Two years ago, we wrote about an absolutely ridiculous situation in Virginia, where the state regularly published government documents online without redacting anyone's social security numbers. Betty "BJ" Ostergren felt that this was a huge privacy violation, and in order to highlight it, she set up a website that displayed the documents that exposed social security numbers from documents published by the state on its website -- including the SSNs of various Virginia public officials. Now, there are plenty of ways government officials in Virginia could respond. A good one would be to start being more careful about not revealing people's social security numbers. But that's not what it did. Instead, it passed a new law that would fine people like Ostergren for republishing the information, even though it was the government itself who made the social security numbers public in the first place!
Ostergren, with the help of the ACLU, sued, saying that such a law was unconstitutional. A district court agreed, but only said it was okay for Ostergren to publish SSNs of public officials. However, now, an appeals court has gone even further and said that Ostergren had the right to republish SSNs of others, beyond just Virginia public officials. Basically, the court effectively says that Virginia should be redacting the SSN information, and it's ridiculous to punish Ostergren (or others) for simply pointing out what the government is publishing.
Found via the Citizen Media Law Project is a report about how The National Law Journalwas barred from publishing information it had obtained legally in reporting about a dispute between a law firm and one of its former clients about fees. According to The National Law Journal, D.C. Superior Court Judge Judith Bartnoff signed a temporary restraining order barring it from publishing the material the reporter had found out, specifically saying that The National Law Journal could not name the government agency that was involved in a "regulatory inquiry" into one of the participants in the lawsuit. When the NLJ reporter pointed to the First Amendment, the judge allegedly replied that she did not care:
"If I am throwing 80 years of First Amendment jurisprudence on its head, so be it." She said the court's interest in maintaining the "integrity" of its docket trumped the First Amendment concern.
Not surprisingly, the Journal is looking to appeal this ruling, but it really makes you wonder what the judge was thinking.
We've seen all sorts of grandstanding state attorneys general seeking higher office, but Connecticut's Richard Blumenthal (running for the Senate) seems to work hard, not just at picking up on ridiculous anti-technology and anti-innovation topics to grandstand over, but he seems to do so with amazing cluelessness both about the law and whatever it is he's talking about. His latest is that he's filed an amicus brief with the Supreme Court in the case about California's failed attempt to ban the sale of violent video games. As noted, more than 10 states have enacted such laws, and every single one of them has been struck down. You might think that an attorney general in charge of upholding the law would recognize that.
But, as Ben Kuchera at Ars Technica notes, Blumenthal seems to have announced this particular grandstanding campaign with a rather stunning number of factual errors that demonstrate an immense level of ignorance about what he's sounding off about.
Blumenthal also seems sadly ignorant of the state of video games and retail. "In the face of continued industry inaction--enabling unattended children to buy such games--states must preserve their critical right to protect children," he stated.
The problem with Blumenthal's argument is that the industry has not been in a state of inaction, as the ESRB has long assigned ratings to games, giving an accurate idea of the content included in them, and has made serious efforts when it comes to community and parental outreach to make sure the ratings are both understood and used. Chains such as GameStop and even Walmart actively check the ID of customers buying M-rated games.
Then there's the claim that video games should "follow the leadership of the motion picture industry" in its system to prevent children from viewing certain content. What he seems to be missing is that video games already have a very similar system, and have for years, and, in some ways, it's even more restrictive than the movie industry's.
And, of course, none of this notes that the research seems to show that violent video games aren't actually harmful to kids after all. But, you know, when you have a Senate campaign to run, "think of the children" just plays so well with the ignorant masses...
We've written many, many times about the problems of libel tourism. Basically, some countries have ridiculous overbearing libel laws, that not only put the burden on those accused, but also leave open the ability of being found guilty of libel for telling the truth. With the rise of the internet meaning that something published online is published "everywhere," there's been an increase of individuals and companies suing for libel in random countries, who have stricter libel laws, claiming that since the content was available in those countries, those libel laws apply. Of course, if that's true, it would effectively mean that the lowest common denominator of restrictive laws around the world apply everywhere.
Thankfully, the US has more reasonable defamation laws than many other parts of the world (though, they could still be improved). But more and more US citizens have been caught up in libel tourism cases elsewhere. The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment. The bill is expected to pass in the House as well. This all seems good, though, I have to admit that I hadn't realized US courts would enforce foreign libel decision in the US even if they went against the First Amendment. You would have thought that the US courts were already prevented from allowing things like that... Rather than just a specific "libel tourism" law, why do we allow US courts to enforce foreign rulings that appear to go against US law at all?
Paul Alan Levy alerts us to the news of two recent rulings about internet anonymity, where courts refused to identify some anonymous commenters (in the second case, some were identified and others weren't). There are a fair number of twists and turns in those rulings, and you can read all the details at that link. But what struck me about this is that it comes just a few days after we saw a different story about a different court that agreed to unmask anonymous commenters using a much lower standard than other cases have used.
If you read through both stories you see that judges basically seem to be making it up as they go along as to what standards to use in deciding whether or not online anonymity is protectable. The famous case in this realm is the Dendrite case, but all of the judges seem to pick and choose what they like or don't like about the Dendrite standard, and we're left with a very unclear landscape in terms of understanding what is and what is not protectable anonymity. Basically, you have to hope you end up in a court that buys into the concept, and that seems dangerous for those who believe that anonymity is an important part of First Amendment protections.
In a case that has been going on for many years now, it looks like the FCC's indecency policy has been smacked down yet again, with the Second Circuit appeals court ruling it an unconstitutional violation of the First Amendment. If you haven't been following the case, it involved FCC fines against various TV networks for "indecency," over "fleeting expletives" -- such as when Bono was quoted at an awards showing saying "this is really, really, fucking brilliant," or when Paris Hilton, also at an awards show, was quoted saying "Have
you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."
Initially the same appeals court found that the FCC's rules were "arbitrary and capricious," but chose not to tackle the First Amendment questions. The Supreme Court actually reversed that ruling, saying that the FCC has the right to make its own rules -- arbitrary and capricious or not. However, it also did not investigate the First Amendment questions.
So, the case went back to the Second Circuit, which has once again smacked down the FCC, saying that even if the rules aren't arbitrary and capricious, they do violate the First Amendment and create a real "chilling effect."
The ruling is pretty thorough, going through the history of the FCC's attempts to regulate indecency on the public airwaves, and how the courts have made sure that the FCC was quite limited in what it could do. It remains troubled by the fact that the FCC just sort of randomly changed its policies about a decade ago, and began more aggressively fining broadcasters for such "fleeting expletives," but with the Supreme Court saying that "change" wasn't a problem, the court still says that the First Amendment prevails here.
The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the "pervasiveness" of those media, but that in today's internet-connected world, it makes less and less sense, since people who don't hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to "mature" content, such that the FCC might not have to watch over everything so carefully anymore.
Furthermore, it focuses on the "vagueness doctrine," in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don't know where the boundaries are located. And here's where it gets fun. The decision explores how the FCC decided that some words were indecent and others weren't without explaining why:
The first problem arises in the FCC's determination as to which words or expressions are patently
offensive. For instance, while the FCC concluded that "bullshit" in a "NYPD Blue" episode was
patently offensive, it concluded that "dick" and "dickhead" were not.... Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. ... The Commission
argues that its three-factor "patently offensive" test gives broadcasters fair notice of what it will
find indecent. However, in each of these cases, the Commission's reasoning consisted of
repetition of one or more of the factors without any discussion of how it applied them. Thus, the
word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the words
"dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic." This
hardly gives broadcasters notice of how the Commission will apply the factors in the future.
The English language is rife with creative ways of depicting sexual or excretory organs
or activities, and even if the FCC were able to provide a complete list of all such expressions,
new offensive and indecent words are invented every day.
The court also notes that back when the FCC's enforcement focused on George Carlin's famous "seven dirty words," no indecency actions were brought, because everyone knew what was and was not allowed -- even if other terms were used instead:
This strategy had its
limitations -- it meant that some indecent speech that did not employ these seven words slipped
through the cracks. However, it had the advantage of providing broadcasters with a clear list of
words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC's
abandonment of this policy, not a single enforcement action was brought. This could be because
we lived in a simpler time before such foul language was common. Or, it could be that the
FCC's policy was sufficiently clear that broadcasters knew what was prohibited.
The court doesn't buy the FCC's argument that because broadcasters used other words instead, it had to make it's policy more vague, and notes that this shows "a certain futility" in the FCC's quixotic campaign against indecency. And then it adds that if things are always changing, it's not fair for broadcasters:
The
observation that people will always find a way to subvert censorship laws may expose a certain
futility in the FCC's crusade against indecent speech, but it does not provide a justification for
implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be
considered indecent under its policy, then it can hardly expect broadcasters to do so. And while
the FCC characterizes all broadcasters as consciously trying to push the envelope on what is
permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed
a good faith desire to comply with the FCC's indecency regime. They simply want to know with
some degree of certainty what the policy is so that they can comply with it. The First
Amendment requires nothing less.
The decision also notes that the FCC seems to randomly enforce its own rules:
Even the risk of such subjective, content-based
decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of "Saving Private Ryan" and the documentary, "The Blues." The FCC
decided that the words "fuck" and "shit" were integral to the "realism and immediacy of the film
experience for viewers" in "Saving Private Ryan," but not in "The Blues." ....
We query how fleeting expletives could be more essential to the "realism" of a fictional movie
than to the "realism" of interviews with real people about real life events, and it is hard not to
speculate that the FCC was simply more comfortable with the themes in "Saving Private Ryan,"
a mainstream movie with a familiar cultural milieu, than it was with "The Blues," which largely
profiled an outsider genre of musical experience. But even if there were a perfectly benign way
of explaining these particular outcomes, nothing would prevent the FCC from applying its
indecency policy in a discriminatory manner in the future.
Finally, the court notes that these chilling effects are very, very real and can already be seen:
For instance, several CBS affiliates declined to air the Peabody Award-winning "9/11"
documentary, which contains real audio footage -- including occasional expletives -- of
firefighters in the World Trade Center on September 11th. Although the documentary had
previously aired twice without complaint, following the Golden Globes Order affiliates could no
longer be sure whether the expletives contained in the documentary could be found indecent.
The court says it's possible the FCC could create a policy that is acceptable under the First Amendment, but this one does not qualify. I'm sure this will be appealed to the Supreme Court as well, but in the meantime, it's a pretty big smackdown for the FCC's attempt to fine indecency.
We've already covered how Google and Twitter weighed in with concerns about the "hot news" doctrine. Then we covered how a bunch of big newspapers and newspaper groups begged the court not to take away "hot news." And, now, we get to the First Amendment arguments. We've been alerted to two more amici briefs, both of which ask the court to review "hot news" from a First Amendment perspective -- something that really hasn't happened before. The first is a very, very detailed brief from Citizen Media Law Project, the EFF and Public Citizen, which goes into great detail about why this is an important First Amendment issue:
That brief doesn't take a specific position on the case itself, but merely asks the court to consider the First Amendment, and to make sure that any ruling does not cut off First Amendment protections. In some ways, it's the opposite of the newspapers' brief, which also refused to take a specific position on the case, but wanted to make sure that a First Amendment claim did not kill off "hot news."
The second one may be even more interesting. It comes from AHN, better known as All Headline News, which very clearly says the court should overturn the lower court's ruling. AHN has some direct experience here, as the AP sued it over "hot news" not so long ago, though the two sides eventually settled. So it, perhaps more than anyone else, has direct experience with just how much a "hot news" lawsuit can chill speech:
The First Amendment arguments are the ones that resonate with me the most as well. Hopefully the court agrees.
Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the "traditional contours of copyright law." Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.
But, of course, it couldn't last.
On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interestsagainst situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.
On top of that, the court basically said "Congress knows best" on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn't always know best. But here, the court has no problem deferring entirely to Congress:
This
deferential standard is warranted for two important reasons. First, Congress is
"far better equipped" as an institution "to amass and evaluate the vast amounts of
data bearing upon the legislative questions." ... Second, we owe Congress "an additional measure of deference out of
respect for its authority to exercise the legislative power."
Except, as has been shown time and time again on copyright issues, Congress has done a terrible job amassing any data to support its continued and unstoppable expansion of copyright law. Just within the past few months we've seen the GAO -- which is supposed to make sure that Congress is properly applying data -- admit that Congress is flat out ignoring the actual evidence and agreeing with bogus studies from a few industries that is not backed up with any actual evidence.
Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these "international obligations" in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That's downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment... but... for the most part, it'll just defer to Congress.
Next up? The court actually relies on testimony about "losses" from an RIAA official as well as someone from the IIPA (a lobbying group made up of the RIAA, MPAA and other similar organizations):
In particular, American works were unprotected in several foreign countries, to
the detriment of the United States' interests.... statement of Jason S. Berman,
Chairman and CEO of the Recording Industry Association of America... :"[T]here
are vastly more US works currently unprotected in foreign markets than foreign
ones here, and the economic consequences of [granting retroactive copyright
protection] are dramatically in favor of US industries.").... By some estimates,
billions of dollars were being lost each year because foreign countries were not
providing copyright protections to American works that were in the public domain
abroad.... (statement of Eric Smith, Executive Director and General
Counsel of the International Intellectual Property Alliance) ("Literally billions of
dollars have been and will be lost every year by U.S. authors, producers and
publishers because of the failure of many of our trading partners to protect U.S.
works which were created prior to the date the U.S. established copyright
relations with that country, or, for other reasons, these works have fallen
prematurely out of copyright in that country.").
These are the same studies that the GAO -- whose actual job it is to analyze these reports -- dismissed as junk science. This is exactly where the courts should step in and note that Congress is not doing its job and is doing serious harm at the behest of a few small industry interests. What a travesty that this court couldn't see that.
And, of course, the court continues to rely on clearly biased individuals who had a clear agenda, rather than a factual basis for their positions. It even quotes Jack Valenti's ridiculous claim that if the US removed foreign works from the public domain, that suddenly China and Russia would start respecting US copyright.
Also incredibly frustrating, misleading and inaccurate is a small footnote, which asserts the commonly claimed excuses by the courts for why copyright law does not violate the First Amendment: that the "idea/expression dichotomy" and "fair use" make it so there is no conflict. But what's frustrating in this footnote is that this particular court seems to suggest that so long as copyright doesn't mess with those two things then there's no First Amendment issue with copyright.
We note that copyright includes several "built-in" First Amendment
protections.... The idea/expression dichotomy ensures
that only particular expressions, and not ideas themselves, are subject to
copyright protection.... Additionally, the fair use defense allows individuals to
use expressions contained in a copyrighted work under certain circumstances,
including "criticism, comment, news reporting, teaching . . . scholarship, or
research . . . and even for parody." ... Section
514 does not disturb these traditional, built-in protections, and thus, such
protected speech remains unburdened.
But that's wrong. Dangerously, ridiculously and constitutionally questionably wrong. Just because there are those two "valves" to hopefully keep copyright law from violating the First Amendment (and there are some very, very serious questions about how well either of them actually work), it does not mean that those are the only places where copyright law must be judged under the First Amendment.
In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright -- which was originally supposed to be about getting more works into the public domain -- the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law -- and does so in a way that is a clear violation of the First Amendment.
Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?
All in all this is an incredibly frustrating ruling. It feels like the court didn't actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said "well Congress knows best, so it's okay." The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year's reversal, it's definitely a step backwards for anyone who believes in the importance and sanctity of the public domain.
If you want to be frustrated, read the full decision below:
It looks like Google and Twitter have decided to weigh in on the closely watched lawsuit between TheFlyOnTheWall.com and Barclays, which has helped bring back the hot news doctrine, which creates an monopoly right on news reporting. This is quite worrisome for a whole variety of reasons, and as the appeals court considers the case, Google and Twitter have filed an amicus brief worrying about the implications of allowing the hot news doctrine to stand:
"News reporting always has been a complex ecosystem, where what is 'news' is often driven by certain influential news organizations, with others republishing or broadcasting those facts -- all to the benefit of the public," the companies said in the filing.
Google and Twitter argued that upholding the district court's decision would give those who obtained the news first strong incentives to block others from obtaining the same information.
Hoping to show how silly the concept is, they argue:
"How, for example, would a court pick a time period during which facts about the recent Times Square bombing attempt would be non-reportable by others?"
While I do worry about courts when it comes to copyright cases, the "hot news" doctrine is so far out there that I'll be surprised if the courts don't put it to rest for good. It's difficult to see how anyone can defend the hot news doctrine, and I'm hopeful that the courts will recognize that it has no place in the law.
Given similar rulings, and the judge's comments so far in the IsoHunt case, I find it quite unlikely that the company has any chance of getting out from under the injunction issued against it. However, IsoHunt's lawyer, Ira Rothken (who has been involved in a few similar lawsuits), is trying to make the case that the current injunction is way too broad and a violation of the First Amendment. The argument is that the injunction bars certain searches, telling Isohunt operator Gary Fung that he cannot allow searches for certain movie titles, such as Alice in Wonderland. But, Rothken points out, the movie studios don't own that name. They may own a particular movie under that name, but using that to block all searches on the name goes beyond what the law allows:
One issue concerns how Fung should remove searches from his three search engines: Isohunt, Torrentbox and Podtropolis. The Motion Picture Association of America, which brought the case, has sent keyword searches it wants removed, like the number 10, Alice in Wonderland and Dracula, Rothken said.
"One person's copyrighted Wizard of Oz is another person's public domain work," Rothken said in a brief telephone interview Tuesday. He said the movie studios should provide URLs or hashes, which would positively identify which search link should be removed.
"The motion picture studios do not have a monopoly on names on things. That is where the injunction is violating the First Amendment," he said.
I'm sure that copyright system defenders will brush this off as being a pointless exercise, but he's actually got a very reasonable point. Asking for blocks on names alone seems to go well beyond what the law is supposed to allow. It's yet another example of the difference between real copyright law and file sharing copyright law. Copyright law does not allow for a block based on just a name. But, apparently "file sharing copyright law" does. And that's a problem, if you actually believe in the rule of law and interpreting the law accurately.
