Seuss Estate And ComicMix Copyright Case Settles In The Saddest Possible Way

from the sad-I-am dept

Readers here will know that we've followed the trademark and copyright lawsuit filed by the estate of Dr. Seuss against ComicMix LLC, creators of the mashup book Oh, the Places You'll Boldly Go! The entire thing has been a multi-year rollercoaster designed to be serpentine, with ComicMix arguing that the mashup book was transformative and covered by fair use, and winning on that front, only to have the copyright portion of the argument overturned on appeal. Go and read Cathy Gellis' writeup on the appeal; it's incredibly detailed and informative.

But if anyone was hoping to see this case progress up the federal court ranks, they will be both disappointed and sad. Disappointed because the parties have now settled the case with ComicMix agreeing to acknowledge that the book did, in fact, infringe on Suess' copyrights.

Dr. Seuss Enterprises LP and the makers of the Dr. Seuss/"Star Trek" mashup book "Oh, the Places You'll Boldly Go!" have settled Seuss' copyright infringement claims, according to a Tuesday filing in San Diego federal court.

In an agreement filed with the court, the parties agreed that the book infringes Seuss' copyrights and permanently bars ComicMix LLC, former "Star Trek" writer David Gerrold, illustrator Ty Templeton and others from selling it, while Seuss agreed to drop any claims for damages or attorneys' fees.

The court document is embedded below so you can see it for yourself. This is normally where I would rant and rave about how these settlements, which might make sense for one or both sides of a given conflict, are actually very bad for the larger public as they do not properly resolve the open questions contained in the dispute. In this case, the full weight of the court and legal system has not had its say on whether the mashup book infringed Suess' copyrights. Two courts have disagreed and this could have progressed further, potentially up to the Supreme Court, but the settlement puts a stop to that process.

That said, it's difficult to be to rant-y and rave-y about this particular settlement given the reason it was sought out. Remember that part I said above about this being sad? Well...

The defendants' attorney Dan Booth of Dan Booth Law said in a statement that his clients settled because of Templeton's diagnosis of Stage 3 colorectal cancer earlier this year.

"After five years of litigation and with the pre-trial deadlines looming, as Ty's collaborators and friends, we refuse to put him through any additional stress that would in any way impinge on his health and recovery. To the credit of the people at Dr. Seuss Enterprises, they didn't want to put Ty through that either," Booth said. "So we joined in a motion to end the suit the day before Ty's surgery, in order to alleviate the less serious pain in his butt."

Two things I absolutely have to mention. First, I appreciate the hell out of Booth including a butt joke in a statement about his friend having colorectal cancer. I imagine that he knows Ty would be okay with such a joke, in which case this is just plain good comedy. Second, and more important, the proper framing of this news story should be that the Dr. Seuss Estate extracted a settlement over a copyright dispute for a book that very much did the estate no harm because it was bullying a cancer patient. Somehow, one imagines Suess himself not being in love with this idea, but that is pure speculation.

What isn't speculation is that, as Cathy made the point in the earlier post, this represents a culture loss. Mashup art is not rare and has become, to some discernable level, a part of our culture. This settlement manages to add another bit of ammunition from protectionists who want to control and license every last thing related to their works, whether fair use ought to apply or not.

I understand why this settlement was reached... but it both sucks and is sad.

Filed Under: copyright, dr. seuss, fair use, mashup, oh the places you'll boldly go, remix, star trek, transformative use
Companies: comicmix, dr. seuss enterprises

Filecoin Foundation Ensuring That SecureDrop Can Continue To Help Whistleblowers And Journalists

from the some-good-news dept

Earlier this year we were excited to see the Filecoin Foundation give the Internet Archive its largest donation ever, to help make sure that the Internet Archive is both more sustainable as an organization, and that the works it makes available will be more permanently available on a more distributed, decentralized system. The Internet Archive is a perfect example of the type of organization that can benefit from a more distributed internet.

Another such organization is the Freedom of the Press Foundation, which, among its many, many projects, maintains and develops SecureDrop, the incredibly important tool for journalists and whistleblowers, which was initially developed in part by Aaron Swartz (as DeadDrop). So it's great to see that the Freedom of the Press Foundation has now announced the largest donation it has ever received, coming from the Filecoin Foundation for the Distributed Web (the sister organization of the Filecoin Foundation):

Today, for the first time, that calculus has changed. We’re thrilled to announce the largest grant in the history of Freedom of the Press Foundation that will ensure SecureDrop survives — and thrives — for years to come. The Filecoin Foundation for the Decentralized Web — a new grantmaking organization whose mission is to permanently preserve humanity’s most important information — is funding FPF at over $1.7 million for each of the next three years, for a total of $5.8 million.

The funding will largely go towards sustaining and expanding our SecureDrop team, funding the development of the next-generation of the system, including exploring a new zero-trust architecture for the decentralized servers. This grant will ensure that SecureDrop will not only be sustainable over the long term, but will be easier to use and hopefully safer than ever. In short, it will have a game-changing impact on how we can build and improve SecureDrop for journalists around the world. You can read about some of our technical plans for the future here.

This is great to see as SecureDrop is another one of those tools that is so key, but as an open source project is often in a precarious position without the financial support to make sure that there is active development.

Filed Under: 1st amendment, decentralization, filecoin, free speech, journalism, securedrop, whistleblowers
Companies: filecoin foundation, freedom of the press foundation

Court Awards Qualified Immunity To Florida Deputy Who Arrested A Driver For An 'I EAT ASS' Window Decal

from the better-eaten-than-beaten-i-suppose dept

When the First Amendment meets a law enforcement officer's ability to be offended on the behalf of the general public, the First Amendment tends to lose.

The ability to be a proxy offendee affords officers the opportunity to literally police speech. They're almost never in the right when they do this. But they almost always get away with it. That's why a Texas sheriff felt comfortable charging a person sporting a "FUCK TRUMP" window decal with disorderly conduct. That's why a Tennessee cop issued a citation for a stick-figures-in-mid-coitus "Making my family" window decal.

And that's why a Florida law enforcement officer pulled over and arrested a man for the "I EAT ASS" sticker on his window. According to Deputy Travis English's arrest report, he noticed the sticker and assumed it violated the state's obscenity law. He was, of course, wrong about this. But he called his supervisor for clarification and was assured (wrongly) that this sticker violated the law.

He offered to let the driver, Dillon Webb, be on his way if he removed the word "ASS" from the decal. Webb refused, (correctly) asserting his First Amendment right to publicize his non-driving activities. English's report is full of dumb things (and, ironically, some incorrect English). Here's what he had to say about the stop and the driver's assertion of his Constitutional rights. (All errors in the original.)

While speaking with the occupants and informing Dillon of the reason for the traffic stop, Dillon became defensive about the sticker on his truck and stated: "Their just words." I then asked Dillon how a parent of a small child would explain the meaning of the words "I EAT ASS". Dillon then told me that would be up to the parent.

[...]

Dillion was then transported to the Columbia County Detention facility without incident where he was charged with Obscene writing on vehicles and resisting an Officer without violence.

One count of Obscene writing. And one count of Contempt of Cop, as expressed in the form of advocating for one's own rights. Here's what awaited Dillon following his arrest:

Among other things, Officer Dampier performed a thorough pat-down search of Webb and was present when Webb was required to strip naked and put on the clothes provided by the Jail.

CCSO Officers placed Webb in a cell while his mother worked with a bail bondsman to secure his release. Although the exact length of time Webb spent in the Jail is in dispute, suffice it to say Webb was incarcerated for more than an hour. Webb paid approximately $225.00 to retrieve his truck from the tow company, $250.00 to the bail bondsman, and a $15.00 Jail fee.

That's from the decision [PDF] issued by a Florida federal court, which unfortunately allows these officers to exit the lawsuit early because it wasn't clearly established that misreading a state statute to support a stop, search, arrest, vehicle seizure, temporary jailing (following another search), and the issuance of criminal charges was the wrong thing to do when confronted by an "I EAT ASS" decal. (via Volokh Conspiracy, h/t Andrew Fleischmann)

The court says qualified immunity applies because it's not immediately clear an "I EAT ASS" decal is protected speech, at least not under Florida law. Even if the officers were incorrect in their reading of the law, they're shielded from further litigation because they both subjectively believed the decal violated the law.

As an initial matter, it is undisputed that Deputy English and Corporal Kirby subjectively interpreted the Sticker as depicting a sexual act and believed that the Sticker violated Florida’s obscenity statute. While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker, albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated. Indeed, others in the videos similarly acknowledged, both directly and indirectly, that the Sticker described a sexual act. Given this evidence, including Webb’s own statements, it is beyond dispute that reasonable officers possessing the same knowledge as Deputy English and Corporal Kirby could have thought the Sticker depicted a sexual act, and as such arguably violated Florida Statute section 847.011(2).

The speech might have been protected, even given its "sexual nature," if it contained any "serious artistic, literary, political, or scientific value." The judge says this sticker doesn't, or, if it does, it was not immediately apparent to Deputy English and his direct supervisor.

Here, Deputy English and Corporal Kirby’s determination that the Sticker lacked serious value under Florida law was not inherently unreasonable under the circumstances. As such, the Court finds reasonable officers in the same circumstances and with the same knowledge as Deputy English and Corporal Kirby could believe Webb’s Sticker was obscene, making it an arrestable offense under Florida law.

Using that logic, the court waves away his challenge of the resisting arrest charge.

Because the Court finds Webb’s arrest was arguably justified under Florida’s obscenity law, the Court need not separately address his arrest for resisting without violence.

So, even if the first charge may have been a misreading of the law, Dillon's "resistance" (which was little more than refusing to alter the sticker and stating he had a First Amendment right to display it -- and that's according to the Deputy's arrest report), the second charge can't be challenged because… one of the charges was close enough to lawful to make everything lawful? Maybe it's more nuanced than that, but if it is, the court didn't feel like sharing its thought process. That additional charge is accepted in whole because the obscenity charge was close enough to legit to justify the arrest.

As for the trickier part of the case -- determining whether or not the sticker actually violated law and/or whether or not Webb's First Amendment rights were actually violated -- the court decides it doesn't need to do much thinking about that issue either.

Here, in evaluating the applicability of the doctrine of qualified immunity, the Court need not determine whether genuine issues of fact exist as to the question of whether Deputy English and Corporal Kirby violated Webb’s right to be free from First Amendment retaliation because the constitutional rights Webb alleges the Defendants violated were not clearly established at the time of his arrest.

Since the court is unwilling to make any determination on the applicability of the law to the speech in question, the question remains open. And an open question is just more unsettled law -- the sort of thing that allows officers to violate rights and avoid facing the consequences because the qualified immunity doctrine not only short-circuits civil rights lawsuits, it almost always preempts any legal discussion of the government's alleged rights violations. Going forward, Florida law enforcement remain free to misread laws involving possibly-protected speech to punish people for words they subjectively find offensive.

Filed Under: 1st amendment, arrests, dillon webb, florida, free speech, i eat ass, qualified immunity, travis english

Trump Asks Court To Reinstate His Twitter Account ASAP

from the not-how-it's-gonna-work dept

There were a bunch of headlines this weekend claiming that Donald Trump had just "sued" Twitter to get his account reinstated. This is untrue. There were also some articles suggesting that he was using Florida's new social media law as the basis of this lawsuit. This is also false (what the hell is wrong with reporters these days?).

Trump actually sued back in July and it was widely covered then. And the basis of that lawsuit was not Florida's law, but rather a bizarrely twisted interpretation of the 1st Amendment.

What happened on Friday was that in that ongoing case, Trump filed for a preliminary injunction that would (if granted) force Twitter to reinstate Trump's account. This is not at all likely to be granted. The motion for the injunction is laughably bad. It's even worse than the initial complaint (which was hilariously bad). It does make reference to Florida's law -- which has already been held to be unconstitutional -- but it's certainly not using that as a key part of its argument.

As for this motion, it's just a lawyerly Hail Mary attempt by lawyers who are in way too deep, hoping that maybe they'll get lucky with a judge who doesn't care about how the 1st Amendment actually works. It's a mishmash of confused and debunked legal theories about the 1st Amendment and Section 230, but the crux of it is that it violated then President Donald Trump's rights when Twitter shut down his account, because Twitter was acting as the government. Yes. The argument is so stupid as to need repeating. The underlying argument is that government actor, Twitter illegally censored private citizen President Donald Trump, taking away his 1st Amendment rights through prior restraint.

As a government actor, Defendant’s prior restraint of Plaintiff is a violation of the First Amendment, and Plaintiff is therefore entitled to injunctive relief under the federal courts’ longstanding power to “grant equitable relief for constitutional violations.”

The parts about Section 230 are just as stupid:

Section 230 is not a valid defense to this action and is unconstitutional as applied to the facts of this case. Section 230 only protects Defendant for (1) causes of action in which third-party speech is an element and (2) its content moderation for specific reasons outlined in Section 230(c)(2). Here, Plaintiff’s constitutional claims against Defendant involve neither third-party speech nor the sorts of content specified in Section 230. Further, binding precedent has determined Section 230 offers platforms no protection from suits brought under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).

That's... not how any of this works. Of course this is about 3rd party speech: Trump's. And Section 230 absolutely covers the kind of content specified by Section 230 (i.e., "information provided by another information content provider.")

The 230 argument just gets worse and worse the more Trump's very, very confused lawyers try to explain it. They really don't want the judge to recognize that basically every court has made it clear that (c)(1) (which has no "good faith" requirement) covers nearly all moderation decisions. And then they (falsely) claim that even (c)(2) doesn't protect Twitter. The truth is both sections protect Twitter. The tap dancing to exclude (c)(2) is truly impressive.

As Florida federal courts have ruled, consistent with most courts, Section 230(c)(2) is not a carte blanche to remove content for any reason. Rather, these terms refer to specific types of content regulable in 1996, and “otherwise objectionable” is a catch-all term that, under the ejusdem generis canon of statutory construction, refers to types of content Congress thought regulable in 1996. See Nat’l Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-CV-42-ORL-19GJK, 2008 WL 2704404, at *25 (M.D. Fla. July 8, 2008) (“One may find an array of items objectionable; for instance, a sports fan may find the auction of a rival team’s jersey objectionable. However, Congress provided guidance on the term ‘objectionable’ by providing a list of seven examples and a statement of the policy behind Section 230”). Accordingly, the Court concludes that “objectionable” content must, at a minimum, involve or be similar to pornography, graphic violence, obscenity, or harassment. Song fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (N.D. Cal. 2015). The six (6) adjectives preceding the phrase “otherwise objectionable” clearly demonstrate the policy behind the enactment of Section 230 (c)(2) and provide guidance as to what Congress intended to be ‘objectionable’ content. Section 230(c)(2) is not a bar to Plaintiff’s lawsuit, which alleges that Defendant removed content in violation of the First Amendment and other laws.

Uh, no. The reference to Song Fi is particularly stupid. The case is not a good one (see Eric Goldman's writeup when it came out), but it does not stand for the argument that Twitter can't kill the President's account when he appeared to be encouraging insurrectionists to prevent the peaceful transfer of power away from his presidency. That's pretty obviously "otherwise objectionable." In Song Fi, the court said that 230(c)(2) didn't apply (wrongly, in my opinion) because YouTube removed a video because it thought the video uploader was inflating viewer counts, and the court said that because that reason wasn't about the content of the video, 230 didn't apply. But, and here's the important bit, YouTube still won the case because its terms said that it could remove content for any reason. So even if the court bought this ridiculous argument regarding Section 230, it still doesn't help Trump.

As for the arguments regarding Florida's social media law, it's almost too ridiculous to mention, but it's there, so mention it we must. Trump's lawyers claim that the fact that the law was deemed pre-empted by Section 230 doesn't matter any more because one case cited by the judge was vacated and replaced later. This is the Domen case that we wrote about earlier this year. Except, Judge Hinkle didn't "rely" on that to find 230 pre-empted the law, so the vacating of the original ruling in that case doesn't change a damn thing, and... the revised Domen opinion STILL NOTES THAT 230 PRE-EMPTS STATE LAW (see footnote 4). I mean, what the fuck do Trump's lawyers think they're doing here?

Anyway, this motion has almost no chance, absent the judge making a really wacky decision which wouldn't stand up on appeal. Meanwhile, Twitter is still trying to get the case transferred to Northern California, though Trump is literally claiming that jurisdiction clauses can't apply to him because he was President. In a case where he's accusing Twitter of being the government. Really.

At all times relevant to this action, Plaintiff was the sitting President of the United States, and used his account and Defendant’s services in that capacity as a public forum. Knight First Amdt. Inst. at Columbia Univ., 928 F.3d at 226. Plaintiff was clearly a “federal … government entity in the United States using the Services” in his “official capacity.” Further, he was “legally unable to accept the controlling law, jurisdiction, or venue clauses” contained in Twitter’s TOS without input from other agencies, including the National Archives and Records Administration, in accordance with the requirements of the Federal Acquisition Regulation

Trump (incredibly) cites the Knight v. Trump case to prove that he used his personal Twitter account for official White House business (something he denied in the Knight case...).

Trump is also fighting jurisdictional changes in his cases against the other social media companies and this week the court in the Google/YouTube case rejected Trump's arguments against moving the case and sent it to California, laughing off the "but he was President!" argument:

To begin, the Court need not reach the issue of whether the United States or its officials can be bound by a forum-selection clause because, in this case, there is no federal agency or entity that is a party to this case. Plaintiffs assert that “[a]t all times relevant to this action, Plaintiff [Trump] was the sitting President of the United States, and used his social media accounts and YouTube’s services in that capacity as a public forum.” Resp. at 4. Yet, that is plainly not the case because Plaintiff Trump agreed to the TOS in his individual capacity, has brought this suit in his individual capacity, and is seeking the restoration of his YouTube account in his individual capacity. See generally Am. Compl. Indeed, as recognized in the Amended Complaint, Plaintiff Trump is bringing this case not as the President of the United States, but as “a private citizen and is domiciled in Palm Beach, Florida.” ... Plaintiff Trump’s status in this case as a private citizen is further confirmed by the fact that he is pursuing claims under FDUTPA—which provides no cause of action for the federal government or its officials. ... Thus, because Plaintiff Trump is not a party to this case in an official government capacity, the Court finds these arguments to be without merit.

Relatedly, the Court finds Plaintiffs’ arguments premised on the Second Circuit’s opinion in Knight to be unrelated to the enforceability of the forum-selection clause in this case. In Knight, the Second Circuit held that Plaintiff Trump’s Twitter account was a “public forum” such that Plaintiff Trump violated the First Amendment by blocking users from interacting with his account. 928 F.3d at 237–38. But this holding has no impact on the enforceability of the forum-selection clause in this case, where Plaintiff Trump is a party in his individual capacity.

That doesn't bode well for the similar arguments in the other cases. But, again, none of the arguments Trump is making in these lawsuits makes much sense.

Anyway, this whole thing is ridiculous and hopefully the judge recognizes it as such and tosses it quickly.

Filed Under: 1st amendment, content moderation, donald trump, injunction
Companies: twitter, youtube

Inspector General Says CBP's Device Search Program Still A Mess, Still (Ironically) Mostly Undocumented

from the PAPERS-PLS dept

The CPB continues to increase the number of electronic devices (at least temporarily) seized and searched at border crossings and international airports. Basic searches -- ones that don't involve any additional tech or software -- can be performed for almost any reason. For deeper searches, the CBP needs only a little bit more: articulable suspicion.

Even though it's only a very small percentage of the total, it continues to increase, both in total numbers and as a percentage of the whole.

In fiscal year 2018, OFO processed more than 413 million travelers arriving at U.S. POEs and conducted an estimated 33,062 basic and advanced electronic device searches of those inbound travelers (.008 percent). In FY 2019, CBP processed more than 414 million travelers and conducted an estimated 40,610 basic and advanced electronic device searches of those inbound travelers (.010 percent).

That's from the DHS Inspector General's latest investigation [PDF] of CBP device searches. The last time the IG stopped by the CBP to perform some oversight in this area, it declared the whole thing a catastrophe. There was very little direct supervision of searches, documentation was almost nonexistent, and the CBP had no idea whether more searches were resulting in more investigations or arrests of criminals. Not only that, but the CBP had yet to implement any method of quantifying the security/safety gains of performing invasive device searches at border crossings.

Right at the top, the IG refers to the CBP's policy on device searches, which clearly and succinctly states the agency's obligations:

CBP’s Directive requires CBP officers to fully document all information related to searches of electronic devices.

You can already guess where this is headed.

First, there's a callback to the last investigation by the IG:

In our first audit of CBP’s searches of electronic devices at POEs [Ports of Entry], we reported deficiencies in supervision, guidance, equipment management, and performance measures and made five recommendations to improve the program’s effectiveness. CBP concurred with all five recommendations and has taken some actions to improve oversight, such as streamlining license renewals, developing processes to conduct annual field office reviews, and updating its self-inspection worksheet to better identify deficiencies. As of May 2021, CBP had not fully implemented four of five recommended corrective actions.

Since there's been no improvement on the back end, there's been no improvement on the front end.

Here's a more detailed description of what's required when a phone is searched by CBP personnel:

CBP’s Directive requires CBP officers to include all information related to the search, such as whether the device’s wireless data connection was disabled, a tear sheet was provided, and if a supervisor approved advanced searches. In instances in which OFO detains or seizes an electronic device, officers document such incidents on DHS Form 6051D, Detention Notice and Custody Receipt for Detained Property and DHS Form 6051S, Custody Receipt for Seized Property and Evidence, to demonstrate chain of custody. The Directive also tasks supervisors with ensuring officers complete thorough inspections and that all notification, documentation, and reporting requirements are met.

Here's what happened instead:

OFO [Office of Field Operations] did not always adhere to all requirements outlined in the Directive when conducting electronic device searches nor properly document searches. Of the 100 from FYs 2018 and 2019 that we reviewed, 79 had one or more instances of non-compliance, which totaled 139 instances. [...] We also identified 32 EMRs [electronic media reports] not approved by a supervisor within 7 days.

The largest number of infractions came from two areas: no indication of whether the device's data connection was disabled (27) -- something that's supposed to prevent agents from intercepting incoming communications or accessing content stored in the cloud -- and no indication of whether a supervisor was present for advanced searches (44), which is a violation of CBP policy.

That's just the problem with the stuff that's (apparently incompletely) documented. Then there are the cases where no documentation occurred at all.

During site visit... we identified instances in which OFO officials used advanced screening equipment to conduct advanced searches of electronic devices without documenting these searches in TECS. For example, in reviewing DOMEX activity log entries from the three POEs, we identified 33 advanced searches that were not documented in TECS.

CBP officials said these didn't need to be tracked because they were not related to new searches, but rather to ongoing investigations, training, and "ongoing maintenance." As proof of this claim, the officials offered nothing.

We could not confirm these assertions because OFO did not have controls to ensure all advanced searches were traceable to the officer conducting the search.

As for seeing if these searches are actually resulting in any net security and public safety gains, the CBP is still sort of working on that. There are existing metrics the CBP could use, but it has simply chosen not to.

According to an OFO official, OFO does not see the benefit of receiving the outcomes of referrals, or tracking prosecutions and convictions, and does not have a system to track or receive this information. Without tracking final legal disposition of devices and information transferred to other Federal agencies, OFO cannot fully evaluate the program’s effectiveness or whether advanced searches are achieving their intended purpose to detect evidence and identify crimes.

The refusal to properly track and document searches also causes problems elsewhere.

For example, OFO equipment used to search computers [equipment name redacted] has not functioned since July 2018 due to network compatibility issues. Because of these technical issues, officers at POEs cannot conduct advanced searches of computers on-site.

Here's the punchline:

Despite technical issues, OFO renewed the software licenses for all equipment in 2019 and 2020, including for equipment that does not function, at a total cost of $330,629.

Which leads to yet another punchline in the OIG's recommendations:

We recommend the Executive Assistant Commissioner for the Office of Field Operations: a. Suspend the renewal of licenses for nonfunctional equipment, as appropriate.

You think?

The report concludes like the last one did. Recommendations for the CBP to something -- anything! -- to improve its tracking and documentation of phone searches. And like last time, the CBP has promised to get right on that… eventually. And we the people can all expect more of the same in the 2022 report, given the lack of progress since the last IG review.

Filed Under: 4th amendment, cbp, device search, dhs, inspector general

Daily Deal: The Premier All AWS Certification Training Bundle

from the good-deals-on-cool-stuff dept

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Apparently Someone Doesn't Want You To Buy Our Copymouse Shirt

from the the-mouse-strikes-again dept

You may remember that, a couple years ago, our line of Copying Is Not Theft t-shirts and other gear was suddenly taken down by Teespring (now just called Spring) — first based on the completely false assertion that it contained third-party content that we didn't have the rights to use, then (after a very unhelpful discussion with their IP Escalations department) because it apparently violated some other policy that they refused to specify. That prompted us to open a new Techdirt Gear store on Threadless, where we've launched many of our old designs and all our new ones since the takedown. But we also kept the Spring store active for people who preferred it and for some old designs that we hadn't yet moved — and a few weeks ago the site's takedown regime struck again, wiping out our line of Copymouse gear that had lived there for nearly five years. So, once again, we've relaunched the design over on Threadless:

Of course, this takedown is a little different from the previous one. The Copying Is Not Theft gear contains no third-party material whatsoever, and there was simply no legitimate reason for Spring to have removed it — and they refused to even offer any explanation of what they thought that reason might be. In the case of Copymouse, it's obvious that it makes use of a particular logo, though in an obviously transformative manner for the purpose of commentary. So, yes, there is an argument for taking it down. It's just not a strong argument, since the design clearly falls within the bounds of fair use for the purposes of criticism and commentary, and it's hard to argue that there's any likelihood of confusion for consumers: nobody is going to think it's a piece of official Disney merchandise. Nevertheless, it's at least somewhat understandable that it caught the attention of either an automatic filter or a manual reviewer, and given the increased scrutiny and attempts to create third-party liability falling upon services that create products with user-uploaded artwork, it's no real surprise that a massive site like Spring errs on the side of caution (indeed, we won't be too surprised if the design ends up being removed from Threadless as well). It's still disappointing though, and even more importantly, it's yet another example of why third-party liability protections are so very, very important, and how when those protections are not strong, sites tend towards overblocking clearly legitimate works.

But for now, at least, you can still get your Copymouse gear on Threadless while we all wait to see if history repeats itself and the design needs an update in 2023.

Filed Under: content moderation, copymouse, copyright, fair use, mouse, takedowns, trademark
Companies: spring, teespring, threadless

CNN Shutting Down Its Facebook In Australia Shows How Removing 230 Will Silence Speech

from the liability-is-too-great dept

It remains perplexing to me that so many people -- especially among the Trumpist world -- seem to believe that removing Section 230 will somehow make websites more likely to host their incendiary speech. We've explained before why the opposite is true -- adding more liability for user speech means a lot fewer sites will allow user speech. But now we have a real world example to show this.

Last month, in a truly bizarre ruling, the Australian High Court said that news publishers should be liable for comments on social media on their own posts to those social media platforms. In other words, if a news organization published a story about, say, a politician, and then linked to that story on Facebook, if a random user defamed the politician in the comments on Facebook... then the original publisher could face liability for those comments.

It didn't take long for Rupert Murdoch (who has been pushing to end Section 230 in the US) to start screaming about how he and other media publishers now need special intermediary protections in Australia. And he's not wrong (even if he is hypocritical). But, even more interesting is that CNN has announced that it will no longer publish news to Facebook in Australia in response to this law:

CNN says it will no longer publish content to Facebook in Australia. The decision comes after the country's highest court ruled that media companies are liable for comments people post under articles on the platform.

Of course, this is also amusing, because CNN is owned by Turner Broadcasting, which is owned by WarnerMedia which (for the time being) is owned by AT&T... which has also been a recent critic of 230 (despite being protected by 230). Of course, in the process CNN made sure to try to blame Facebook for this decision:

After that ruling, CNN approached Facebook and asked if the tech firm would "support CNN and other publishers by disabling the comment functionality on their platform in Australia," a CNN spokesperson said in a statement, adding that Facebook "chose not to do so."

"We are disappointed that Facebook, once again, has failed to ensure its platform is a place for credible journalism and productive dialogue around current events among its users," the CNN spokesperson said, adding that the media outlet will continue to publish on its own platforms in Australia.

Of course, this now raises a separate question. Remember, earlier this year, Australia passed its ridiculous (Murdoch designed) link tax, forcing Facebook to pay news organizations if they post news to Facebook.

But if, under this recent court ruling, it forces news orgs to stop posting their news to Facebook... does that mean Facebook no longer needs to pay them?

Either way, CNN's decision to withdraw its content from Facebook in Australia is a perfect example of how increasing intermediary liability means less speech overall. Removing Section 230 wouldn't lead to more speech online, it would lead to a lot less.

Filed Under: australia, comments, free speech, intermediary liability, risk, section 230
Companies: at&t, cnn, warnermedia

Neiman Marcus Breach Exposes Data Of 4.6 Million Users

from the let's-make-sure-we-do-absolutely-nothing-about-this dept

Another day, another massive privacy breach nobody will do much about. This time it's Neiman Marcus, which issued a statement indicating that the personal data of roughly 4.6 million U.S. consumers was exposed thanks to a previously undisclosed data breach that occurred last year. According to the company, the data exposed included login in information, credit card payment information, virtual gift card numbers, names, addresses, and the security questions attached to Neiman Marcus accounts. The company is, as they always are in the wake of such breaches, very, very sorry:

"At Neiman Marcus Group, customers are our top priority," said Geoffroy van Raemdonck, Chief Executive Officer. "We are working hard to support our customers and answer questions about their online accounts. We will continue to take actions to enhance our system security and safeguard information."

As is par for the course for this kind of stuff, the actual breach is likely much worse than what's first being reported here. And by the time the full scope of the breach becomes clear, the press will have largely lost interest. The company set up a website for those impacted to get more information. In this case, impacted consumers didn't even get free credit reporting, the standard mea culpa hand out after these kinds of events (which is worthless since consumers have received free credit reporting for countless hacks and leaks over the last five to ten years).

Of course absolutely nothing will actually happen in the wake of this latest breach, and the company will face no meaningful penalty for failing to adequately secure its systems (another 1.1 million customers had gift card data leaked in a 2014 breach). In large part because we still don't have an effective, or even basic, privacy law for the internet era because the nation's wealthy don't want one. And because we've actively underfunded, understaffed, and routinely undermined our privacy regulators, who, even when they can be bothered to step in, do little more than dole out wrist slaps.

At some point you'd think the country's top policy leaders would get tired of this dysfunctional paradigm and start crafting basic, intelligent federal privacy solutions, but it's apparently not going to be anytime soon. Our apathy to the impact that lax security and privacy standards have on consumers and markets isn't an accident; it's an active policy choice.

Filed Under: breach, data breach
Companies: nieman marcus

Accidentally Unsealed Document Shows Feds Are Using Reverse Warrants To Demand Info On Google Searches

from the searching-the-searchers dept

Not only is the government using "reverse warrants" to rummage around in your Google stuff, it's also using "keyword warrants" to cast about blindly for potential suspects.

Reverse warrants (a.k.a. geofence warrants) allow the government (when allowed by courts) to work its way backwards from a bulk collection of data to potential suspects by gathering info on all phone users in the area of a suspected crime. The only probable cause supporting these searches is the pretty damn good probability Google (and others but mostly Google) have gathered location data that can be tied to phones. Once a plausible needle is pulled from the haystack, the cops go back to Google, demanding identifying data linked to the phone.

This search method mirrors another method that's probably used far more often than it's been exposed. As Thomas Brewster reports for Forbes, an accidentally unsealed warrant shows investigators are seeking bulk info on Google users using nothing more than search terms they think might be related to criminal acts.

In 2019, federal investigators in Wisconsin were hunting men they believed had participated in the trafficking and sexual abuse of a minor. She had gone missing that year but had emerged claiming to have been kidnapped and sexually assaulted, according to a search warrant reviewed by Forbes. In an attempt to chase down the perpetrators, investigators turned to Google, asking the tech giant to provide information on anyone who had searched for the victim’s name, two spellings of her mother’s name and her address over 16 days across the year. After being asked to provide all relevant Google accounts and IP addresses of those who made the searches, Google responded with data in mid-2020, though the court documents do not reveal how many users had their data sent to the government.

This isn't the first time this form of warrant has been used to acquire data that might lead police to suspects. In 2017, public records enthusiast Tony Webster reported that police in Minnesota had used the same technique to attempt to work their way backwards to a fraud suspect. In that case, investigators served Google with a subpoena for data on everyone who had searched for the identity fraud victim's name. When Google refused to grant this request, the police approached a judge for permission to ask Yahoo and Bing the same question. This request was granted.

The same method was reported on again in 2020, when investigators used a keyword warrant to look for people who had searched the address of an arson victim. In this case, Google complied, returning only a single result relevant to the time, place, and search terms -- one that led police to a suspect with some pretty suspicious location data.

But these are not the only examples. And the broad search attempted here isn't even the broadest keyword search seen in court documents. Shortly after publication, the EFF arrived with an update:

After publication, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), highlighted three other Google keyword warrants that were used in the investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Not widely discussed at the time, the orders appear even broader than the one above, asking for IP addresses and Google account information of individuals who searched for various addresses and some terms associated with bomb making, such as “low explosives” and “pipe bomb.” Similar orders were served on Microsoft and Yahoo for their respective search engines.

As is the case in any warrant that has the word "reverse" appended to it (even colloquially), there are Fourth Amendment concerns. Casting a wide net to catch all possibilities before working backwards to a suspect may sound like canvassing a neighborhood after a crime, but the comparison is pretty weak. The wider the net, the higher the chance of arresting the wrong person. Unlike talking to people near a crime scene, reverse warrants dispense with alibis, investigators' intuition, and other efforts that reduce the chance of bagging the wrong suspect. And the demand for data makes everyone a suspect -- something analogous to hauling everyone in the area back to the police station for questioning. The data heads to the police who then try to make sense of the bulk collection.

Probable cause doesn't work that way. Just because it's a safe assumption Google has gathered data relevant to the investigation does not justify demanding all relevant information, regardless of its actual link to the crime being investigated. The sealing of warrants like these isn't just to protect the integrity of the investigation or to prevent suspects from being alerted. It's safe to say law enforcement is aware the public (and their often-unaware oversight) will take a dim view of these fishing expeditions. And the more often they're exposed, the more often suspects tracked down using these searches will challenge them.

Filed Under: 4th amendment, keyword warrants, reverse warrants, search results
Companies: google