DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin

from the copyright-is-turning-upside-down dept

As announced by the Copyright Office's General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song "Taurus" with their classic "Stairway to Heaven." We've discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach's Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.

There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome -- that Led Zeppelin didn't infringe on the Taurus composition -- seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.

The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.

And here, the Copyright Office and the DOJ are on the right side again. The government's brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we've discussed, for musical works prior to 1973, you could only get a copyright in the "composition" and not the recording. One of the arguments in this case is that Randy Wolfe's estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968... so you don't just get to pretend that the composition copyright magically covers the sound recording.

Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.

And -- perhaps surprisingly -- the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what's left is fairly basic and not covered by copyright either:

The copyright at issue here was obtained, as the Copyright Act then required, by depositing a “complete copy” of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that “performance elements,” which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office.

Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a “thin” copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed.

The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights:

Plaintiff’s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be.

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are.

There is still time for the 9th Circuit to mess things up even worse, though. They're good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

Filed Under: amicus brief, composition, copyright, copyright office, doj, led zeppelin, spirit, stairway to heaven, taurus

Bob Murray To Court: The ACLU Is Too Biased To File Its 'Eat Shit, Bob' Brief

from the eat-shit-bob dept

As you likely recall, last week the ACLU of West Virginia asked the federal court handling the very upset coal boss Bob Murray's defamation lawsuit against comedian John Oliver to allow it to file a hilarious amicus brief explaining (among other things) why it was perfectly legal to say "Eat shit, Bob." As we noted at the time, it is a very funny filing, but we weren't sure the court would allow it for a whole variety of reasons. And thus it's no surprise that Murray's lawyers are opposing the motion -- but we didn't expect that their opposition would be quite so ridiculous. There are lots of normal arguments they could make, including no need for an amicus brief at this point, or pointing out that the amicus arguments are likely to be simply duplicative of HBO/John Oliver's arguments, but... Murray's lawyers went a bit further. Apparently, they don't want the ACLU weighing in, because it has an opinion.

More troubling, the ACLU fails to disclose its indisputable and disqualifying bias, notwithstanding that several district courts have noted that impartiality is a key factor to consider when evaluating whether to permit a non-party to serve as amicus curiae.

But, uh, most amicus briefs have a bias that supports one side or the other. They just add to the overall record, often providing different perspectives on the issues, or offering an alternative way of looking at the issues. Nothing says that amicus briefs need to be totally neutral.

It's no surprise that Murray's lawyers attack the "tone" of the ACLU's brief. Indeed, it wouldn't surprise me if the tone alone makes the judge reject it. But, even here, Murray's lawyers' reasoning is... weird. They argue that the tone shows that the ACLU of West Virginia can't be an amicus.

From the tone of its brief alone, it is obvious that the ACLU is not a "friend of the court" offering a dispassionate view of the issues.

And then they claim that the ACLU is only supporting John Oliver because he once, many months ago, urged people to donate to various organizations, some of which may have helped the ACLU:

Moreover, the ACLU's economic motivations for assisting Defendants and its prejudice against Plaintiffs are a matter of public record. As for its economic interests, in November of 2016, Defendant Oliver used "Last Week Tonight with John Oliver" to encourage viewers to donate to numerous left-leaning organizations, which—not surprisingly—resulted in an immediate surge of millions of dollars in donations to the ACLU, among others. See Exhibit A and Exhibit B hereto. Another subsidiary of Defendant Time Warner furthered the effort to add to the ACLU's coffers by reporting on Oliver's call for donations the next day. See Exhibit C hereto. Consequently, the ACLU's statement in the Motion that "no party, party's counsel, or other person…contributed money intended to fund preparing or submitting the brief" lacks appropriate and complete disclosure.

Oh come on. The idea that the ACLU is weighing in because John Oliver and other Time Warner properties once encouraged donation is ludicrous.

If I had to guess, I'd say that the court will simply reject the amicus brief as being unnecessary and unwanted at this stage, but the arguments from Murray's lawyers continue to make me wonder where he found these guys.

Filed Under: amicus brief, bob murray, defamation, free speech, john oliver
Companies: aclu, aclu of west virginia

Basically The Entire Tech Industry Signs Onto A Legal Brief Opposing Trump's Exec Order

from the we-need-to-stand-up dept

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).

The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.

Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.

But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...

I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.

[....]

The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations— and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.

There's much more in the full brief, and hopefully the court allows it and recognizes how momentous this is. I've never seen anything that so many tech companies have gotten behind (including things like SOPA), and this happened so fast that it is literally unprecedented. A whole bunch of people put in a tremendous effort to actually get this done (including more than a few having to miss the Super Bowl to get this done...). Andy Pincus from Mayer Brown deserves a specific shoutout for being the main lawyer putting the brief together.

We shall see what happens from here, but having basically the entire tech industry rise up in a single voice to say that this order is not right is nice to see. In this day and age, it's easy not to speak out and to just sit on the sidelines. But this is important, and when it mattered all of these companies spoke out.

Filed Under: amicus brief, donald trump, executive order, muslim ban, tech industry, travel, visas
Companies: apple, copia institute, facebook, google, microsoft, netflix, snap, twitter

Full Brief From San Bernardino District Attorney Even More Insane Than Application About 'Dormant Cyber Pathogen'

from the it-goes-on-and-on dept

Support our crowdfunding campaign to help us keep covering stories like these!

Like many, we wrote about the bizarre filing from San Bernardino County District Attorney Michael Ramos in the Apple/FBI encryption fight -- you know, the one where he speculates randomly that the iPhone might contain evidence of a "dormant cyber pathogen" that is waiting to infect computer systems everywhere? Of course, that was found in his 4 page application to file the full brief, and as far as we can tell, no one else has explored the full 40 page brief that Ramos eventually did file, after magistrate judge Pym granted permission. And, it probably won't surprise you that in a filing that's 10x as long, it's got much more room for crazy arguments, many of which seem to be in the "day is night, black is white" variety. Let's dig in:

At issue before this Court is whether on balance there is a compelling governmental interest in acquiring evidence of criminal activity contained solely on the specific San Bernardino County-owned iPhone, seized and ordered searched by a lawful search warrant issued by a United States Magistrate, that outweighs any real or imagined interest that Apple, a for-profit California-based corporation, asserts to deny assistance to the FBI, San Bernardino County District Attorney's forensic partners, and by extension the San Bernardino County District Attorney and our client, the People of the State of California, in acquiring this evidence.

Actually, that's not the issue. The issue is not whether there's a compelling governmental interest, but whether or not a company can be compelled to build new hacking tools and surreptitiously load them onto user devices. That's a very different question, and one that Ramos doesn't even want to consider. So, instead, he makes up things unrelated to the issue at hand.

Then, Ramos repeats the whole bogus "there may have been a third shooter!" and "DORMANT CYBER PATHOGEN!" arguments, based on absolutely no evidence, and follows it up by flipping the burden of proof, and hilariously arguing that it is Apple's burden to prove that there is no such dormant cyber pathogen. PROVE A NEGATIVE, APPLE!

At the time that the murders in San Bernardino County were being perpetrated on December 2, 2015, at least two 911 calls to the San Bernardino Police Dispatch Center reported the involvement of three perpetrators. Although the reports of three individuals were not corroborated, and may ultimately be incorrect, the fact remains that the information contained solely on the seized iPhone could provide evidence to identify, as of yet, unknown co-conspirators who would be prosecuted by the District Attorney for multiple murders and attempted murders in San Bernardino County.

In addition, the iPhone is a county telephone that may have connected to the San Bernardino County computer network. The seized iPhone may contain evidence, that can only be found on the seized phone, that it was used as a weapon to introduce a lying-dormant cyber pathogen endangering San Bernardino County's infrastructure, a Violation of Cal. Penal Code § 502 (Lexis 2016), and which would pose a continuing threat to the citizens of San Bernardino County.

Apple has not advanced a single argument to indicating why the identification and prosecution of any outstanding coconspirators, or to detect and eliminate cyber security threats to San Bernardino County's infrastructure introduced by its product and concealed by its operating system, and Apple's refusal to assist in acquiring that information, is not a compelling governmental interest. To the extent that Apple states in its brief at page 33 that there is no compelling state interest because the government "has produced nothing more than speculation that this iPhone might contain potentially relevant information," Apple completely forgets that a United States Magistrate has issued a search warrant based on a finding of probable cause that the iPhone does contain evidence of criminal activity. The reason we search is to find out if the device contains evidence or is an instrumentality of the crime. Such authority is granted by the United States Constitution.

Got that? As long as the DA makes up some totally mythical "cyber pathogen," so long as Apple has not proven that such a thing is not on the phone, then open 'er up, Apple!. That's a fascinating view of due process.

Oh, speaking of due process, Ramos then, absolutely ridiculously, flips Apple's 5th Amendment due process argument on its head, arguing that by not hacking into users' devices, Apple is the one that is harming due process rights. Really:

The California Constitution guarantees victims of crimes committed in California a Victims' Bill of Rights.... These rights include those shared by all people of the State of California, "that persons who commit felonious acts causing injury to innocent victims will be appropriately and thoroughly investigated brought before the courts of California and tried by the courts in a timely manner." ... The Victims' Bill of Rights continues to state, "In order to preserve and protect a victim's rights to justice and due process, a victim shall be entitled to the following rights... To be reasonably protected from the defendant and persons acting on behalf of the defendant"... and the right to have all relevant evidence admitted in any criminal proceeding....

The due process protections of the California Constitution clearly attach to not only the fourteen people murdered, and the twenty two injured in the assault, but also those physically uninjured, but mentally injured survivors who witnessed the mass murder.

Apple is infringing on the due process rights of these real, and not speculative, victims. It is preventing protection from the defendant and those who assist the defendant. Through the design of its operating system and its refusal to assist in accessing the information contained on the seized phone, Apple is preventing the acquisition of information leading to the identity or elimination of outstanding coconspirators. This denies the surviving victims of the knowledge that there are either no additional coconspirators, or that those that are outstanding will be pursued. Apple's actions in denying assistance in acquiring access to the phone infringes on the Victims' right to be reasonably protected. Denying access to this information deprives victims of all relevant evidence in any criminal proceeding that could be the product of the information contained on the phone, and it certainly is denying the victims of the right guaranteed to them to have the case investigated and prosecuted in a timely manner.

Let's put this simply: this is an insane reading of the California Constitution. Based on this, Ramos can basically argue that anyone and anything that gets in the way of law enforcement finding out absolutely anything, no matter how speculative is infringing on someone's due process rights. Did you sell someone a shredder that allowed them to shred a paper that may have included something useful? You've infringed someone's due process rights. Did you happen to overhear someone planning a crime, but you can no longer remember what the person looked like? You've violated the victims due process rights. That's not how it works. Private companies don't infringe on someone's due process rights -- governments do.

And, then, just because this isn't crazy enough already, in somehow arguing that a private company has the burden to prove a negative, and that a private company is responsible for due process, Ramos argues that Apple is "usurping the authority of the District Attorney":

In refusing to assist in the opening of this repository of evidence, Apple is making the defacto decision of who can be charged with a crime and is giving a de facto grant of immunity to those iPhone users that use the phone as an instrumentality of a crime, a cyber weapon, or store, intentionally or not, evidence of a crime on the device. Questions of whether Apple's conduct falls within traditional definitions of harboring one who commits a crime aside, Apple is infringing on the authority of the District Attorney to make charging and immunity decisions. Apple is free to exercise its First Amendment rights to express what activities, including none at all, should be considered crimes, or who should be charged with a crime, including nobody, but Apple has no de jure or de facto authority to make those decisions by its actions.

No person but the San Bernardino County District Attorney and his deputies are authorized to decide when criminal charges are brought or not brought, or to whom to provide a grant immunity from prosecution in San Bernardino County. Apple has no such dejure or defacto authority in San Bernardino County.

Except... that's nuts. Apple is not "granting immunity" or making decisions about who can be charged with a crime. Like the whole "dormant cyber pathogen" this is Ramos simply making up shit and telling it to a judge. Nothing that Apple is doing prevents law enforcement from bringing charges if they have enough evidence. But, once again, Ramos is flipping the very concepts of burden of proof and due process in suggesting that any technology that happens to get in the way of collecting evidence is somehow "granting immunity."

If you thought that wasn't crazy enough, Ramos keeps going deeper and deeper into the "What did he just say.....?" hole. Next up: claiming that Apple is an "Orwellian arbiter" of privacy, which in his mind is illegal because Apple is not a public policy maker, and thus is somehow not allowed to build systems that keep customers' info private. I'm NOT JOKING (though, really, I wish I was).

Apple asserts that its operating system and its refusal to assist in unlocking the phone is, in Apple's view, necessary to protect the privacy interests of its customers. Apple advances its concept of privacy as absolute privacy in the context that it proffers the opinion that the contents of any Apple iPhone or Apple mobile device is immune from any type of government intrusion due to its security features. While Apple can represent what it chooses in its marketing of its devices and operating systems, Apple is neither the legislature nor judiciary empowered to define privacy as absolute. Apple in not a public policy maker. Apple is a for-profit corporation. No one has appointed or elected Apple to be the Orwellian arbiter or definer of privacy for society or even for all of Apple's customers.

This falls into the so wrong it's "not even wrong" category. It's insane. It's not even in the realm of reality. Of course a for-profit company gets to determine what kind of privacy tools it offers customers. Is Ramos honestly claiming that companies are somehow breaking the law by building secure systems? Because that's crazy. It goes directly against basically... everything.

From there, Ramos again pretends the case is about something entirely different:

Apple's concept of absolute privacy and immunity from government search is not supported by the Constitution of the United States or the cases that interpret it. Furthermore, Apple has no privacy rights in the device before the Court, nor is it legally permitted to assert any privacy rights regarding the search of the San Bernardino County-owned phone.

Right. And Apple is not asserting privacy rights here so what the hell is Ramos even arguing about here? He's making things up that aren't even remotely related to the case. Apple is not arguing about its privacy rights. It's arguing about whether or not the All Writs Act can be used to force it to build hacking tools that undermine the safety and security of its customers.

Ramos then goes on to totally misinterpret the finding in the famous Supreme Court Riley v. California decision about whether or not law enforcement could search mobile phones without a warrant. The ruling in that case, quite rightly and importantly, noted that you could not search a mobile phone without a warrant. But, Ramos pretends that means that the Supreme Court's decision means that all data on cellphones must be accessible under a warrant, which is not what the court said at all.

Hilariously, after raising issues that aren't before the court at all (Apple claiming a right to "privacy"), Ramos claims that Apple is the one raising issues not before the court -- and appears to do so by not understanding what the actual issue in this case is about:

Apple asserts that unlocking the seized iPhone will open the siege gates and make its users' personal information vulnerable to hackers, identity thieves, hostile foreign agents and unwarranted government surveillance. It has also expressed concerns about how foreign governments may treat their citizens and the demands that might be made on Apple. None of these issues are before the Court. This case does not involve speculation as to what foreign governments may demand of Apple, or how Apple may respond to those demands in the future. There is no issue of identity theft here, and Apple has not advanced an explanation of how unlocking this phone would lead to identity theft elsewhere, nor have they advanced any evidence of identity thefts caused by their unlocking phones prior to the deployment of IOS 8. Similarly, Apple warns of unwarranted government surveillance. No surveillance is present here. Apple has not advanced any evidence or explanation of how this surveillance will be unleashed by unlocking this phone. Apple cites the hacking of the Office of Personnel Management as illustrative of the dangers of hacking into databases, yet these databases were not contained on a specific iPhone as the evidence here is nor has there been an indication that the databases were hacked by an unlocked iPhone. These speculative concerns do not outweigh the compelling interest in the need to acquire real evidence of real crimes from the seized iPhone.

Here's the thing. This isn't that complicated. The law at issue in this case is the All Writs Act. The All Writs Act specifically notes that any "writs of assistance" must be "appropriate" and under the law it's been determined that to be "appropriate" it cannot be unduly "burdensome." The judge in the case has specifically requested that the parties focus on whether or not the order is unduly burdensome, and that's why Apple raised all of the issues above, directly answering the judge's questions which directly relate to the law at hand. To argue that these are "issues not before the court" suggests such a profound ignorance of the case here that one wonders what Ramos is doing here and how he got elected to be San Bernardino's DA.

And, really, for Ramos to whine that Apple's evidence of actual security concerns are somehow too "speculative" when he's the one spewing nonsense about speculative "dormant cyber pathogens" is just... insane.

Finally, Ramos concludes by saying that, look, he doesn't really give a shit how Apple breaks encryption, but it needs to be able to break encryption:

Apple's creation of their iOS 8 and iOS 9, the product of their brilliant engineering created all these issues where it did not exist in previous operating systems. There is nothing unreasonable in having this same brilliance applied to remediating the problem they created. How Apple chooses to accomplish this is a matter of their own choosing. Neither the FBI nor San Bernardino County District Attorney is asking to know how they do it, or directly possess the tools to do so. How Apple resolves the problem, or protects the solution is not our concern. We only seek for this Court to compel that Apple do so.

That's the DA version of "nerd harder, Apple." Of course, it (once again) totally misunderstands and misstates the issue. Also, while it is true that, in this case, there do appear to be technical ways (very, very dangerous ones) to force Apple to do what the FBI wants (which, we should note has very specific requests, which Ramos doesn't even seem aware of, despite being widely discussed), is Ramos honestly asserting that in cases where there isn't such a backdoor possible that companies still be required to break in, even when that's mathematically impossible?

The people of San Bernardino County deserve elected officials who actually understand the issues at hand. Not technically and legally ignorant buffoons who file such misleading tripe in such an important case.

Support our crowdfunding campaign to help us keep covering stories like these!

Filed Under: all writs act, amicus brief, cyber pathogen, doj, due process, encryption, fbi, michael ramos, privacy, san bernardino, san bernardino da
Companies: apple

Law Enforcement Groups File Amicus Brief In Favor Of FBI... But Which Undermines DOJ's Claim That This Is Just About One Phone

from the about-that... dept

Support our crowdfunding campaign to help us keep covering stories like these!

So, we already wrote about the nutty amicus filing in support of the FBI by San Bernardino's District Attorney, as well as the tons of amicus briefs in support of Apple. However, there are two more amicus briefs that were filed in support of the Justice Department, and we didn't want to leave those out of our coverage either. The main one is a brief from a ton of law enforcement agencies, namely the Federal Law Enforcement Officers Association, the Association of Prosecuting Attorneys, and the National Sheriff's Association.

The argument is not a surprising one. It's basically "but we really, really, really want to see what's on these phones" combined with "this may inspire others not to obey us."

Amici believe that the position Apple has taken is a dangerous one. First, Apple's refusal to provide assistance has far-reaching public safety ramifications by making it difficult, and in some cases impossible, for law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. Second, if Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so.

Of course both of these are hogwash. First of all, Apple has provided a ton of assistance. But providing some assistance doesn't mean it should be compelled to provide all possible assistance. In fact, this claim ignores the very heart of this case, which is just how far must Apple go, and can a company be compelled to go way beyond what any company has been compelled to do in the past. But this filing misleads the court and pretends it's simply about whether or not Apple should provide any assistance. Similarly, the argument that this kind of info is needed to "enforce the law" is similarly ridiculous. As we've noted, law enforcement never gets "all of the information." It never knows what information has been destroyed, or is hidden and not found, or is just in people's brains. The idea that they need every possible scrap of information has simply never been true, and in fact, our Constitution is designed on the principle that, no, law enforcement doesn't always have the right to access any and all information it wants. That's on purpose.

Separately, this amicus brief -- despite officially being in support of the Justice Department and the FBI may serve to undermine their case. After all, a key part of the DOJ's argument is that this case is just about this one phone. However, as we've discussed, tons of law enforcement folks are salivating over using this ruling as a precedent elsewhere. And this brief makes that quite clear, which might help the judge realize that the Justice Department is being misleading in arguing otherwise.

The other amicus brief in support of the DOJ is one filed on behalf of six individuals who are mostly family members of people who were killed in the San Bernardino attack (five of them, with the other person being the husband of a woman who witnessed the attack, but was not shot). This filing was also not unexpected given that, as we reported earlier, the DOJ reached out to a lawyer to file this amicus brief before even asking the judge for the order. For whatever reason, the actual brief does not appear on PACER, just the application for the amicus brief (it says the brief is attached, but as of my writing this, the full brief does not appear in PACER). I can certainly understand why these individuals would want to support the DOJ here (though, as noted in our earlier posts, at least three other family members have supported Apple's position). But I'm not convinced that their views have any legal impact on the case, just an emotional one.

Support our crowdfunding campaign to help us keep covering stories like these!

Filed Under: all writs act, amicus brief, doj, encryption, fbi, law enforcement, san bernardino
Companies: apple

DOJ Reached Out To San Bernardino Victims For Legal Support Before Going To Court Against Apple

from the and-they-want-us-to-believe-it's-not-a-pr-campaign? dept

The FBI keeps insisting that it's legal fight with Apple is not about the precedent and not about using the tragic incident in San Bernardino as an emotional plug to break down strong encryption. And yet... now it's come out that even before going to court, federal prosecutors from the DOJ went to the families of those killed in the San Bernardino attacks and asked them to file an amicus brief of support with the court:

Stephen Larson, the lawyer for the victims, told the Guardian the office of the US attorney for the central district of California contacted him on 14 February with a request to file a brief asking Apple to aid in unlocking the phone.

On 16 February, the federal attorney, Eileen Decker, requested a federal magistrate, judge Sheri Pym, issue a warrant for the unlocked iPhone 5C. Pym provided it that day.

Even more interesting? Larson himself hadn't previously been representing any of the victims. Instead, the local district attorney "connected him" with survivors and relatives of those killed.

It's not clear who he's actually representing right now. So far, at least a few of the relatives of those murdered have actually come out in support of Apple. We already mentioned Karen Fagan:

Karen Fagan, of Upland, is the ex-wife of Harry “Hal” Bowman and mother of their two daughters.

“This is a very different thing than asking for data that is Apple’s possession,” Fagan wrote in an email. “They have complied with all of those requests. This is asking them to build a new piece of technology that could be used to invade the privacy of any iPhone. Furthermore, the FBI is citing an act written in 1789 (instead of new legislative action) to justify their request.

“I know that it is a tempting argument to say that we should allow government access to private information in order to make people feel safe. After all, the argument goes, people who aren’t breaking the law have nothing to hide. While that may be true, American citizens have been granted privacy rights, and this request breaches those rights,” Fagan wrote.

And then there's Carole Adams as well:

Her son was killed in the San Bernardino, Calif., massacre — but Carole Adams agrees with Apple that personal privacy trumps the feds’ demands for new software to break into iPhones, including the phone of her son’s killer.

The mom of Robert Adams — a 40-year-old environmental health specialist who was shot dead by Syed Rizwan Farook and his wife — told The Post on Thursday that the constitutional right to privacy “is what makes America great to begin with.”

[....]

“This is what separates us from communism, isn’t it? The fact we have the right to privacy,” she said. “I think Apple is definitely within their rights to protect the privacy of all Americans.

I'm sure that plenty of others will sign on to Larson's amicus brief, but the fact that it was all pre-vetted by the DOJ certainly seems noteworthy, and highlights how the DOJ/FBI recognize how much of a publicity stunt this case really is.

Filed Under: amicus brief, doj, fbi, precedent, publicity stunt, san bernardino, victims
Companies: apple

Free Speech Champions File Amicus Brief In Hopes Of Getting Terrible 'Publicity Rights' Decision Re-Examined

from the the-most-imaginary-of-imaginary-rights dept

There's no bigger business in the entertainment field than video games. Plaintiffs and lawyers seeking large payouts tend to head to where the money is, which explains the spate of highly-dubious "publicity rights" suits filed by former athletes and the occasional deposed dictator.

Publicity rights are highly dubious themselves, with only a few states even recognizing that this supposed "right" exists. This has led to particularly lucrative estates "moving" dead celebrities to new "hometowns" in order to exploit local laws.

But there's money in video gaming, and a whole bunch of former players have filed cash grabs in courts in hopes of securing what's never been rightfully theirs. Electronic Arts -- being the wealthiest video game producer in the world -- is a frequent target of these lawsuits. EA secures these "rights" by signing contracts with players' representatives: various players associations and entities like the NCAA -- who in turn have secured signed contracts from those they represent. These suits claim the contracts don't allow for the ongoing "exploitation" of their likenesses in recreations of historical teams

But it's not as though they never had the option to not sign a contract with the NFLPA or NCAA or whoever. Various superstars have opted out of these contracts over the years. Many, many basketball video games were produced with an indescript #23 (or no one at all) standing in for Michael Jordan. Bill Belichick, the Patriots' head coach, has recused himself from EA's pro football offerings. Players of those games see nothing more than a sweatshirted dude known as "NE Coach" when controlling the current Super Bowl champions. So, there are -- and were -- options. But those options were ignored and years later, the cry of "GIVE ME MONEY" is now heard in courtrooms around America.

The Ninth Circuit Court arrived at a truly troubling conclusion in Keller v. Electronic Arts, which featured eight plaintiffs arguing that the video game giant violated their publicity rights by using their likenesses. The opinion starts out promisingly enough, stating that video games -- like movies, books and plays -- are likewise protected by the First Amendment. But then the judges proceeded to qualify that seemingly crystal clear statement.

In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.

Weighing EA's "expressive" use of players' likenesses against California's expansive publicity rights law, the court found in favor of the plaintiffs.

Under California's transformative use defense, EA's use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment. We reject EA's suggestion to import the Rogers test into the right-of-publicity arena, and conclude that state law defenses for the reporting of information do not protect EA's use.

Another publicity rights case, again involving EA Sports and a handful of former athletes, is in front of the same court. Eugene Volokh (of the recently-paywalled, WaPo-relocated Volokh Conspiracy) has submitted an amicus brief on behalf of EA, along with a long list of big names in the IP-meets-free-speech field, including Rebecca Tushnet (Georgetown prof and the author of the excellent 43(b) blog), Geoffrey Stone (PCLOB member and fearless free speech defender), Eric Goldman (Santa Clara Univ. prof and an excellent blogger himself), and Lawrence Lessig, who really should need no introduction at this point.

The amicus brief [pdf link] not only lays out the case for EA's protected use of players' likenesses, but also invites the court to reexamine its flawed decision in Keller v. Electronic Arts.

Keller’s conclusion that references to real players in fantasy sports video games are not protected by the First Amendment is mistaken, and dangerously so. The Keller majority begins with the sentence, “Video games are entitled to the full protections of the First Amendment, … ‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724 F.3d at 1270-71 (quoting Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011)). It therefore follows that, to the extent video games may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.

Thus, under the logic of Keller, the makers of the recent film Selma might be liable for a host of right of publicity violations unless they got permission from Coretta Scott King, Andrew Young, John Lewis, Harry Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover, Lyndon Johnson, and others. The Academy Award-winning Forrest Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson, which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.

The brief points out that the circuit court is under no obligation to defer to California's screwed-up publicity rights law. It should instead defer to the First Amendment.

Fortunately, the law does not require such results. The Ninth Circuit is, of course, not bound by a state court’s interpretation of the First Amendment; but even under the California Supreme Court’s “transformative work” test, all these works, including the fantasy football video games involved in Keller and in this case, are constitutionally protected.

[...]

The conclusion that the First Amendment does not protect depictions of real people in expressive works, whether in fictional or non-fictional settings, cannot be right. Yet this is the world that the panel decisions in Davis and Keller risk creating. Whether to preserve, reverse, or modify the circuit law created by Keller thus merits this Court’s en banc attention — especially since this Court is the “Court of Appeals for the Hollywood Circuit,” White v. Samsung Electronics Am., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc), and for the Silicon Valley Circuit as well.

Hopefully, the court will be open to examining the earlier decision, which certainly doesn't align with the decision's opening declaration that video games are just as protected by the First Amendment as their predecessors in the entertainment field. To do otherwise is to further open Hollywood's home court to further exploitation by IP ambulance chasers and litigious tourists.

Filed Under: amicus brief, california, davis, free speech, keller, publicity rights
Companies: ea

Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

from the not-just-about-copyright dept

Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as Innocence of Muslims. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here, though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.

After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.

Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.

There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

Filed Under: amicus brief, cda, cindy garcia, cindy lee garcia, copyright, dmca, free speech, innocence of muslims, intermediary liability, safe harbors, section 230, third party liability
Companies: floor64, google, organization for transformative works, youtube

Amicus Brief From Public Knowledge Distills Ultramercial's 'Complex' Patent To 16 Lines Of Code

from the one-rarely-sees-javascript-in-a-legal-filing dept

Public Knowledge has entered the battle against Ultramercial, the holder of a broad patent for an abstract idea that it has casually stapled "on the Internet" to in order to push it through the patent office. At one point the patent was rejected by the court, but Ultramercial repeatedly tapped the words "on the Internet" until the CAFC obligingly agreed that the insistent tapping had some merit and overturned the lower court's ruling.

WildTangent appealed this ruling in 2012, drawing immediate support from Redhat, the CCIA, Google (in conjunction with Verizon, no less) in the form of petitions for the Supreme Court to hear the case. A couple of months later, the Supreme Court vacated the CAFC's ruling, asking it to reconsider the case in light of Mayo v. Prometheus. As of Sept. 24th, Google [et al, incl. Redhat, HP, Zynga and Homeway, Inc.], the CCIA and the EFF have also filed amicus briefs on behalf of WildTangent, urging the CAFC to rule in a consistent manner on Ultramercial's patent in light of its decision on Mayo.

Public Knowledge's brief takes a somewhat novel approach, attacking the supposed complexity of the patent head on

Today, Public Knowledge filed an amicus brief urging the Supreme Court to review an important case on software patents, WildTangent v. Ultramercial. The basic question in this case is whether a patent to a simple, abstract idea can be valid simply by tacking on enough legal and technical language to that idea, even if that extraneous language has no real meaning.

The patent in question is U.S. Patent No. 7,346,545. That patent basically describes a simple idea familiar to anyone who has watched videos on the Internet: the idea of taking a video available for purchase, and showing it for free in exchange for viewing an advertisement first.

As Public Knowledge points out, ideas aren't patentable and what Ultramercial has here is nothing more than an abstract idea obscured by layers of technical language.

Whoever wrote the patent on advertising in this case, however, was clever. Instead of simply describing the simple idea for what it is, the patent expounds an eleven-step process in a patent claim of 349 complex, technical-sounding words. This was enough to convince one court that the process required “intricate and complex computer programming,” thus making it patentable and not an abstract idea.

Public Knowledge's brief exposes the extremely simple underlying process of Ultramercial's patent. What took its patent lawyers 349 words to explain boils down to 16 lines of code -- hardly the indicator of "intricate and complex computer programming." As a demonstration in PK's blog post, Charles Duan turns the following process steps into two (short) lines of code.

As an example, here are two steps of the process claimed in the patent.

"a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;"

For all those words, here's the computer code that implements them:

if (window.confirm("View ad or buy?")) {
window.alert(selected_ad.text)

82 words and three complex sentences reduced to 11 words of code spanning two lines. Duan refers to Ultimecia's Ultramercial's dense faux-technical jargon as "legal filibustering," a process used to hide simplicity behind dense walls of text in order to confuse gatekeepers into submission.

And if no one believes it's that simple, Public Knowledge has provided a working version of its sixteen lines of code at this URL.

Here's the process Ultramercial's suing about in all of its 16-lines-of-code glory.


As Mike has pointed out before, the only reason Ultramercial even has this patent is because it convinced the CAFC that the addition of "on the Internet" turns an abstract idea into a patentable process. The additional wording describing the "process" is a diversionary tactic. Hopefully, a second run through will find the CAFC willing to cut through the dense wording and ridiculous "Internet" assertion and find Ultramercial's patent invalid.

Filed Under: amicus brief, on the internet, patents
Companies: public knowledge, ultramercial, wild tangent