Disney Bans LA Times Writers From Advance Screenings In Response To Negative Articles

from the charm-offensive dept

Once again, Disney has decided to sacrifice goodwill for brand perception. Not content to limit itself to sending C&Ds to kids' birthday party performers, Disney's latest act of self-savagery has resulted in backlash from several top journalistic entities.

Back in September, the LA Times dug into Disney's supremely cosy relationship with Anaheim's government -- one that has produced years of subsidies, incentives, and tax shelters for the entertainment giant. Disney wasn't happy with the report, so it responded the way any rational company would: it issued a statement stating the articles were full of errors and claimed the LA Times "showed a complete disregard for basic journalistic standards." (Despite these claims, Disney has yet to ask for corrections to the LA Times' investigative articles.)

Then it responded the way any irrational company would: by locking LA Times reviewers out of advance movie screenings.

The Los Angeles Times had made Disney’s blackout public in a note to readers last week that explained why no feature articles about Disney movies appeared in its 2017 holiday movie preview section. Disney also did not give The Times early access to “Thor: Ragnarok” so that it could prepare a review in time for its Friday opening.

This resulted in the sort of thing Disney should have expected. Critics groups and several large newspapers showed their support for the LA Times by refusing to attend Disney movie screenings. The critics groups also announced they would not consider any Disney films for awards until the ban was lifted. But what likely hurt Disney the most was the show of support from powerful Hollywood figures, one of which -- Ava DuVernay -- has a movie slated to be released by Disney next March.

Thanks to the swift, strong backlash, Disney has now rescinded its ban. But you won't be hearing Disney admit to being wrong. Instead, it's still trying to portray the LA Times as the sole transgressor in this debacle.

“We’ve had productive discussions with the newly installed leadership at The Los Angeles Times regarding our specific concerns, and as a result, we’ve agreed to restore access to advance screenings for their film critics,” Disney said in a statement.

Yep. Nothing to do with the backlash prompted by its bullshit move. Instead, it's all about a recent regime change and some "productive discussions." And the entertainment giant has nothing to say about its stupidly punitive actions resulting in more attention being drawn to the LA Times articles it disagrees with. There's not much that's more counterproductive than attempting to punish news outlets for delivering news. Even if the news outlet is in the wrong, there's nothing to be gained from refusing to be the adult in the room.

Filed Under: anaheim, censorship, corporate bad behavior, corruption, movie reviews, reviews
Companies: disney, la times

Sorry, You Can't Abuse Copyright Law To Make A Negative Review Disappear

from the copyright-as-censorship dept

Over four years ago, we first wrote about the bizarre and convoluted attempt by a lawyer named Richard Goren to remove a negative review on Ripoff Report. As we noted, he may very well have a totally legitimate defamation claim against the guy who wrote the review, but it's the events that happened later that were questionable. Goren did sue the author of the post -- "Christian Dupont" -- for defamation and won a default judgment when Dupont ignored the lawsuit. But here's where things get problematic: the state court where the case was brought, as part of the default judgment, assigned the copyright on the posts to Goren. He then turned around and claimed that the post on Ripoff Report was infringing on his copyright and sued the company behind Ripoff Report, Xcentric (he also, somewhat bizarrely, added Dupont as a plaintiff in the case alongside himself -- something Ripoff Report claims was invalid). It also tossed in a bunch of other claims, including libel and intentional interference with prospective contractual relations.

The case has spent four years winding through the courts, and the 1st Circuit appeals court has now rejected Goren's argument, and done so fairly comprehensively. For the non-copyright claims, it was quite easy to dismiss them under CDA 230, as Ripoff Report was not the publisher of the works, and therefore, not liable for what was said -- and cites a number of well known cases highlighting how this is totally uncontroversial, including our own case as yet more evidence of the First Circuit recognizing the broad protection of CDA 230:

As we explained in Lycos, immunity under § 230 should be "broadly construed." 478 F.3d at 418-19. In fact, we noted there that Congress has expressed a "policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages." Id. at 418(quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997))(omissions in original). Given that legislative policy choice, we do not see how we can construe the CDA's definition of an ICP -- which provides that an ICP is a "person or entity that is responsible . . . for the creation or development of information[,]" 47 U.S.C. § 230(f)(3) -- to encompass Xcentric in this case.

Such a construction of this statutory definition of an ICP would flout Congress's intent by wrongly preventing an ICS like Xcentric from claiming immunity. Lycos, 478 F.3d at 418. As the plaintiffs recognize, Xcentric did not alter the content of the information DuPont posted such that Xcentric could be said to have been "responsible for . . . creat[ing] or develop[ing]" that content by reason of having actually authored it, whether in whole or in part. In addition, as the District Court found, nothing in the amended complaint indicates that Xcentric, simply by holding itself out as the copyright holder of the postings or by directing search engines to cache DuPont's postings on their websites, "specifically encourage[d]" the content set forth in DuPont's postings.

In fact, a sister circuit has rejected the view that an ICS, by merely providing such direction to search engines with respect to information the ICS has not altered, becomes an ICP of that information. See Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270- 71 (9th Cir. 2016) ("Yelp is not liable for disseminating . . . [user-generated] content in essentially the same format to a search engine, as this action does not change the origin of the third-party content." (citing Ascentive, LLC v. Op. Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011))); see also Ayyadurai v. Floor64, Inc., No. 17-10011-FDS, 2017 WL 3896668, *17 (D. Mass. Sept. 6, 2017) (analyzing cases from other circuits which determined that "republishing and commenting upon user generated content, does not constitute 'creation or development.'" (citation omitted)). And we do not see why that conclusion should differ if the ICS also represents that it holds the copyright. Nor are we aware of any precedent that requires a contrary conclusion. Accordingly, we affirm the District Court's ruling on the motion to dismiss.

On to the copyright claims. The issue here is that when first posted, Ripoff Report required Dupont to agree to terms saying that anything you posted you were officially licensing to Ripoff Report, and that license was "irrevocable." This one seems like it should be easy. When the content was posted, an irrevocable license was granted, and thus even if the copyright later changes hands, as in this case, it's not infringing to keep the content up. To argue against this, Goren claimed that because it was a standard clickthrough license, it was not a valid license that Dupont had signed, first because there was no "consideration" given to the poster as required for a license to be valid. The court, correctly, rejects this argument:

The problem with this argument, however, is that, even if consideration is necessary in order for a party to grant an irrevocable nonexclusive license... performance can itself constitute consideration sufficient to establish a binding contract. And, in this case, the plaintiffs concede that Xcentric did actually post the reports at issue. Thus, given that performance, the plaintiffs offer no authority or persuasive argument as to why there is insufficient consideration for the conveyance of the irrevocable nonexclusive license in this case.

The next argument feels even more desperate. Goren argued that such an irrevocable license can't be valid because it's bad public policy, because libel is bad. The argument is only marginally more sophisticated than that, and the court again, is not impressed:

But, while the plaintiffs contend that there is a "strong public policy against per se libel[,]" the plaintiffs offer no basis for concluding that this public policy provides a reason to hold the nonexclusive license itself invalid. The fact that one holds such a license does not in and of itself protect one from liability for libeling another. Furthermore, even assuming that DuPont's postings were per se libelous, no aspect of copyright law protects the holder of such a license from liability for libel, and nothing in the District Court's opinion suggests otherwise. Thus, the plaintiffs' assertion that there is a public policy against per se libel fails to show that this nonexclusive license may not be enforced.

There were a few other aspects of the case (including some confusion over the lower court's ruling and whether or not it thought the license actually transferred the copyright itself to Xcentric), but on the key issues, things turned out basically exactly as we expected four years ago. CDA 230 protects against blaming the platform for the user's speech, and you can't worm your way around that by convincing a court in a default judgment to hand over the copyrights and then claim infringement over properly licensed content.

But there is one other important point here. Goren also has to pay Xcentric/Ripoff Report over $120,000 in legal fees and costs. In copyright cases, awarding attorneys fees is more common than in many other types of cases. The Supreme Court recognized this back in its Fogerty ruling in 1994, which it reinforced just last year in one of the Kirtsaeng cases. While there are specifics to the standard, the short version is that if the court thinks you're abusing the judicial system with your copyright case, not only do you lose, but you pay the other side's legal fees. And the appeals court agreed with the lower court that this clearly applied to this case, and pointed out that the district court properly analyzed the Fogerty factors -- and thus, Goren's little adventure into censorship-by-copyright, with a slight detour into default judgment land, is not just a failure, but a fairly costly one.

Filed Under: cda 230, christian dupont, copyright, defamation, reviews, richard goren
Companies: ripoff report, small justice, xcentric

Psychiatrist Files Lawsuit Over Wordless One-Star Review

from the 5/5-would-set-fire-to-reputation-again dept

A South Carolina psychiatrist in engaged in what might be one of the all-time great windmill tilts. It's a libel lawsuit predicated on a single one-star review -- a review that contains nothing else but the solitary star.

When a person using a phony name posted a one-star rating – out of five stars – about psychiatrist Dr. Mark Beale on a Google Maps locator box, Beale saw it.

He was not amused. In fact, the Charleston-area psychiatrist was so disturbed that he filed a libel lawsuit against “John Doe.”

Beale in a separate court action now is demanding that the Internet behemoth Google divulge “John Doe’s” real name so he can go forward with his libel suit against the anonymous negative commenter. Google, headquartered in California, has 72,000 employees and is the world’s most widely used search engine.

The one-star review on Google “unfairly caused him to lose the goodwill and confidence of the community ... and harmed him in a way that lowers the estimation in the community about his professional practice as a psychiatrist,” wrote Steve Abrams, Beale’s attorney in the action, filed in state court in Charleston County.

Beale alleges a lot of things in his suit. He claims the one-star rating -- left by a single person with zero additional commentary -- has led to "extreme and constant distress." He points out he has received mostly positive ratings elsewhere and that the person clicking on the single star -- "Richard Hill" -- is not a patient of his, at least not under that name.

Of course, Beale's online ratings have fallen significantly since the filing of this lawsuit. Some have pointed out the "extreme and constant distress" Beale claims to be suffering as a result of this single single-star review isn't the sort of reaction one would expect from a mental health professional.

The separate action against Google is even more extreme. Beale wants Google to divulge the real name of the person who left the review and his attorney apparently can't understand why the company would be reluctant to do so.

Beale's attorney, Steven Abrams of Mount Pleasant, said he has handled several similar cases, and companies like Google, AT&T, Comcast and Verizon typically hand over identifying information of anonymous users.

“Why Google fought this case, I have no earthly idea,” Abrams said. “There’s not really a lot of case law (in South Carolina) ... on these types of cases because they don’t usually result in a fight.”

Maybe he should get out more. Reviews are protected speech, for the most part. Stated opinions aren't defamation, no matter how caustic they are. That Google would oppose the unveiling of a person who effectively said nothing more than "1 out of 5" should be unsurprising, not a point of confusion. Besides, as Google pointed out in court filings, Beale has plenty of "more speech" options to combat the one-star review that have nothing to do with pursuing bogus defamation claims.

Google’s legal filing in the case asserts that the one-star posting by “John Doe” had no text with it and is just a “quintessential statement of opinion that cannot be proven true or false.”

Moreover, Google argues, the psychiatrist can post his own rebuttal to the one-star rating “on the same site” and “thereby easily correct any misstatements or falsehoods ... and generally set the record straight.”

So far, the only thing Beale has accomplished is making a fool of himself. His ratings at multiple sites are starting to collapse. At this point, there's nothing to be gained from pursuing the lawsuit, other than keeping his nonplussed counsel employed. His overreaction to a wordless one-star review has done more damage to his career than ignoring it ever would have.

Filed Under: anti-slapp, defamation, mark beale, one star review, opinion, reviews, slapp, south carolina, steve abrams
Companies: google

Olive Garden Asks Olive Garden Reviewer Not To Refer To Olive Garden Due To Trademarks

from the penne-for-your-thoughts? dept

At some point, even the dimmest of lawyers will understand that parody and fair use are not infringement. There may be all sorts of reasons why big companies send dubious cease-and-desist letters over protected speech. Sometimes it's because lawyers are misinformed. Sometimes it's to silence criticism.

But in an odd and all around hilarious exchange between the company that owns the Olive Garden chain of restaurants and the owner of a website that reviews Olive Garden dishes, I can't think of a single reason why a sane lawyer would want to fire off the following letter to allofgarden.com.

To Whom It May Concern:

As you are likely aware, Darden is a full-service restaurant company, and owns and operates over 1,500 restaurants through subsidiaries under the Olive Garden®, LongHorn Steakhouse®, The Capital Grille®, Yard House®, Seasons 52®, Bahama Breeze®, and Eddie V's Prime Seafood® brands and has a portfolio of over 650 trademarks in over 70 countries related to the same (collectively "Trademarks”.)

In connection with Darden Corporation’s proprietary rights over its famous trademark(s) we are notifying you of the following:

Darden Corporation has recently learned that the trademark Olive Garden appears as a metatag, keyword, visible or hidden text on the web site(s) located at the below listed URL(s) without having obtained prior written authorization from Darden Corporation. This practice infringes upon the exclusive intellectual property rights of Darden Corporation.

http://allofgarden.com/

As a trademark owner, Darden Corporation is obligated to enforce its rights by taking action to ensure that others do not use its trademarks without permission. Unauthorized use of the trademark(s) could create a likelihood of confusion with Darden Corporation’s trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.

In light of the above, we request that you respond to this e-mail within ten (10) days, informing us that you have removed all metatags, keywords, visible or hidden texts including trademark(s) presently appearing on the above-cited website(s) and any other website(s), or draw this issue to the attention of the appropriate person(s).

Thank you in advance for your anticipated cooperation in this matter.

Sincerely,

Darden Corporation
brandenforcements@mm-darden.com

There's much to unpack there. First, claiming trademark infringement for use of marks in metatags and simple text within a website is a highly dubious practice. But when even the most cursory glance at allofgarden.com makes it clear that it's a site dedicated to reviewing Olive Garden, it should be immediately obvious that even the most direct reference to the chain would be squarely covered by fair use. Even the name of the site, something of a homophone of the Olive Garden name, would be covered as parody, if not as part of the site's status as a review site. Even more strangely, it's not as though this is one of those so-called "sucks sites" dedicated to simply slamming Olive Garden at every turn. Some reviews, such as this one, are purely positive, devoid of snark at all.

But if Malone is a talented reviewer of chain-based "Italian" food, he's a savant in responding to frivolous legal threats, as he has happily posted his response on his website for all to see.

Mr. Forcements -- may I call you Branden? Since this an asynchronous mode of communication, I'm going to assume you are magnanimously acquiescing, and I will refer to you as Branden forthwith -- I received your email yesterday.

I am not aware of any law against reviewing food and describing it using the name of the company from which it was procured. Some might even call it Nominative Fair Use. I have helpfully included a link to Wikipedia™, The Free Encyclopedia™, for more information on this concept, in case you are new. Just click on the blue words to access the HyperLink™, and you will be transported there in great haste.

With that in mind, can you be more specific about what you would like me to do? If you want me to remove references to the Olive Garden from my blog, which, I remind you, solely consists of references to Olive Garden, I'm afraid I must decline.

If you are asking me to simply add TradeMark® Symbols™ I must also decline, as I do not know the alt keycode for writing them.

Perhaps you are asking me to take down my blog entirely. In doing so, Darden Corporation would commit its largest crime against humanity since they started charging extra for toppings. Seriously, $2.99 for two lousy meatballs? And you're saying I ripped you off?

Please respond within nine (9) days, in limerick form.

Wishing the whole Forcements family a pleasant day,

Vincent "Vino" Malone
Olive Garden Connoisseur
Age 29 and a Half

Every part of this response is pure gold, from the intentional misreading of the emailer's name to the refusal to comply with every request and link with the reasons why. Malone is being a pleasant pain in the ass in this response, yes, but it's funny. It's also now public, thanks to Malone's posting of it. And, most importantly, the request from Olive Garden is a silly one when viewed with an eye towards the law.

Still, I have to admit I'm slightly hoping that Branden Forcements replies in limerick form as requested, just to see what they come up with. If Olive Garden wants to get on the right side of this thing quickly, that limerick will be in the form of an apology.

Filed Under: allofgarden, olive garden, reviews, threats, trademark, vincent malone
Companies: darden corporation, olive garden

World Of Tanks Developer Gets Negative Review Video Taken Down Under Threat Of Copyright Claim, Backlash Ensues

from the copyright-as-censorship dept

We've heard many stories at this point about video game producers attempting to use copyright and the DMCA as a censorship tool against criticism. As it happens, the frequency of these stories has tapered off somewhat as best as I can tell, even as the indie gaming scene has resulted in an explosion of small gaming studios. The reason for that delta is probably that the gaming community as a whole has become both far more educated and vocal about any attempts to use copyright as a censorship tool. Rightly or wrongly, honesty and transparency in gaming reviews and commentary has become something of a thing the past few years and one of the possibly unintentional results of that campaign has been for attempts at stifling criticism about games to be top of the average gamer's mind.

Which brings us to Wargaming, the studio behind World of Tanks. If you have not heard about the drama from last week yet, it began with a YouTuber called SirFoch, who issued a scathing and expletive-laden review of a specific tank customers could purchase withing the game.

In the video, which was re-posted on another YouTube channel, SirFoch said things like, “Fuck Wargaming, fuck their terrible way of making these premium tanks lately, and fuck this premium tank in particular.” Specifically, he criticized the tank’s lack of weak points behind the machine gun ports by showing viewers its collision model which he argued made the Chrysler K overpowered.

Crude language aside, he was making an otherwise evidenced-based point, whether you agree with him or not. The problem is that SirFoch has signed up to be a "community contributor" with Wargaming, which is essentially one of the more common fan-influencer platforms becoming more fashionable in gaming circles. SirFoch was not paid for his reviews or commentary, but he was given early access to content. In return, Wargaming requires an amorphous "level of decorum" when discussing the game publicly. It was apparently this lack of decorum on SirFoch's part that gave Wargaming license to threaten him with copyright infringement.

In the wake of the video attacking Wargaming for its perceived use of pay-to-win mechanics, a community manager at the company who goes by Zoltan “Ph3lan” Sipos contacted SirFoch over Discord. Ph3lan explained, according to screenshots of the conversation provided by SirFoch, that the YouTuber would be dropped from the program giving him early access to content and would need to take down his video or else Wargaming would be forced to have YouTube remove it for copyright infringement.

SirFoch took down the video in question, but then immediately went public with how Wargaming had threatened him because of course he did. The studio, meanwhile, tried to combat the ensuing backlash in its own forums by complaining about the tone and language choices the YouTuber had used, indicating those factors warranted the copyright threat. Gamers watching this discussion rightly realized that this was essentially copping to censorship by copyright of criticism. The backlash grew in size. Over the next several days, Wargaming reps began suggesting to media outlets that SirFoch's video had been laced with not only vulgarity, but homophobic hate speech as well. The video did not in fact include any such language. The backlash grew even louder.

Grew loud enough too that the studio has now backed down and issued a public apology.

We have further reviewed the incident of last Friday involving SirFoch and his “Chrysler K GF rant” video, and know we could have handled the situation a lot better. We strongly support our players’, including our Community Contributors’, right to speak critically about us and our games. We acted too quickly and over the line when we threatened to have YouTube remove SirFoch’s video through a copyright infringement complaint and we are apologizing for that.

We’re committed to doing a better job on this front. We’re going to improve the way we communicate with our Community and our Community Contributors, and as part of that effort we will work with them on more detailed, specific guidelines to help ensure incidents like this don’t happen again.

Our official position is that Wargaming will not take copyright action against opinions based on our publicly released content.

Over the weekend we released a statement to some media outlets regarding the content of SirFoch’s video that inferred that SirFoch’s videos contained hate speech and homophobia. While we would obviously not want such content to be associated with any of our games – this video clearly did not. We apologize for this statement, and we don't stand behind those claims.

It's a good apology but, frankly, a bit tough to swallow given how far the studio went to try to first bully and then defame one of its own contributors entirely because it didn't like the criticism that contributor issued. Wargaming is likely hoping that this incident hasn't tanked its reputation beyond repair, and it's probable that it hasn't. If not, that official position to not be a copyright bully over censorship had better be sincere, because reputations rarely are offered a third chance if there were to be another such incident.

Filed Under: censorship, copyright, dmca, reviews, sirfoch, world of tanks
Companies: wargaming

Now Canceled Crowdfunding Project Sent DMCA Notice Following Skeptical Review

from the you're-not-helping dept

A few months back, I saw some news about a crowdfunding project on IndieGogo, called Titan Note. It was a little a cylindrical device that acted as a microphone, and the guys behind the project insisted that it could transcribe notes with fairly incredible levels of accuracy. The device got some press coverage -- including a quite reasonably skeptical piece at The Verge, entitled "No way this transcription gizmo is as good as it claims to be." There was a lot more skepticism around the project in the comments to the project as well. On top of that, the project's marketing pitch seemed... wrong. That is, it positioned the device as a thing that you could use to "stop taking notes" in classes and meetings in order to pay better attention and learn more. But... that's just wrong. Because the process of taking notes yourself actually helps you commit things to memory. That is, taking notes helps you pay better attention, and thus if you actually used the device the way it was advertised, you might get less out of lectures and meetings.

All that said, here's a confession: I still backed it. I was already skeptical -- in part because of the mis-targeted marketing and because the video looked too good to be true, given the state of transcription products in the market, and I had read that Verge article. But, there was an early bird deal that made it pretty cheap, and I figured that even if it was just a so-so product, it could have some use, such as making it easier to transcribe videos and podcasts for posts here on Techdirt. Given the low price of the early bird, I figured maybe it was worth the risk that the product sucked... or didn't exist at all.

Eventually, the product raised over $1.1 million -- as it announced in a press release. But, late last night I got an email from IndieGogo saying that the project had been shut down and all funds refunded. IndieGogo told the Verge that the project had violated its terms of service -- which could mean lots of things. If anything, I'm more relieved than anything else. I had kind of regretted backing it in the first place, given the skepticism I had over the product.

But, that alone wouldn't make this much of a Techdirt story. Instead, what made this a Techdirt story is this, from the Verge:

When we covered the Titan Note in March, we suggested the company was perhaps exaggerating the capabilities of its product. After all, we said, if Apple or Amazon can’t produce transcription software as accurate and speedy as this, what chance does a company with no commercial history have? We later received a DMCA takedown notice for using of Titan Note’s product imagery to illustrate our story.

What a bunch of jerks. Sure, you can say that DMCA'ing the "images" rather than the actual story is marginally more defensible... but even that's not true. Those were marketing materials that the company released for the clear purpose of having the press promote the device. The only purpose behind a takedown notice was in anger over a skeptical report on the product. At the very least, that shows that Titan Note itself doesn't have much confidence in its own product. If I'd known it was a company that abused the DMCA to try to hit back at criticism I never would have backed it in the first place. Such companies are not trustworthy at all.

Filed Under: censorship, copyright, crowdfunding, reviews, titan note
Companies: indiegogo

Secret Sorority Handshakes, Questionable Lawsuits, Free Speech, The Right To Be Forgotten And Section 230

from the a-little-bit-of-everything dept

Late last week (beyond filing a new document in the lawsuit against us), we also filed an amicus brief, put together by Stanford's IP law clinic and Paul Levy at Public Citizen regarding a terrible and dangerous ruling for free speech in California. We wrote about it last summer and how dangerous it is -- but let's hold off on the details of the case right now.

Instead, I'd like to go back one more year to May of 2015, when we wrote about a bizarre case in which the Phi Sigma Sigma sorority was officially suing a "Jane Doe" former member, who had apparently posted the sorority's super secret handshake to the Penny Arcade forums.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

Bizarrely, the post with the secret handshake was posted years after the thread had started, and it was unlikely that many people were looking at it. Well, that is until the sorority decided to go legal about it. First, Phi Sigma Sigma had a lawyer come up with the bright (note: not actually very bright) idea to send a bogus DMCA notice on Penny Arcade arguing that the post needed to come down because it violated the sorority's "trade secrets." That's funny, because the "C" in DMCA stands for "Copyright" and not "Ctrade secrets" and it's highly unlikely the secret handshake is, in any way, a "trade secret" in the first place. The lawyers followed this up by suing the "Jane Doe" in King County Superior Court in Washington. Why King County? There's no indication that Jane Doe is from that area, but that does cover where Penny Arcade is based -- and perhaps if you want to pressure a website to remove some content, you figure it'll be more amenable to seeing something from a local court even if (and this is kind of key) Penny Arcade was never a party to the lawsuit.

For whatever it's worth, Phi Sigma Sigma "won" the lawsuit because "Jane Doe" apparently was never properly identified and served, and thus Phi Sigma Sigma won a default judgment last fall, which is effectively meaningless. Except, with that "order" in hand, Phi Sigma Sigma's lawyers have been going around asking people to take down the handshake -- including us here at Techdirt. To be fair, at least with us, there was no clear threat involved if we refused -- as we have -- but as we've seen multiple times in the past year or so, many sites will immediately take stuff down after receiving a court order like that. Indeed, it appears that Penny Arcade chose (for whatever reason) to take down that thread themselves.

Of course, this certainly opens up the possibility of censorious mischief. Almost exactly a year ago, we wrote one of the first articles detailing an apparent "reputation management" scam that involved posting possibly defamatory comments on certain stories, followed by defamation lawsuits being filed against the John Doe commenters, only to have (miraculously!) a signed admission show up a couple of days later, allowing a tidy "settlement" to be reached, complete with a court order that can then be shopped around to various sites asking them to take down the content. A few months later, Paul Levy and Eugene Volokh tracked down a number of similar cases that were clearly being used to take down content someone didn't like, and abusing the court system to do so.

That does not mean that's what Phi Sigma Sigma was up to here, but a recently turned up FAQ about the lawsuit for members of Phi Sigma Sigma, while making it clear the sorority is not suing the websites, certainly suggests that the intent of the lawsuits is to obtain legal pressure to get sites to remove the content:

If you can't see those images, they are 3 questions and answers (numbers 5, 7 and 9) from a longer document, each of which has answers claiming the goal of these lawsuits is to get this content off the web. "We hope that through this lawsuit, we will have the authority to have any remaining and future posts also removed." "We are hopeful that through this legal action, they will be required to take down the post" and "Our ultimate goal is to have all posts related to our ritual removed as soon as possible." That last one is in response to a question specifically about "the outcome of this lawsuit." That certainly suggests that, contrary to other statements about identifying the individual responsible, or getting an injunction against them, the true intent is to get sites to delete information.

With Phi Sigma Sigma we have refused, as we should have every right to do (and, we might also state our opinion that it seems like a fairly poor decision on the part of the sorority and its legal team to make this effort that seems to serve only to call more attention to the content it wishes hidden from view). We also won't even bother to dig into how, elsewhere, the FAQ falsely claims that Phi Sigma Sigma has to take this action or it risks "losing" its intellectual property. First, this isn't true of copyrights at all (and there doesn't even appear to be any copyright issue here in the first place, questionable DMCA notice notwithstanding). Second, it only applies very narrowly to certain situations involving trademarks becoming declared "generic." That is not -- at all -- the situation with people posting the details of a secret handshake clearly identified as coming from Phi Sigma Sigma (and, once again, raises questions about the quality of the legal advice Phi Sigma Sigma is getting).

Now that brings us back around to the amicus brief that we filed Friday along with Public Citizen. It is in the case of Hassell v. Bird, that we wrote about last summer, in which -- contrary to nearly all Section 230 case law -- non-party Yelp was ordered to remove a review. The details of the case involve a lawyer, Dawn Hassell, who sued a former client, Ava Bird, for posting a negative review of Hassell's work on Yelp. Bird did not respond to the case, and thus the court granted a default judgment, as is standard. But here's where the court went a step too far: it then ordered Yelp to remove the posts. Yelp was not a party to the lawsuit, and basically all of Section 230 law says that it should not be obligated to remove the content (it can choose to do so, but Section 230 is clear that it should be immune from legal liability over its decision).

In the amicus brief, we explain how this runs counter to basically all Section 230 caselaw, but, perhaps more importantly, further point out examples (including our current discussions with the lawyers for Phi Sigma Sigma) where this kind of ruling could lead to abuse, and the forced removal of First Amendment protected speech -- whether under good intentions or ill intentions. Specifically, we note that, if the ruling in Hassell v. Bird stands, then an entity such as Phi Sigma Sigma, could potentially follow the same path as Hassell to force us to remove the details of that handshake, despite there being perfectly good First Amendment-protected reasons for leaving it posted. As Eric Goldman wrote when this ruling first came out, if it stands, it creates a de facto right to be forgotten in the US that could (and would) be widely abused to force sites to take down all sorts of content. We hope that the California Supreme Court will overturn the lower court's ruling.

Filed Under: california, defamation, free speech, hassel v bird, protected speech, reviews, section 230, takedowns
Companies: phi sigma sigma, yelp

Garage Door Opener Company Bricks Customer Hardware After Negative Review

from the you're-really-not-helping dept

So if there's one thing we've probably repeated more than others around here, it's the idea that in the IoT and copyright maximalist era, you no longer truly own the things you think you own. It doesn't matter whether we're talking about video game consoles, software, smart home hubs, ebooks, DVDs or routers -- in the always-connected, copyright mad, instantly-upgradeable firmware age, companies are often quick to remove some or all functionality at a whim, leaving you with little more than a receipt and a dream of dumb technology days gone by.

But we've also noted repeatedly that part of this new paradigm involves companies using this capability to punish customers for poor reviews. This is, it should go without saying, an idiotic policy that almost always invokes the Streisand effect and makes the "problem" of a negative review significantly worse than if the company in question had done nothing at all.

Case in point: internet-connected garage opener Garadget, which is taking heat this week for bricking a customer's 'smart' garage door opener after the customer in question left a negative review on Amazon. Earlier this month, a Garadget user posted to the company's message board, complaining about problems with the iPhone app that controls the garage door opener:

Just installed and attempting to register a door when the app started doing this. Have uninstalled and reinstalled iphone app, powered phone off/on - wondering what kind of piece of shit I just purchased here...

Not really uncommon in the internet of broken things era. The user then followed that up with a one star review over at Amazon making the same complaints:

Junk - DO NOT WASTE YOUR MONEY - iPhone app is a piece of junk, crashes constantly, start-up company that obviously has not performed proper quality assurance tests on their products.

At this point the company had several options. They could have ignored the complaints, or perhaps done something crazy like use the input to make a better product. Instead, Garadget boss Denis Grisak apparently thought it would be a good idea to inform the user on the company's message boards that his product would no longer be allowed to access the Garadget servers:

Martin, The abusive language here and in your negative Amazon review, submitted minutes after experiencing a technical difficulty, only demonstrates your poor impulse control. I'm happy to provide the technical support to the customers on my Saturday night but I'm not going to tolerate any tantrums.

At this time your only option is return Garadget to Amazon for refund. Your unit ID 2f0036... will be denied server connection.

Yes, nothing teaches somebody a lesson about impulse control quite like -- exhibiting extremely poor impulse control. Only after the entire fracas went viral via the internet of shit Twitter account and over at Hacker News did Grisak begin to realize the error of his ways, posting a follow up forum statement indicating he was fully aware that the Streisand effect was in full bloom:

Ok, calm down everybody. Save your pitchforks and torches for your elected representatives. This only lack the death treats[sic] now.

The firing of the customer was never about the Amazon review, just wanted to distance from the toxic individual ASAP. Admittedly not a slickest PR move on my part. Note taken.

A quote from a random guy.

PS: Anybody has Streisand's phone number?

That's really a halfhearted apology, especially considering the "toxic" user had what appeared to be entirely legitimate complaints about app functionality. Perhaps the idea that "there's no such thing as bad press" is actually true, but it's just as likely that Grisak's overreaction ensured that countless potential customers -- worried that the product they buy would be arbitrarily nuked -- may look elsewhere for their next garage door opener.

Filed Under: bad reviews, denis grisak, garage door opener, iot, ownership, reviews
Companies: garadget

PR-Stupid JetSmarter Will Charge Journalists $2000 If They Don't Write Positive Reviews

from the internet-Russian-roulette-with-all-six-chambers-loaded dept

Uber, but for private jets. That's JetSmarter's pitch. But just as Uber has engaged in some questionable behavior in its quest for marketshare, so has JetSmarter. You won't be able to find many negative reviews of the service because any journalist taking a test flight without delivering a puff piece is going to see their bank account take a hit.

The Verge received this highly-questionable offer to "review" JetSmarter.

Upon the execution of this Agreement, Journalist shall provide Company with a credit card and a copy of an ID of the credit card holder (“Credit Card”) and shall authorize Company to charge the Credit Card in the amount of $2,000 should (i) Journalist cancel the trip on the date of departure of the outbound flight or in the event that Journalist fails to arrive at the departure location at the scheduled departure time or other unforeseen delays or (ii) in the event Journalist fails to post the article described above on the first page of this agreement.

That's the terms of the review flight. All this has done is ensure JetSmarter receives negative press that has nothing to do with the service it offers. This self-inflicted damage follows on the heels of the arrest of JetSmarter's former president for embezzlement.

If it's looking to dig itself out of a PR hole, JetSmarter's "play nice or else" terms are nothing more than a $2,000 shovel. Forcing journalists into an agreement like this only makes potential customers question the veracity of positive reviews.

Add to this the fact that JetSmarter has buried a non-disparagement clause in its Membership Agreement and any positive statements about the company become inherently untrustworthy.

Here's the clause from the agreement [archived here in case it falls into a memory hole]:

Each Member agrees to refrain from making any negative or disparaging comments to anyone (either orally or in writing) about JetSmarter or any of its affiliates or their business or operations or any of their respective officers, directors or employees; provided, however, that this provision shall not be interpreted to prevent Member from making any truthful statement to his, her or its attorneys or other advisors, or to any court or arbitrator of competent jurisdiction in the context enforcing his, her or its rights under or defending any action with respect to this Agreement.

This sort of clause is now against the law, thanks to recent legislation. It actively discourages members from complaining about anything, even though it seems to have done little to prevent its Yelp page from hosting mostly negative reviews. There are others who seem happy with the service, but the looming threat of losing thousands of dollars through contract cancellation isn't exactly promoting the free exchange of opinions.

Simply put, the company is in the business of buying positive press with free flights carrying a $2,000 asterisk. For unhappy customers, the potential financial loss can run above $10,000. Whoever instituted these policies clearly has no idea how to handle their PR duties. JetSmarter has pinned a "KICK ME" sign to its own back and is now wandering the internet gathering boot prints -- an outcome anyone with a handful of functioning brain cells should have seen coming.

Filed Under: gag clause, journalism, non-disparagement clause, reviews, the verge
Companies: jetsmarter

Digital Homicide's $10 Million Lawsuit Against Game Critic Gone

from the bang-bang dept

Update: We've made some corrections to this piece to clarify that, while this is a victory for Jim Sterling, it's a result of Digital Homicide agreeing to a settlement, rather than the court tossing the lawsuit, as the original suggested.

The saga of game developer Digital Homicide whipped through our pages like an idiotic windstorm. This gust of blustery nonsense started with the company's lawsuit against a game critic, Jim Sterling, then moved on to it suing Steam users over reviews they wrote, before twirling into the stage where Valve banned Digital Homicide games from Steam entirely and the company stated it planned to shut down operations. All of that happened in the span of six months, which would be impressive if it weren't so sad.

Still, the resolution of the threats against Steam users wasn't the end of the story. The lawsuit against Sterling was still out there, a $10 million dollar anvil hanging over the game critic's head. Until this week, that is, when the court in which the suit had been filed dismissed it with prejudice as part of a settlement agreement between the two parties.

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate and agree to the dismissal of all claims in this action, including the claims raised in the Amended Complaint of February 3, 2017, with prejudice with each party to bear its own costs and attorneys’ fees.

Plaintiff agrees to forever refrain from directly or indirectly filing against Defendant any cause of action arising from the same facts or circumstances alleged in the Amended Complaint. Plaintiff also agrees to refrain from taking action against Defendant’s business, such as sending DMCA takedown notices, without first considering whether Defendant is engaged in fair use of a copyright under 17 U.S.C. § 107, as required under federal law and Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).

And that will be the end of that. But Sterling wasn't the only one casting a wary glance at this lawsuit. Many in the game-critiquing world watched on, wondering whether or not a court was going to allow a critic to be punished for doing his job. Were it to have happened, that would have sent a chilling effect through the gaming industry. Fortunately, it didn't.

Which isn't to say that this all ends without any blood being drawn.

What’s particularly disturbing about lawsuits like this is that, even in cases where they are clearly frivolous, as this was, they can force critics to spend significant amounts of money on legal defenses. Sterling had to hire a lawyer, Bradley Hartman, who helped convince the court to dismiss this case, which, in Sterling’s words, involved “series of allegations that were difficult to comprehend even for the one accused of them.”

“Not all threats from the Internet are idle ones, and I wouldn’t recommend anybody brush them off,” Sterling concluded.

Which is again why this country is desperately crying out for strong Anti-SLAPP laws at the federal level. Having to fend off these vacuous lawsuits with no recourse at the end is a burden without justification.

Filed Under: criticism, defamation, free speech, jim sterling, reviews, steam
Companies: digital homicide