Russian Stream-Rip Sites Attempt To Take Jurisdiction Issue All The Way To SCOTUS

from the russian-to-the-top dept

Early in 2019, we wrote about stream-ripping site FLVTO.biz winning in court against the record labels on jurisdictional grounds. The site, which is Russian and has no presence in the United States, argued that the courts had no jurisdiction. The RIAA labels argued against that, essentially claiming that because Americans could get to the site it therefore constituted some kind of commercial contract, even though no actual contract existed. Instead, the site merely makes money by displaying advertisements. The court very much agreed and dismissed the case.

On appeal in May, however, the case was sent back to the lower court.

The labels then took their case to the Fourth Circuit appeals court back in May, where judges concluded that the district court judge was wrong to quickly dismiss the lawsuit on those jurisdiction grounds. The appeal judges listed various reasons why it could be deemed that FLVTO.biz and 2conv.com were actively trading in the US – and specifically Virginia – even though the websites are formally based in Russia and don’t require any sign-up from users.

The technical interaction that occurred between Kurbanov’s servers and the computers of his site’s American users constituted a “commercial relationship”; he’d had business dealings with US-based advertisers and server companies and registered a ‘DMCA agent’ with the US Copyright Office; plus he could but didn’t seek to geo-block Americans from using FLVTO.biz and 2conv.com.

It should be immediately clear how dangerous this is for a healthy international internet to exist. The idea that a website, whatever its purpose, could find itself in the jurisdiction of any nation just because that nation's population can reach that website is absurd. Should Wikipedia be in the jurisdiction of Saudi Arabia just because it doesn't geoblock that country? Should Cosmo Magazine's site be subject to the laws of Mexico if its people can get to the site?

No, that's absurd. Were that the standard, it would be a legal quagmire for any site to operate unless it geoblocked every country where it doesn't have a direct presence. And that, it should be obvious, would be the end of a free and open international internet. Which is why FLVTO's lawyers want this to go to the Supreme Court.

Speaking to Torrentfreak, one of those lawyers, Evan Fray-Witzer, said the Fourth Circuit’s ruling set a dangerous precedent that could have a big impact on all foreign website operators. This makes it important enough for Supreme Court consideration, he added.

“The Supreme Court has not yet decided a case concerning personal jurisdiction based on internet contacts and we think this case would be a good opportunity for the court to address the issue head-on”, he continued.

And so we wait, I suppose, to see if SCOTUS would kindly like to un-break the internet.

Filed Under: copyright, jurisdiction, russia, streaming, supreme court, us
Companies: flvto

Internet Archive Responds To Publishers Lawsuit: Libraries Lend Books, That's What We Do

from the we're-a-freakin'-library dept

Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we've explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.

While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn't just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn't sued until now.

Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book -- with a limit of 52 lends or two years of lending, whichever came first. And then you'd have to renew.

Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries -- exposing how much publishers really hate libraries, while pretending otherwise.

Anyway, the Internet Archive has filed its response to the lawsuit, which does the typical thing of effectively denying all of the claims in the lawsuit (though I will admit that I chuckled to see them even "deny" the claim that the Archive's headquarters are in an "exclusive" part of San Francisco (FWIW, I'd probably describe the area more as "not easily accessible by public transit," but that doesn't quite make it exclusive -- or at least not any more exclusive than most of the rest of SF)).

The Internet Archive admits that its headquarters are located in San Francisco, but denies that the corner of Funston and Clement Streets is an “exclusive area.”

The key part, of course, will be the defenses, and as expected the Internet Archive throws everything in starting with fair use, failure to state a claim, first sale, DMCA safe harbor, and statute of limitations and laches. The key ones are going to be fair use and the first sale issue. And the response lays out the basics of how this defense is going to be argued:

The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture. In furtherance of that mission, the Internet Archive has received grant funding from the National Endowment for the Humanities, the National Science Foundation, and the federal government’s Institute of Museum and Library Services, among many other sources. Many libraries and archives, including the Library of Congress, Boston Public Library, University of Illinois at Urbana-Champaign, and smaller community libraries like the Allen County Public Library trust the Internet Archive to digitize books and other materials in their collections in order to preserve physical texts and to facilitate public access. The Internet Archive is part of a network of libraries around the world—each of which is using digital technologies to meet the many challenges of serving patrons with diverse needs and differing abilities and to ensure that the growing storehouse of human creativity is not lost because no one has the capacity to preserve it.

Like Plaintiffs, the Internet Archive believes that “[b]ooks are a cornerstone of our culture and system of democratic self-government” and “play a critical role in education.” Accordingly, democratizing access to information, and facilitating access to books in particular, has been a core part of the Internet Archive’s mission for decades. But, for many people, distance, time, cost, or disability pose daunting and sometimes insurmountable barriers to accessing physical books. Digitizing and offering books online for borrowing unlocks them for communities with limited or no access, creating a lifeline to trusted information. Readers in the Internet age need a comprehensive library that meets them where they are—an online space that welcomes everyone to use its resources, while respecting readers’ privacy and dignity.

[....]

The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet Archive’s CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.

During the early days of the COVID-19 crisis, in response to urgent pleas from teachers and librarians whose students and patrons had been ordered to stay at home, the Internet Archive decided to temporarily permit lending that could have exceeded the one-to-one owned-to-loaned ratio. With millions of print books locked away, digital lending was the only practical way to get books to those who needed them. The Internet Archive called this program the “National Emergency Library” and planned to discontinue it once the need had passed. Twelve weeks later, other options had emerged to fill the gap, and the Internet Archive was able to return to the traditional CDL approach.

Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.

In a blog post about this, Internet Archive Founder Brewster Kahle notes that beyond trying to kill the CDL, the lawsuit also looks to force the Archive to destroy the digital books it's scanned for so many libraries, and to preserve that history.

These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in ten exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.

I call on the executives at Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the pressing challenges to access to knowledge during this pandemic. Please drop this needless lawsuit.

It really is quite incredible that these publishers are looking to effectively do a digital book burning in the midst of a pandemic.

Filed Under: books, controlled digital lending, copyright, fair use, library, national emergency library, publishers
Companies: internet archive

Publisher Decries Damn Libraries Entertaining The Masses Stuck At Home For Free

from the oh-come-on dept

For years and years we've pointed out that, if they were invented today, copyright maximalist authors and publishers would absolutely scream about libraries and probably sue them out of existence. Some insisted that we were exaggerating, but now we've seen nearly all of the big publishers sue the Internet Archive over its digital library that acts just like a regular library.

But, perhaps the most frustrating part in all of this, is that whenever these copyright maximalist authors and publishers are confronted about this, they twist themselves into knots to say "well, I actually love libraries, but..." before beginning a bunch of arguments that show they do not, in fact, like libraries. Sometimes, however rarely, a maximalist just comes out and admits the facts: they fucking hate libraries.

The latest example of this is Kenneth Whyte, a small publisher of Sutherland House Books in Canada, who seemed to think now was the time to take to the pages of The Globe & Mail to whine about libraries competing with book stores that sell books. Of all the things to be bothered with right now. Even the setup of this column is just ridiculous, arguing that libraries -- with their public taxpayer funded support -- are unfair competitors to booksellers:

Public libraries, too, were affected by the lockdown, with various systems across North America furloughing staff. But libraries operate largely with public funding, which has been disrupted far less than commercial revenues their competitors rely upon. As a result, libraries are likely to gain still more market share at the expense of booksellers in the months and years ahead.

It may seem strange to think of booksellers and libraries as competitors. Most booksellers I know don’t. Ask them to name their competition and they’ll point to Amazon and Indigo, not the public library. There’s a logic to that: They’re booksellers, and libraries don’t sell books.

That, however, is a fatally narrow lens through which to view the book marketplace. Booksellers are in competition with libraries whether they want to admit it or not. Just ask the libraries.

As someone who frequents the library (and was thrilled when our local library finally introduced curbside pickup after months of pandemic closure) but also owns way too many books (and literally has been talking about renovating a large closet in a bedroom to turn it into more bookshelves), it's silly to argue that the two compete. I end up buying books all the time that I first found at the library. And libraries serve a public service for people who cannot or would not ever buy those books, but for whom having access to those books might be incredibly useful.

This is why we have libraries. But to Whyte, it's all very unfair. He seems particularly upset that some libraries have advertised the fact that you can borrow books for free as a cheeky way to get people to pay more attention to their local library:

Last November, the Toronto Public Library (TPL) ran this advertisement: “Black Friday Special: 100% Off All Books! Print! Digital! Audio!”

“Don’t miss the deals,” it said, “every day at the TPL.”

It was clever. It was hilarious. Except, perhaps, to people who make a living selling books.

The thing is, libraries have always lent books for free, and the fact that they "compete" with booksellers has never changed the fact that people buy a ton of books. Whyte then goes on to use a calculator set up by the American Library Association to show how much value libraries create each year, and basically uses that to argue that the value of libraries is effectively losses to booksellers. This kind of "we copyright holders must capture all the value" zero sum thinking is ridiculous at the best of times, but is particularly pernicious here. The nature of value creation is that it's not a zero sum game. Borrowing books from libraries helps to educate people, enables them to do things that, in turn, may help the world in lots of other ways. Some of that may lead to more books sold. Some of that may lead to just society being a better place.

It goes on and on like this for a while, with consistently dubious math about just how much libraries are supposedly stealing from those poor, poor publishers. Of course, towards the end, he includes one of those lame "we love libraries" claims after many paragraphs complaining about libraries:

Writers are loath to draw a line between the fact that they’re poor and the fact that four out of five of their patrons get their books at no charge. Most of us grew up in libraries. We love libraries. Our first library card was as important to us as our first driver’s licence. We do our research in libraries and meet our audiences in libraries. We think libraries are important civic institutions. It is difficult to conceive of them as problematic, so we ignore inconvenient facts to shield libraries from embarrassment.

But then he immediately doubles down on the ridiculous claim that libraries are the problem. Oh sure, he admits, there may be other factors (all of which are dubious, by the way) but the real issue: free books at libraries!

Of course, libraries are not the only reason author incomes are low. There are more authors and more books than ever. Especially in the fiction world, a flood of low-priced, self-published digital offerings has hurt prices for some established, traditionally published authors. Looser copyright laws have hurt sales to educational markets. But these factors pale in comparison to the simple fact that four out of five books are read at no charge.

As for the claim that libraries lead people to buy books -- he doesn't care:

Librarians defend their activities by claiming that they introduce readers to new authors and that surveys show people who borrow books sometimes also buy books. That is all true, but it doesn’t alter the fact that four out of five books are read at no charge.

Even if this is true (and it's not), that doesn't mean those 4 other books would have been purchased absent the existence of libraries. So he's willing to grant that... but only just a little bit -- saying that even if 25% of books represented "lost sales" that would be too much.

Librarians claim that a borrowed book is not a lost sale. That would be easier to accept if they weren’t claiming a one-to-one relationship between borrowings and savings in their advertisements. But say only one in four borrowings replaces a sale. Gaining that sale would be sufficient to double the income of our starving authors.

On what does he base that 25% number? No idea. But it's almost certainly not accurate.

Then he hits back at the idea that people improve their lot in life by having access to a library. Why? Because popular entertainment (gasp!) is available at the library. And apparently that's bad.

The dirty secret of public libraries is that their stock-in-trade is neither education nor edification. It’s entertainment. The top three reasons people patronize libraries, according to a massive Booknet survey, are to “relax,” for “enjoyment” and “for entertainment.” That is why the TPL system has 90 copies of Fifty Shades of Grey and six copies of Stendhal’s The Red and the Black.

These entertainment readers are not a benighted underclass for whom Tom Clancy is a stepping stone to literacy and employment. They are people who can afford books: disproportionately middle-class, upper middle-class and well-educated.

Pushing bestsellers in competition with book retailers, to the detriment of publishers and authors, has become an addiction for librarians who, again, rely on steady or growing patronage statistics to justify their funding requests.

It has to stop.

No. It doesn't. Because that's why libraries exist. There are all sorts of reasons why people go to the libraries -- some people get recent books. Plenty of people get other works that they otherwise would never have access to. My own kids now like reading because every week we'd try out new books from the library to find what kinds of books they like -- including (gasp!) some "entertainment" books. Should we have had to waste money on lots of books they'd never read until we found the ones they liked?

But, Kenneth Whyte, thanks for making the truth clear: copyright maximalists have always hated libraries. It's just rare to get one to outright admit it like Mr. Whyte has here.

Whyte concludes with suggestions on how to "fix" the "problem" he concocted himself. He thinks that people should have to pay a subscription fee to borrow books from the library. He also thinks that libraries should pay a lot more for books. Or maybe libraries should just give authors money. He suggests if none of those are okay, then publishers should stop offering their books to libraries (apparently unaware that fair use rights mean they can just go buy the books elsewhere). Of course, this is why we've been concerned that publishers have already been trying to jack up the prices on ebook lending for libraries, while limiting how many ebook licenses they can purchase.

The whole article is quite incredible, but at least it's a copyright maximalist admitting to what many are thinking: they hate libraries and would sue them out of existence if they weren't grandfathered into our broken copyright system.

Filed Under: books, competition, copyright, free, kenneth whyte, libraries, publishers
Companies: sutherland house books

Viacom's Copyright Bots Take Down 'Star Trek' Comic-con Panel Because These Bots Suck Out Loud

from the energize dept

We've argued for a long, long time that these automated copyright takedown bots that far too many media companies utilize are both broken and illuminate just how broken copyright takedown policies for streaming sites have become. The output of this broken system is shown when these bots take down totally legitimate content or when grifters abuse the system to try to take some measure of income away from small third-party streamers. But attempts at machine-based copyright enforcement are truly at their most satisfying when content companies employing these bots commit unintentional copyright seppuku.

This happens way more than you might think, but the latest version of this is Viacom briefly nuking its own Star Trek Comic-Con panel when the copyright borg misfired.

The panel included the cast and producers of Discovery doing a read-through of the first act of the season 2 finale, "Such Sweet Sorrow, Part 2." The "enhanced" read-through included sound effects, effects shots, and storyboard images meant to bolster the actors as they delivered lines from their living rooms and home offices.

Even if the presentation didn't look like a real episode of Discovery to the home viewer, it apparently sounded close enough: after the Star Trek Universe virtual panel began viewers began to lose access to the stream. In place of the video, YouTube displayed a content ID warning reading: "Video unavailable: This video contains content from CBS CID, who has blocked it on copyright grounds.

While it's fun to laugh at the notoriously protective CBS for killing off its own stream, the reality is that even these instances are immensely frustrating. The fact is that instances like this should serve as an indication to CBS that something is very wrong with how it's operating when its attempts at copyright protection result in its own promotional material getting taken down, however briefly.

But the introspection never comes, changes are never made, and instead CBS goes on its merry way likely shitting out mistaken copyright enforcement at plenty of others. I'd say that it at least gives me items to write about, but I don't want to. The fact is that the system is broken, everyone knows it's broken, and we have yet to even begin doing anything about it.

In fact, these automagic filtering systems are in such wide use that this same stream has to be unblocked by more parties as well.

Unfortunately, it seems an array of media companies are each going to have to rush to correct the error in turn: two hours later, io9 reporter Beth Elderkin tweeted that a Cartoon Network panel livestream was pulled offline due to a copyright claim from Turner, Cartoon Network's parent company.

Again...broken. Beyond repair. And yet we're not going to even try to fix it, because something something protecting the artists.

Filed Under: automated takedowns, comic-con, copyright, self-own, star trek
Companies: viacom

Judge Benchslaps Richard Liebowitz Again Over His Request To Not Have To Tell Everyone About Previous Sanctions

from the not-gonna-happen dept

Judge Jesse Furman clearly is not interested in copyright troll Richard Liebowitz's games any more. As you may recall, Furman put together that massive benchslap of Liebowitz last month, detailing the many, many, many times Liebowitz failed to follow court orders, and plenty of examples of where he appeared to lie to the court. Furman also included an appendix with an astounding list of 40 examples in other cases where Liebowitz had been found to similarly fail to follow court orders and/or lie to the court. The ruling concluded with Liebowitz being sanctioned a bit over $100k, but also with requirements that he send the order to all of his clients and every other judge handling a Liebowitz case.

Earlier this week, we wrote about Liebowitz (finally represented by other lawyers) trying to get those other sanctions removed (he paid the money, but doesn't want to have to tell others about this ruling). His lawyers took the bold strategy of saying that it would be unfair to Liebowitz's clients to have to inform them of what a terrible lawyer he is -- and tried to excuse all the sanctions and failed order following as a result of (1) inexperience and (2) a "unique" business model of filing way too many cases.

Judge Furman is, shall we say, not impressed. He took all of two days to issue a 14 page order that is basically an encore presentation to the original benchslap. The first paragraph sets the tone:

On June 26, 2020, the Court issued a fifty-four page Opinion and Order — familiarity with which is assumed — imposing a range of monetary and non-monetary sanctions on the oft-sanctioned Plaintiff’s counsel Richard Liebowitz and his firm, the Liebowitz Law Firm, PLLC.... The sanctions were based on three sets of detailed findings: first, that Mr. Liebowitz had violated “at least six of the Court’s Orders”; second, that he repeatedly lied to the Court, including under oath at a hearing, about whether he had been granted permission by a mediator (the “Mediator”) for his client to participate in a mediation session by telephone; and third, that he had failed to reasonably investigate whether the photograph at issue (the “Photograph”) had been registered with the Copyright Office (it hadn’t), both prior to filing suit and when put on notice about the issue during the litigation.... The Court found that the sanctions, several of which involve notifying other clients and courts about the Court’s Opinion and Order, were reasonably necessary to deter repetition of the misconduct given Mr. Liebowitz’s “long and ignominious history.” ... Mr. Liebowitz and his firm had thirty days to comply with several of the sanctions.... Two evenings ago — that is, twenty-four days after the Court’s decision and only four business days before the deadline — they filed a motion (styled as an order to show cause) asking the Court to stay those sanctions pending appeal.

You may sense that Furman is not happy about all this. He notes that there are four factors in determining whether or not a court should issue a stay regarding such sanctions pending an appeal: "(1) whether the stay applicant has made a strong showing that he is likely tosucceed on the merits; (2) whether the applicant will be irreparably injured absenta stay; (3) whether issuance of the stay will substantially injure the other partiesinterested in the proceeding; and (4) where the public interest lies." He then notes: "the Court finds that the Movants do not come close to carrying their heavy burden."

But Judge Furman is just getting warmed up:

The Court is tempted to leave things there and let its Opinion and Order, with its exhaustive findings and analysis, speak for itself. (Mr. Liebowitz’s shenanigans have surely consumed enough of this Court’s time and resources as it is.) But a few observations are in order, if only to aid the Circuit in the event that the Movants decide to now burden that court with having to decide on short notice whether a stay pending appeal is warranted.

Let's just say that if a judge says that about you in an order, the rest of the document is not going to go well for you. Judge Furman highlights, as we did, that any "harm" done to Liebowitz from having to share the sanctions order is not from the sanctions order, but from Liebowitz's own actions that resulted in the order:

For starters, the Movants’ claims of irreparable harm ring hollow for several reasons. First, the Movants’ principal claim is that the sanctions — which require service of the Court’s Opinion and Order on current and future clients and in current and future actions — will result in “severe and irreparable reputational and economic harm to their law practice.”... But any harm to Movants’ reputations resulting from the mere act of sharing the Court’s Opinion and Order is caused not by the sanctions themselves, but by growing awareness of Mr. Liebowitz’s own conduct and record, which are accurately recounted in the Court’s Opinion and Order. Notably, the Movants attack none of the history recounted in the Court’s Opinion and Order and few of the Court’s factual findings, and, as discussed below, their attacks on those findings are entirely unpersuasive.

And then he points out that the sanctions could have been worse, and that the court was actually somewhat restrained in how it chose to issue sanctions:

Significantly, the Court did not bar or even inhibit the Movants from filing any new action — though such sanctions have long been approved with respect to vexatious litigants.... Instead, its order merely requires the Movants to share information — that is, the Opinion and Order — with their clients and any courts in which they appear for a time, on the theory that they may be deterred from further misconduct by the knowledge that their clients and courts are likely to be more vigilant. Requiring a party to share truthful information — here, that this Court made certain findings and, on the basis of those findings, imposed sanctions on the Movants — does not constitute irreparable harm.

There's also a footnote crammed in there noting that Liebowitz was free to inform his clients that he disagreed with the court's findings and sanctions, or that he was planning to challenge them.

Second, to the extent that awareness of the Court’s Opinion and Order will cause the Movants’ reputational and economic harm, much of that harm has already occurred. As the old saying goes, the cat is out of the bag. The Court’s Opinion and Order is a public document and, due in no small part to Mr. Liebowitz’s well-deserved notoriety, it has already received fairly extensive publicity in the press and social media, particularly in the copyright world. Granting a stay would not undo any of that damage (which, needless to say, is ultimately attributable to Mr. Liebowitz’s own deplorable conduct rather than to the Court’s Opinion and Order itself). Put another way, the potential harm here is not irreparable; it is only marginal.

And here, there's a footnote citing much of the coverage about the original order (including our own post about it).

Judge Furman also notes Liebowitz waiting until the clock was about to run out before filing this request:

Finally, a court “must consider a plaintiff’s delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief.”... That is because “inexcusable delay in filing” a motion to stay “severely undermines the . . . argument that absent a stay irreparable harm would result.” Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993) (rebuking the Board of Elections for seeking a stay twenty-eight days after judgment was entered and only six days before election day). As noted, the Court gave the Movants thirty days in which to comply with the relevant sanctions or seek appropriate relief. Nevertheless, they waited until day twenty-four to seek a stay (at which point, no less, they proposed giving their adversary only three days in which to respond). Put simply, the Movants’ “delay, in itself, belies [their] conclusory assertions of irreparable harm” and “is enough to defeat [their] claim.”

By this point, it appears that Furman is still only getting warmed up. Because then he digs in on whether or not Liebowitz showed a likelihood of success on the merits, and the Judge would give that question a big, giant, humongous: "Nah." Let's just say, again, that this is not the kind of language you want to see in any order regarding an issue you're a party to:

Their first attack is on the Court’s factual findings about Mr. Liebowitz’s lies with respect to the Mediator and his knowledge that the Photograph in question was not registered prior to filing the Complaint. But reading their motion papers, one wonders if they even read the Court’s Opinion and Order. With respect to Mr. Liebowitz’s lies regarding the Mediator, the Movants do little more than cherry pick a single email that they argue (unpersuasively) is more “equivocal” than the Court acknowledged.... In doing so, however, they all but ignore the fact that the Court’s findings were based in large part on its credibility assessments, following a full-blown evidentiary hearing, of the Mediator’s and Mr. Liebowitz’s testimony.

Just a general suggestion should you ever be facing an angry judge: don't try to cherry pick statements out of context. It won't work. And a judge may come back with this:

Meanwhile, the Movants attack a straw man when they contend that the Court erred by finding that Mr. Liebowitz “initiated this action knowing the Photograph was unregistered.”... Put simply, that portion of the Court’s sanctions decision was not based on a finding that Mr. Liebowitz knew when the complaint was filed that the Photograph had not yet been registered; indeed, the Court acknowledged that Mr. Liebowitz may not have personally known about the lack of registration at the time of filing.... Instead, the Court faulted Mr. Liebowitz and his firm for their “inexcusable failure to conduct a reasonable investigation before and during the case.”... Moreover, the Movants conspicuously focus solely on Mr. Liebowitz’s knowledge when the Complaint was filed and say next to nothing about the Court’s findings and analysis with respect to his or the firm’s knowledge and conduct “during” the case. As the Court emphasized, however, whatever knowledge the Movants may have had before filing suit, they certainly knew or should have known about the untimely registration by November 2019, when defense counsel explicitly put them “on notice of what turns out to have been a fatal defect in the Complaint.”... At that point, if not before, the Movants had an “obligation to investigate,” yet they conducted “no investigation” whatsoever until ordered to do so months later by the Court.... To the contrary, Mr. Liebowitz affirmatively represented to the Court that the registration alleged in the Complaint was “the correct” one and resisted discovery on the issue.... Mr. Liebowitz did not admit, as the Movants do now, that he lacked independent knowledge of the registration, let alone acknowledge, as the Movants do now, that the allegation in the Complaint was false; had he done so, the Court and Defendant would have learned sooner that the case was fatally flawed from its inception.

How about the claims that the sanctions are "disproportionate." Again, that's not going to fly, especially when the cases they cited in support... say the opposite.

The Court is confident, however, that the record set forth in the Opinion and Order, taken as a whole, justifies the scope and severity of the chosen sanctions. Ironically, the cases that the Movants themselves cite make plain that the Court acted well within its authority in imposing the sanctions on a nationwide basis. See, e.g., Gallop v. Cheney, 667 F.3d 226, 230 (2d Cir. 2012) (requiring counsel to “provide notice of sanctions imposed upon him in this case . . . to any federal court” in the Circuit “before which he appears or seeks to appear” for “a period of one year from the entry of [the] order”); Enmon v. Prospect Capital Corp., 675 F.3d 138, 148 (2d Cir. 2012) (affirming the district court’s sanctions order requiring a firm’s lawyers to submit the order “with any pro hac vice applications in the Southern District of New York”).

There's also a fun footnote here:

In a footnote, the Movants suggest that the Court may have separately erred “in sanctioning Mr. Liebowitz and [his firm] for their conduct before other courts.” .... Putting aside the fact that a party may not raise an argument in a footnote, that argument is frivolous. The Court did not rely on the Movants’ “[v]iolations of orders in other litigation” as “the basis” of its decision to impose sanctions..... Instead, it took stock of Mr. Liebowitz’s “long and ignominious history” in evaluating what sanctions were necessary to deter further misconduct... The Court is not aware of, and the Movants do not cite, any authority for the extreme proposition that a court should blind itself to an attorney’s history of misconduct in crafting appropriate sanctions.

And then there's the kicker. Judge Furman basically says, "dude, I let you off pretty easy, all things considered, and you come back with this?!?"

Indeed, if anything, the Movants’ own cases suggest that the Court did not go as far as it could have, given that the sanctions are limited in time and do not limit their ability to file new cases, but merely require disclosure.... The Movants are undoubtedly correct in asserting that “nationwide sanctions” are rare... but that is only because they are rarely warranted. Here, they were, as the record makes clear that the Movants’ practice — and misconduct — has begun to spread to other districts. Given that record, limiting sanctions to this District (or this Circuit) would not have been adequate to deter repetition of the misconduct; the Movants could simply file suits elsewhere. That is, the Court’s sanctions ensure that, for at least a year, any courts in which the Movants are litigating are “alert” to Mr. Liebowitz’s “past activities so that they may take judicial notice of matters relevant to new litigation brought by him.”... Anything less would be insufficient to deter repetition of Mr. Liebowitz’s misconduct.

There's also a further note in a footnote questioning why Liebowitz is so insistent on filing cases in other districts... where his reputation has already been noted. And then adds in a dig about Liebowitz already admitting that he doesn't quite have a handle on how to manage all these lawsuits he keeps filing:

The Movants may have expanded the geographic scope of their practice in order to file more cases and make more money. Or they may have done so in an effort to escape Mr. Liebowitz’s well-earned reputation as a problem in this District. (Not surprisingly, Mr. Liebowitz’s reputation seems to have either preceded him or to be catching up with him. See, e.g., In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (noting that Mr. Liebowitz’s “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”); Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (“Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice . . . .”).) Either way, the decision to expand the firm’s practice is a strange one given Mr. Liebowitz’s own acknowledgment that his business management practices are “not [the] best” and that “things need to change.”

Then there's the claim that Liebowitz made that requiring him to file a deposit copy of the copyright registration was somehow unduly burdensome. Remember, part of the problem in this case was that Liebowitz had claimed this photograph was registered, but it was not, and he had provided the registration number of a different work. So this sanction was to make sure that Liebowitz was actually doing the bare minimum required under the law -- which Liebowitz argued is somehow unfair and takes away the rights of his clients. But, as Judge Furman notes, that's not how any of this works:

Finally, the Movants assert in passing that, by requiring the Movants to file a deposit copy of a copyright registration upon the initiation of an action, the Court impermissibly “alter[ed] the statutory presumption of validity in copyright cases.” ... Not so. The statute at issue provides only that “[p]ossession of a registration certificate creates a rebuttable presumption that the work in question” — that is, the work covered by the certificate — “is copyrightable”.... That presumption, however, is not even remotely implicated by the Court’s sanction requiring the Movants to verify and confirm that any work at issue in a new lawsuit is actually registered — which, after all, is a statutory condition precedent to even filing a copyright claim.... Moreover, the Movants’ argument falls flat for another reason: The sanction was imposed on them, based on their history of failing to investigate the evidentiary basis of their own pleadings, not on their current or future clients. That is, although violation of the sanction would subject the Movants to contempt in this Court, it would not in any way (at least absent independent action by the court presiding over the new action) affect the substantive rights of the Movants’ clients themselves.

Also, the claim that it would be too costly for Liebowitz to obtain the deposit copies from the Copyright Office? That's so silly that Furman responds to it in a footnote:

On a related note, the Movants complain that the costs and delays involved in obtaining deposit copies of copyrighted works from the Copyright Office will reduce their clients’ recoveries and may result in statute-of-limitations problems.... The Court’s sanction may reduce some recoveries (although one would think that Mr. Liebowitz would absorb the difference rather than passing the costs on to his clients), but there are reasons to think the Movants overstate the potential impact. By Mr. Liebowitz’s own admission, he settles cases “in the low thousands or tens of thousands of dollars,”... a far cry from the $200 to $1,200 cost of obtaining a deposit copy.... Moreover, the sanction could serve to reduce the Movants’ overall expenses, given the substantial monetary sanctions that Mr. Liebowitz routinely incurs. Indeed, this is at least the third time that he and his clients have been made to pay approximately $100,000 due to his misconduct.... In any event, the costs are the price of the Movants’ misconduct and, for reasons already stated, they are necessary to deter and prevent future misconduct.

He also (in the same footnote) rejects the claim that having to get the deposit copy will create unnecessary delay, since you have three years to file a copyright infringement lawsuit, but does agree to modify the agreement just to clarify that point:

That said, to ensure that the Court’s sanction does not unintentionally harm a client through no fault of his or her own, the Court modifies the sanction (Sanction 6) to include the following proviso: In any case in which the Movants have a good-faith belief that waiting for deposit copies might cause their client’s claim to be barred by the statute of limitations, they may file, in lieu of the deposit copies, an affidavit (1) informing the court of such good-faith belief; (2) confirming that they have applied for, and are awaiting, deposit copies of the work(s) at issue; and (3) representing that they will promptly file such copies promptly upon their receipt.

Then there's the public interest question regarding the sanctions. Liebowitz claims they're not in the public interest. Take a wild, wild guess where the court came down on that. You may be a psychic, because I'm pretty sure you got this one right:

In the Court’s view, there is a strong public interest in shining a bright light on Mr. Liebowitz’s extraordinary record of misconduct and in ensuring that both courts and his clients, current and future, are aware of that history so that they can be vigilant in scrutinizing Mr. Liebowitz’s conduct....

Against that strong public interest, the Movants cite the “interest in the continuation of [their] law practice” because they have carved out “a successful law practice that provides a realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases that otherwise could go unfiled.”... But the sanctions do not bar the Movants from “continu[ing their] law practice,” and Movants’ conclusory assertion that such cases would not be filed without them is unsubstantiated. (Moreover, to the extent that the Movants’ success is built on unsavory business practices or conduct unbecoming an officer of the court, it is, of course, not at all in the public interest for it to be perpetuated.) Nor do the Court’s sanctions deprive photographers of the opportunity to hire Mr. Leibowitz or his firm to bring suit. The sanctions merely ensure that such photographers do so with their eyes wide open, cognizant of the fact that they could be left holding the bag on a hefty attorney’s fee or sanctions award, see, e.g., Rock, 2020 WL 468904, at *2 (ordering Mr. Liebowitz’s client to pay the defendant’s attorney’s fees over $100,000), and of Mr. Liebowitz’s tendency to cut and run, perhaps sacrificing their interests in the process, when he feels that the heat is on him personally, see Usherson, 2020 WL 3483661, at *1. In short, insofar as the sanctions provide Mr. Liebowitz’s clients and courts with more information about his past, it is in the public interest for them to go into effect now, while the Grievance Committee ponders Mr. Liebowitz’s fate longer term.

In short: don't try to play games with a federal judge.

Bringing it all around:

In sum, the Movants’ eleventh-hour request for a stay of the Court’s sanctions pending appeal is denied and the Court’s sanctions remain in full force and effect....

Nor will the Court grant the Movants’ alternative request for an “administrative” stay pending the Circuit’s decision on whether to grant a stay pending appeal.... Granting an administrative stay would obviously ease the burden on the Circuit in the event that it is called upon to decide if a longer stay is warranted. In the Court’s view, however, that virtue is outweighed by the vice of rewarding an appellant for dilatory conduct. Deadlines matter. And having given Mr. Liebowitz and his firm sufficient time to either comply or seek a stay, the Court should not be forced to alter its deadline merely because they waited until the last minute to do the latter. Instead, in the event of an appeal from this Order, the Court will leave it to Mr. Liebowitz and his firm to explain to the Circuit why they put that court in the position of deciding whether to grant a stay with only a few days remaining on the clock.

It's pretty crazy that Liebowitz always seems to know when to cut and run when he's put his own clients into an untenable position, but when his own ass is on the line, he has a history of digging deeper. I assume this one is not over yet.

Filed Under: copyright, copyright troll, jesse furman, richard liebowitz, sanctions

Japan's Top Court Says 45 Million Twitter Users Must Check That Anything They Retweet Is Not A Copyright Infringement

from the yeah,-that's-feasible dept

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country's Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer's name and copyright notice. As often happens, the photo was then tweeted without the photographer's consent, and was further retweeted. The problem is that Twitter uses "smart auto-cropping" of images, with the aim of focusing on "salient" regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter's auto-cropped version of the photo did not include the photographer's name or copyright notice.

As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer's copyright, but dismissed the photographer's demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer's moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.

Twitter appealed to Japan's Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter's users could have a chilling effect on the platform in Japan. Nonetheless:

In a decision handed down yesterday, the Supreme Court ordered Twitter to hand over the email addresses of the three retweeters after finding that the photographer's rights were indeed infringed when Twitter's cropping tool removed his identifying information.

Four out of five judges on the bench sided with the photographer, with Justice Hayashi dissenting. He argued that ruling in favor of the plaintiff would put Twitter users in the position of having to verify every piece of content was non-infringing before retweeting. The other judges said that despite these problems, the law must be upheld as it is for content published on other platforms.

It's not clear what the photographer intends to do with the email addresses, but the larger problem is that the ruling makes retweeting images on Twitter much more of a legal risk for the service's 45 million users in Japan. Taken together with the earlier criminalization of copyright infringement, this latest move is likely to discourage people in Japan from precisely the kind of creativity the Internet has helped to unleash. Japan will be culturally poorer as a result -- just as the EU will be, thanks to the unworkable upload filters that are about to be introduced. And all because copyright fanatics seem to think their concerns must take precedence over everything else.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: auto-crop, copyright, intermediary liability, japan
Companies: twitter

Tech Policy In The Time Of Trump: Mid-2020 Edition

from the this-is-not-a-drill dept

We're not partisan here at Techdirt. We have our personal preferences, certainly, but technology policy tends to transcend normal political divisions. We have been just as likely to see good policy proposals from Democrats as Republicans, and bad ones just the same. What we care about here is ensuring that the founding principles of liberty articulated by the Constitution can be meaningfully applied in a modern, technology driven world. That value is not a partisan one. We don't care who is the hero who makes sure we do not spiral into dystopia; we just want to make sure we don't. And our job is to point out how we may already be.

For the first years of the Trump Administration I took to writing annual summaries of how things might shake out on the tech policy front given the current make-up of government. And then I stopped. By then we had children in cages, and suddenly trying to read the political tea leaves seemed like a remarkably pointless exercise. Also unhelpful, glib, and potentially even harmful. There is no point in acting as though everything is politics as usual when the situation has become anything but. A horrific line had been crossed, and it wasn't even the first. But unless everyone recognized how dangerously abnormal politics had become, it would certainly not be the last.

And yet it sadly appears that politics has chugged on as usual. And as a result more uncrossable lines have, indeed, been crossed. As was inevitable, yesterday's rounding up of immigrants became today's rounding up of American citizens.

So if we're going to talk about tech policy in the time of Trump, we need to be worried about what will happen tomorrow. Our paramount concern therefore needs to be ensuring that tech policy enables us to check further misuse of power. It certainly must not help further entrench it. So let's dig in and see where we are. In my original posts I distilled my comments into four general policy areas that now seem trivially pedestrian. The breakdown implies that we can simply focus on a particular area and its localized political skirmishes and leave the others for another day. Which is silly; when the whole house is on fire focusing on how an individual room may be decorated is not going to be an effective way of addressing the actual crisis at hand. But for the sake of uniformity, I might as well continue with the same organization.

Free speech/copyright. President Trump is infamous for lying. But there's one thing he said that has been true: that he was going to "open up" our libel laws to make it even easier to sue someone for their expression. In fact he's gone even further than that, undermining every expressive right the First Amendment guarantees, including the right to protest, which he has now co-opted federal forces to physically attack.

But as for making it easier to sue people for their speech, he has done that by example, as he and his confederates have launched specious lawsuit after specious lawsuit against speakers, platforms, and traditional press and publishers to challenge their critical (and generally completely lawful) contributions to needed public discourse. On more than one occasion he didn't even wait for them to make the speech before suing to shut them down. It turns out he didn't need to change a single law to effectively obviate the right to free speech; he just had to drown out the voices speaking against him with a flood of litigation in order to silence them.

The running theme throughout this commentary is that lawmakers should not waste time with the traditional horse-trading that fills the corridors of our capitols as policy normally gets set. We do not have the luxury, here in 2020, of developing policy that would optimize life in America; at the moment our only task is to save it. And that requires recognizing the urgency of the moment, because if you don't vote against totalitarianism when you have the chance, you may never have the chance again. So while there are plenty of areas where ordinarily lawmakers should act to articulate good policy in law, including on the tech policy front, right now there is no policy value more important for lawmakers to express in law than preserving the right to expression.

In particular, they should waste no time getting effective anti-SLAPP laws on the books. Every state needs one (looking at you, Virginia…). As does the entire federal legal system, so that we can ensure that federal courts can no longer be the refuge of the censor eager to chill the speech of their critics. Do not pass go; drop almost everything else to get this done. Because if we cannot ensure the public's right to speak out against oppression, then we all but guarantee that oppression to prevail.

Which brings us to copyright, the deck chairs on this sinking Titanic. Could copyright policy be better attuned to the economics of producing and consuming expression in the 21st century? Perhaps. But at the moment that policy challenge is largely irrelevant. The very ability to create and consume expression is itself under fire, and our sole goal needs to be to preserve it. Copyright law inherently is about controlling expression, and that's the last thing we need to be empowering anyone to do.

Mass surveillance/encryption. We have been warning for years against giving the police the unchecked power to invade people's privacy. The ability people need to have to keep their personal affairs free from the prying eyes of the government is no less essential to preserve now, in the 21st Century, than it ever was in the 18th. If anything it is even more important to hold fast to the constitutional barriers that prevent the government from readily invading our private lives now that so much of those lives – personal choices, associations, ideas, etc. – are so casually captured in digital records so easy for the government to track.

We also challenged the excuses law enforcement gave for why they needed this exceptional ability to bypass the basic constitutional tenets normally prohibiting them from helping themselves to this data. They were nearly all predicated on the assumption that the state authority was the good guy and that it needed to save the public from the bad guys hiding among us. We challenged these arguments because these assumptions were inherently unsound – as the news lately has been daily proving.

It is proving us right on a local level – see all the examples of violent police behavior that have inspired weeks and weeks of protest – and increasingly on the federal level, as President Trump unleashes federal forces against those who speak against him. These are not the acts of benevolent protectors we can safely entrust with the awesome power of the state, unchecked. These are the acts of the sorts of bad actors that our civil liberties were designed to protect us from. But when we bless digital surveillance programs that ignore our constitutional protections, and undermine the encryption technology that allows us to make the protections meaningful on a practical level, we make ourselves vulnerable to abuses of power by eliminating our defenses against them. No policymaker committed to the enduring idea of American democracy can possibly advocate in good faith or with intellectual coherence for any policy agenda that continues down such a destructive path. When a powerful state actor has already abused his power against the public, it makes no sense to give him more power to continue that abuse, and it is beyond naïve to believe it wouldn't be so abused. Not when we can already see in painful clarity how much it already has.

Net neutrality/intermediary liability. The political corruption of antitrust enforcement has poisoned this entire policy area. Net neutrality stands for the principle of non-discrimination on the part of service providers enabling the public's online expression. For Internet services where there is no meaningful competition, regulation committed to maintaining that principle is important. It is not, however, useful to enforce that principle in areas where there is competition. In fact, it presents its own harm to expressive liberty when these service providers are denied the freedom to discriminate. Having some sort of principled, meaningful, and consistent way of identifying which service providers are which is therefore crucial. Yet that is not what we've got. Instead we have angry, reactionary, inconsistent, unrealistic, unwise, and often unconstitutional policy demands from both sides of the aisle.

The upshot is that people's ability to speak freely online is at risk. The only way we can protect that ability is by protecting and promoting the existence of the service providers that enable it. Which means not only encouraging the competitive market needed to ensure there are enough avenues for basic Internet access, but also ensuring that there are no barriers limiting our supply of other platforms. Unfortunately, we are currently doing the complete opposite on both fronts, and in the process directly preventing needed lawful discourse.

In some cases it's because people can't get online at all. Either they don't have any service due to a failure of broadband competition policy, or, worse, because we have forced service providers to deny their expression. In those cases sometimes we've used copyright as the rationale to bludgeon service providers into removing speech or even kick off users from their services entirely (and regardless of whether they had actually violated any law). But it's also not the only way we have scared providers into pre-emptively kicking off users or their expression with the plausible fear of being held liable for that expression. The inscrutable FOSTA has already directly chilled platforms and the lawful expression they facilitate, and now lawmakers are threatening even more cumbersome regulation to do even more to terrify platforms into removing user expression, if not cease to exist entirely.

When the United States of America is teetering towards autocracy, it is not the time to impose any policy that would inhibit the public's ability to use the Internet to speak out against it. But that's what most of the proposals being put forth that target service providers threaten to do, from undermining their Section 230 immunity, to further conditioning their DMCA safe harbor, to even encumbering them excessively with ill-tailored regulations on the privacy and security front. Any policy that will have the effect of reducing the supply of online outlets or constraining their ability to enable protected speech – as all these policy proposals do – will only invite disaster when it erodes our ability to use the Internet to speak out against abuses of power, including state power. They all are a mistake.

Internet governance. In his tenure President Trump has accomplished two things: (1) eroding international cooperation and the US's commitment to the public international law that supports it, and (2) empowering autocrats. In the previous posts I lamented how Trump has also undermined the organs enabling international cooperation, but maybe it's just as well. Internationalism inherently wrangles input from around the globe, and that input increasingly includes hostility to freedom. The United States should be standing against this trend. Our tradition of liberty should be our chief export. But so long as all we are busy modeling is our indifference to freedom, if not also our abject surrender of it, then there may be no point in engaging with other national governments who would hasten its demise for everyone by giving them the institutional foothold from which to do it.

Filed Under: copyright, donald trump, encryption, free speech, intermediary liability, mass surveillance, net neutrality, tech policy

If Twitter Shuts Down Trump's Account For Repeat Infringement Then Will Trump Fans Finally Realize That Copyright Is The Problem?

from the or-are-we-still-in-a-facts-optional-world? dept

Over the last few months we've seen President Trump and his supporters repeatedly attack social media in general -- and Twitter specifically -- for apparently "arbitrary" moderation decisions. Yet, as we've pointed out repeatedly, it seems that the only times that Twitter has actually taken down content from Trump's Twitter account, it's been because they were effectively required to in response to DMCA takedown requests. It happened in early June, and then it happened to a Trump supporter, and last week it once again happened to Trump himself, when the band Linkin Park issued a takedown after Trump used their song in a video he posted to Twitter:

On Saturday night, President Trump retweeted a campaign video that featured the band's 2002 hit song 'In The End.' Linkin Park swiftly took action on having the video removed and shared a message with fans on Twitter.

Once again, though, rather than recognize that the structure of DMCA 512 that effectively creates massive incentives to pull down content is the issue, clueless Trump fans, like Judicial Watch's Tom Fitton, wanted to blame Twitter.

But, of course, it's not Twitter that's the issue here at all, but the structure of the DMCA. What's stunning is no Trump supporters seem at all willing to discuss this -- even as Trump-supporting Senator Thom Tillis, who heads the Intellectual Property Subcommittee, is actively working hard to make copyright law even more prone to censorship.

But here's the thing I wonder: at what point would Twitter have to shut down Trump's account as a repeat infringer? After all, based on the court rulings in the BMG v. Cox case, and some other related cases, courts have said that any repeat infringer policy doesn't need to take into account if there's actual infringement, just accusations of infringement. And, indeed, the US Copyright Office's recent report on Section 512 of the DMCA has endorsed that viewpoint.

And the DMCA does require you to have a policy to remove the accounts of repeat infringers, though it does allow for some leeway in how a service designs such a plan, so long as it does exist. In theory, Twitter could offer more "strikes" to "newsworthy" accounts, but at some point based on the way some courts (and the Copyright Office) have read the law (incorrectly to me, but who am I?), Twitter would be required to shut down the president's account.

And think of what a fucking mess that would be. At the very least, it might highlight why Section 512 is so problematic, and that the repeat infringer policy in particular can lead to absurd results. But, given how Trump and his supporters have responded to other DMCA issues, and the fact that his supporters in the Senate seem willing to make the law even more prone to these kinds of takedowns, it's likely that they'll just lie and blame Twitter for what the law itself requires.

Filed Under: 512i, content moderation, copyright, dmca, donald trump, repeat infringer
Companies: twitter

Yet Another 'Stranger Things' Copyright Suit Over A String Of Likely Non-Protectable Elements

from the idea-vs.-expression dept

As one of, if not the, largest player in the streaming platform wars, Netflix is oft the target of copyright infringement threats and lawsuits. These actions against it have by and large been found to be absolutely baseless. Whether it's estates of long-dead authors, private prisons, or the brother of dead drug kingpin Pablo Escobar, there are plenty of folks out there who see a wealthy company on the rise and try to get a piece of that cash for themselves by making dubious intellectual property claims.

But if Netflix is the biggest player in streaming, then certainly its hit show Stranger Things is its most notable contribution. And, so, it's no surprise that the show has faced copyright challenges in the past and is being sued once again by someone claiming the idea for the show was his first.

A lawsuit filed by Irish Rover Entertainment on Wednesday (July 15) in California federal court claims that Stranger Things has copied a number of things from Totem, a screenplay written by Jeffrey Kennedy (via TheWrap).

The suit alleges that the Netflix show lifted the “plot, sequence, characters, theme, dialogue, mood, and setting, as well as copyrighted concept art” from Totem.

The filing itself is embedded below, but it's exactly what one who follows this sort of thing would expect. Rather than alleging any concrete examples of directly copying Totem, the suit's allegations string together a zillion elements of supposed copying, none of which would be actionable on their own. This is a common tactic, with courts in the past having found that the composition of otherwise unprotectable elements can be afforded copyright protection if that composition on its own is creatively sufficient in a unique way. It's something roughly like how you can't copyright a single note from a guitar, but an original composition of notes can be protected.

But about those elements cited, well, have a look for yourself at some examples.

Some of the events in Totem take place in the woods where Agent Sam Miller, under Azrael’s control, chases Kimimela. Similarly, in Stranger Things, Eleven is also pursued by the “Bad Men” through the woods.

...okay, but...

Characters interact with Azrael in an alternate plane. The interaction is marked by Lightning. Characters interact with the Shadow Monster in an alternate plane is also marked by lightning.

Well, yeah, it's a creepy thriller movie about the supernatural, so you'd expect-

In Totem, the tag line “promise?” is used as a literary device in the dialogue throughout the script. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Stranger Things, the tag line “promise?” is used as a literary device in the dialogue throughout the series. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition.

But putting "promise?" at the end of dialogue is really common in both fiction and in life, so-

Sam Miller is an FBI agent who is involved in a crash near an industrial area. This is when Azrael takes control of Sam. Billy Hargrove also is involved in an accident in an industrial area. This is when the Shadow Monster takes control of Billy’s mind and forces him to do his bidding.

Those don't actually seem that similar at all?

It can be easy to get fooled by this sort of thing. What the lawsuit is listing is a bunch of ideas, some of which have similarities between Totem and Stranger Things. But there is an idea/expression dichotomy in copyright. Thematic elements, generic settings, and even character traits aren't afforded copyright protection. Instead, the specific expression of those ideas is. So, when Stranger Things' character isn't an FBI agent and is instead a rogue thug of a lifeguard, you don't have a copyright claim there.

And yet I listed only a small sample of the accusations in the filing. The hope with this sort of thing is that if you string together enough vague similarities among the non-protected elements, you can convince the court or jury that copying of the composition had been committed and that composition is what gets copyright protection. It's a strategy that rarely works, however, as seen in a previous lawsuit over Stranger Things.

This isn’t the first time the Duffer Brothers have been sued over the creation of Stranger Things. In 2018, the pair were accused of stealing the show’s concept by filmmaker Charlie Kessler. Kessler produced a short film in 2012 called Montauk and alleged that he and his agents pitched the idea of turning it into a full series to the Duffer Brothers in April 2014.

Kessler dropped his lawsuit the day before it was set to go to trial.

Here's a hint: when several people can file lawsuits against a single work claiming copying of essentially the same elements, then you're suing over non-protectable things.

Besides, everyone knows Stranger Things got all its ideas from Dungeons & Dragons.

Filed Under: copyright, expression, idea, idea/expression dichotomy, jeffrey kennedy, stranger things, totem
Companies: netflix

Copyright Trolling Evolved: Okularity Accused Of DMCAing Social Media Accounts, Then Demanding MILLIONS To Reinstate

from the copyright-trolls-just-get-worse dept

A decade ago, one of the most ridiculous copyright trolling outfits was CEG TEK (which stood for "Copyright Enforcement Group... um... TEK"). It would shake down people like any other copyright troll, but it also had a "CTO", named Jon Nicolini, who CEG TEK would trot out as a questionable forensic expert in various trolling cases.

It appears that Nicolini has since set out on his own, creating a more modern form of a copyright trolling operation called "Okularity." We've talked recently about how some folks have, instead of using the courts, simply been using social media takedowns via bogus copyright claims as a form of extortion, and that's become quite popular. However, so far, it seems that this has mostly been done by stupid kids looking to make a quick buck.

Nicolini and Okularity appear to have professionalized the extortion racket.

And they may have picked on the wrong person. In a recently filed lawsuit by Enttech Media Group, the parent company of the famous (and excellent) Paper Magazine, lawyer Richard Tauler lays out in great detail the kind of scam shakedown that Nicolini runs via Okularity:

Defendants are engaged in a scheme to deprive Plaintiff and similar digital media companies of their assets by unlawfully manipulating the take-down notice provisions of the Digital Millennium Copyright Act (“DMCA”). Specifically, Defendants have created software for the express purpose of disabling valuable commercial accounts on social media platforms (in this case Instagram) so that they can then demand extortionate sums (in this case over a million dollars) from the account holders to have the accounts restored.

The scheme operates in the shadows of the Copyright Act and the DMCA. The DMCA provides a rapid procedure (referred to herein as a “DMCA Notice”) so that copyright owners can protect the widespread proliferation of their content digitally. A DMCA Notice requires a statement under penalty of perjury that the submitting party has a good faith belief that the content identified in the notice is infringing on a copyright and that the submitting party is either the copyright owner or an authorized agent of the copyright owner.

Most social media platforms, including Instagram, have policies whereby accounts are disabled once a certain amount of DMCA Notices have been submitted on a particular account. Once an account reaches this threshold, Instagram will not reinstate the account until the underlying copyright “dispute” is resolved. Because of the work associated with the identification and investigation of copyright claims, as well the DMCA’s penalties for misstatements, it is generally unlikely that owners of legitimate copyrights would abuse this system.

However, given the massive financial incentives provided to mercenary litigants by the Copyright Act, would-be claimants have leveraged advances in technology to create economies of scale in pursuing claims. Specifically, Okularity has developed software that crawls the internet for images that infringe on allegedly protected works. Through its proprietary software, Okularity automatically generates and submits DMCA Notices to any social media platform, including Instagram, containing an image in Okularity’s database. Okularity does this without any of the investigation, warning, or legal analysis required by the DMCA, let alone any demand letter to the alleged infringer.

Rather, Okularity lies in wait while DMCA Notices accumulate to the point where Instagram disables the account. Only then does Okularity begin to negotiate “settlement” for the alleged copyright claims. Okularity operates this way because Okularity knows that Instragam is the lifeblood of any digital media company, particularly one like Plaintiff Paper, which primarily is engaged in the business of reporting and commentary of popular culture news and, as such, targets a young demographic that uses Instagram as its primary source of media consumption. Okularity knows that if a business like Paper has its Instagram account disabled, it has a metaphorical gun to the head of the target company, since it also knows that Instagram will not reinstate the account without a resolution of the “dispute.” With this type of leverage, Okularity (and in turn the Clearinghouse Defendants) can demand sums that they would never be able to demand with a straight face otherwise, putting owners of even large businesses like Plaintiff in a life-or-death situation.

Pretty fucking sketchy, no? As the lawsuit notes, however, this appears to violate the terms of the DMCA regarding what you need to do in filing a notice -- making this an interesting test to see whether or not the courts might finally give Section 512(f) of the DMCA (the part that says you can't file bogus notices) some more teeth. As we've noted, courts have been reluctant to care much about 512(f), which has set up a very unbalanced system, in which tons of people and companies regularly abuse DMCA notices. Usually for censorship.

Here it appears to be for extortion.

The specifics of the Paper Mag / Okularity situation detail how this seems to be an entire business built around extortion, with a bunch of unauthorized practice of law built in as well.

Okularity, which is not a law firm, purportedly “represents” the “Clearinghouse Defendants” with respect to their Copyright “claims.” Okularity’s “CEO” Jon Nicolini, created the software Okularity deploys to file DMCA Notices, and negotiates “settlements” with victims of the scheme once they contact Okularity. Nicolini, who is not an attorney, implies that he is an attorney to victims by interpreting the application of the Copyright Act to images, engaging in damages analysis regarding “claims” of his “clients,” and by negotiating resolution of legal claims on their behalf.

Defendant Backgrid actively solicits members of the public, including persons with whom it has no relationship and about whom it has no knowledge, to upload to it photos which Backgrid will then ostensibly “license” (for payment) others to display and otherwise exploit. Backgrid then uses software to automatically generate copyright management information (“CMI”) so that it can track whenever an image is used. Since Backgrid conducts no due diligence of images uploaded to its website for exploitation, and the corollary opportunity for abuse, Backgrid itself has been sued by actual copyright holders for copyright infringement.

Defendant Splash is similarly a clearinghouse for photographs with a checkered past. In 2018, Splash was sued by soccer star David Beckham for its “predatory and distasteful” tactics, which included demanding payment from Mr. Beckham for posting a picture of himself (taken by a paparazzo) on his very own social media account. Beckham v. Splash, Case 2:18-cv-01001-JTM-JCW (E.D. La.). Counsel for David Beckham viewed the $40,000 demand as an attempt to “extort.”

Okularity’s new business model pre-empts such lawsuits by using DMCA Notices instead of demand letters. However, since the DMCA Notices are automatically generated and submitted without any attorney supervision, Okularity does not engage in any analysis prior to generating and filing DMCA take-down notices as it should.

Rather, Nicolini operates the scheme with the sole objective to disable social media accounts. Not only is no demand letter needed, the scheme makes it so that its victims come to Okularity, often in a state of desperation, once they realize their asset is being held hostage. This is precisely what occurred in the instant case.

It was only after Okularity filed forty-eight (48) DMCA take-down notices against Paper that Instagram disabled Paper’s account. The same day, July 8, Paper was provided with the contact information of Nicolini, who immediately began negotiating the “claims.”

Nicoloni suggested that Paper was facing $4.65 million in damages under the Copyright Act. Nicolini curiously added that it was not his “first rodeo.” A screenshot of the email is below:

Sixteen minutes later Nicolini responded, this time with apparent authority to communicate on behalf of his “clients” under Federal Rule of Evidence 408 to settle for $1.01 million:

However, Nicolini is not an attorney and is therefore unable to assert legal claims on behalf of his “clients,” and likewise cannot negotiate and enter into agreements on their behalf in the context of a copyright lawsuit.

Needless to say, this offer was unable to be accepted. In further effort to reach a resolution, the undersigned requested Mr. Nicolini provide the DMCA notices so that Plaintiff could assess the claims at issue. Nicoloni has refused to do in the absence of a “non-disclosure agreement.” When asked why a “non-disclosure agreement” would be needed, Nicolini had no answer

That's... pretty fucking sketchy in many different ways. The lawsuit argues that the defendants breached 512(f)... but then also throw in a RICO claim. And that always seems iffy. As we all know, the Popehat rule of "it's not RICO, dammit" tends to apply. And I'd still lean towards it not applying here, but I have to admit that this is closer to an actual civil RICO claim than you normally would see. You do have a group of individuals / companies, working together in a pattern to shake down businesses. I still don't expect that claim to last, but this sure does look like a traditional shakedown scheme, using DMCA takedowns for leverage over social media accounts.

Filed Under: 512f, automatic takedowns, copyright, copyright troll, dmca, dmca 512, exotrition, jon nicolini, rico, shakedowns, takedowns
Companies: ceg tek, okularity, paper magazine