the successful work must be infringing. I guess we can add video games to that list as well. Ubisoft has apparently been sued by an author you've likely never heard of, John Beiswenger, who wrote some book whose premise has a vague similarity to the premise of Ubisoft's popular Assassin's Creed game. Both stories apparently involve genetic memory -- the idea that memories can be passed down from your ancestors.

But that seems to be about as far as the similarities go. One would have hoped that a lawyer would have explained to Beiswenger that copyright only covers specific expression, rather than generic idea, but apparently that didn't happen. Of course, as Julian Sanchez points out, the idea of "genetic memory" is such a common sci-fi trope that there's a whole page dedicated to listing out stories that use the concept -- many of which predate Beiswenger's book (and nearly all of which were significantly more successful). Don't expect this lawsuit to go very far.

Filed Under: assassin's creed, expression, john beiswenger, ownership society
Companies: ubisoft

UK Court Says You Can Copyright The Basic Idea Of A Photograph

from the say-what-now? dept

We've talked a lot in the past about the "idea/expression dichotomy." This is an important concept in copyright law that says you can only copyright the specific expression, and not the idea. This is supposed to protect people from getting accused of copyright infringement for basically making something similar to what someone else made. Unfortunately, as we've been noting with dismay over the past few years, the idea that there's some bright line between "idea" and "expression" has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction. In the US, we've seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear homages to his photographs. The expression was entirely different, but the judge didn't think so, and Rihanna ended up having to pay up.

Over in the UK, though, we have an even more ridiculous ruling, as pointed out on Boing Boing, where a judge has ruled that a photograph using a similar idea, but totally different composition is infringement. You can see the two photographs here: As you can tell, the expression is totally different. Obviously, the idea is quite similar, but ideas aren't supposed to be protected. You can read the full ruling here, in which the court seems persuaded by the fact that the original photographer had to do some Photoshopping to the image. Now, it's true that European copyright laws are much more open to "sweat of the brow" arguments for copyright (which is not the case in the US), but even so, this ruling is ridiculous and troubling. The court even admits that the basic elements of the photograph (Big Ben, Parliament, London bus) are pretty common. It also admits that highlighting an object in color on a black and white background is pretty common. But it still finds that this is infringing.

I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.

What troubles me here is that this seems to turn the judge into an art critic in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are "copied." Perhaps even more troubling is the following sentence:

Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.

While he's right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly. The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on commonly used photographic elements. That's the problem. Either way, it's yet another example of copyright law being used to lock up culture.

Filed Under: big ben, copyright, expression, idea, london bus, photograph, uk

Is There A Difference Between Inspiration And Copying?

from the I-think-so,-but... dept

We were just talking about the extremely fuzzy border between idea and expression, and how that leads to problems and the stifling of creativity. Well, how about a similar discussion between "inspiration" and copying? We hear this all the time. Whenever we show widely accepted pieces of art that are actually quite similar to something earlier, defenders of copyright insist that this is fine, because it was just "inspired" by the original, rather than a direct copy. But where's the border between inspiration and copying?

Take this case, which was first called to our attention by Stephan Kinsella, in which photographer Janine Gordon sued photographer Ryan McGinley claiming that 150 of McGinley's images were "substantially based" on her own photos. The site PetaPixel (linked above) has posted some of the "evidence," which should immediately make it clear how ridiculous this lawsuit is:


Honestly, it's difficult for me to even say that McGinley's are "inspired" by Gordon's, let alone copies. Yes, some of them cover similar subject matter, but is Gordon seriously claiming that only she has the right to show "a couple kissing passionately" if the "girl on the right has long silky straight brown hair and her eyes are closed"? Separately, in that one, she highlights that the girl has high cheekbones, but I don't quite see how the high cheekbones are part of Gordon's copyright at all. And the one of the guys jumping? She's really claiming a copyright on the fact that arms are curving, and the legs are in a v shape? I don't know if Gordon has looked at people's legs in a while, but they're all pretty much "in a v-shape" quite a lot.

Gordon is apparently seeking $30,000 per infringement, which is the maximum statutory rate... though, to be honest, I'm surprised she isn't going for the full $150,000 by claiming these are "willful" infringement. Either way, it's yet another example of how the state of "ownership culture" today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money.

It's a sad statement on the state of culture today.

Filed Under: copying, copyright, expression, idea, inspiration, janine gordon, photographs, ryan mcginley

What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials

from the oh-come-on dept

Copyright law is supposed to have an idea/expression dichotomy, in which the copyright only covers the specific expression, and not the idea. We're often told this when we worry about the expansion of copyright law being used to block out ideas. And yet, as we've explained in the past, it's not clear there's any real idea/expression dichotomy when it comes to copyright. That's because, if a judge doesn't like something, he or she will often come up with some convoluted explanation for how the "expression" covers the basic idea.

And, of course, once people begin to realize that there's no real idea/expression dichotomy, lawsuits begin to show up pushing the boundaries even further. Take for example, this lawsuit, in which a novelty gift firm called Cellrderm has sued Microsoft and its ad agency, CP&B, for "copying" some of its commercials. You can see the four commercial below, showing the (terribly produced) Cellrderm commercials, followed by the supposedly "infringing" Microsoft version: Cellerdrm, Bedroom ad:


Microsoft, Bedroom ad:


Cellerdrm, Urinal ad:


Microsoft, Urinal ad:
If you watch the ads, they may have (sorta, kinda) similar ideas, but the expression is way, way different in both cases. And yet... Cellrderm is trying to claim that it actually copies the expression:

The Microsoft Commercials copy both the sequence of events and the character interplay found in the Cellrderm Commercials.... The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures, character appearance, camera angles, and other visual elements from the Cellrderm Commercials.

Yes, you read that right. They're complaining that the clothing and gestures in these commercials was copyrightable. One hopes that a judge will tell Cellrderm to stick to gag gifts, and get out of the gag lawsuit business.

Filed Under: commercials, copyright, expression, idea
Companies: cellrderm, microsoft