Professor Says Threats Of Retaliation By China Stopped Publication Of His Book Revealing Chinese Influence In Australia

from the expect-much-more-of-this dept

We've just written about how the Chinese government wanted to censor articles published by two academic publishers, Cambridge University Press (CUP) and Springer. After an initial wobble, CUP ultimately refused, while Springer by contrast decided to kowtow to the authorities. Those incidents concerned the publication in China of articles the Chinese didn't like. Now it seems the latter are extending their campaign against inconvenient facts to other countries, in this case Australia:

Prominent Charles Sturt University academic Clive Hamilton said Allen & Unwin was ready to publish his manuscript Silent Invasion, but last week informed him it could no longer proceed because it was worried about defamation action.

"Allen & Unwin said that they were worried about retaliation from Beijing through a number of possible avenues including legal threats, orchestrated by Beijing, and they decided it was too big a risk and so therefore pulled the plug and returned the rights to me," Professor Hamilton said.

As the article on ABC News explains, "Silent Invasion" is about the Chinese Communist Party's activities and growing influence in Australia -- obviously a highly sensitive topic for China. In an email to the company, obtained by ABC News, Professor Hamilton's former publishers, Allen & Unwin, wrote about what it saw as "potential threats" if it published his book:

The most serious of these threats was the very high chance of a vexatious defamation action against Allen & Unwin, and possibly against you personally as well.

It's a little hard to see how an entire nation might sue successfully for defamation, but that's not the point. Once again, the mere threat of litigation was enough to cause someone -- in this case a publisher -- to self-censor. Interestingly, the ABC News article notes that the Australian government is expected to unveil soon new legislation to counter foreign interference in the country, which suggests that it is becoming a serious problem. We can expect more such attempts to censor overseas sources of information it doesn't like from the increasingly self-confident and intransigent China.

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Filed Under: australia, censorship, china, clive hamilton, silent invasion, threats
Companies: allen & unwin

Taylor Swift's Legal Rep Tries To Kill Critical Blog Post With Bogus Defamation, Copyright Claims

from the flailing-badly dept

Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat -- aimed at a blogger -- oversteps its bounds egregiously.

PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.

Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:

The story knowingly regurgitates, repeats, and attempts to expand on a malicious lie. Among other things, the story propagates such hideous falsehoods as: 1) “Taylor’s lyrics play to [a] subtle, quiet white support of a racial hierarchy;” 2) that there are similarities between Ms. Swift and Adolf Hitler; 3) that the “lyrics [of “Look What You Made Me Do”] are the most explicit in speaking to white anger and affirming white supremacy;” and 4) that Ms. Swift’s purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right movement.

The rest of the cease-and-desist is more of an angry letter to the editor. The legal firmness of Venable LLP's stance takes a backseat to general, non-litigious complaints about the post's assertions. Swift's attorney says his client has done plenty to combat racial inadequacy and is under no obligation to campaign for the Hillary Clintons of the world. Fair enough, but really not the sort of thing actionable legal claims can be built on.

Unfortunately for Swift and Venable LLP, the ACLU has stepped in to represent PopFront and Meghan Herning. It has answered with a letter [PDF] of its own that completely disassembles the stupid, sometimes disingenuous statements made by Swift's legal rep.

First, the blog’s statement that “Taylor’s lyrics seem to play to the same subtle, quiet white support of a racial hierarchy that benefits them,” is protected opinion. As an initial matter, your letter misquotes the blog post by omitting the word “seem,” a term signaling that what follows is an opinion. This omission suggests that you well understand that the actual post is stating an opinion, protected by the Constitution. If you are going to write a letter accusing a person of misrepresentation, you should avoid misrepresenting what she wrote.

The ACLU's letter points out Taylor Swift is a celebrity. The defamation bar is much higher for public figures, especially since the same fame that grants them money, power, and all the other nice things in life also makes them targets for criticism. Criticism isn't immediately synonymous with defamation, no matter how much Swift's lawyer would like it to be. And, again, the ACLU's letter makes this point while knocking the C&D for its attempt to put words into the blog post's author's mouth.

[Y]our letter asserts what the blog does not, “that Ms. Swift’s purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right [sic] movement.” It is not clear what your statement refers to, because there is nothing in the post that says this. The post does state that “there is no way to know for sure if Taylor is a Trump supporter or identifies with the white nationalist message, but her silence has not gone unnoticed.” But this is a far cry from stating that she supports Trump or identifies with the alt-right. You are of course absolutely right that “Ms. Swift has no obligation to campaign for any particular candidate or broadcast her political views.” But nor does she (or, probably more to the point, her lawyers) have the authority to tell other people the conclusions they can draw from her decision to keep silent.

Thus, however, “hideous” you consider these statements to be, none of them are actionable.

To top it all off, the legal threat came with a paragraph claiming the letter was protected IP and could not be reproduced or published without permission. This is not just rank bullshit but it's also incredibly stupid. There's almost no phrase more guaranteed to result in permissionless publication than this one:

This is a confidential legal notice and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of Copyright Act. You are not authorized to publish this letter in whole or in part absent our express written authorization.

The ACLU makes this point by publishing Venable LLP's letter along with the following paragraphs in its response:

First, the claim of confidentiality can only be described as odd, particularly coming from a lawyer; you cannot really expect that a person who receives a letter like this will feel any duty to keep this matter a little secret between the two of you. And it is not without irony that at one point you ask that your “letter stand as yet another unequivocal denouncement by Ms. Swift of white supremacy and the altright,” but then purport to forbid anybody from making the letter public.

Second, you cannot use copyright law as a weapon to suppress your letter, because reproduction of it here is fair use under 17 U.S.C. § 107. Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated.

PopFront and the ACLU will not be caving in to Swift's bogus legal threats. Nor will they be building a time machine to comply with the demands for a retraction "no later than" one day before the legal threat was actually sent.

And later in the letter:

Stupid defamation claims and bogus copyright language are Streisand-bait. Someone working for a top-tier law firm and representing a top-tier artist should know better. And perhaps attorney William Briggs does know better, but has chosen to serve his client as well as possible given the circumstances. But providing top tier service doesn't necessarily mean acquiescing to every client demand. Briggs and Venable should have taken a pass on this one. Instead, they're going to be the recipient of the sort of criticism they attempted to quell with this misguided demand letter.

Filed Under: alt right, copyright, defamation, fere speech, meghan herning, slapp, taylor swift, threats, william briggs
Companies: aclu, popfront, venable llp

Researcher Still Being Pursued By Russian Bank Over Last Year's Mistaken Trump Connection Story

from the every-weapon-deployed dept

The war on security researchers continues. But then, it's never really shown any sign of abating, has it? Report after report comes in of security researchers being threatened with lawsuits or arrest simply for finding and reporting security breaches.

The war on Jean Camp continues to this day, with the researcher on the receiving end of multiple legal threats from the American law firm representing Kremlin-linked Alfa Bank. Camp came under fire from the bank last year, after a story came and went mistakenly insinuating a Trump server was in engaged in lively conversation with Alfa Bank's servers during the run-up to the presidential election.

That was back in March. Law firm Kirkland & Ellis sent legal threats and communication retention demands to Camp. In addition to demanding she retain all communications possibly relevant to Alfa Bank's vendetta, the firm also threatened to file CFAA charges.

Nothing has improved over the last several months. The law firm's tactics now apparently include the use of FOIA laws to grab even more of Camp's communications. The Intercept reports on the latest developments in the Alfa Bank case.

Alfa’s lawyers went beyond scary lawyer boilerplate, demanding that Camp not only turn over all of her related communications with members of the media, but also divulge her full correspondence with the anonymous Tea Leaves, presumably for the purpose of unmasking and pursuing them. As a professor at a publicly funded university, Camp’s official correspondence is subject to public disclosure.

Alfa Bank seems keen on discovering who the mysterious security researcher "Tea Leaves" is. The pseudonymous researcher was instrumental to the mistaken claims published by Slate in its original report on the supposed link between Trump and the Russian bank. A letter sent by the law firm in May demands Camp turn over "Tea Leaves'" real name, title, and work address if she's in possession of that information.

Another letter in June expanded Alfa's demands, ordering Camp to turn over communications and other information related to her work with other security researchers. The latest letter, dated August 3, shows Alfa -- through Kirkland & Ellis -- serving up a public records request for

"All emails sent, received, or deleted by Professor Camp from University computers or systems using her University or personal email accounts that include any of the keywords "Alfa," "Alpha," "Alfa Bank," "Alpha Bank," "Trump," "Clinton," "Russia" or "Tea Leaves."

Considering this all took place shortly before the election, this request has the potential to sweep up a great number of communications not directly related to Alfa Bank's case. But even if it were more limited, it would still be disturbing. Alfa is looking to out other security researchers Camp has been in contact with, presumably in hopes of nailing a few of them to the wall for drawing mistaken conclusions about Trump server traffic.

The Intercept's Sam Biddle notes this clearly isn't what legislators had in mind when crafting public records laws.

Although public records laws typically don’t distinguish between U.S. citizens and foreign entities that use them, the purpose and spirit of such laws are generally understood to be a means of making government activities transparent for the public interest. Camp works for a public university and is a government employee, of course, but it’s hard to imagine laws like Indiana’s Access to Public Records act drafted with the well-being of Russian financial mega-institutions in mind.

This is likely true, but ultimately it makes no difference. The law cannot forbid companies from using public records laws to obtain information. (And companies know it.) After all, companies are made up of people and proxy records requests aren't just for bullying by foreign banks. Muckrock does this all the time, acting as an intermediary for requesters who don't live in the states they're requesting records from. Some laws prevent out-of-state requests. Muckrock's proxies work around this limitation. The use of a US law firm is more of the same, even though most records requesters aren't normally looking to destroy the target of their requests.

Oddly, the PR firm representing Alfa Bank has been the only entity to respond to requests for comment. And it has done so with as much spin as possible. As Biddle reports, BGR Public Relations claims the nearly-yearlong issuance of threats and demands to Jean Camp isn't illustrative of Alfa Bank's end goals. It just wants to "get the facts straight." Apparently, straightening things out means endangering Camp's career and, potentially, the livelihoods of every researcher she spoke to about Alfa Bank server traffic.

Filed Under: foia, jean camp, tea leaves, threats
Companies: alfa bank, kirkland & ellis

The 'Gawker Effect' Is Chilling Investigative Reporting Across The US

from the this-is-a-problem dept

When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big deal even if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.

And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.

This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:

Lessin, referencing the Masters story, wrote that “we recently published a version of a story that three other publications passed on after very high-priced lawyers promised to sue them."

The Recode piece also quotes people from other publications who argued that there were other reasons for passing -- including that the earlier versions of Masters' story didn't have enough on-the-record sources. For what it's worth, one of the publications that passed -- the Hollywood Reporter -- recently made new headlines in this story by getting an interview with Isa Hackett, in which she revealed more details about Price's behavior towards her.

In the CJR piece, Masters shares more of the details of what happened behind the scenes, and how pressure was applied, via legal threats, to try to kill the story. It's at least marginally troubling that she notes it wasn't just Charles Harder who was making the threats, but also well-known lawyer Lisa Bloom. Bloom was, somewhat famously, also part of Harvey Weinstein's "legal team" which struck many people as odd, since her reputation was for representing the victims of sexual harassment and assault, not the other side. A few days after the Weinstein stories came out, Bloom said she was no longer working for Weinstein (also, recently, Harder claimed he has also stopped working for Weinstein despite earliler promising a lawsuit). She told the Hollywood Reporter, she worked with him to "change the way these stories go." And, more specifically to avoid the pattern of "when the story comes out, attack the accuser, deny, deny, deny, and fight like hell" because, as Bloom told THR: "I know how damaging that is to them, how hurtful, how scary. It’s emotionally devastating." Over the weekend, she told Buzzfeed something similar:

“All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

But Masters notes that Bloom and Harder together threatened the reporting she did on Price:

People in Hollywood and the media world were surprised my byline ended up in The Information, given that I worked at The Hollywood Reporter. (My editor there, Matthew Belloni, said in a Recode article about my difficulties getting the story published that “any suggestion that a story on this topic didn’t run because of outside pressure would be false.”) THR did allow me to shop the story elsewhere, but it came with a guaranteed threat of litigation from Price’s attorneys. Over the weeks that would follow, as I began searching for a home for my scoop, Harder and Bloom convinced every publication that considered my story that they weren’t just threatening legal action but would indeed sue.

Perhaps that threat was so convincing because Harder had handled Hogan’s devastating suit against Gawker with backing from billionaire Peter Thiel. In her zeal to protect her client—who has yet to address any of the allegations in my piece publicly—Bloom claimed that I had turned on Price after he rebuffed my demand to have Amazon underwrite The Business, the public-radio show that I host on KCRW. I can’t guess who concocted that allegation, but I assume the idea was to establish a potential argument that I had behaved unethically and had a personal grudge against him and therefore didn’t care what the facts were. (Since Price is a public figure, his only hope of prevailing in court would be to argue that I published information I knew to be false or acted in reckless disregard of whether it was false.)

When I first read the claim in an email from Bloom, I was angry, but I also laughed because it was ridiculous. I’ve never discussed underwriting with anyone, even internally at KCRW. I don’t know the first thing about it. I’m told Bloom insisted she had proof, though of course none was produced. My editor at THR told her that the story was false, but she repeated it to other publications nonetheless. (Bloom on Thursday said she no longer is working with Price.)

Masters admits that the earlier work didn't yet have the full on-the-record statement from Hackett, which was necessary to make the piece publishable, but does note how much the legal hounding from Bloom and Harder made it that much more difficult to get a publication to go with the piece.

By the time I was done, I had talks with more than six publications and went through legal review at three. The anxiety is always high when there’s a threat of a lawsuit around a story, but this time, it seemed off the charts. At one point, an attorney reviewing the piece only sputtered when I asked her to explain what, exactly, was legally problematic with portions of the story that she wanted to delete. She literally could not construct a sentence to explain her reasoning.

There's a lot more in Masters' piece that is worth reading and that highlights just how damaging the Gawker Effect has become. Again, even if you absolutely hated Gawker and cheered its demise, you should be concerned with what it has wrought. Masters hopes that with the Weinstein story getting so much attention it will help "change the environment" and encourage more people to come forward, and to embolden more publishers to publish these kinds of investigative reports.

However, there's still a missing piece here. Masters is right that these legal threats are a problem, and hopefully the attention brought about from exposing sexual harassers will embolden more publishers to publish these articles, even in the face of coordinated legal threats -- but what we still really need are stronger anti-SLAPP laws in various states (some of which still have none, and many of which have very weak ones). Or, even better, a comprehensive federal anti-SLAPP law. Such a law would allow publications to have more confidence in publishing such exposes of bad behavior by the rich and powerful, since they could push back against bogus legal threats by noting that filing a lawsuit probably won't get very far, and almost certainly would force the plaintiff to pay legal fees. We've been calling for such a federal anti-SLAPP law for nearly a decade, and I hope we're not still calling for one a decade from now. Masters' story is yet more evidence that Congress needs to act, now.

Filed Under: anti-slapp, charles harder, defamation, gawker effect, harvey weinstein, kim masters, lisa bloom, litigation, roy price, sexual harassment, slapp, threats
Companies: amazon, gawker

Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

from the wanna-try-that-again,-harvey dept

Last week, the Hollywood Reporter broke the story that famed Hollywood movie mogul Harvey Weinstein (formerly of Miramax and more recently of the Weinstein Company -- from which he was fired over the weekend, despite practically begging for his friends to support him) had seriously lawyered up, hiring three high profile lawyers: David Boies, Lisa Bloom and Charles Harder to deal with two apparent stories that were in the works -- one from the NY Times and another from the New Yorker (two publications not known for backing down from threats) -- about some fairly horrible alleged behavior by Weinstein towards young female actresses, employees and more.

A day later, the NY Times published its article about Harvey Weinstein and, damn, it's quite an article. It details multiple cases of alleged sexual harassment by Weinstein against both employees and hopeful actresses -- and includes claims of Weinstein having to pay off some of those individuals. The article was not based on a single source, but many sources, including one actress (Ashley Judd) willing to put her name behind the accusations (and just as we were completing this post, the New Yorker published its piece which appears to be more detailed and more damning, with more names and even more horrifying stories about Weinstein). And with the NY Times' publication, much of the "legal team" leaped into action. Of course, if you're not familiar with the three lawyers named above, it may help to do a quick review, before we dig in on the myriad (often contradictory) responses we've now seen from Weinstein and his legal team over the past few days.

Boies, of course, shows up everywhere these days, but often not for good reasons. You may recall him representing SCO in its quixotic attack on Linux. Or representing Oracle against Google in claiming that APIs can be copyrightable. Or representing Theranos, the now disgraced biotech firm that exaggerated what it could do. Or representing Sony Pictures when its emails were all leaked, to the point of sending a ridiculous threat letter to us for daring to report on those emails. Lisa Bloom's only appearance here was when she was on the right side of the silly James Woods defamation case against an anonymous tweeter. Many found Bloom's appearance as part of the team quite odd, since she's built her reputation on representing victims of sexual harassment. She later claimed she was just advising Weinstein, rather than acting as his lawyer (hmm....) and then, over the weekend, she resigned from whatever it was that she was doing. However, the NY Times has a quite incredible article suggesting her initial response to the accusations was to effectively go after the women, by posting "photos of several of the accusers in very friendly poses with Harvey after his alleged misconduct." Ick.

And, Charles Harder? What is there that needs to be said about Charles Harder? Oh, right, that he's currently leading the legal team that's suing us in a defamation suit that we've won (though he has since appealed).

Within hours of the article being published, Harder announced that Weinstein would be suing the NY Times for defamation.

"The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein," he writes in an email to The Hollywood Reporter. "It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by nine different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations."

But here's the thing: Weinstein himself seems to be admitting that many of the accusations are accurate. He's quoted apologizing for his behavior in the initial NY Times article:

In a statement to The Times on Thursday afternoon, Mr. Weinstein said: “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go.”

He added that he was working with therapists and planning to take a leave of absence to “deal with this issue head on.”

That seems like an admission. The full statement is even more bizarre:

I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office - or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed.

I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.

Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons. Over the last year I've asked Lisa Bloom to tutor me and she's put together a team of people. I've brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more. Jay Z wrote in 4:44 "I'm not the man I thought I was and I better be that man for my children." The same is true for me. I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call. I cannot be more remorseful about the people I hurt and I plan to do right by all of them.

I am going to need a place to channel that anger so I've decided that I'm going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I'm going to do it at the same place I had my Bar Mitzvah. I'm making a movie about our President, perhaps we can make it a joint retirement party. One year ago, I began organizing a $5 million foundation to give scholarships to women directors at USC. While this might seem coincidental, it has been in the works for a year. It will be named after my mom and I won't disappoint her.

That whole statement is... weird. Others have covered the many problems with it, but it seems like a pretty clear admission. Given that, it's pretty ridiculous to then claim you're suing the NY Times. Under what theory? Well, according to Weinstein, because it didn't give him enough time to respond:

“I mean every word of that apology,” he told TheWrap. “The reason I am suing the New York Times is they didn’t give me enough time to respond.”

Um. What? First of all, he gave an entire statement to the NY Times. So he clearly had time to respond. Second, there's no legal requirement that a news publication needs to give you "enough time to respond," let alone any time to respond. That's not how the press works.

In another interview, he told the NY Post that he's suing because the NY Times wasn't honest with him:

Weinstein said, “What I am saying is that I bear responsibility for my actions, but the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting. They told me lies. They made assumptions.

“The Times had a deal with us that they would tell us about the people they had on the record in the story, so we could respond appropriately, but they didn’t live up to the bargain.

“The Times editors were so fearful they were going to be scooped by New York Magazine and they would lose the story, that they went ahead and posted the story filled with reckless reporting, and without checking all they had with me and my team.

Once again, Weinstein seems to be confused about how journalism works -- and what legal requirements there are. Even as rich and powerful as Harvey Weinstein is, there is no legal requirement to give him as much time as he wants to respond. Indeed, his lawyer Bloom admits they had two days:

“Two days ago, after begging, they gave us a couple dozen allegations that spanned 30 years and a dozen countries. They said we have until 1 pm today. We said ‘Why?’ They never said.”

Again, giving two days actually seems kind of generous.

The whole thing seems like Weinstein is trying out any and all possible responses at once. Normally you select one: you deny and sue or you apologize or you try to make a quip and laugh off the accusation. Harvey seems to be doing all of this at once.

He even tried denial (and a quip) before the admission and the threat:

In a brief interview on Wednesday, Weinstein declined to comment on the charges.

"I've not been aware of this," he said. "I don't know what you're talking about, honestly."

[....]

Weinstein later issued a statement through a spokesperson, as did Bloom. “The story sounds so good I want to buy the movie rights,” said Weinstein.

Of course, as the NY Times has pointed out, at no point has Weinstein said what is factually untrue in its reporting. And if you're suing for defamation, that's kind of the first thing you're supposed to do. Meanwhile, it appears that other stories are starting to come out (and they keep coming) -- including some fairly damning claims about attempts to cover up previous investigations. And, perhaps most troubling, a claim that the NY Times had this story a dozen years ago and was pressured into killing it. Of course, perhaps that's the real reason behind the threat of the lawsuit -- to try to scare off others from coming forward. All of the links in this paragraph suggest if that's the theory, well, it's not working. It's also not clear that a lawsuit would be wise. Beyond the failure to give an actual legal reason for the lawsuit so far, as many people have pointed out, it's unclear that Harvey would want to go through the discovery process in such a lawsuit should it get that far.

And, in the meantime, the NY Times has said that Weinstein "should publicly waive the NDAs in the women's agreements so they can tell their stories." If he fails to do so, that says a lot right there.

Still, in the end, it appears that Weinstein's strategy here seems to be... to do all of the following, even if some parts contradict other parts:

1. Deny with a quip ("I don't know what you're talking about, honestly." "I want to buy the movie rights.")
2. Offer a weak excuse that's not even a real excuse ("I came of age in the 60's and 70's")
3. Apologize ("the way I’ve behaved with colleagues in the past has caused a lot of pain," "I cannot be more remorseful about the people I hurt and I plan to do right by all of them.")
4. Threaten to sue ("the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting")
5. Claim the story is not accurate ("a story that is saturated with false and defamatory statements about Harvey Weinstein")
6. Say the real problem was that the paper didn't live up to its word ("The Times had a deal with us")
7. Also claim that the problem was not enough time to respond (despite responding) ("The reason I am suing the New York Times is they didn’t give me enough time to respond.")
8. Deflect from being accused of using your power to bed powerless women by... talking about the NRA?!? ("I'm going to give the NRA my full attention.")
9. Insist that you've seen the light and are changing ("I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call.")
10. Talk about how you've thrown money at womens' issues, as if that makes this okay ("I began organizing a $5 million foundation to give scholarships to women directors at USC.")

None of these seem particularly genuine at all -- which perhaps explains the contradictory nature of many of them. Instead, it looks an awful lot like how people who are caught doing something bad act when they can't come to terms with what they've done, and will thrash about wildly, trying on every possible response, hoping one of them gets them out of the situation. Who knows if an actual lawsuit will be filed, but of all the possible responses above, that one seems the least likely to end well.

Filed Under: assault, charles harder, david boies, defamation, denial, harassment, harvey weinstein, lisa bloom, threats
Companies: miramax, ny times, weinstein company

Netflix Has Narcos Actors Threaten To Shoot The Families Of French People For Pirating The Show

from the bullets-for-you dept

First, let's all just take a moment to drink in that headline above. 2017, people: it's a weird time to be alive. In any case, you likely have heard of Netflix's hit original show, Narcos. The show follows the exploits of Pablo Escobar's drug organization and was once the subject of Escobar's brother demanding a billion dollars from Netflix over the portrayal. Netflix, of course, was the disruptive new streaming service for movies and television that has since decided to go the route of copyright protectionist now that it is producing its own original content. It's a strange look for a company that exploded on a model of convenience over piracy, raking in tons of legit dollars by simply being an option better than or comparable to pirating films and television. Rather than continuing to compete in that arena, the company has begun to go the way of Big Content, firing off all kinds of DMCA notices.

And now threatening to shoot people and their families for pirating Netflix content? Well, not really, of course. I'm sure the folks at Netflix thought it would be funny to have actors from Narcos do so in character in France. But watch the video Netflix put out for yourself.

If you cannot see the video, the TorrentFreak link above has a nice summary of it.

“Hey you, yes you, do you think you’re smart? Do you think we didn’t see you Googling ‘Narcos season 3 download’? Don’t be a fool. Narcos is a business,” Pepe begins.

“If you want your entertainment. If you want your show. You’re gonna pay the Cali Cartel, ‘hijo de puta’,” Pacho adds, using the strong language one expects from a cartel leader.

“Do you think we’re like Hadopi? Do you think we’re going to send you a nice and polite letter first? Please, sir / madam, could you please not illegally download Narcos? We don’t do courtesy letters.”

“There is no please, no por favor, no s’il vous plait,” Pepe adds.

“There’s bullets for you, your family, and all the people you send to watch Narcos on all those shitty websites full of questionable pop-ups,” Gilberto says.

“You know where to find us. Don’t mess around ‘hijo de puta’,” his brother adds.

It's just uncomfortable. Nobody is mistaking Netflix actors for actual hitmen, but it's worth putting this sort of thing in the context of the past decade, in which people really have had their lives ruined in retribution for copyright infringement. The threat letters from copyright trolls really do go out across Europe, looking for all the world like the legal arm of some extortion ring or mob organization. Threats to out people for their pornography of choice really have happened. Within that landscape, to joke around about shooting those who pirate a television show misses the mark on humor entirely, and coming from a company like Netflix it's downright creepy.

Filed Under: advertisement, anti-piracy, france, narcos, threats
Companies: netflix

Should Social Media Sites Be Forced To Pull Pastor Calling For War With North Korea?

from the countering-violent-extremism dept

There's been a lot of debate over the past few years about forcing internet platforms -- YouTube, Facebook and Twitter, mainly -- to respond to terrorists (oddly only Muslim terrorists) using those platforms for propaganda and agitation by taking down that content. It's often been discussed under the banner of "countering violent extremism" or CVE. These days, those and other platforms tend to have large staffs reviewing videos, and especially quickly pulling down videos of ISIS promoters calling for attacks on America and Europe. And, in some countries it's now required by law that internet platforms remove such content. And you can certainly understand the gut reaction here: someone calling you evil and encouraging attacks on you is seriously unnerving.

One of the points that we make about this, though, is that while many, many people think it's "easy" to determine which content is "good" and which content is "bad," it's not. The areas of gray are vast and murky. One example we pointed to is that when YouTube was first pressured into taking down terrorist propaganda videos, it resulted in YouTube killing a channel that was documenting atrocities in Syria. Understanding the difference between promoting violence and documenting violence is not easy.

And here's another example. You may have seen the following news clip floating around, involving a Trump-connected Pastor named Robert Jeffress explaining on a news program why the Bible says it's okay to assassinate Kim Jong Un and go to war with North Korea.

That video clip is all over the news this week and can be found all over the internet. The copy I'm posting above is from Twitter, but I'm sure it can be found elsewhere as well. But what if, instead of an evangelical pastor, that statement were coming from a Muslim cleric, and instead of North Korea and Kim Jong Un it talked about America and Donald Trump? Would it still be all over social media, or would people be demanding that the internet take it down?

And this question applies no matter what you think of the video above. I'm not making a statement one way or the other on the content of it, even if I have an opinion about that. My point is simply that when we demand that platforms pull down "radical" content pushing for "violent extremism," it's really, really difficult to distinguish between the video above and some of what, say, ISIS releases.

This is a point that I think frequently gets lost in these discussions. People think that it's easy to tell what's "bad" because it's easy for them to determine what is bad in their opinion or bad to them. But setting up general rules that scale across an entire platform is almost impossible. And even if you argue that the context of this video is different from my Muslim cleric example, you're only helping to make my point. Because that would mean that anyone reviewing the video to determine if it stays up or down would have to become knowledgeable in the overall context -- which in this case could require understanding centuries of global religious views and conflicts. I'm sorry, but Facebook, YouTube, Twitter and everyone else can't hire thousands of PhDs in all related fields to review these videos (within hours) with the level of understanding and context necessary to make a judgment call on each and every one.

None of this is to say that the platforms need to leave everything up (or take everything down). But if you're going to require platforms to police content, you need to at least recognize that any "rules" on this stuff will lead to rules you don't like. Rules that say a Muslim cleric's call for war on America is not allowed will almost certainly lead to the video above also not being allowed. Maybe some people are comfortable with neither being allowed, but the situation sure gets tricky quickly...

Filed Under: censorship, countering violent extremism, extremism, kim jong un, north korea, propaganda, robert jeffress, takedowns, threats, videos
Companies: facebook, twitter, youtube

Twitter Suspends Popehat For Writing About Violent Threats He Received From Another Twitter User

from the wait-what? dept

Twitter has gotten a lot of flack over the years for how it responds to threats and abuse online -- much of it deserved. The company insists that it's gotten much better about this, and now responds much more quickly to inappropriate threats or abuse online. But doing so is often difficult and bound to lead to some really bad decisions. Like one that just happened. Ken White's Popehat account has been temporarily suspended from Twitter. Why? Because he posted a threat he had received from someone else on Twitter to Twitter. Update: after this story started getting some attention, Twitter reversed the suspension and publicly apologized, saying that it was an error.

If you're a regular Techdirt reader, I'm sure you're familiar with Ken "Popehat" White, the blogging lawyer who covers a lot of the same stuff we do, mainly in the free speech realm. Ken has also, a few times, represented us in response to silly legal threats we've received. If you're a Twitter user, you may also be aware that Ken is a prolific and masterful user of Twitter often commenting on the news of the day. He also uses Twitter to do some law 'splaining and to call out bullies and trolls. He's pretty good at it. One such recent bully was a Texas lawyer named Jason L. Van Dyke. We actually wrote about Jason a few years ago when he tried to sue the Tor Project, because some revenge porn site used Tor. We didn't hear much about him until a few months ago. It seems that, somehow, Van Dyke was offered a job as an assistant district attorney in Victoria County. For unclear reasons, that job offer was pulled. Van Dyke was not happy. He proceeds to sue the DA for pulling the job offer.

In the midst of all this, another Twitter user, Asher Langton -- who has an uncanny ability to sniff out people online who are not exactly what they claim to be -- pointing out that it certainly looked like there were very strong similarities between Van Dyke and someone claiming to be a lawyer trolling for business on the white supremacist site Stormfront. There's a fair amount of back and forth between Langton and Van Dyke and then a direct threat from Van Dyke to knock out Langton's teeth. At one point there was this bizarre drama in which Van Dyke gave Langton 24 hours to promise to stop talking about him or promising to come to Langton and punch out his teeth.

24 hours passed and nothing happened.

Anyway... around this point, Ken White steps in and writes up quite the post about Jason L. Van Dyke. It's a good, well researched, thorough and detailed post as you might expect. In response, Van Dyke trains his anger on Ken, and starts tweeting shit about Ken and making similar threats to those he made to Langton (though a bunch of those tweets now appear to have been deleted).

There were other tweets that certainly appeared to imply potential violence against Ken including a meme involving a bullet, that Van Dyke posted to Ken's Facebook thread about one of his posts:

Ken then posts a second story about being sent a truly pathetic "glitterbomb" by someone claiming to be a supporter of Van Dyke's... and then goes on to expose someone who commented about Van Dyke on the earlier post, making Van Dyke out to be some sort of bad ass (or, as Ken puts it "a badass [as] might be imagined by a lonely 14-year-old.") Ken tracks down some evidence suggesting that the comment came from Van Dyke himself or someone working with him (though, very likely Van Dyke himself).

Following that post, Van Dyke sent Ken this email:

If you can't read that, it says:

White--

You listen to me, and you listen good. This ends now and here is how it's going to work. I have deleted my Twitter account because, frankly, I have better things to do than deal with you and your followers. I am going to make you a one-time offer and you get to choose.

1. I am willing to walk away. Right here. Right now. You remove the libelous blog posts about me and make whatever excuse you want. I really don't care what it is. You will never see or hear from me ever again. We both go about our lives.
2. You can do what I think you are more than likely to do anyway and simple add this e-mail to your blog post. If you d that, I want to make it very clear what is going to happen. I have a picture of you. I am going to put it on my mirror at home, near my desk, and in my truck. My pure and absolute hatred for you will be unprecedented. My hatred for you will serve as a motivation for me to build an entirely new business and to earn enough money so that, one day, I will be able to make your life such an absolute living hell that I'll be able to hurt you without so much as laying a hand on you. I will make you so miserable and treat you with such extreme and completely unprecedented cruelly that you'll either kill yourself or move yourself and your family to the most remote part of the world you can afford to escape my wrath. The bottom line is that I will not forget you and that there will be retribution. It may take me a year. It may take me 20 years. I may get you on my first try. I may get you on my seventeenth try. But I will never stop.

You will take this offer today or the only thing you will have to know is that, sooner or later, I will come for you.

Jason L. Van Dyke
Attorney & Counselor at Law

So, nice guy, right? Ken posted that email to his blog and to Twitter, noting: "I don't respond well to threats. It's kind of a thing. Sorry, Jason."

And... Twitter suspends Ken's Popehat account for 12 hours. Ken's. Not Jason's. Not the guy doing the threatening. The guy posting about being threatened. It's Twitter's "cool off" suspension, in which your account is still live, but you can't tweet, retweet or like other tweets for 12 hours.

Having seen stuff like this before, I'm pretty sure I know why Twitter did this, even if it's stupid. Twitter's terms of service and "rules" which are incorporated into the terms says that you cannot share private information. In the past I've seen similar suspensions when people post someone else's email that includes phone numbers/addresses and the like. Indeed in a post that Ken just put up on his own blog, Twitter confirms that it's the posting of someone else's info that got him into trouble, though Ken points out that Twitter itself says that it will take context into account. And if you're taking context into account, you have to wonder how it is that Ken gets suspended for highlighting the guy who threatened him, while the actual threatener remains free to post at will.

I asked Ken for a comment on the situation, and he told me:

Twitter is perfectly in its rights to do this. Twitter is a private company with its own free speech and free association rights. I've got no right to post there if they don't want me to post there.

But I think most reasonable people would see this as egregiously stupid, and a sign of a recurrent problem -- the systems that social media platforms put in place to deal with harassment are often dumb, and seem to catch people responding to threats and abuse as often as they catch the abuse itself.

Meanwhile, I'm not deleting the tweet. I wrote about a lawyer and damn-near-active-prosecutor who threatened people who writing about him, and he threatened me. When I wrote more, he threatened more, including that freakish email. That's newsworthy, and I'm not taking it down.

Indeed. We've talked many times about the problems of demanding that platforms police behavior. It's one of those things that seems easy, until you realize just how tricky it is. A trust and safety team dropping in on Ken's conversations wouldn't have the relevant background and is likely to rush through and make a bad decision. So be careful what you wish for when you say platforms should be policing content. They're probably not up to the task.

Filed Under: jason l. van dyke, jason lee van dyke, jason van dyke, ken white, popehat, privacy, private info, suspension, threats, trust and safety
Companies: twitter