Judge Apparently Uncomfortable With 'Innocence Of Muslims' Ruling, Asks Court To Reconsider Stay Denial

from the that's-odd dept

We've written a few times about the terrible ruling from Judge Alex Kozinski, the chief judge of the 9th Circuit, finding a bizarre copyright interest by an actress who appeared in 5 seconds of the 13 minute "trailer" for the controversial "Innocence of Muslims" video, thus allowing her to get all copies of the video taken off of Google sites. Google quickly filed for a stay, noting that the ruling was likely to be overturned, and it made no sense to allow for this controversial censorship which likely violated the First Amendment, until such time as the details could be reviewed en banc (by a larger panel of judges). Kozinski almost immediately rejected the request for a stay.

Now, in a move that is quite odd, one of the other judges on the 9th Circuit has apparently asked the court to reconsider the motion for a stay en banc. This is surprising on a few levels. First, it's quite rare to see such a "sua sponte" request. That is, it's common for the parties in the lawsuit (i.e., Google) to request an en banc hearing, but it's not at all common for a judge to step in and make the request for an en banc hearing of his or her own accord. But that's what's happened here. It's important to note that the request for an en banc hearing is only covering the issue of whether or not the court should stay the original order, and not about reviewing the original order (which is likely to happen separately). I assume this is so that things can happen much more quickly with a review of the narrow question of whether or not Google should be forced to keep the content down while the original order is debated.

Either way, the parties have been asked to file briefs on whether or not an en banc panel should explore whether or not their should be a stay on the original order by next Wednesday, so there should be a pretty quick turnaround on this one. Still, the fact that a judge decided to do this suggests that there's at least one judge in the 9th Circuit who is uncomfortable with Kozinski's ruling. We already knew that there was strong dissent to his opinion, and it's possible that the judge requesting this is the one who dissented, but it's still a somewhat surprising move.

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims

EFF Sues Over National Security Letters... But Can't Tell You Who Its Clients Are

from the because-secrecy dept

The ridiculous (and most likely illegal) gag orders around widely abused "National Security Letters" (NSLs) is pretty widely known. It's created absurd situations in which companies have had to go to court secretly without being able to admit that they were fighting on behalf of their users, except in rare cases where the gags are finally lifted.

Well, here we go again, as the EFF has challenged NSLs issued to two separate companies -- one telco and one internet company. However, because of the gag orders, EFF isn't even allowed to say who its clients are in these filings.

The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

We have yet to see any good reason for why the government can claim that the mere fact that a company has received a National Security Letter needs to be classified.

Filed Under: eff, first amendment, gag order, nsl, secrecy

Judge Kozinski Refuses To Even Consider That His Ruling To Censor 'Innocence Of Muslims' On Copyright Grounds May Go Too Far

from the bad-facts,-bad-law dept

On Friday, we had posted about Google's motion for an emergency stay on Judge Alex Kozinski's horrific ruling that forced Google to remove all copies of the controversial Innocence of Muslims trailer, based on a bizarre interpretation of copyright law, which gave an actress who appears in 5 seconds of the 13 minute trailer the ability to claim a copyright and take down every copy of the trailer. We had posted an update late Friday with the news that Judge Kozinski had quickly denied the motion, and only made one small change to his order, saying that copies of the video without Ms. Garcia's 5 seconds did not need to be taken down. At the very least, this is a small concession that his original order was insanely overreaching and broad.

What's troubling here, though, is that Kozinski seems completely blind to the fact that his ruling is extremely controversial and involves breaking serious new ground in how to interpret copyright law -- in a manner that appears to be quite different than every other court in history that has raised these issues. While there are some lawyers who seem to think that Kozinski's ruling makes sense, there are tons who disagree, including many of the top copyright experts in the field. Just the fact that this case is generating so much controversy from within the copyright bar should at least indicate that Kozinski's interpretation should be looked at more closely -- and as such, it seems quite reasonable for the 9th Circuit, and Kozinski in particular, to humbly recognize that for the sake of not censoring protected speech, the original order should be stayed until it can be reviewed.

Kozinski, unfortunately, is not exactly known for his humility. And while that sometimes makes him one of the most entertaining judges around, it seems dangerous in this particular case. He seems to have made up his mind that his ruling makes sense and, even if many people disagree with him, he appears to have no time to even think that maybe he misjudged the basic tenets of copyright law. On controversial decisions, it's fairly common for judges to admit that the ruling is likely to be reviewed, and to agree to a stay. It's disappointing that Kozinski seems so sure he's right here that he's unwilling to hold off on enforcing the order in the case until others might have a chance to review his rather novel reading of the law.

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google, youtube

UPDATED: Google Files Emergency Motion To Stop Censorship Ruling Over 'Innocence Of Muslims', Is Denied

from the stop-the-insanity dept

Update: And... the motion has been denied with little explanation (pdf link). We'll bring more analysis if/when we get more information.

As was fully expected, Google has quickly filed an "emergency motion for a stay" on the horrific 9th Circuit ruling that the company needed to take down all copies of the Innocence of Muslims film and block it from being re-uploaded anywhere. Google has made it clear that it will fight this decision, starting with asking the 9th Circuit for an en banc rehearing (appeals court cases are normally heard with 3 judges -- an en banc hearing, if the court agrees to hear it -- includes a larger slate of judges (in the 9th Circuit, it is almost always 11 judges, though in theory it could be all 29).

Appeals courts don't often grant requests for en banc hearings and, as such, often don't grant stays (basically holding off enforcing the order). However, with this case generating so much attention (and condemnation), hopefully enough of the judges in the 9th Circuit agree that it's worth rethinking Judge Kozinski's order.

Google's motion lays out the basic argument, highlighting that the ruling simply invents new law and ignores precedents that the court is bound by. It also highlights how the ruling seems to get some rather basic issues flat out wrong. Furthermore, it highlights that there is real harm from the censorship imposed by the ruling, while leaving the video up for a little more time is unlikely to create any additional harm (if it ever created any harm in the first place).

The panel majority's takedown order contravenes Circuit law by imposing a mandatory injunction—an injunction gagging speech, no less—even though the majority found the merits “fairly debatable.” ... The majority's novel copyright analysis is wrong on several fronts, creates splits in the Ninth Circuit, and will produce devastating effects: Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim. And absent a stay, Google, YouTube, and the public face irreparable harm because the panel's order will gag their speech and limit access to newsworthy documents—categorically irreparable injuries.

The full filing certainly highlights the likely arguments that Google is hoping to make should the court agree to an en banc hearing or, barring that, in an attempt to get the Supreme Court to hear the case.

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google

Google Customizes Its YouTube Takedown Message In Response To Bogus Innocence Of Muslims Takedown

from the sorry-about-that dept

We just wrote about the 9th Circuit's ridiculously problematic ruling claiming that an actress who appears in 5 seconds of the 13 minute Innocence of Muslims "trailer" has a copyright interest in her performance, allowing the court to order Google to remove all copies of the video (along with a highly questionable gag order).

Soon after the ruling came out, EFF's Parker Higgins suggested the sort of custom "takedown" message that Google might want to put on the video: The YouTube sad face icon and takedown message has become fairly iconic, so much so that I have random people stop me on the street frequently to comment on my own YouTube takedown t-shirt. However, historically, YouTube has stuck to its basic default messages when videos are taken down, almost never providing much in the way of details. Apparently, the lawyers at YouTube are so upset about this particular ruling that they've gone a different route, taking a page from Higgin's suggestion and having the takedown message on the video actually explain that they disagree with the situation: Yes, that's the actual message shown if you go to see the video right now. While I doubt YouTube will be using these sort of customized messages that often, it seems like something similar might come in handy over in Germany, where a court has ordered YouTube to stop hurting GEMA's feelings with its takedown messages, which highlight how GEMA has refused to license music to YouTube at a reasonable rate (like basically every other collection society in the world).

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google

'Innocence Of Muslims' Ruling Violates The First Amendment In Two Separate Ways

from the incredible dept

In our post yesterday about Judge Alex Kozinski's horrifically bad ruling in favor of Cindy Garcia, an actress who briefly appeared in the infamous YouTube video "Innocence of Muslims," we also mentioned the astounding gag order that Kozinski placed on Google/YouTube, saying that the company was simply not allowed to tell the world that the video had been ordered censored by a court for at least a week. However, the gag order is so crazy that it seemed worth a second post. It already appears to be a classic First Amendment violation to order Google to take down all copies of the video (and prevent new ones from being uploaded), but Kozinski seems to double the First Amendment problems with that gag order.

Yes, certain court rulings are kept under seal for some period of time, but here's a case where a key video of public interest and discussion was not only being censored, but where the company being ordered to censor the video couldn't even tell anyone what happened for nearly a week. The order to pull down the video came on February 19th, and it was only revealed on the 26th. It now comes out that Google's lawyers went reasonably ballistic over the gag order. Google's full motion seeking an emergency stay highlights just how insane both the takedown and the gag orders are.

A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic, and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested. Ms. Garcia asked only that the five seconds of footage in which she appeared be removed from Google’s websites. See Reply Br. 5 ("Ms. Garcia seeks only to enjoin the unauthorized posting of her own performance.”). The Order, by contrast, requires that the entire film be taken down, and that Google block anyone from uploading it in the future. The Order also appears to extend to copies of the Film that were not identified in any takedown demand by Ms. Garcia. See 17 U.S.C. 512(c), (j). There is no possible justification for such an order. The vast bulk of the Film has nothing to do with Ms. Garcia, and she asserts no copyright claim over it.

This is, in short, a stunning order, both as a matter of substance and procedure. And to make matters worse, it is difficult for the Defendants to even understand how to fully comply with the Order, given the variety of copies of the Film now available on the Internet and the variety of platforms operated by Google. The Order’s uncertain scope only adds to the urgency of a temporary stay. The Film is not defined with reference to any URL, upload date, or any other meaningful description. A search for “Innocence of Muslims” on YouTube returns over 58,000 results as of this filing, many of which could well contain commentary, news stories, and other works that merely contain some or all of the original video. Google and YouTube will, of course, try to comply with the Order forthwith, but strongly believe the Order should be stayed so that this Court can consider the issues.

The filing goes on to point out that the gag order is clearly illegal:

In addition, the Order unjustifiably gags the defendants from publicly discussing the Order itself, and denies the public access to judicial documents. Under this Court’s case law, when it comes to this Court’s records, “ ‘a strong presumption in favor of access’ is the starting point.” ... In order to withhold documents from public view, the court “must ‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.’ ” The Court’s order did none of those things before directing it be kept from the public docket. For this reason, too, the Order harms Google and the public and should be vacated.

It also points out that it's preposterous to order all such videos (again broadly described) be taken down within 24 hours, given that the film has been online for nearly two years, and keeping it up for a short while longer is hardly going to increase any level of harm (though interfering with First Amendment rights does create harm). It further notes that even Garcia's own lawyers didn't ask for a 24 hours turnaround time on blocking videos.

The whole thing is quite incredible when you think about it. First, ordering the prior restraint of the video is a clear First Amendment violation. But to add a gag order to that doubles the problems. Here's a judge who's not only ordering a result that violates the First Amendment, but is then compounding the problems by violating the First Amendment in blocking anyone from talking about the First Amendment violation in the first place.

As we mentioned in the original post, we're still perplexed at Kozinski's reasoning on all of this (and I've yet to see a single lawyer I know have anything positive to say about the ruling or the gag order). As we've said in the past, generally speaking, Judge Kozinski is one of the more interesting judges out there, and I tend to agree with his rulings more often than not. However, as we pointed out a few years ago, it seems like one serious blind spot for Judge Kozinski is his dislike of the internet and willingness to blame tech companies for actions of users on the internet. In covering a speech he gave in 2011 concerning Section 230 of the CDA (which provides liability protections for internet companies based on actions of their users), we noted:

It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn't that great, and if he had the option of flipping a switch to turn it off, he's not entirely convinced that he would leave it on. He said he's just not sure it's really done that much good, and that we might be better off without it.

[...]

Kozinski did point out that many people don't realize what it's like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had "obscene" content, leading to a rash of misleading press coverage, and an investigation (which eventually cleared him of any wrong doing).

While the issue here is slightly different, both in context and in statute, Kozinski has shown in the past that he's skeptical of the internet, and appears to overreact to attacks based on things on the internet. That may suggest how he got to the point where such a twisted ruling made sense. However, even if we grant that, it's still impossible to see how it could then possibly make sense to gag Google from explaining why it had taken down such a high profile video.

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google

Student Prevented From Handing Out Copies Of The Constitution Wins Lawsuit Against College

from the free-speech-can't-be-'zoned' dept

Robert Van Tuinen, the Modesto Junior College student who was told by school administration that he couldn't pass out copies of the Constitution on campus, has won his lawsuit (filed with FIRE [Foundation for Individual Rights in Education]) against the school.

California’s Modesto Junior College (MJC) [has] agreed to settle a First Amendment lawsuit filed last October by student Robert Van Tuinen, whom the college prevented from handing out copies of the Constitution on Constitution Day...

As part of the settlement, MJC has revised its policies to allow free speech in open areas across campus and has agreed to pay Van Tuinen $50,000. Van Tuinen was represented by the firm of Davis Wright Tremaine LLP in Washington, D.C., and assisted by the Foundation for Individual Rights in Education (FIRE).

The college, which previously "fought back" by complaining about negative press and "hatred and cruelty" directed at its staff, has overhauled its free speech policies, opening up the campus to students who wish to exercise their First Amendment rights.

Limited public forums on Modesto Junior College’s campus are “areas generally available to students and the community,” defined as grassy areas, walkways, or other similar common areas.

This is a significant improvement over MJC's previous "free speech area," which was a small concrete slab only accessible to students who had been granted "permission" by the administration in advance to exercise their free speech rights.

The timeframe available to students has also been expanded and is no longer limited to one-hour reserved slots.

Use of free speech areas is permitted every day from 8:00 am to 9:00 pm. Speakers who will be using the free speech areas outside normal working hours (Monday-Friday from 9:00 am to 5:00 pm) are encouraged to notify the Office of Student Development and Campus Life to coordinate their event.

Note the fact that contact is "encouraged" but not required. These new policies are now in effect not just at Modesto Junior College, but at all schools within the Yosemite Community College District.

While this is a heartening win for free expression on MJC's campus, FIRE notes that 59% of colleges nationwide still uphold policies that restrict free expression on campus. That this particular situation resulted in litigation is unfortunate, considering the application of a little common sense by school administrators would have saved the college $50,000 plus whatever it racked up in legal fees defending a stupid, restrictive policy.

Filed Under: constitution, first amendment, free speech, modesto junior college, robert van tuinen

How Free Speech Online Is Enabled By Not Blaming Websites For The Actions Of Their Users

from the save-section-230 dept

We've written many, many times about the importance of Section 230 of the Communications Decency Act, which provides protections against secondary liability (except for intellectual property) claims for internet service providers. In the simplest form, Section 230 says that if a user does something on a site that's illegal, you need to blame the person who did it, rather than the site. As we've said repeatedly, this makes so much sense it's almost troubling that you need a law to make the point. You blame the person who broke the law, not the tools they used. Duh. You don't blame Ford because that was the getaway car in a bank robbery and you don't blame AT&T because the extortion call was made via an AT&T phone line.

But, on the internet, blame often gets thrown around wildly, and websites themselves are too frequently targets of misguided legal claims. Section 230 protects against that and lets companies quickly extricate themselves from bogus legal claims. Unfortunately, Section 230 has been under attack lately by a number of parties. There are a bunch of state Attorneys General who are looking to change the law to exempt it from applying to cases they might bring against sites. You have short-sighted law professors who think that a way to fix "bad" sites online is to gut Section 230. And, unfortunately, you have one really bad district court ruling (which disagrees with every other ruling on the law) which hopefully will get reversed on appeal.

Much of the academic discussions concerning the importance of Section 230 have, quite reasonably, focused on the impact on innovation. As some have pointed out, Section 230 can, in many ways, be credited with "giving us the modern internet." So many of the sites you know, love and use today probably wouldn't exist, or would exist in greatly limited forms, without Section 230. It's truly enabled a revolution in innovation online, allowing sites to build powerful tools for the public, without having to be liable for how the public then uses those tools.

And that brings us to a second important point about Section 230 that perhaps gets less attention, though it probably should get much more. Section 230 has really helped to enable a tremendous amount of free speech online. On a recent edition of his Surprisingly Free podcast, Jerry Brito interviewed Anupam Chander who recently co-authored a paper (with Uyen Le), which highlights "the free speech foundations of cyberlaw" and how Section 230 has been truly key in guaranteeing a lot of free speech online -- basically highlighting how the First Amendment and Section 230 work well together. However, it also points out that it was the First Amendment that underpins all of this, and that we should be wary of challenges to the law that might undermine the First Amendment.

If you know the history of the Communications Decency Act, you know that it was a very, very different bill than Section 230. The original CDA was basically the opposite. It was a bill to censor websites that had "indecent" communications. Most of that got thrown out (after quite the legal fight) as unconstitutional under the First Amendment. What remained, and should continue to remain, is Section 230 -- which was the one part of the bill that was consistent with the First Amendment.

The paper also goes into how copyright law, separately, has been trying to chip away at the First Amendment online, and how dangerous that is as well. Remember, Section 230 doesn't apply to copyright law, though there is Section 512 of the DMCA, which is similar, but not nearly as strong. The paper notes that things like SOPA really were a direct attempt to attack the First Amendment, which is why it's a good thing that it failed.

All in all, it's a good reminder of both how important protecting free speech online is today and how fragile it is, since the laws that have made it possible are so constantly under attack.

Filed Under: cda, dmca, first amendment, free speech, secondary liability, section 230, sopa

Twitter Says DOJ's Settlement On National Security Requests Not Good Enough; It Will Fight For The Right To Disclose

from the good-for-twitter dept

We've pointed out in the past that Twitter deserves kudos for standing up to the government when it asks for info on users, something it has done multiple times. And now it's making it clear that it intends to keep doing that.

We pointed out last week that the feds had reached a settlement with a bunch of tech companies that had sued the government on First Amendment grounds over their ability to release details of numbers of FISA requests and National Security Letters they had received. Twitter was not a part of that lawsuit, and while it has released its own transparency report, it has also come out strongly for more transparency, saying that the settlement deal is not nearly good enough and that it is pushing back on the government's limitations and considering picking up the First Amendment fight that Google, Microsoft, Facebook, Yahoo and Linkedin dropped.

Last week, the U.S. Department of Justice and various communications providers reached an agreement allowing disclosure of national security requests in very large ranges. While this agreement is a step in the right direction, these ranges do not provide meaningful or sufficient transparency for the public, especially for entities that do not receive a significant number of – or any – national security requests.

As previously noted, we think it is essential for companies to be able to disclose numbers of national security requests of all kinds – including national security letters and different types of FISA court orders – separately from reporting on all other requests. For the disclosure of national security requests to be meaningful to our users, it must be within a range that provides sufficient precision to be meaningful. Allowing Twitter, or any other similarly situated company, to only disclose national security requests within an overly broad range seriously undermines the objective of transparency. In addition, we also want the freedom to disclose that we do not receive certain types of requests, if, in fact, we have not received any.

Unfortunately, we are currently prohibited from providing this level of transparency. We think the government’s restriction on our speech not only unfairly impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of government affairs. We believe there are far less restrictive ways to permit discussion in this area while also respecting national security concerns. Therefore, we have pressed the U.S. Department of Justice to allow greater transparency, and proposed future disclosures concerning national security requests that would be more meaningful to Twitter’s users. We are also considering legal options we may have to seek to defend our First Amendment rights.

Obviously, Twitter is used more for public communications than private communications, so it's likely that it receives less attention on these issues, but it's great to see the company continue its strong history of standing up for its users' right to basic due process, and being quite explicit about its stance. Once again, Twitter deserves kudos where other companies have fallen short.

Filed Under: first amendment, fisa orders, fisc, government requests, transparency
Companies: twitter

Patent Troll Sues The FTC, Saying It Has A First Amendment Right To Shake Down Companies Using A Scanner

from the good-luck-with-that dept

We've written a few times about patent troll MPHJ, a company which had a bunch of bizarrely named shell companies sending threatening letters to thousands of small businesses, demanding $1,000 per employee, if those companies happened to have a network connected scanner that had the common "scan to email" feature. MPHJ claimed it had a patent that covered this, and wanted to go after the end users with threats, in order to clean up on "settlements." MPHJ had become one of the poster children for extreme patent trolls abusing the system, and various states had begun suing the company for threatening local businesses. In fact, just today, NY apparently settled with MPHJ -- and revealed that MPHJ acquired its five patents for... $1.

When the FTC began investigating patent trolls, apparently MPHJ was near the top of its list, to the point that it was preparing to file a lawsuit against the company. MPHJ took the rather aggressive route of suing the FTC and its five commissioners directly.

MPHJ claims that the FTC's action "violate MPHJ's constitutional rights." It claims that the FTC has "no authority to regulate or interfere with the patent enforcement activity at issue..." This seems to ignore a Supreme Court ruling from just a few months ago that showed that the FTC does, in fact, have a mandate over patent enforcement issues, when that enforcement goes into areas that the FTC regulates, such as antitrust violations or unfair or deceptive commerce practices -- basically the core stuff the FTC regulates.

On top of this, MPHJ argues that it has a first amendment right to shake down companies for money. It's going to have a very difficult time supporting that argument. It seems unlikely that MPHJ's case will get very far. However, the FTC's suit against MPHJ may spell a world of trouble not just for it, but for other patent trolls, who may want to take notice.

Filed Under: first amendment, ftc, patent trolling, patent trolls, patents
Companies: mphj