Infamous Police Interrogation Firm Sues Netflix For Defamation Over Criticism Of Its Interrogation Technique

from the strategically-idiotic dept

We've written about the "Reid Technique" -- a highly controversial police interrogation technique -- a few times in the past, mainly to criticize it. If you've ever seen a police procedural on TV, you're probably familiar with the technique -- it's the one that verges on a "good cop / bad cop" approach in which a good cop tries to "justify" the crime, telling a suspect all the reasons why it's "understandable" why a person would have committed the crime. Back in 2013, a very thorough New Yorker article covered how the technique was responsible for a ton of false confessions, while also highlighting how the UK and Canada had long moved away from the technique because of the false confessions problem. Last year, one of the leading firms that taught the Reid Technique announced that it would stop teaching the method specifically because of the problems of false confessions and a recognition that "confrontation is not an effective way of getting truthful information."

However, the firm that still officially licenses the technique, John E. Reid & Associates, continues to stand by the technique, no matter how many reports of problems come out. And now it's amped that up in the dumbest possible way: by suing Netflix and Ava Duvernay for defamation over her miniseries about the Central Park 5, When They See Us. At issue?

In the final episode of the series, a discussion ensues between Manhattan assistant D.A. Nancy Ryan and a New York City detective who was involved in eliciting the confessions of the Central Park Five. During this conversation, Ryan's partner says, "You squeezed statements out of them after 42 hours of questioning and coercing, without food, bathroom breaks, withholding parental supervision. The Reid Technique has been universally rejected. That's truth to you."

The lawsuit also claims that the interrogation techniques discussed in When They See Us were not consistent with the actual Reid Technique.

There are many, many problems with this lawsuit -- starting with the fact that what's described there is not defamatory. Sure, it may not be true that the technique is not "universally" rejected. There are still straggler police departments that use it. But, at worst, that's rhetorical hyperbole from one character in the series. Second, while this is based on a true story, it's still a depiction of that, and no one is going to take a single statement by a single character in the film as some sort of factual statement. Third, if this case actually does move forward, I can't imagine that John E. Reid & Associates actually want this case to get to discovery -- in which Netflix and the other defendants might seek to establish just how debunked the Reid Technique has become.

The 41-page complaint is really quite something. And I don't mean a good something. Much of it goes on and on about all the various things those practicing the Reid Technique are not supposed to do during an interrogation... but... that's meaningless with regards to the question of whether or not the miniseries was defamatory.

Even more bizarre? The lawsuit calls out a different famous Netflix series, the popular documentary series Making a Murderer, which includes a bit in its second season, where attorneys point out that questionable interrogation techniques that were used during the (now somewhat infamous) interrogation of Brendan Dassey were not a part of the Reid Technique. So what's that got to do with anything? The filing claims that this is evidence that Netflix "knew" that these kinds of interrogation techniques were not sanctioned as a part of the Reid Technique. Again, it's not clear how that shows anything.

And it gets even worse. As the complaint itself admits, after the one character calls out the other for using the Reid Technique, that character retorts:

"I don't even know what the fucking Reid Technique is. Okay? I know what I was taught. I know what I was asked to do and I did it."

That actually undercuts the very claim of defamation in the case, as it makes it clear, at least, that the character accused of using the Reid Technique didn't even know what the Reid Technique was. So it's bizarre for the company to argue that the show is actually saying he used the Reid Technique. The company insists this doesn't detract from their argument... but it totally does. It makes it pretty clear that this is just a statement made by one character in a portrayal of what happened, and that even the other characters don't all agree with that one character. It is hardly defamatory towards the Reid Technique.

And, then, of course, there's the fact that all this lawsuit is really going to accomplish is get that much more attention on the sketchy history of the Reid Technique, the fact that it has resulted in false confessions, and the fact that many, many police departments have abandoned it for that very reason. Of course, as lawyer Andrew Flesichman notes, there may be another approach:

Filed Under: ava duvernay, defamation, opinions, police interrogation, reid technique, when they see us
Companies: john e. reid and associates, netflix

How Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic Words

from the copyright,-paraphrasing-and-the-road-to-truthiness dept

Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate's aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King's speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King's speeches "because we knew those rights are already gone, they're with Spielberg." She added that she knew that there were strings attached to the rights: "with those rights came a certain collaboration." In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King—until now.

In the summer of 2013, when the nation was commemorating the 50^th anniversary of the March on Washington, the King estate refused to allow broadcasts of King's "I Have a Dream" speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King's speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King's speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King's message.

The Washington Post's review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

"in a brilliant work-around DuVernay approximates [King's] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them." Likewise, the New York Times' review observes that DuVernay turned her lack of permission to use the speeches into "a chance to see and hear [King] afresh." In the film, King is "less an orator than an organizer" and is "a man trying to navigate his public role, his private life, and the expectations of his allies and friends."

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression—paraphrases of King's speeches—and her own interpretation of King's life.

At the same time, the Times recognizes that the inability to quote King directly "may be a blow to the film's authenticity." And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League's use of the "Flying B" logo in highlight films to be transformative because the logo was used "as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers."

The court further stated:

"Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts."

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes' inclusion of clips in a search engine for broadcast television was a transformative use. The court found that "TVEyes' message, ‘this is what they said'—is a very different message from Fox News'—‘this is what you should know or believe.'"

The primary purpose of including King's speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King's actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King's speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King's speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, "like an arrogant twit." The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

Reposted from the Disruptive Competition Project

Filed Under: ava duvernay, copyright, culture, fair use, history, martin luther king jr., mlk estate, paraphrasing, selma, speeches