Connecticut Judge Reverses His Prior Restraint Ruling, But For Reasons He Wants Kept Secret

from the transparency-please? dept

We recently wrote about how a judge in Connecticut's New Britain Superior Court, Stephen Frazzini, apparently was somewhat confused by the concept of prior restraint and the First Amendment in issuing an injunction barring the publication of an article by the Connecticut Law Tribune concerning documents in a case that had been posted to a public docket. As we noted, this is classic prior restraint, and the Connecticut Law Tribune protested. It appears that Judge Frazzini has realized the error of his ways and has vacated the original order, but has apparently kept his reasoning under seal, and won't even allow the publication's lawyer to let the publication know the details:

Superior Court Judge Stephen Frazzini has vacated his order forbidding The Law Tribune from publishing a story about a child custody case. Daniel Klau, the Hartford lawyer who has been representing the Law Tribune, said the judge issued "a nine-page order, explaining why he vacated his injunction." The entire order, like the other rulings in this matter, remain under seal, and Klau has been ordered not disclose them to his client.

Later in the article, Klau notes that he's "moving to unseal the court record of the proceedings" so that hopefully the details will become public.

To be fair, the article does note that Frazzini himself may have realized the problems with the initial order on his own, calling a hearing, asking both parties to discuss if his original order was Constitutional. Other statements from the judge certainly suggest a recognition that his original ruling was a mistake on multiple levels:

At the Dec. 1 hearing, to illustrate his concern about the constitutionality of his injunction, Frazzini read from part of his still-sealed order, in which he quotes U.S. Supreme Court decisions, CBS v. Davis (1994), and Nebraska Press Association v. Stuart (1976). Those decisions warn that any prior restraint of expression bears a heavy presumption against its constitutional validity. Parties wishing to block publication also carry a heavy burden of justifying the imposition of such a restraint, and judges should impose it only when an "evil" is both grave and certain to occur, Frazzini noted. Finally, the judge noted, any remedy that included prior restraint needs to be "narrowly tailored" for the least intrusion upon speech and press freedom.

The judge also said he is vexed by the continued existence on other websites of the court document that is at the focus of the Law Tribune article and the target of the injunction. One of the blogs that link to the court document is associated with The Washington Post. The judge wondered aloud how he could prohibit publication of confidential details by the Washington Post or the New York Times, even if he did have "long arm" jurisdiction. And why should the Connecticut Law Tribune be enjoined from publishing what every other newspaper could freely publish?

The situation isn't over yet, however, as the state Supreme Court is likely going to hear an appeal, though there's some confusion about the process given the new move to vacate the original order:

In the meantime, the state Supreme Court said it would hear appeals in the case, bypassing the state Appellate Court. The American Civil Liberties Union of Connecticut has already filed an amicus brief to the court on behalf of the Law Tribune and its right to publish. Joining that brief are two open government organizations, three media organizations and more than a dozen media outlets. The filing argues that barring the Law Tribune from publishing the story "is absolutely prohibited by the free speech and press sections of the Connecticut Constitution."

Either way, there's no doubt that the information in the case may be sensitive -- involving children -- but that still shouldn't lead to prior restraint.

Filed Under: connecticut, free speech, journalism, prior restraint, stephen frazzini
Companies: connecticut law tribune

Connecticut Court Ignores First Amendment, Blocks Paper From Publishing Article Based On Public Court Document

from the prior-restraint dept

I'm always amazed that there are judges out there who don't appear to understand even the very basics about the First Amendment. And yet, we get cases like this one in Connecticut last week, in which a New Britain Superior Court judge, Stephen Frazzini, apparently had never come across the concept of prior restraint, and ordered an injunction against the Connecticut Law Tribune barring it from publishing an article based on a public court document:

Daniel J. Klau, the newspaper's lawyer, said he has already filed an appeal. He and other media law attorneys say this appears to be an extraordinarily rare case of prior restraint on free expression guaranteed by the First Amendment. They say that normally pre-publication court orders have been deemed constitutional only in matters of extreme threats to public safety, on the level of national security.

Frazzini's oral ruling is currently sealed, but Klau said he is working to have it unsealed. "I am actually under a restraining order about what I can tell my own client. There are some things that I can share," said Klau, of the Hartford office of McElroy, Deutsch, Mulvaney & Carpenter. "What the Law Tribune can say," he said, "is that in a child protection case on the juvenile court docket, the court granted a party's request for an injunction barring the Connecticut Law Tribune from publishing information that it lawfully obtained about the case."

Yes, since it involves juvenile court, it's likely part of the issue involved in protecting the privacy of a child. But, again, this was information that was already filed in a public docket. If there was concern about privacy, it should have been dealt with prior to a public filing. To then issue an injunction, barring the publication of an article, is classic prior restraint and is clearly unconstitutional.

Filed Under: connecticut, first amendment, free speech, journalism, prior restraint
Companies: connecticut law tribune

Roca Labs Story Gets More Bizarre: Senator Threatens Bogus Defamation Lawsuit, While Nevada Quickly Rejects Bogus Bribery Charge

from the and-we-get-accused-of-working-for-roca dept

If you thought the Roca Labs story couldn't get any more bizarre, well, then you haven't been paying much attention, because no matter how bizarre the story was the last time you looked, it seems to get even more bizarre with the next step. We've already gone through the Roca gag order, lawsuit against PissedConsumer, lawsuit against unhappy customer, threats against witnesses, and weak attempts to use the fame of Alfonso Ribeiro and Tommy Chong in implied endorsements. Oh, and also the threat against us and the fact that a main "doctor" backing their product was a pediatrician who lost his license due to child porn claims.

Last week, the story got wackier, when Roca Labs' founder, Don Juravin decided to file a highly questionable "integrity complaint" about a Nevada state senator, Justin Jones, claiming that Marc Randazza -- the lawyer representing PissedConsumer -- had "bribed" Jones to pass Nevada's (very, very good) anti-SLAPP law. The bribery claims border on laughable and clearly suggest a continuation (or escalation) of Roca Labs' legal strategy of trying to attack anyone and everyone. As we'll explain below, it was also a really dumb strategy that has already failed, as the Nevada Attorney General wasted little time in totally rejecting Juravin's integrity complaint as having no basis, whatsoever.

In the meantime, though, the story got even more ridiculous. And that's because Senator Jones had his own lawyers (who didn't initially appear to recognize what a bad idea this was) threatened Juravin with a highly questionable defamation lawsuit in response. Yes, the guy who helped get one of the absolute best anti-SLAPP laws in the country in place is threatening a highly questionable SLAPP lawsuit. Even though I think Juravin's complaint is laughable, to threaten him with defamation in response? That's just as laughable, and perhaps doubly so given that the Senator supported the anti-SLAPP legislation in the first place.

Even worse, the draft complaint that Jones' lawyer Patrick Reilly sent, revealed that they planned to request "a temporary restraining order, preliminary injunction and permanent injunction preventing Defendants from continuing to publish false accusations concerning the Plaintiff." While there are some who have been trying to challenge this, historically, claims of defamation are not entitled to any sort of injunctive relief, as it's classic prior restraint and a violation of the First Amendment.

Given that, both sides here look terrible. We have a company that has a ridiculous gag order on customers, has been threatening to sue just about everyone (including us) that presents any sort of negative opinion on their business, and clearly filed a bogus claim of "bribery" to piss off a lawyer fighting against them. On the flip side, we have a state senator who got a great free speech protecting law passed... and then appears to make himself subject to that very same law by threatening a very questionable defamation lawsuit, complete with prior restraint injunctions.

Oh, and the letter Reilly sent to Juravin and the draft complaint were both sent directly to us as well. Why? Because Reilly seemed to believe that (1) we're a PR firm and (2) Juravin hired us to promote his bribery accusation. Both the letter and draft complaint claim that Juravin "engaged" us to "gain media traction." So, already, in the past few weeks, Roca Labs has not only threatened us with a lawsuit and accused us of being a "mouthpiece" for Randazza, and now Senator Jones and his lawyers are, in turn, accusing us of being a mouthpiece... for Roca.

Well, holy fuck.

We've just been trying to report on the damn story, and highlight attempts to stifle free speech. We never expected to have multiple parties flinging legal threats at each other -- and dragging us into the process with completely bogus claims of working for both sides of this ridiculous fight. Hey, leave us out of this whole thing, and maybe, just maybe, everyone should learn how not to try to stifle free and open speech.

Not surprisingly, Roca's lawyer Paul Berger (the same guy who threatened us) quickly jumped on this massive gift that Jones' lawyer handed him, and responded to Reilly's threat by rightly hinting at the fact that Jones' threatened lawsuit might open him up to the very anti-SLAPP law that Jones got passed. And that actually seems to be one of the very, very few legal arguments that Berger and I agree on. Though, really, I don't want to even bother thinking about the irony of the SLAPP-happy Roca filing an anti-SLAPP against the guy who got the best anti-SLAPP in the country into law.

Either way, however, it's all for naught. As I was working on this story, I got a phone call from Jones' lawyer, Patrick Reilly, who appeared to realize the mistakes he had made. First off, he apologized for mischaracterizing Techdirt in the letter and draft complaint and suggesting that we were somehow working for Juravin. Furthermore, he said that Senator Jones did not, in fact, intend to file the drafted lawsuit. It sounds like Jones and his lawyers perhaps made a rash decision following a bogus integrity complaint -- but they now recognize that their response was a bad idea.

And... the whole issue quickly became moot anyway, because the Nevada Attorney General has dismissed Juravin's bribery complaint (pdf) already. The Nevada's Attorney General's office (who kindly provided me with the rejection letter) tells me that there was "insufficient evidence" in the complaint to believe that there was any criminal activity at all, and that Juravin's "theory of the offense does not rise to the level of a crime." Basically, it didn't take long for the Attorney General to look at the complaint and realize that it was nothing more than someone's personal vendetta against Marc Randazza for having the gall to be involved in a lawsuit which Juravin himself had started (along with his lawyer Paul Berger). Hopefully this means this particular tangent in Roca Labs story is over and done with. But, somehow, I doubt the overall Roca Labs story is over just yet....

Filed Under: anti-slapp, bribery, dan juravin, defamation, first amendment, justin jones, marc randazza, patrick reilly, paul berger, prior restraint, slapp
Companies: roca labs

Appeals Court Very Concerned About Gag Orders On National Security Letters

from the now-do-something-about-it dept

On Tuesday, Twitter sued the US government for the right to be more transparent about how many National Security Letters (NSLs) and FISA court orders it had received (even if the answer was zero). On Wednesday the appeal on last year's district court ruling saying that gag orders on NSLs were unconstitutional was heard in California, and the judges sounded quite skeptical of the government's argument. You can hear the ~1 hour hearing on the Court's website (it was supposed to livestream, but then didn't). The case involves a still unnamed service provider who challenged the gag order, represented by the EFF.

While questions from judges during oral arguments can often be misleading in terms of where the court eventually lands, at a first pass, the judges certainly sounded fairly skeptical of the DOJ's extreme claims. The idea that it would be impossible for the DOJ/FBI to review the gag order on every NSL? Really? The judges certainly seemed to recognize the general problem with a gag order with no end, and how that could be a very serious restriction on free speech. The government did its usual song and dance about how if it doesn't have this gag order power, people are put in danger, but at least from the hearing, it sounded like the court was skeptical.

Of course, now we have to keep waiting, to see what the panel decides. Hopefully it won't take all that long. Some of the judges certainly seemed to express concern about the length of time even this process has taken, so hopefully they will be more efficient in issuing a ruling. From there, it's likely that whoever loses may appeal (either for an en banc hearing by the entire 9th Circuit Appeals Court or to the Supreme Court). This process is still far from over, but it will be important to keep tabs on what happens in this case -- and it will likely impact Twitter's case, and other companies' attempts to be transparent about requests for information from the government.

Filed Under: 9th circuit, free speech, gag orders, national security letters, prior restraint
Companies: eff

Who Needs SOPA? US Court Wipes Sites From The Internet For 'Infringement' Without Even Alerting Sites In Question

from the that's-not-how-the-law-works dept

TorrentFreak has the exceptionally troubling story of a federal district court in Oregon issuing an incredibly broad and questionable order, effectively wiping a bunch of websites out, without ever letting the websites in question know that they were being "tried" in court. The request came from ABS-CBN, a giant Filipino entertainment company arguing infringement, of course. But the argument against these sites is somewhat questionable already, made worse by the demand that the whole thing be done under seal (without alerting the site operators). Then Judge Anna Brown granted the temporary restraining order, basically deleting these sites from the internet, without even a sniff of an adversarial hearing.

You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world.

The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak).

The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit:

Upon Plaintiffs' request, those with actual notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars, and domain name registreies or their administrators, shall cease facilitating access to any or all domain names and websites through which Defendants engage in the (i) copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or (ii) use of the ABS-CBN Marks

It also orders domain registrars to hand over the domains to ABS-CBN and to block further transfers. Again, all of this is done without ever notifying the defendants, who are named as Jeffrey Ashby, Lenie Ashby and a bunch of Does operating a variety of domain names.

The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment:

In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, and again in A Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure `designed to focus searchingly on the question of obscenity.' " Id., at 210 (quoting Marcus, supra, at 732). See also, e. g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968).

We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 874-876 (1986).

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here.

And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets. It may very well be true that the sites in question were engaged in infringing activity and deserve to lose any lawsuit filed against them. But it's also possible that they were not engaged in such activities -- and yet their sites are preemptively shut down and destroyed, without them even knowing there was a legal proceeding under way. That's prior restraint.

I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me:

The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it.

The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective. It's no different than conducting a raid on a crackhouse. This operation is not only making financial profit from their piracy, but their ads contained malware that infected the computers of all of their users. They are also employing other black-hat techniques in attempts to make money.

You know my case history. The whack-a-mole game is a scam for all involved. From an IP enforcement standpoint, when someone messes with your company's livelihood, you stop them. And you make sure that all watching are discouraged. Period.

I have to take issue with nearly everything that Rob says here. The fact that they'll have plenty of opportunity after the fact to dispute the charges against them is besides the point. Who knows if this is a legitimate operation or not, but if it is, and this action totally destroys it, then it's a bit late to go and complain to the courts after it happened. The whole point of the Supreme Court ruling discussed above is that you have to have an adversarial hearing first. The whole "contingency plan" argument is bogus as well. Any action required in the restraining order could easily be issued at a later date against any other sites that these individuals happen to set up as well.

Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement).

Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission.

Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."

Filed Under: adversarial hearing, copyright, free speech, jeffrey ashby, lenie ashby, philippines, prior restraint, temporary restraining order, trademarks
Companies: abs-cbn

Head-In-Sand Approach: White House Bans Current & Former Intelligence Staff From Discussing Any Media Leaks

from the that'll-work dept

The Obama administration continues to make incredibly ridiculous decisions in response to the whole Snowden thing. A few weeks ago, we wrote about new rules from James Clapper that banned intelligence community employees from interacting with anyone who was a reporter (or who just had a social media account) without first getting approval. And the latest is that Clapper has issued a new "instruction" which effectively bars all intelligence community employees (and contractors) from even referring to public news reports about any leaks. It appears that any current or former intelligence community official mentioning any of the reporting about Snowden's leaks without first getting permission may run afoul of these rules.

In the past, we've criticized the government's "head-in-sand" approach to dealing with leaked information. Back in 2010, we pointed out how idiotic it was for the Pentagon to tell all Defense Department employees that they weren't allowed to visit Wikileaks to see the State Department cables that were being littered all over the press. Similarly, after the Snowden revelations, the Defense Department blocked access to the Guardian's webiste, where the original documents were first posted. Similarly, Congressional staffers were told not to look at the Snowden documents -- and if they happened to see one accidentally, they had to call security "for assistance."

The thinking behind this approach is that those documents are technically classified, and if you don't have the proper clearance, you shouldn't have them on a government computer. And, yes, I do understand the complications it causes for government employees who have very strict rules about dealing with classified documents, and how it gets a bit trickier when classified documents are leaked publicly -- but at some point you have to sit back and realize the end result is preposterous and there are better ways to deal with it. In the business world, it's fairly standard for non-disclosure agreements to have a clause that says you're allowed to discuss the information you learned if it becomes public via other means. This is perfectly sensible. The intent is to try to block the initial disclosure. But once it's out there, it makes no sense to bar the discussion of it.

And while (as described above), it's always been the case that government officials were barred from making use of leaked classified documents, this new "instruction" expands things in two ridiculous ways. First, it appears to apply to former intelligence community employees in addition to current ones. And, second, it says they can't even refer to the news coverage of those leaks -- which has long been a way that people could refer to known leaks without referencing the leaked documents directly.

ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information. The use of such information in a publication can confirm the validity of an unauthorized disclosure and cause further harm to national security. ODNI personnel are not authorized to use anonymous sourcing.

The NY Times quotes a former White House intelligence employee, noting that this restriction is almost certainly a First Amendment violation:

Timothy H. Edgar, a visiting professor at Brown University who worked at the intelligence office and the White House from 2006 to 2013, said it was appropriate to block former officials from disclosing classified information and confirming leaks.

But, he said, it went too far to retroactively block former officials from citing news reports in the public domain, as long as they did so neutrally and did not confirm them as factually correct. That would amount to a prior restraint on former officials’ First Amendment rights that they did not consent to, he said.

“You’re basically saying people can’t talk about what everyone in the country is talking about,” he said. “I think that is awkward and overly broad in terms of restricting speech.”

Once again, beyond making a continued mockery of "the most transparent administration in history" claims, these rules just make no sense at all. Yes, Clapper and Obama don't want someone "confirming" what's in a leaked document, but to date there have hardly been many issues with anyone worrying about the legitimacy of leaked documents. Maybe this is part of a new idiotic strategy by Clapper to call into question the validity of future leaked documents from Snowden and from others.

Either way, barring intelligence employees (current and former) from even discussing clearly public information is the epitome of a head-in-sand approach in which denying reality seems like a better strategy than living in reality. I don't know about you, but I want a government that is willing to actually face up to the world we live in, rather than sticking its fingers in its ears and shouting "la la la -- I can't hear you." That doesn't seem like a sensible plan by any "intelligence" community.

Filed Under: classified information, ed snowden, free speech, james clapper, leaks, prior restraint

Horrific Appeals Court Ruling Says Actress Has Copyright Interest In 'Innocence Of Muslims,' Orders YouTube To Delete Every Copy

from the bad-on-multiple-levels dept

We've been following the saga of Cindy Garcia for quite some time now. She appeared in the now infamous YouTube film "Innocence of Muslims" that attracted worldwide attention after it was blamed for various riots and fatwas from extremist Muslims, because the horribly scripted, produced and acted film is clearly insulting to the religion. While the video had been out for months prior to the controversy, once it started generating so much attention, Garcia tried pretty much every trick in the book to make the movie disappear. She sued both the producer and YouTube in California state court. That failed. Then she moved on to federal court, where she claimed that the movie violated her copyright, an argument that is and has always been laughable. We assumed, naturally, it would fail quickly -- and it did. However, she and her lawyers kept arguing, and in a somewhat shocking -- and incredibly troubling -- move, the 9th Circuit appeals court has ruled in her favor, in a ruling written by Judge Alex Kozinski.

We've written about Kozinski plenty of times in the past. He's one of our (and many court watchers') favorite judges for his willingness to speak in a straightforward manner and his similar proclivity to make jokes and poke fun at himself. While we often do agree with him, in the cases where we don't, we often find his reasoning truly perplexing, and that is absolutely true in this case. Kozinski seems to tie himself up in a whole variety of questionable knots to find that (a) Garcia has a copyright interest in the film and (b) Google should be forced to take down every instance of the film. The ruling creates massive problems for both basic copyright law and the First Amendment. And it's actually a case where -- believe it or not -- Google and the MPAA might even be on the same side once Google likely asks both the 9th Circuit to review and/or the Supreme Court to consider the case as well. A ruling that would put both Google and the MPAA on the same side of a copyright issue? Yes, that's going to be a strange ruling indeed.

The key issue is that Garcia claims her performance is independently copyrightable from the film. This claim is preposterous. No film has ever worked that way, where the actors could make a claim to a separate copyright for each performance. In fact, just a couple years ago, a bunch of countries signed a new treaty to give actors a kind of copyright-like right in their roles in certain cases, which more or less explicitly recognizes that actors do not get to copyright their own performance. Furthermore, as far as I know, the US hasn't done anything to implement the details of that Beijing Treaty (nor has it even ratified it), so it's not like any of those new rights should apply yet, and it doesn't appear that Kozinski relied on any of them anyway.

Instead, Kozinski goes through a detailed explanation for how each actor in a film may be able to claim some sort of copyright in their own performance, because of the creative elements they add to it.

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” .... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[] general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” ... Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”

[....]

This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);.... Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis.... We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.

However, as the dissenting opinion points out, this is hogwash. Actors don't have any copyright interest in their performance and that's clear from the law and this history of copyright:

Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work....

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. While Congress distinguishes the performance from the work itself, the majority blurs this line. Its position contemplates something very different from amalgamating independently copyrightable interests into a derivative work. See id. at § 103(b).

Consistent with section 101, section 102(b) outlines that which is not given copyright protection. It states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” An acting performance resembles the “procedure” or “process” by which “an original work” is performed. Id. Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.

Kozinski then argues that Garcia's performance doesn't qualify as a work made for hire (which does seem slightly bizarre, but the work made for hire rules are fairly specific and might not apply here). However, even here, Kozinski makes a troubling statement that may be a dangerous precedent. In arguing that the nutty guy behind the film, Mark Basseley Youssef, is not "in the business of film making," Kozinski states:

There’s nothing in the record to suggest that Youssef was in the “regular business” of making films.... He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.

Except, um, no. In an era in which people can come from nowhere and make amazing films -- then, yes, "every schmuck with a videocamera" can be "in the business of making films." There is nothing in copyright law that says you have to be a "movie mogul" to qualify, and it's troubling both that Kozinski implies that only "movie moguls" get to make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

As for the "implied license" that Garcia gave to Youssef by performing in his film, Kozinski makes yet another highly problematic argument, that because Youssef changed her performance, it went outside the license. Even after admitting that such a ruling would be problematic in that it "could allow an actor to force the film's author to re-edit the film--in violation of the author's exclusive right to prepare derivative works" or that "the actor could prevent the film's author from exercising his exclusive right to show the work to the public," Kozinski still seems to think that Garcia can do exactly that in this case, because the film turned out to be quite different from what Garcia was told it would be.

Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.

While he notes this situation "will be extraordinarily rare," you can pretty much bet that plenty of actors who are later upset with how a director/editor handled their performance in films will cite this ruling in the inevitable lawsuits. This ruling is going to lead to a ton of really ridiculous lawsuits from actors upset about how a filmmaker portrays them in a final cut of a film.

The next problematic argument is that, given all of this, Garcia still needs to show irreparable harm from keeping the video up. And yes, as Kozinski notes, death threats do seem like a form of irreparable harm. But, the "harm" has to result from the infringement, since it's a copyright claim that she's bringing. Kozinski is somehow convinced that's the case, though his explanation doesn't seem to actually provide any explanation.

Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright.

She’s made such a showing. Youssef’s unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia.

That seems like a huge stretch, and one totally unrelated to the copyright issue, again setting a dangerous precedent for future copyright abuses.

Then there's the simple fact that taking the film off YouTube now doesn't seem likely to stop people from (a) knowing the film exists or (b) knowing that Garcia was in it. Yet, Kozinski again seems to find this argument compelling.

Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm. Although Google asserts that the film is so widespread that removing it from YouTube will have no effect, it has provided no evidence to support this point. Taking down the film from YouTube will remove it from a prominent online platform—the platform on which it was first displayed—and will curb the harms of which Garcia complains.

On to the basic First Amendment issue. As the dissent points out, even given all of this, ordering Google to pull down the entire video is classic prior restraint. But Kozinski brushes that aside by arguing that it's okay because this is copyright infringement.

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement.

The dissent points out that Kozinski is wrong, in part because the court never even rules that there is copyright infringement going on here, just that Garcia may have a copyright interest in her acting performance (something the dissent disagrees with entirely). But even if we accept Kozinski's interpretation, just because Garcia may have a copyright interest, no infringement has yet been shown, and thus issuing the takedown is prior restraint in violation of the First Amendment.

If all of this wasn't troubling enough, Kozinski made things even worse. He not only issued the order a week ago to Google to remove all copies of the video (and prevent any future uploads -- hello prior restraint...) but also issued a gag order forbidding anyone to talk about this until today, once the order was out. In other words, not only did the court order the film censored, but it put a gag order on anyone revealing that the film had been censored, which raises yet another First Amendment issue, which hopefully Google will appeal.

Google, Inc. shall take down all copies of “Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of “Innocence of Muslims” to those platforms. Google shall comply with this order within twenty-four hours of the issuance thereof.

Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues. This order will remain in effect until such time as the district court enters a preliminary injunction consistent with our opinion.

Almost everything about Kozinski's ruling here is troubling. The copyright interpretation just seems very far out of bounds with just about everything having to do with copyright law. It will create tremendous problems for the film industry. The First Amendment implications of both the takedown and the gag order are similarly troubling. Hopefully, either the full 9th Circuit will rethink this issue, or the Supreme Court will take an appeal and set the 9th Circuit straight.

Filed Under: alex kozinski, cindy garcia, copyright, free speech, innocence of muslims, prior restraint

Alabama Court Shuts Blogger Up With Prior Restraint Court Order, Indefinite Jailing For Contempt Of Court

from the defending-the-damn-near-indefensible dept

The problem with defending free speech is that you have to defend those whose words verge on indefensible in order to protect the speech you do like. Making this task considerably more unpalatable is the possibility that the person you're defending verges on indefensible as well, prone to aggravating the situation and undermining his or her defenders at every turn. But the battle must be fought because being a combative jerk still isn't a crime… nor do we want it to be.

Ken White at Popehat has been following the details of blogger Robert Shuler's case since things kicked off back in October. As he noted when this began, the First Amendment covers even "creepy, crazy, vexatious litigants."

Shuler blogs (or at least did so until October 2013) about a variety of politicians, most of whom he despises. He targeted Robert Riley Jr., the son of the former governor of Alabama, and proceeded to cover areas both proven (Riley Jr. paying a fine in a campaign finance investigation) and areas unproven (Riley Jr. had an extramarital affair with a lobbyist). The latter was "covered" in excruciating detail. This led to Riley Jr. suing Schuler for defamation. These are the unsurprising details of the case. What happened next, though, is what puts many of us in the uncomfortable position of defending the rights of a seemingly despicable person.

Riley [...] got Alabama Circuit Judge Claude D. Neilson to issue a preliminary injunction — that is, an order issued before there's been a trial — prohibiting Shuler from saying certain things about Riley:

"Based on the foregoing, Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said alleged extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received any such funds. The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court. These efforts shall include, but not be limited to, taking the subject information off of the website known as "Legal Schnauzer," taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube."

That order — forbidding Roger Shuler from saying something before he says it — is called prior restraint, and it is widely acknowledged to be a violation of First Amendment rights in all but the most extreme circumstances.

Unsurprisingly, given Shuler's background as a combative and generally unpleasant person, he refused to do so. He continued blogging about Riley Jr. and the forbidden topics. Riley asked the court to hold Shuler in contempt, which it obligingly did. No surprise there either, considering the court had already violated Shuler's First Amendment rights with its earlier court order. Shuler was arrested on October 23rd. He is still in jail.

He has also had additional charges levied against him for his actions on the day of the arrest.

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resisting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson.

As you'll note, his sentence for the charge of resisting arrest (something White has problems with -- such as resisting an unlawful arrest not being an actual crime in Alabama) has been suspended. Shuler remains in jail only because of the contempt of court charge.

Presumably, the state can't hold him indefinitely. But as White breaks down the legal arguments surrounding imprisonment for contempt, there are certainly avenues the state could explore to do exactly that. What it appears to be is coercive contempt consequences, which the state can use to gain compliance from someone who is clearly uncooperative.

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

"Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process."

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely."

Leaving this legal battle to Shuler (who has chosen to represent himself -- quite possibly the person least qualified to do so and most likely to exacerbate the situation) will likely result in little more than further coercive action by the state. It's backed him into a corner, but every time it lets him out, he makes it regret its decision.

Starting from his refusal to accept the papers served to him by law enforcement back in October (he and his wife threw them out the window as he was driving, leading to the "resisting arrest" charge) to his more recent statement to the court it was "a joke" and "lacked jurisdiction," Shuler is intent on self-destructing in the most spectacular (pejorative sense used here) fashion. Shuler appears to be applying for the title of "free speech martyr" but his histrionics are more self-serving than useful.

Still, the problem remains. The Alabama court has issued a First Amendment-violating court order and has used that as a stepping stone towards the indefinite detention of a creepy, vexatious litigant. Neither of these acts are acceptable. Shuler's actions and words cloud the issue. There may be a good chance he has defamed Riley Jr. but until that's determined, he should be allowed to return to his home and continue blogging. His targets may not like what's being written about them, but as has been proven by Riley Jr., there is a proper legal framework for addressing potential defamation. Sadly, the court has decided to color outside the lines and trample on free speech -- a decision which seems to be guided mainly by Shuler's undeniable urge to sabotage himself by opening his mouth before firing up his brain.

It's hard to separate such a person from his speech and view that objectively. It's harder still to read what Schuler has written and defend that, even without knowing his background and personality. But allowing Schuler to be Exhibit A in how litigants can shut down critics and opponents without due process will only encourage more litigants to explore this option. The court's decision to order prior restraint bears its own weight on future court orders. Even those with much flimsier cases than Riley Jr. will be tempted to roll the dice with a sympathetic judge. The chilling effect of prior restraint is well-documented, which is why the First Amendment is in place to safeguard against it.

The justice system is in place to determine the veracity of Shuler's claims and determine whether they are, in fact, defamation. Its purpose has never been to simply shut people up, no matter how unpleasant they -- or their speech -- are.

Filed Under: alabama, free speech, prior restraint, richard shuler, robert riley jr.

Court Forces Activist Objecting To Questionable Class Action Settlement To Shut Up And Promote The Settlement

from the wow dept

Here is a rather egregious violation of basic free speech rights. For years, we've talked about how the class action process is quite frequently abused, such that it makes lawyers quite wealthy, while doing next to nothing for the "class" they're representing. In extreme cases, we've seen "settlements" that actually make the defendants in class actions better off, while still making the lawyers (of course) quite wealthy. The stories of companies being forced to pay up millions of dollars, with none of it going to actual "victims," are more common than you would imagine.

So, when Majed Moughni in Dearborn Michigan heard about such a class action settlement concerning McDonald's having sold non-halal Chicken McNuggets that were advertised as halal, he decided to protest the settlement and try to get others to do so. The settlement was what is known as a cy pres settlement, in which the lawyers get paid and the defendant agrees to give a chunk of money to charity, rather than to the class (about $700,000 in this case). There are, at times, good reasons for doing a cy pres award, but it can also be open to abuse. Settlement agreements, by law, have a period of time in which people are free to object to a settlement before it is approved, and Moughni was doing exactly that, if at times crudely, with a Facebook page that may have gone a bit far in its claims. Moughni was upset with the cy pres nature of the award, but also with the fact that there was no injunction that would block McDonald's from doing the same thing again.

However, as Paul Levy, who is now representing Moughni, makes clear in a blog post about the motion he filed in the case, the court deciding to issue a broad injunction against Moughni, barring him from talking about the case, while also forcing him to post the lawyers' view of the case, would appear to be a pretty blatant First Amendment violation:

The lawyers for the plaintiff class threatened Moughni with both a defamation suit and disciplinary charges (Moughni is a lawyer, although not by any means a specialist in class actions). Moughni would not back down, so the plaintiff’s lawyers asked the judge to shut down the page — or, more precisely, they asked that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said) (That is why I am not linking to my client’s Facebook page – it isn’t really HIS page any more. Let the parties do their own publicity.) And, they asked that Moughni be forbidden to make any statements that class members might see or hear, such as by talking about the litigation to the press which, in turn, might print stories from which class members might learn Moughni’s views.

The lawyers continued their claim that they had been defamed, but really, they said, this isn’t about us, this is about protecting the poor class members against having their confidence in the lawyers undermined, protecting public confidence in the court system, and preventing class members from being confused about whether they should object to having their claims for damages extinguished so that settlement funds could go to the charities (and the lawyers). The judge held a hearing a few days later; plaintiff’s counsel spoke his piece, McDonald’s lawyers chimed in with their agreement, but Moughni’s attempt to speak was rebuffed with a peremptory “Don’t you even” from the judge. And the judge ruled, granting the injunction almost exactly as requested.

As Levy notes, with class action settlements there is strong incentive for the lawyers from both sides and the judge to get the settlement approved. It gets a case off the docket and gets the lawyers paid. So this is a situation where all three of those parties have the incentive to team up against anyone who dares to raise questions about the settlement. In fact, Levy noted that when he contacted the lawyers, noting his own intention to represent Moughni, they threatened him with sanction too. Levy notes that Moughni's original Facebook post may not have been as carefully worded as one would hope, but in no way should that ever lead to a broad injunction, along with compelling speech one disagrees with, in response. From the filing:

Giving Moughni only a few days’ notice, the Court convened an emergency hearing; then, without hearing from Moughni, issued a prior restraint of unparallelled breadth, barring Moughni from making any public statements about an entire subject matter, even statements that were entirely truthful and not at all misleading. It further compelled him to place speech with which he fervently disagreed on his own web page; and it forbade him from dissemination, circulation or publication of any opt-out form or objection during the crucial ten-day period before the deadline for members of the class to decide whether to opt out or object. On a literal reading of the injunction, Moughni was barred even from speaking to his own wife and children about the settlement, and even from submitting an objection to the settlement on his own behalf.

While he was pro se, Moughni acknowledged that he is not an expert in class action procedure; as his counsel, we readily concede that some of his statements could have been worded more felicitously. But Moughni was not counsel for a named party; he spoke only as a member of the affected community, and the Court’s order holding him to standards that would have been inappropriate even for a lawyer in the case violated black-letter law against prior restraints of speech. The injunction should, therefore, be vacated immediately. In addition, during the crucial ten-day period before the opt-out or objection deadline, the order deprived the class of the opportunity to hear dissenting views about whether to go along with a settlement that potentially deprives them of valuable rights. The Court should, therefore, reopen the period for the class to respond to the notice, and should defer any decision about approval of the settlement until that time has expired.

Even if you agree that Moughni may have gone too far with some of his Facebook postings, completely denying his right to talk about and object to the settlement, while then forcing him to post information he disagreed with, seems like an egregious violation of his rights. As Levy notes back in his blog post, whether or not the actual settlement is a good one is somewhat besides the point:

Moughni has his own view, but our motion takes no position on the merits of the settlement: our only point is that Moughni ought to have the right to say what he thinks about the settlement, and that the remedy for speech claimed to be false is not less speech but more speech. In my own mind, I have come to no conclusion about the merits of the proposed settlement.

But that just leaves me wondering, if the settlement is so wonderful, why the lawyers felt they had to resort to suppressing critical speech instead of just putting their own replies into the marketplace of ideas. At the hearing for an injunction, they had reminded the Court of how attentive the national media press had been to their publicity about the settlement (115 national media outlets, and a hundred million viewers, they claimed); surely the media would continue to give them a platform.

Hopefully the court is willing to recognize its mistake and vacate the injunction quickly.

Filed Under: activism, class action, class action lawsuits, cy pres, free speech, injunction, majed moughni, objections, prior restraint
Companies: mcdonald's

Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1

from the you-thought-it-was-going-away? dept

If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...

Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa