In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It's Time To Use Copyright To Make The Richest Musicians Richer

from the read-the-fucking-room-guys dept

There's kind of a lot going on in America right now -- what with widespread protests about police violence (leading to more police violence), and we're still in the middle of the largest pandemic in a century. You'd think some of those things would be priorities for Congress, but instead, Senate Republicans have decided that now is the time to pushing ahead with helping Hollywood by examining how to make copyright worse. Even the Washington Post is completely perplexed as to how this could possibly be a priority right now.

“I don’t think we have yet felt the urgency of acting immediately” on further help for those devastated by the pandemic, McConnell said two weeks ago. Now, with 100,000 dead and 40 million out of work, he still talks of waiting a month.

So what makes Senate Republicans feel the urgency of acting immediately? What would make them Take It to the Limit?

Don Henley would.

I Can’t Tell You Why.

Actually, I can. The Eagles singer and drummer has been summoned by the Senate Judiciary subcommittee to testify Tuesday about the functioning of the Digital Millennium Copyright Act’s “Notice-And-Takedown System.”

Henley, of course, is one of the wealthiest musicians in history, considering that he was a founding member of the Eagles, a band that literally has both the best selling album of all time AND the third best selling album of all time. Yes, in the top 3 best selling albums of all time, Don Henley's on two of 'em.

If Don Henley is hurting for money, I'm going to suggest that it ain't copyright that's the problem. But this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. "I don't condone it," he said of such practices. "I'm vehemently opposed to it. Not because I don't like parodies or satires of my work. But it's simply a violation of U.S. copyright law."

[....]

"People in my age group generally don't like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating."

Really, none of this makes any sense. You'd think (1) that right now wouldn't be the time to focus on copyright, (2) that Republican Senators wouldn't be in such a rush to aid Hollywood (which is generally not known for its support of the GOP), and (3) that of all the possible people to testify, they'd pick a rich rocker who's big complaint about the internet is that it allows the kids these days to be creative. But for whatever reason, this is what the Republican leadership in the Senate feels is most important right now. Helping super rich rockers who dislike the kids get even richer at the expense of the public.

Filed Under: copyright, dmca, dmca 512, don henley, internet, mitch mcconnell, notice and takedown, pandemic, protests, senate

Police Department Shells Out $50,000 To Man After His Camera Catches Cops Fabricating Criminal Charges Against Him

from the talking-themselves-into-a-lawsuit dept

The Connecticut State Police have agreed to pay $50,000 to a man its officers subjected to a bunch of Constitutional violations on their way to issuing tickets to him for violations he never committed.

Here's a brief description of how this whole thing started:

On September 11, 2015, Picard was protesting near a police DUI checkpoint in West Hartford. One of the defendants, John Barone, approached him under the pretext of public complaints and confiscated Picard’s camera and lawfully carried pistol. Unbeknownst to the troopers, the camera was recording when Barone brought it to where co-defendants Patrick Torneo and John Jacobi were talking.

That's just part of what happened before the recording the officers weren't aware of captured them colluding to make up crimes to charge Michael Picard with.

There's more detail in the opinion [PDF] the court handed down last fall, which gave the State Police notice its officers were unlikely to escape Picard's lawsuit. One officer knocked Picard's video camera to the ground. When he picked it up to continue recording the officers, one of them did something really stupid.

While defendants discussed plaintiff, plaintiff picked up his video camera off the ground and aimed it at the three defendants.

Barone then walked back to plaintiff. He grabbed plaintiff’s video camera and told him, “It’s illegal to take my picture.” Defendants have admitted that Barone “told plaintiff that it was illegal to take his picture without permission to do so;” and that Barone “secured” plaintiff’s camera.

Once they had it in their possession, the cops ignored the camera. This is important because they later argued they seized it because they thought it might be a gun. If they really thought the camera posed a threat to them, you'd think they would have examined the camera. But they didn't.

If they had examined the camera, they might have noticed it was still recording. This is what the camera caught as it laid on top of the officers' vehicle.

Torneo spoke by phone to Lieutenant Allan to determine whether plaintiff had any “grudges;” asked why plaintiff was challenging them at the DUI spot checks; and discussed plaintiff’s past demonstrations.

Defendants Torneo and Barone verified that plaintiff’s pistol permit was valid, that his gun was not stolen, and that there were no warrants for his arrest.

On the video camera recording, Barone can be heard stating, “punch a number on this or do what? Gotta cover our ass.” Torneo can be heard saying, “Let’s give him something,” and “then we claim in backup that we had multiple people stop and complain … but they didn’t want to stay and give a statement.”

Here's the recording Picard's camera made -- one that captures officers colluding to create bogus criminal charges against a citizen.

Picard was charged with two criminal infractions. Both were dropped by the prosecutor. More importantly, the court refused to extend qualified immunity to these officers on Picard's Fourth Amendment violation allegations. It also refused QI on Picard's First Amendment retaliation claim. With three officers facing a jury trial, the State Police has decided to buy its way out of this using taxpayer money.

This incident shows why recording police officers isn't just important, it's necessary. While it may be difficult to record officers' discussions once they're back in their vehicle, having a recording device visible and present may deter cops from fabricating charges just because they don't like the legal activity you're engaged in. Officers are usually pretty careful to ensure their own illegal activity goes unrecorded, but it's tough for them to control devices operated by citizens.

Filed Under: cameras, civil liberties, connecticut, free speech, police, protests, west hartford

Puerto Rico's Justice Department Demanded Info From Facebook About Journalists Who Livestreamed Protests

from the not-how-that-works dept

Historically, the DOJ hasn't really let the First Amendment stand in the way of its investigations. In very recent history, the FBI has targeted journalists to hunt down leakers, and has impersonated journalists during investigations. While the DOJ and FBI have dealt with some limited repercussions due to their targeting of First Amendment activities (which includes targeting Muslims because they're Muslims), it really hasn't promised to stop doing this. Nor has it been told to stop doing this. Instead, the DOJ has simply made it slightly more difficult for investigators to violate people's rights.

The Intercept has done some investigating of its own and discovered the FBI actively engaged in First Amendment violations for years during its partnership with Puerto Rican law enforcement agencies.

For decades, Puerto Rico’s police department operated an intelligence unit dedicated to spying on dissidents. With the knowledge of the FBI, police officers created a file, known as a carpeta, for anyone who could be construed as a supporter of Puerto Rican independence or other environmental or labor causes. Officers recruited neighbors, friends, and relatives to collect information about those targeted, and planted rumors that led to divorce, job loss, and irreparable discord within communities and families.

75,000 of these files were created. This secret surveillance was finally revealed in 1987 and was ruled unconstitutional in 1988 by a Puerto Rican court. That should have ended it. Instead, the surveillance of First Amendment-protected activities is alive and well, headed by the island's Justice Department. Seven students are facing charges related to a nonviolent anti-austerity protest held in 2017. To locate the suspects it wanted to charge, the Justice Department targeted the student publications that streamed footage of the demonstration.

The documents released to defense attorneys provide... evidence of a broad and invasive hunt for prosecutable crimes related to the protests. An agent from the cybercrimes unit of Puerto Rico’s Justice Department sought a search warrant for the records of virtually every Facebook interaction over a 72-hour period with the three publications that livestreamed the protest. The agent obtained private messages with the publications’ followers and detailed information about the student journalists who managed the pages.

The warrant demanded everything. It asked Facebook to hand over searches performed by page administrators, any content that had been deleted, GPS coordinates for posts, IMSI numbers from associated phones, and billing records. The agent working for the Justice Department claimed this was a normal thing to do during an investigation of an incident where no one was arrested, saying all this was needed to collect "evidence" of supposed criminal activity.

Again, the protest being investigated resulted in only a small amount of property damage and zero arrests. Only in hindsight did Puerto Rican law enforcement decide some people needed to be prosecuted and, bizarrely, decided to start this investigation by demanding information about journalists who did nothing more than record the demonstration.

Unfortunately, this sort of thing seems to be increasing, rather than being relegated to law enforcement agencies' pasts. The protests that greeted Trump's inauguration did result in property damage and violence, but the investigation started with broad demands for data on the 1.2 million visitors to a protest group's website.

This investigation also involved a protest, one that lasted only a half-hour, and resulted in a broken glass door and some damaged furniture. This led to an investigation where 1,553 pages of information about student journalists were handed over to the Justice Department by Facebook. And for what? To investigate people who weren't even participating in the protest? To give the government evidence it doesn't even appear to be interested in using in this case?

Collateral damage to rights is something to be taken seriously. Targeting one First Amendment activity (protesting) through the Facebook pages of another First Amendment activity (journalism) is pretty much the worst way to investigate anything. In this case, the obvious problems were made worse by the government's inability (or unwillingness) to narrow the scope of data demands. And the demand for info should never have been approved by any level of oversight (judicial or otherwise) without more restrictions being put in place.

Filed Under: 1st amendment, doj, fbi, investigations, journalism, privacy, protests, puerto rico, surveillance
Companies: facebook

Appeals Court Revisits Its Terrible New Orleans Protest Decision, Changes Nothing About Its Rejection Of First Amendment Protections

from the where-is-the-1st-amendment? dept

Earlier this year, the Fifth Circuit Appeals Court inexplicably allowed an anonymous police officer to continue suing activist DeRay McKesson for the injuries he sustained when someone (not DeRay McKesson) threw a chunk of concrete at him during a protest in New Orleans.

Never mind the First Amendment, said the court. What about the duty of care McKesson somehow inherited when he chose to organize a protest? Since the protest deliberately broke the law by blocking traffic, the court decided McKesson was at least indirectly responsible for any violence resulting from the inevitable clash between protesters and law enforcement.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

If a protest results in unlawful actions, the people organizing the protest bear the collective guilt of every unlawful action engaged in by other protesters. It's an authoritarian's wet dream come true, courtesy of one of the most conservative appellate courts in the land.

The Appeals Court has revisited this decision. Don't bother holding your breath. The retake [PDF] changes nothing in the majority opinion. The replacement opinion is the same opinion, restating the things the court said last time when it decided McKesson's "negligence" makes him responsible for the injuries sustained by a cop attacked by another protester.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

The table is pounded once more for emphasis:

We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is.

McKesson may ultimately be cleared, but it's going to cost him even more time and money. This isn't the way this should have worked out. The only thing worth reading in this opinion is Judge Don Willett's addition. In it, Willett reverses his original position, which agreed with the majority's conclusion that the First Amendment didn't cover McKesson's actions. It opens with an apology of sorts:

I originally agreed with denying Mckesson’s First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Willett says the case should be remanded to Louisiana's Supreme Court for it to decide whether there is actually a "duty of care" present in situations like these, and if so, is it still recognized when there is no direct relationship between McKesson and the protester who assaulted the unnamed police officer? Willett points out that if there's no "duty of care," there's no case. And if there's no case, the First Amendment escapes unscathed.

The appeals court's decision, however, does do damage to free speech rights.

Even assuming that Mckesson could be sued under Louisiana law for “negligently” leading a protest at which someone became violent, the First Amendment “imposes restraints” on what (and whom) state tort law may punish. Just as there is no “hate speech” exception to the First Amendment, “negligent” speech is also constitutionally protected.

Willett says the facts of the case shouldn't allow it to proceed any further. There's no "there" there and it seems highly unlikely Officer Doe could sufficiently amend his complaint to clear this initial hurdle.

Doe strings together various unadorned contentions—that Mckesson was “present during the protest,” “did nothing to calm the crowd,” “directed” protestors to gather on the public street in front of police headquarters, and “knew or should have known . . . that violence would result” from the protest that Mckesson “staged.” Even taking these impermissibly conclusory allegations as true, the complaint lacks sufficient factual detail to state a claim for negligence, much less to overcome Mckesson’s First Amendment defense.

At best, the officer's allegations are still the worst.

Indeed, the lone “inciteful” speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter—the day following the protest: “The police want protestors to be too afraid to protest.” Tellingly, not a single word even obliquely references violence, much less advocates it. Temporally, words spoken after the protest cannot possibly have incited violence during the protest. And tacitly, the majority opinion seems to discard the suggestion that Mckesson uttered anything to incite violence against Officer Doe.

Willett notes the Supreme Court of the United States has recognized First Amendment protections for speech far more inciting than anything McKesson uttered. Bypassing this precedent in favor of vague state-level law is the wrong call, especially if the Appeals Court isn't going to let the state's highest court weigh in on the issue.

This second take is being appealed by McKesson. That's more money and time being spent to defend against a lawsuit composed mostly of boilerplate cribbed from one of Larry Klayman's more outlandish efforts. And yet the case still lives and still threatens to undermine the First Amendment. As Garrett Epps points out for The Atlantic, time is of the essence and only the nation's top court can stop the bleeding.

Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit. If it’s unwilling to do that, it should stay the trial below and hear the case now.

What it should not do is deny the petition and allow a civil trial against Mckesson, then review the First Amendment issue if Mckesson loses. The danger of cases like this is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.

Until (or if) SCOTUS takes this up, the ruling stands. Being at the same protest as people who attack law enforcement is now the problem of protest organizers, at least in the state of Louisiana. Officer Doe may not ultimately prevail, but someone engaged in supposedly-protected activity still has to defend himself against the cop's ridiculous claims.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, new orleans, protests

Adam Silver Reveals The Chinese Government Asked Him To Fire Daryl Morey

from the thinning-skinning dept

We've been taken on something of a journey over the past several weeks by China and their thin-skinned government's attempt to pressure everyone into forgetting that Hong Kong exists. Specifically, it seems that Beijing is quite afraid of any person with a platform showing any support for the ongoing protests in Hong Kong, which much of the world sees as an attempt to stave off an authoritarian government with a history of human rights abuses. While much of the eSports gaming world has taken the cowardly step to self-censor -- going so far as to punish those competing in a fairly hamfisted manner -- there is also this NBA...thing.

That front of this Orwellian war began when Daryl Morey, GM of the Houston Rockets, tweeted fairly benign support for the protests. The Rockets are quite popular in China, as is the NBA, and China took an opportunity to ape extreme offense at Morey's tweet. This, despite the fact that Twitter is effectively banned and blocked on the Chinese mainland. Despite that fact, the NBA first made unfortunate noises in apologizing to the Chinese government, before Commissioner Adam Silver eventually walked that back after a public backlash. Silver instead came out in support of players and team officials speaking their minds and attempted to retrieve the NBA's one-time position as one of the most progressive and "woke" professional sports leagues in America.

It seems that Beijing really wasn't playing around, however, as Silver revealed in a recent interview that China actually asked him to fire Morey.

In case you cannot watch the video, Silver revealed that China asked him to fire Morey and that he refused. He then went on to note that his recent trip to China in the wake of this controversy was conducted at least in part to give Beijing a firm understanding that his league would not again kneel at the altar of their ginned up hurt feelings. The Deadspin rightly calls this what it is: domestic damage control.

“These American values—we are an American business—travel with us wherever we go,” Silver said. “And one of those values is free expression. We wanted to make sure that everyone understood we were supporting free expression.”

Silver does deserve credit for not firing Morey on the spot, and the NBA certainly has caught more flak despite doing less to mollify China than the scores of other, larger companies who have happily rolled over and shown the Chinese government their bellies. Today’s comments are damage control—not with the Chinese officials he has been dealing with for a week now, but with American fans who are pissed at the league and its most prominent player for playing China’s game.

Indeed. And, while it can be difficult for a money-making organization to show some spine against an adversary wielding the world's second largest economy, stories like this are evidence for exactly what will happen if lines in the sand are not drawn. China, and authoritarian regimes, will demand more and more influence over American companies that should at least pretend to have American values.

Is the NBA some knight on a white horse here? Hell no. But the NBA's reaction to public pressure in America is certainly something that would be welcome in the eSports industry.

Filed Under: adam silver, basketball, censorship, china, daryl morey, free speech, hong kong, protests
Companies: nba

More Fallout From The Hong Kong Protests Hitting eSports

from the not-going-away dept

We were just discussing how the NBA and Blizzard each responded to the thin-skinned Chinese government's pressure on each in the wake of statements made supporting the Hong Kong protests that have raged for months now. The Blizzard half of that conversation involved the company yanking prize money and issuing a 1 year ban on a Hearthstone champion going by the handle Blitzchung, who stated support for the protests to sign off of a recent stream -- which, Blizzard claims, violated contest rules. The backlash to Blizzard's decision, was swift and severe. Unlike the NBA, which backtracked on its own appeasing comments to the Chinese government, Blizzard hasn't budged an inch.

The fallout is continuing, if not intensifying. Most recently, famed streamer Brian Kibler quit Hearthstone entirely over Blizzard's decision.

Kibler, 39, is a widely-respected Magic: The Gathering player who, in 2010, was inducted into Magic’s Hall of Fame. Over the last couple years, Kibler amassed a 500,000-person following on Twitch streaming Blizzard’s Hearthstone, which he casts in an official capacity for Blizzard.

“I certainly never expected that my position in the Hearthstone community would lead to me making a statement on sensitive topics regarding international relations,” Kibler wrote today, “but I have always viewed my strange place as a public figure in gaming as an opportunity to try to make the world a better place in whatever way I can, so here we are.”

He went on to state that he refused to smile on camera for a company that was taking such heavy-handed actions against his fellow streamer. It's not that Kibler himself is so big a figure that this will rock the Hearthstone world, though there is some truth to that. It's, frankly, the speed at which this is happening. It seems nearly inevitable that Kibler won't be the last to take such a step, particularly given some of the surrounding backlash Blizzard is receiving both internally and externally to its actions.

Kibler’s statement joins a chorus of backlash against Blizzard’s decision. The Blizzard subreddit shuttered yesterday, full of complaints from players—some of whom pledged to quit the game entirely. At Blizzard’s headquarters, where it proudly displays company values like “lead responsibly” and “learn & grow,” a big piece of paper covered up the values “think globally” and “every voice matters” apparently in protest of Chung’s ban. Also at Blizzard yesterday, some employees staged an “Umbrella Protest” against the ban.

This simply isn't going away. Blizzard needs to say something, if not do something, to quell this ongoing backlash. Thus far, it has essentially chosen to sit back and wait this out. That doesn't appear to be a strategy that is going to work.

Filed Under: blitzchung, brian kibler, china, esports, free speech, hong kong, protests
Companies: blizzard