Miramax's Bizarrely Ridiculous Lawsuit Against Quentin Tarantino Over His Pulp Fiction NFTs

from the that's-not-how-any-of-this-works dept

Miramax, the film studio originally founded by Harvey Weinstein before being sold to Disney, then spun out, and currently owned jointly by a Qatari media company, beIN, and ViacomCBS, is in the news for suing Quentin Tarantino over his collection of NFTs about Pulp Fiction -- one of Miramax's biggest hit films in the 90s, and the one that put Tarantino on the map. Like many other content creators, Tarantino is exploring the NFT space, and his experiment is actually somewhat interesting. It's using a modification of typical NFTs, where some (or all) of the content remains "access controlled" and only available to the purchaser. In other words: it's DRM'd NFTs, which seems to miss the entire point of NFTs, which is creating a new scarcity of ownership without the scarcity of content access. But, hey, it's Hollywood, so restricting access and using DRM is kind of in their DNA.

That said, the NFTs are supposedly handwritten bits of the original Pulp Fiction screenplay. From the page:

The NFT collection contains the handwritten, never-before-seen screenplay of Pulp Fiction, one of the most influencing artworks of modern film. Each NFT consists of a single iconic scene, including personalized audio commentary from Quentin Tarantino. The collector who will purchase one of these few and rare NFTs will get a hold of secrets from the screenplay and a glimpse into the mind and the creative process of Quentin Tarantino. The owner will enjoy the freedom of choosing between:

1. Keeping the secrets to himself for all eternity
2. Sharing the secrets with a few trusted loved ones
3. Sharing the secrets publicly with the world

Anyway, the complaint makes a bunch of claims that don't seem to be supportable. Specifically, it argues (1) breach of contract (2) copyright infringement (3) trademark infringement and (4) unfair competition. The breach of contract claim seems weak. Part of that dispute is that when he sold the movie to Miramax the contract did say that Tarantino reserved the rights to "screenplay publication" himself -- and Tarantino's lawyers contend that that's all this is. Miramax says that an NFT does not constitute publication -- which... is weird? Because it certainly seems like it should?

But the bigger issues are the copyright and trademark claims, which really don't seem to be based on an understanding of how NFTs work. Here's the basics of the copyright claim:

The finished motion picture Pulp Fiction and all elements thereof in all stages of development and production are all original works containing copyrightable subject matter for which copyright protection exists under the Copyright Act, 17 U.S.C. § 101, et. seq. Except for Tarantino’s limited set of Reserved Rights, Miramax is the exclusive owner of rights under copyright in and to the motion picture Pulp Fiction, and all elements thereof in all stages of development and production. Miramax owns copyrights in and to Pulp Fiction (and, pursuant to the Original Rights Agreement and the Tarantino-Miramax Assignment, “all elements thereof in all stages of development and production”), including, without limitation, the registered United States copyrights thereto with U.S. Copyright Office registration numbers PA0000704507 and VA0001224051, and the copyrights assigned to Miramax in the Tarantino-Miramax Assignment and the B25 Instrument of Transfer, which are recorded with the U.S. Copyright Office as document numbers V2917P169 and V3005P270, respectively.

Through Defendants’ conduct alleged herein, including Defendants’ sale of rights relating to Pulp Fiction, and preparation and reproduction of derivative works based on Pulp Fiction without Miramax’s permission, Defendants have directly infringed Miramax’s exclusive rights in Pulp Fiction and the elements thereof in violation of Section 501 of the Copyright Act, 17 U.S.C. § 501.

But... no. That's not how this works. The NFT is just a database entry in a distributed ledger. It's not a "derivative work." There's no copyright-covered content in the NFT itself. The NFT will point to some content, but it seems ridiculous to argue that the content it points to is infringing either. It's going to be a scan of just a small part of the script that Tarantino wrote (and again, his contract explicitly says he can publish the script). So, what copyright is being infringed here? There is some new content -- the "secret" content -- as well, but from the descriptions, that's just Tarantino explaining something about the scenes in question. And he's allowed to do that.

So, I don't see what copyright could possibly be infringed here. Even if there were some way you could argue that a link to a scan of a few pages of a handwritten movie script somehow implicates the copyright in the movie (which it cannot), there's still an incredibly strong fair use argument (but, again, it shouldn't even get there).

Indeed, to highlight the lack of any copyright infringement here, law professor (and NFT conceptual artist) Brian Frye created (and then quickly sold) his own Secret Pulp Fiction NFT, noting that:

Ownership of this NFT constitutes ownership of certain secret and confidential thoughts I created about the movie Pulp Fiction (1994), which was directed by Quentin Tarantino. The owner of the NFT will have exclusive access to those thoughts, which they may use in any way they like.

Basically, anyone is allowed to sell their "secret" thoughts and ideas about the movie Pulp Fiction, including Quentin Tarantino, and it doesn't violate Miramax's rights.

As for the trademark claim, it too seems like a huge stretch. I looked up the trademark registration and it covers certain classes, including magnets, ornamental pins, calendars, posters, tote bags, wallets, cups and mugs, t-shirts, sweatshirts, hoodies, fashion garments, jackets, blouses, pants, caps, hats, socks, ties, Halloween and masquerade costumes, costumes for children's use, action figures, bendable toys, jigsaw puzzles, puzzle games, collectible toy figures, rubber character toys, and a few more such things.

I don't see how a link in a distributed ledger database is covered by any of those. Nor do I see how a scan of a handwritten part of a script is any of those. That's not how trademark works. On top of that, where is there likely to be any confusion here? The sale is quite clearly coming from Tarantino, not Miramax, and despite the complaint saying that consumers will believe this whole thing is sponsored by Miramax, there's no reason to believe that's actually true.

All of this seems like typical Hollywood studio overreach, demanding ownership over things they don't have control over, just because they have lawyers who think they can get away with it.

Filed Under: breach of contract, copyright, derivative works, nfts, pulp fiction, quentin tarantino, trademark
Companies: miramax

Parler Drops Its Loser Of A Lawsuit Against Amazon In Federal Court, Files Equally Dumb New Lawsuit In State Court

from the that-ain't-gonna-work-champ dept

As you may recall, Parler had filed a ridiculously weak antitrust lawsuit against Amazon the day after it had its AWS account suspended. A judge easily rejected Parler's request for an injunction, and made it pretty clear Parler's chances of succeeding were slim to none. Parler, which has since found a new host, had indicated it would file an amended complaint, but instead it chose to drop that lawsuit in federal court and file an equally laughable lawsuit in state court in Washington (though with some additional lawyers).

Rather than claiming antitrust (which was never going to work) the new complaint claims breach of contract, defamation and deceptive and unfair practices. The complaint makes a big deal over the fact that in December Twitter and Amazon signed an agreement to use AWS for hosting some Twitter content, and hints repeatedly that Amazon's move a month later was to help Twitter stomp out a competitor. But this is all just random conspiracy theory nonsense, and not at all how any of this actually works.

The defamation claim is particularly silly.

On January 9, 2021, AWS sent an email to Parler declaring that AWS would indefinitely suspend Parler’s service, claiming that Parler was unable or unwilling “to remove content that encourages or incites violence against others.” AWS or one of its employees publicly leaked that email in bad faith to BuzzFeed at or around the same time AWS sent the email to Parler.

AWS’s email was false and AWS knew it was false. Parler was willing and able to remove such content and AWS knew that, because there was a lengthy history between the parties of Parler removing such content as quickly as AWS brought it to Parler’s attention. What is more, AWS was well aware that Parler was testing a new AI-based system to remove such content before it was even posted, that Parler had success with initial testing of the program, and that Parler had in fact shared those testing results with AWS.

The AWS email received wide play in the media.

This itself is kind of fascinating. Because even though we had highlighted that Parler takes down content, publicly it had claimed over and over again that it did not take down content. In fact, nearly all of Parler's brand was built on it's (misleading) claim to not do content moderation. So, how the hell could Amazon claiming that Parler wasn't doing content moderation be defamatory when that's the very reputation that Parler itself tried to highlight for itself?!?

Also, uh, this isn't going to fly in any court:

Parler is not a public figure and the success of its “content moderation” policies was not a matter of public concern until Google and AWS decided to make it one, but the defendant cannot by a defamatory statement turn a private matter into a public one or all matters would be public in nature.

No, sorry, Parler was very much a public figure way before Google and AWS's decisions.

The complaint also argues, repeatedly, that AWS had always been happy with Parler until it told it was suspending the account, but the filings in the original lawsuit in federal court clearly indicated otherwise, and noted that Amazon had reached out to Parler months earlier. I'm confused as to whether Parler's lawyer thinks that Amazon won't immediately point that out? Also, it seems decently likely that Amazon is going to try to get the case removed right back to federal court, so it's not clear why Parler thinks it can avoid federal court with this case. The whole thing, once again, seems performative and stands just as much of a chance as the original.

Filed Under: antitrust, aws, breach of contract, content moderation, defamation
Companies: amazon, parler

Judge Easily Rejects Parler's Demands To Have Amazon Reinstate Parler

from the nicely-done dept

As was totally expected, US district court judge, Barbara Jacobs Rothstein, has handily rejected Parler's motion to force Amazon to turn Parler's digital lights back on. The order is pretty short and sweet, basically saying that Parler hasn't even remotely shown a likelihood of success in the case that would lead to having the court order Amazon to take the social media site back.

On the antitrust claims, the judge points out that these appear to be a figment of Parler's imagination:

At this stage in the proceedings, Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally—or even at all—in restraint of trade....

Indeed, Parler has failed to do more than raise the specter of preferential treatment of Twitter by AWS. The sum of its allegation is that “by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are but pretext.”... But Parler and Twitter are not similarly situated, because AWS does not provide online hosting services to Twitter. Parler’s unsupported allegation that “AWS provides online hosting services to both Parler and Twitter” is explicitly denied in a sworn declaration by an AWS executive.... (“Twitter’s principal social-media service (the “Twitter Feed”) does not run on AWS. . . . On December 15, 2020, AWS announced that it signed an agreement with Twitter for AWS to begin servicing the Twitter Feed for the first time. . . . We do not yet service the Twitter Feed, and I am not aware of any particular timeline for doing so.”). Thus, as AWS asserts, “it could not have suspended access to Twitter’s content” because “it does not host Twitter.”

For what it's worth the judge doesn't even note the other huge weakness in Parler's "antitrust claims." I had intended to write a post about this, but now that this order is out, that post may be moot: Parler's CEO in his own declaration undermined the entirety of the antitrust claim by admitting that there were at least half a dozen other "large" cloud providers beyond Amazon. It's true that none of them wanted to do business with Parler, but it sort of highlights that there's competition in the market:

Parler reached out to at least six extremely large potential providers— all of which refused to host Parler for one of two reasons.

The "strongest" (and I use that term in the sense of the "tallest of the ants" meaning) of the claims was probably the breach of contract claim, in which Parler said AWS's terms require 30 days notice for termination. As we wrote, however, the terms also allow for a suspension of service in much less time, and Amazon insists that Parler's service was suspended rather than terminated. The judge, not surprisingly, did read the whole of the terms of service, rather than just the convenient bit Parler's lawyer wanted her to read:

Parler has not denied that content posted on its platform violated the terms of the CSA and the AUP; it claims only that AWS failed to provide notice to Parler that Parler was in breach, and to give Parler 30 days to cure, as Parler claims is required per Section 7.2(b)(i). However, Parler fails to acknowledge, let alone dispute, that Section 7.2(b)(ii)—the provision immediately following—authorizes AWS to terminate the Agreement “immediately upon notice” and without providing any opportunity to cure “if [AWS has] the right to suspend under Section 6.” And Section 6 provides, in turn, that AWS may “suspend [Parler’s or its] End User’s right to access or use any portion or all of the Service Offerings immediately upon notice” for a number of reasons, including if AWS determines that Parler is “in breach of this Agreement.” In short, the CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the event Parler is in breach.

Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.

Then there's the intentional interference claim, which almost never flies, because it's almost always just an attempt to repeat earlier claims with a "and this is serious." Here, it's just pathetic. And the judge knows that.

Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means. Conversely, AWS has denied it acted improperly, justifying its actions as a lawful exercise of rights it had pursuant to either the suspension or the termination provisions of the CSA. Further, for the reasons outlined supra, §§ III.B.(1) & (2), Parler has failed to demonstrate the likelihood that AWS breached the CSA. To the contrary, the evidence at this point suggests that AWS’s termination of the CSA was in response to Parler’s material breach. Parler has therefore not demonstrated a likelihood of success on this claim.

The judge does admit that Parler may be right that there are irreparable harms here, but its failure to plead a winnable case means that doesn't much matter. Finally, there's an interesting paragraph on the public interest arguments in the case:

The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating AWS to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection. The Court rejects any suggestion that the public interest favors requiring AWS to host the incendiary speech that the record shows some of Parler’s users have engaged in. At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case.

Separately, it's worth noting that the judge called out the fact that this is not a case about free speech or the 1st Amendment, as some have tried to frame it:

It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy.

Overall, the ruling was basically exactly what most people were expecting. The case still moves on, for now, as this was just rejecting the request for a temporary restraining order (effectively forcing Amazon to rehost Parler). But I would imagine this does not bode well for the next step, which is likely a motion to dismiss the entire lawsuit from Amazon, which the judge seems likely to grant on similar grounds as was used for this ruling.

Filed Under: antitrust, aws, breach of contract, temporary restraining order
Companies: amazon, parler, twitter

Parler's Laughably Bad Antitrust Lawsuit Against Amazon

from the i-mean,-what? dept

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.

There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.

The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus. It is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter.

I mean, even just this paragraph makes no sense. You may have noticed that Amazon and Twitter are different companies. The complaint is against Amazon. Amazon doesn't compete with Parler. None of this makes any sense. The next paragraph demonstrates how rushed and stupid and bad this lawsuit is:

Thus, AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter. AWS is also breaching it contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future

With Defendant Twitter? Let's scroll back up and look at the caption again:

There's only one defendant. And it's not Twitter.

The complaint goes on and on about how there's also bad stuff on Twitter, as if somehow that makes it wrong for AWS to be upset about Parler. But... Parler's whole entire claim to fame is that it moderates differently than Twitter, so claiming that there's the same stuff on Twitter is meaningless. Even worse, the example that Parler uses of how Twitter and Parler have similar content is around people suggesting that political officials including Congressional Representatives, Senators, and VP Mike Pence should be hanged. But the evidence that Parler itself provides undermines its own case, and in some cases directly contrasts its own claims. That's not just bad lawyering, that's legal malpractice.

Here is what Parler says:

What is more, by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are but pretext. In its note announcing the pending termination of Parler’s service, AWS alleged that “[o]ver the past several weeks, we’ve reported 98 examples to Parler of posts that clearly encourage and incite violence.” Exhibit A. AWS provide a few examples, including one that stated, “How bout make them hang?”, followed by a series of hashtags, including “#fu-- mikepence.”...

AWS further stated to Parler that the “violent content on your website . . . violates our terms.” Id. Because, AWS declared, “we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others,” AWS announced the pending termination of Parler’s account.

However, the day before, on Friday, one of the top trends on Twitter was “Hang Mike Pence,” with over 14,000 tweets. See Peter Aitken, ‘Hang Mike Pence’ Trends on Twitter After Platform Suspends Trump for Risk of ‘Incitement of Violence’, Fox News (Jan. 9, 2021), https://www.foxnews.com/politics/twittertrending-hang-mike-pence. And earlier last week, a Los Angeles Times columnist observed that Twitter and other social media platforms are partly culpable for the Capital Hill riot, by allowing rioters to communicate and rile each other up. See Erika D. Smith, How Twitter, Facebook are Partly Culpable for Trump DC Riot, LA Times (Jan. 6, 2021), https://www.latimes.com/california/story/2021-01-06/howtwitter-facebook-partly-culpable-trump-dc-riot-capitol. Yet these equivalent, if not greater, violations of AWS’s terms of service by Twitter have apparently been ignored by AWS

This leaves out some fairly important context. For one, the "Hang Mike Pence" trend was driven mainly by people calling out the insurrectionists who were saying that -- and which Twitter very quickly removed under their content moderation practices. Parler, on the other hand, made it clear that it was still trying to figure out how to moderate, and hoped to rely on volunteers. That's in Parler's evidence. That it didn't have a real plan in place yet. And that is why Amazon kicked it off.

On top of that, Parler's lawsuit claims that AWS needed to give it 30 days notice, but really only gave it a couple of days. Yet, in the evidence that Parler itself provides, Amazon mentions to Parler's policy chief that it has been sending dozens of examples of content that violate its policy for several weeks.

Amazon, for its part, appears to have not even waited to be served by Parler, but hit back hard with a very damning response to Parler that just dismantles Parler's argument bit by bit in fairly explicit terms.

This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.

As Amazon says, the antitrust claims are obviously silly, but even the breach of contract claims are ridiculous because if anyone breached the contract, it was Parler:

Despite Parler’s rhetoric, its lawsuit is no more than a meritless claim for breach of contract. But the facts are unequivocal: If there is any breach, it is Parler’s demonstrated failure and inability to identify and remove such content. AWS was well within its rights to suspend Parler immediately for those failures. Parler also cannot hold AWS liable in tort for enforcing the agreement’s express terms. And there is no antitrust claim where, as here, Parler cannot plausibly plead an agreement to cause it harm and the complained-of conduct is undeniably compatible with a legitimate purpose.

Compelling AWS to host content that plans, encourages, and incites violence would be unprecedented. Parler has no likelihood of prevailing on the merits, and the balance of equities and public interest strongly tip against an injunction. The motion for a temporary restraining order should be denied.

In the Amazon filing, the company notes that it began sending breach reports to Parler in November of last year and detailed the nature of the content that it was concerned about, often directly calling for violence. They include a ton of screenshots of the kind of violent speech that was on Parler, that goes way beyond what you'd see on other platforms, and which other platforms would remove.

Amazon also notes that the exhibit is only a small sampling:

The content AWS provided to Parler is merely representative of volumes of content that poses a security risk and harms others, in direct violation of the AUP. See id. Exs. E-F (examples). That content includes, but is not limited to, calls for violence against a wide range of individuals, including elected officials, law enforcement officers, and teachers. People have acted on these calls: Parler was used to incite, organize, and coordinate the January 6 attack on the U.S. Capitol. See Doran Decl. Exs. F-G. AWS reported to Parler, over many weeks, dozens of examples of content that encouraged violence, including calls to hang public officials, kill Black and Jewish people, and shoot police officers in the head. Executive 2 Decl. Exs. D-F. Parler systematically failed to “suspend access” to this content, much less to do so immediately, and demonstrated that it has no effective process in place to ensure future compliance.3 Executive 2 Decl. 7. Parler itself has admitted it has a backlog of 26,000 reports of content that violates its (minimal) community standards that it had not yet reviewed. Id. Parler’s own failures left AWS little choice but to suspend Parler’s account.

As for Amazon treating Twitter differently? Turns out (beyond everything I mentioned above) there's a bigger problem: Twitter doesn't use AWS:

Parler’s Complaint is replete with insinuations that AWS had equal grounds to suspend Twitter’s account and thus discriminated against Parler. For example, Parler cites the hashtag “#hangmikepence,” which briefly trended on Twitter. ... But AWS does not host Twitter’s feed, so of course it could not have suspended access to Twitter’s content.

Finally, Amazon notes that Section 230 also protects its practices here:

In addition to their facial deficiencies, Parler’s interference and antitrust claims also fail under Section 230(c)(2) of the Communications Decency Act. Under that statute, the provider of an “interactive computer service” is immune for acting in good faith to restrict access to material that is excessively violent, harassing, or otherwise objectionable.

This is actually interesting, in that rather than using 230(c)(1) like nearly every case, Amazon recognizes this is one of those rare (c)(2) cases, giving it the right to restrict access to violent, harassing, or otherwise objectionable content. This part of the law is rarely tested, as (c)(1) handles most moderation claims, but probably doesn't fit here, given the fact that Amazon was denying overall service to Parler, not just moderating specific speech.

Parler's going to lose this lawsuit. And it's going to lose badly.

* In a very, very strange set of circumstances, there is another lawyer with the identical name, David J. Groesbeck, (including middle initial) who is a patent lawyer, also based in Washington state and registered to practice in NY, but they are different, and the patent lawyer (who does have a website) had to put a notice on his website saying he's not the same David J. Groesbeck who has Parler for a client, and giving that lawyer's phone number, since he's being inundated with calls, yelling at him for representing Parler.

Filed Under: antitrust, aws, breach of contract, social media
Companies: amazon, parler, twitter

Is Devin Nunes' Lawyer Using Questionable Subpoenas In An Unrelated Case To Seek Info On Satirical @DevinCow Account?

from the what-a-bizarre-case dept

Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs.

However, while that tweet may have implied it was Nunes, it is not. The case merely involves Nunes' lawyer, Steven Biss, who is the lawyer in a separate case. But there are many oddities involved in this subpoena -- and Nunes' cases may be tangentially connected in a manner that seems to raise more questions about Biss' legal strategy. Before we go any further, however, I will say that the case that the subpoena comes from is a messy one. I am not going to go into all of the background here -- hopefully just enough to understand the nature of this subpoena -- but I will note that there are many people on both sides of this case who seem to feel fairly confident about what happened between two people, when the truth is only those two people know what really happened, so I will not take any position on the specific claims underlying the two cases at issue. There are also a bunch of people floating trollish conspiracy theories -- again, on both sides -- and if you want to waste a lot of time around a lot of nonsense, there are some rabbit holes to go down, most of which will frustrate and confuse you. I don't recommend that.

The case stems from accusations that lawyer Jesselyn Radack, who has represented Ed Snowden and other whistleblowers, made regarding Trevor FitzGibbon, who ran a PR firm that represented Wikileaks, Chelsea Manning, The Intercept and some other well known organizations. In 2015, FitzGibbon's PR firm shut down following allegations of sexual harassment and assault. In 2018, after it was reported that no criminal charges would be brought against FitzGibbon, he (with Biss as his attorney) sued Radack, claiming she defamed him in saying that he sexually assaulted her. You can read the (redacted) amended complaint and follow the rest of the docket, but it gets pretty salacious and a lot of accusations are thrown back and forth and you don't really need to know those details to understand the issue we're discussing here, so I won't point you directly to them.

What matters in this instance is that after a fairly contentious process, the two parties settled in May of last year. It is also at least worth noting that the court held Radack in contempt, which highlights at least some of the contentiousness of the proceedings. Separately, because the original complaint (which was later sealed in part because of this) in the original case apparently included somewhat revealing photos that FitzGibbon claimed Radack had sent him (part of his effort to show whatever relationship they had was consensual), Radack separately sued FitzGibbon, claiming that his filing violated Virginia's revenge porn law.

A month after FitzGibbon's first case against Radack was settled, he sued Radack again, claiming that (among other things) she had breached the settlement agreement from the original case, and tacking on new defamation claims. The original settlement agreement appears to have included clauses saying that they wouldn't talk about each other on social media, and also that they wouldn't "direct, request, encourage, entice, procure or otherwise cause any third party..." to post on social media about the other.

In the new case, FitzGibbon (again using Biss as his lawyer), alleges that Radack did use social media to talk about FitzGibbon, and suggests that since many others, including followers of Radack, have tweeted about him, it violates the clause not to encourage (etc.) others to do so. This starts with Radack's very first tweet after settling the case, in which she (as per the settlement) posted a short tweet noting that the original case had been settled and she wanted to "retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon." Some supporters of Radack responded to that tweet with statements against FitzGibbon, which the lawsuit argues breaches the settlement agreement.

It also highlights a bunch of other tweets by Radack, some of which it claims are defamatory, even though they seem quite general, don't mention FitzGibbon, and could easily be about someone else entirely. Just a few examples of tweets called out in this follow up lawsuit that seem like a huge stretch:

It seems pretty difficult to argue that those either breach the agreement or that they are defamatory towards FitzGibbon. The complaint does go on to assert "common law conspiracy" claims because other accounts started tweeting things about FitzGibbon that might reach the level of defamation. I won't repost them here, but those tweets do make direct claims about FitzGibbon, and if they are false, and were posted with knowledge of their falsity, might possibly qualify as defamation. Of course, the knowledge of their falsity or making the statements with "reckless disregard for the truth" (the standard for actual malice necessary to make a defamation claim) seem like a pretty high bar that would be difficult to reach.

Radack has asked the judge to dismiss much of the case on jurisdictional grounds and for failure to state a claim (basically saying that even if everything claimed is true, it still doesn't violate the law). Frankly, I find that her argument for the 12(b)(6) failure to state a claim is pretty convincing, and FitzGibbon/Biss' opposition motion to be pretty weak. It spends a lot of time arguing why there are some cases where opinion can be defamatory, and then highlights how some of the tweets from other people appear to be defamatory, but makes little effort to show how that makes her statements defamatory.

And that finally brings us around to the tweet at the top that is the reason for this post. If Biss could show that Radack did, in fact, communicate with others to make public statements about FitzGibbon, then at the very least you could argue that it was a breach of the settlement agreement. And, thus, one could make an argument that there are some reasonable situations in which such communications could be subpoenaed as part of the discovery process, to determine whether or not Radack had, in fact, breached the contract, and somehow encouraged others to say things publicly about FitzGibbon.

But, that possibility of situations existing where it might make sense to seek discovery of such communications is about as far as I'll go in giving Biss any credit here. Because almost every other part of what's been made public so far is problematic. First of all, the subpoena is to Twitter, and not to the individuals involved in any communications:

That's a problem on multiple levels, including that the Stored Communications Act literally forbids this kind of subpoena. While most people know of the SCA as it concerns government requests for communications, it also bars internet service providers from revealing content information to private actors in civil suits. So, even if there were legit reasons to seek these communications, sending a subpoena to Twitter is not how this should be done.

But the more concerning part is that the subpoena targets the communications of 21 different Twitter accounts, and many of them claim to have no connection at all to Radack, and at least two of the accounts in the subpoena that have no known connection to Radack are connected to Nunes' lawsuits. Specifically, the subpoena seeks communications from the now famous @DevinCow account, as well as political strategist @AdamParkhomenko, who was subpoenaed in one of the Nunes' cases, and who made some news by filing quite a motion to quash in that lawsuit.

So.... what the hell are they doing in this subpoena on a totally unrelated lawsuit? As far as I can tell in going through the dockets of both cases: absolutely nothing. Perhaps there's some reason for it somewhere, but in looking through everything I can find no clear connection. Radack and Parkhomenko, for example, seemed to only start communicating after she alerted Parkhomenko to the existence of what appears to be this same subpoena on Christmas. Radack's tweet at the time went mostly unnoticed, though Adam did respond over a week later to her. As for the DevinCow account, there appears to be absolutely no obvious or public connection between Radack and DevinCow, and no reason to include that account here. Indeed, in responding to a question from myself, DevinCow told me that it has "no connection" to Radack and is "not even sure what is behind all of this craziness."

Based on that, it's extremely unclear why those two accounts (and possibly others) are included in the subpoena. And, given that the identity of DevinCow, in particular, is so important in Nunes' case, you can see how the inclusion of that account and some others may raise some eyebrows about just what is going on here. So, while many people may have misinterpreted the original Sparrow Project tweet to suggest it involved a Nunes case, the subpoena in question is technically from a totally different case, not officially involving Nunes. It's just the same lawyer for both cases. But, it should raise some serious questions as to why the (mis-targeted) subpoena in the Radack case is being used to target communications that appear unrelated to the Radack case, but potentially of significant interest to a totally different case involving the same lawyer.

Filed Under: adam parkhomenko, breach of contract, communications, defamation, devin nunes, devincow, direct messages, free speech, jesselyn radack, sca, steven biss, stored communications act, subpoenas, the sparrow project, trevor fitzgibbon
Companies: twitter

Company Sues Blackhat Because People Mocked Their Sponsored Presentation And Called It Snake Oil

from the good-luck-there dept

Sean Gallagher, over at Ars Technica, has a story about yet another bizarre lawsuit. A company called Crown Sterling, which claims it's disrupting the entire encryption business, is suing the Black Hat conference organizers after it paid $115,000 to be a "gold sponsor," only to find their presentation widely mocked. You can read the complaint here. It's quite something.

Gallagher's article does a nice job summing up the presentation and the background in a single paragraph:

Grant's presentation, entitled "Discovery of Quasi-Prime Numbers: What Does this Mean for Encryption," was based on a paper called "Accurate and Infinite Prime Prediction from a Novel Quasi-PrimeAnalytical Methodology." That work was published in March of 2019 through Cornell University's arXiv.org by Grant's co-author Talal Ghannam—a physicist who has self-published a book called The Mystery of Numbers: Revealed through their Digital Root as well as a comic book called The Chronicles of Maroof the Knight: The Byzantine. The paper, a slim five pages, focuses on the use of digital root analysis (a type of calculation that has been used in occult numerology) to rapidly identify prime numbers and a sort of multiplication table for factoring primes.

Even from that description, you might be rolling your eyes. There's also a response paper from Mark Carney from the University of Leeds who basically debunks many of the claims in Grant's paper. The summary is pretty straightforward:

A recent publication by Grant et al. [2] has revealed some innovations with respect to the checking and generation of prime numbers with which to crack cryptographic keys. We argue that their method is minimal, and go on to prove some general cases of the mathematics they present - specifically refuting two of their claims. We also present more computationally efficient methods, and use these as a spring board to refute the existence of any practical efficiency improvements coming from this methodology.

Some, of course, were a bit less academic in their criticism, speaking out against the presentation on Twitter and heckling Grant during the presentation itself. PC Mag published an article quoting a cryptography expert who said it had "all the signs of 'snake oil' crypto." That's from Jean-Phillippe Aumasson. He also noted:

"The content of the paper and the so-called discoveries are either 1) obvious, well-known mathematical properties that any high school student would easily find, or 2) plain wrong."

Aumasson also had quite the Twitter thread going during the talk.

Either way, all of this resulted in Crown Sterling suing Black Hat. According to the lawsuit, part of paying Black Hat $115,000 to get a "sponsored talk" slot also meant people aren't supposed to criticize them:

In the face of all of this, Black Hat USA, as the Black Hat conference organizer and party with whom Crown Sterling entered the Sponsorship Agreement, had an obligation both to conference attendees and to Crown Sterling to ensure that Crown Sterling, as a participant and a sponsor, was treated only with respect and dignity. Black Hat USA also had an obligation to provide Crown Sterling the benefit of its bargain, which was to be able to use its exhibitor booth and its sponsored session as means to invite fair, open, considerate and non-abusive dialog regarding its technology breakthrough, and to attract prospective clients, collaborators and business partners.

Good luck with that theory.

There may be a slightly stronger argument that Black Hat then did breach its contract by removing any mention of Crown Sterling from its website and then refusing to return the sponsorship money. That... gets a bit more iffy. There is some issue here in that Black Hat probably should review its sponsors a bit more carefully. And, if it's going to recognize that it was had and pull a sponsor's name off the website, it does seem like perhaps they should have given some money back. But, the flip side to that is that, until Black Hat realized what was going on, Crown Sterling appeared to get what it paid for -- a booth, promotion, and a speaking slot. It's only after all of that when Black Hat removed their name from the site.

Crown Sterling never could have anticipated what happened instead: Black Hat USA itself, rather than enforcing its own Black Hat protocol and Code of Conduct, and rather than renouncing the abusive conduct and demanding civility and decorum, instead made good on that detractor’s threat to “take Crown Sterling down” by publicly stating that it had taken down Crown Sterling’s presentation materials from its event website. In fact, this statement was false. Black Hat USA had never posted the Crown Sterling materials on its website, and presumably did not know its contents when it subsequently purported to have screened them after the fact, and based on this screening which never occurred, taken them down. What Black Hat USA did do, however, is take down any mention of Crown Sterling’s participation in the event from its website, essentially disavowing their presence and vitiating the very essence of the Sponsorship Agreement.

But... even that seems weak. As does arguing that Black Hat telling the press about this decision is somehow defamatory. That ain't how defamation works, guys.

Black Hat also sided with the detractors in the most public of ways, providing a statement for the very PC Magazine article that served as a mouthpiece for those conference detractors. In its statement, Black Hat USA confirmed that it would take down Crown Sterling’s content from its website, and it disavowed Crown Sterling as a sponsor. By doing so, Black Hat USA unfairly and inappropriately placed its imprimatur on the abusive sponsored session disruption and the defamatory smear campaign that followed shortly thereafter.

Notably, the lawsuit itself is not for defamation -- just breach of contract and breach of "implied covenant of good faith and fair dealing." It seems likely that this lawsuit is a long shot for a variety of reasons. But, it also isn't going to do much to improve Crown Sterling's reputation among cryptographers.

Filed Under: breach of contract, encryption, prime numbers, robert grant
Companies: black hat, crown sterling

Irony: Sony Pictures Sued For Failing To Stop Piracy

from the shoes-on-the-other-foot dept

For many years now, the MPAA and the various studios that make it up have filed various lawsuits against various internet platforms for not waving a magic wand and making piracy disappear. This also appears to be their big complaint against Google, which has bent over backwards trying to appease the industry and it's still not enough (of course, that may be because what the industry really wants from Google is money, not stopping piracy). But now the shoe is somewhat on the other foot as Sony Pictures is being sued for failing to stop piracy. Really.

The case stems from the infamous Sony hack from a year and a half ago, where all of Sony Pictures' emails were released onto the internet. Possibility Pictures is suing Sony claiming the hack created a breach of contract in its failure to stop piracy of its film, To Write Love On Her Arms (TWLOHA), a 2012 movie starring Kat Dennings, based on the true story of the struggles a woman went through leading to the founding of her charity (which goes by the same name as the movie). While most people focus on the emails from the hack, it should be noted that before those emails were released, the hackers released some pre-release films... including TWLOHA. And that, Possibility claims, is a breach of Sony's contract.

Reading through the full filing, the key breach appears to be of Section 16.7 of the contract, which includes an "anti-piracy authorization" stating: So that's kind of amusing, since the clause is clearly designed to give Sony the power to send out threat letters and takedowns and use DRM and other such stuff -- but Possibility is basically turning it around on Sony and arguing that its failure to stop piracy shows that it did not use "appropriate technical measures." I'm not sure a court will go for this kind of judo move in flipping the anti-piracy authorization clause around to suggest that it puts certain contractual requirements on Sony Pictures, rather than simply authorizing it to do certain things as the language is clearly designed to do.

The lawsuit goes on and on about all of the great marketing plans Possibility had for the film (Justin Bieber's mother was going to tweet about it!), but apparently that was all ruined when the hackers, whoever they were, leaked the film. It also highlights Sony's earlier security problems, focused on the famed PSN hack, even though that's an entirely separate subsidiary from Sony Pictures. And then it spends a lot of time pointing to reporters who pointed out that Sony Pictures' computer security was abysmal. That's true... but it's not clear that's against the law. Basically, this lawsuit is mostly "Sony incompetent" and then "because of that our contract was breached."

Possibility then tries to show damages from the leak of the film.

The direct and proximate result of the foreseeable and avoidable Data Breach just four months prior SPWA's planned release of the Picture was an extreme dilution of the otherwise viable market for Plaintiff's Picture. The November 2014 Data Breach resulted in the unauthorized release of the Picture on multiple sites worldwide and destroyed the audience demand for the Picture. Following the Data Breach and worldwide pirated release of the Picture, SPWA abandoned the social marketing plans and lost all interest in promoting and marketing the Picture since it was otherwise available for free as a result of its failure to maintain adequate security of the Network. As an isolated sample of the damage caused the anticipated video-on-demand ("VOD") revenue stream of the Picture, note that in the first six days alone following the Data Breach, the stolen Picture master was downloaded-for-free a reported 19,949 times (an average rate of over 3300 illegal, revenue-free downloads per day).

So... a few things on this. First, downloads don't equate to lost sales, generally speaking, so the attempt to suggest that here without further evidence is pretty silly. Second, less than 20,000 downloads is... kinda weak. It certainly suggests there wasn't much interest in the film in the first place. Third, the idea that there's no market for a movie that's available for free online is easily debunked by the numerous movies that do quite well at the box office and in the home video market despite also being pirated online.

However, the more interesting bit is that this puts Sony Pictures in the fairly awkward position of potentially having to argue that piracy isn't really that damaging to a picture. I'm guessing that Sony Pictures and the MPAA want no part of that argument ever being filed in a court, because it will boomerang back to hurt them.

Either way, the filmmakers are demanding almost $9 million:

The amount of that revenue for which we seek payment, less amounts paid to date, is $8,738,331...

For a movie that not that many people seemed interested in?

Separately, Possibility notes that Sony pointed out that there's a binding arbitration clause in their contract, and Sony has already said that if there's a dispute it must be handled by such an arbitration setup. Possibility tries to get around this, but (unfortunately!) courts have tended to accept these binding arbitration clauses as valid.

If I had to put odds on it, I wouldn't give this lawsuit much of a chance of surviving. The attempt to turn an anti-piracy authorization clause into some sort of requirement to block piracy is a massive stretch. The mandatory arbitration clause is also a problem. Plus, the overall lawsuit is pretty weak. The claim itself is not very well backed up. Chances are Sony can get this tossed out quickly -- but it will be amusing to see if it has to argue that piracy isn't really that damaging. That would be fun.

Filed Under: breach of contract, lawsuit, movies, piracy, sony hack, to write love on her arms
Companies: possibility pictures, sony, sony pictures

Another Bad Ruling In California Threatens To Massively Undermine Section 230 By Exempting Publicity Rights

from the this-is-bad dept

What a week. Just a few days after we wrote about a dangerous ruling in a federal appeals court in California concerning a way to get around Section 230 of the CDA, now we have another problematic CDA 230 ruling from California in the form of a ruling from San Mateo Superior Court judge, Donald Ayoob, that has the potential to do a lot of damage to Section 230 as well as anti-SLAPP efforts in California. Paul Levy has a very detailed post about the case, but we'll try and do a summary here.

The case involves Jason Cross, a "country rap" musician who performs under the name Mikel Knight, who has apparently made a name for himself through a highly aggressive "street team" operation that basically travels around in vans pushing people to buy Knight's CDs -- and there are plenty of accusations of sketchy behavior around how those street teams operate, and how Cross treats the people who work for him. Apparently, Cross was not happy with a Facebook group entitled "Families Against Mike Knight and the MDRST" (MDRST standing for Maverick Dirt Road Street Team, which is what Cross calls the street team). He then used a court in Tennessee to try to get Facebook to identify who was behind the group, and then demanded that the page be taken down. That effort is still ongoing, but has been temporarily postponed, while he then filed a separate lawsuit in California against Facebook and whoever is behind that group, a variety of things, including breach of contract, negligent misrepresentation, negligent interference with prospective economic relations, unfair business practices and various publicity rights violations. Oddly, as Levy points out in his post, despite listing John Does as defendants, the complaint doesn't describe anything anyone did other than Facebook. However, as part of the discovery process, Cross did (of course!) ask Facebook to identify the people behind the group criticizing him.

Facebook, quite reasonably, asked the court to dismiss the case under California's anti-SLAPP law and pointed to Section 230 for an explanation of why it's immune. The ruling, unfortunately, is very, very confused. It grants some of Facebook's request, saying that Facebook didn't breach any agreement in failing to remove the group, but refuses to dismiss the publicity rights claims, stating that publicity rights are "intellectual property" and intellectual property is not covered by Section 230. The first half of the ruling does note that Facebook is not liable for the regular content on those pages and thus it was under no obligation to take them down, but then goes off the rails on the publicity rights claim.

You might wonder where there's a publicity rights claim in any of this, but it appears that Cross is arguing that because the group (a) uses images of himself (as Mikel Knight) and (b) Facebook puts ads on those pages, that this is an abuse of his publicity rights for commercial advantage. Really.

Here, it is alleged that Facebook had knowledge since October 2014 that pages using Knight's likeness and identity were being created on its site.... Knight states that he did not consent to these pages or the advertising Facebook placed on them.... Facebook's financial performance is based on its user base; accordingly, Facebook' s alleged use of Knight's image on the unauthorized pages generates advertising revenue for the company.... Knight states that Facebook's unauthorized use of his image has resulted in substantial harm.... Accordingly, Plaintiffs have shown a probability of prevailing on their rights of publicity claims. Because the Sixth Cause of Action is a derivative claim that may arise from either or both the Fourth and Fifth Causes of Action, here to Plaintiffs have shown a probability of prevailing.

This seems wrong on a number of different accounts. First, and most importantly, how the hell is this a legitimate publicity rights claim? Publicity rights are supposed to be about stopping companies from using an image of a famous person in a manner that suggests endorsement when the person did no such thing. It's a very, very twisted (and incorrect) notion to argue that because Facebook has some ads on the same page as a group that complains about Cross/Knight that it's violating his publicity rights. As Levy notes in his post:

If this ruling is upheld, it will blow a gaping hole in the immunity provided by section 230. Plaintiffs who are unhappy about being criticized on any platform provided by an online service provider will be able to force the removal of those materials, and without even showing that there is anything false or otherwise tortious about the criticism – all they will have to argue is that they did not give permission for the use of their names or images in the criticism and that will be enough to make out a viable legal claim against the hosting company.

That's frightening. But, as Levy also notes, this seems to clearly be a misreading of the law:

...it simply cannot be the case that a violation of the right of publicity can be found whenever someone talks about a celebrity and thereby makes a profit. People Magazine and the National Enquirer, for example, and a variety of other publications make their money writing about individuals about whom the public has an insatiable appetite for information, but they do not require the celebrities’ permission to write about them. Indeed, to the extent that the right of publicity is analogous to trademark rights, it applies when a use of the celebrity’s name and likeness creates a likelihood that consumers will believe that the celebrity has endorsed the company that used the name and likeness (analogous to the “likelihood of confusion” requirement).

The judge here is just confused.

Second, there's the question of whether or not CDA 230 should or should not apply to publicity rights claims. It is true that CDA 230 explicitly carves out "intellectual property," but as Levy notes, there's some debate as to whether or not that applies just to federal IP laws or if it also covers state ones. Publicity rights are a purely state law concept. Of course, I think the argument could go even further, and it could be claimed that publicity rights shouldn't even be considered intellectual property in the first place. I already have issues with lumping copyright and patents together with trademarks as "intellectual property." But adding amorphous and ever changing publicity rights into the same bucket is problematic as well. There is no official definition of what counts as "intellectual property." This is, perhaps, more of a problem in that CDA 230 should have never created such a broad carveout (or should have at least specified "copyright" or whatever), but stretching the exemption to cover publicity rights is dangerous -- especially when courts like this one seem so confused about what's actually covered by publicity rights.

Levy also notes that there's a First Amendment issue behind all of this, in that it's pretty clear that Cross is seeking to suppress people saying things about him that he doesn't like. Levy -- who has been investigating this case to see if his organization, Public Citizen, should get involved (and his post details talking to a number of people who used to be a part of Cross's "street team") -- notes that he's intending to file an amicus brief in Facebook's inevitable appeal.

Either way, it's unfortunate that a judge would get such issues so incredibly wrong in a manner that could have a serious impact on free expression. Hopefully, the ruling is quickly reversed on appeal.

Filed Under: anti-slapp, breach of contract, california, cda 230, defamation, jason cross, mikel knight, publicity rights, tennessee
Companies: facebook, maverick dirt road street team

Donald Trump's Lawsuit Against Univision Is Absolutely Hilarious

from the yes-we'll-add-the-obligatory-xkcd dept

Donald Trump seems to be showing off what would happen if your prototypical internet troll had way too much money at his disposal. As you may have heard, he's putting on a big show of "running" for President, though as many have recognized, the move appears to be a hell of a lot more about getting himself publicity (thankfully, at least some news organizations are properly categorizing stories about Trump as entertainment rather than politics). Of course, the plan to get more attention may be backfiring somewhat, as some of the ridiculous comments he's made "on the campaign" are coming back to bite him -- including Univision cutting ties with him over the Miss USA telecast and NBC dumping both the pageants and his Apprentice series (that thing is still on?).

In response, Trump has filed what has to be one of the funniest lawsuits we've seen in a long time against Univision over the cancelled deal. It honestly reads like one of those nutty conspiracy theory lawsuits we see all the time, often filed pro se. You'd think that Trump would have trouble finding lawyers willing to file nuttiness on his behalf, but apparently there's always someone. It even resorts to the worst trolling tactic of internet commenters: complaining that his "First Amendment rights" are being violated because Univision dropped him. And it all involves a conspiracy involving Hillary Clinton. Seriously.

While Univision has claimed in the media that its decision to cut ties with MUO came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly veiled attempt by Univision, a privately held company principally owned by longtime Clinton Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump's freedom of speech under the First Amendment as he begins to campaign for the nation's presidency and, in recent weeks, has dramatically risen in the polls while expressing critical views of Mrs. Clinton. Little else can explain Univision's decision to not only abandon its contractual relationship with MUO, but also, upon information and belief, pressure NBC to follow suit and cut longstanding ties with Plaintiffs nearly two weeks after the statements were made.

First of all, as all of you (minus a few trolls) are currently screaming right now, no the First Amendment has absolutely nothing to do with this. We'll let the obligatory xkcd explain: The statement is also entirely superfluous to the lawsuit as well, as none of the actual legal claims have anything to do with his First Amendment rights. Apparently Trump could get the lawyers to throw that bit into the description of the case, but when it came time to make actual claims, even the lawyers wouldn't go so far as to make a First Amendment claim.

Also, "little else can explain?" Really? Actually, there are tons of other explanations, with many of them being a hell of a lot more plausible than any fear of Trump being a legitimate contender for the White House -- for example, the actually stated reason that Trump out and out offended the entire country of Mexico with some ridiculous statements.

Next up in the internet troll playbook, we have the ridiculous claim of "defamation" over statements that the person doesn't like, but which are clearly statements of opinion, rather than fact:

In a move which can only be described as both tasteless and defamatory, on June 25, 2015, Mr. Ciurana, Univision's President of Programing and Content, then posted a photo on his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old who was recently arrested in the murder of nine (9) African-Americans attending bible study at a church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S. soil. While Mr. Cuirana would later remove the defamatory post, the damage was already done: almost immediately, Mr. Ciurana's post was picked up by the media and became the subject of hundreds, if not thousands, of press articles, yet another example of Univision's dubious efforts to create a false narrative in an attempt to upset Mr. Trump's longstanding personal and business relationship with the Hispanic community.

If you're curious, here's the Instagram that Alberto Ciurana put up: It's pretty clearly a somewhat weak attempt at humor, mocking the hair cuts of Trump and Roof. Tasteless? Perhaps, but there's no law requiring anyone to be tasteful in their internet jokes. Defamatory? Not in any way, shape or form. Not even close. And yet, unlike the non sequitur (and incorrect) First Amendment claims earlier, the lawsuit actually does claim defamation.

It's entirely possible that there are legitimate issues concerning breach of contract here, but even most of that seems like a stretch. Because Univision didn't just cut ties with Trump, it actually agreed to pay the full licensing amounts it promised for the next five years (totaling $13.5 million). In other words, Trump actually didn't lose any direct money from this, because Univision paid up (and, in theory, he could try to license it to someone else, though I'm not sure who would want to pay at this point). But Trump is -- hilariously -- claiming damages of $500 million because now people won't see the pageants.

Of course, Trump's own arguments undermine his arguments (because of course they do). The lawsuit repeatedly brags that there was a bidding war earlier this year, in which Univision emerged victorious. Thus, at least a few months ago, other TV media properties wished to broadcast the pageants. If it was true that this was all just a grand conspiracy by Hillary Clinton supporter Saban, then you'd think that Trump could simply move on to whoever else was in that bidding war (while keeping all the money that Univision paid him anyway!). But, of course, if the real reason for the cancellation was because of Trump's comments about Mexico and the concern about how Spanish-speaking audiences felt about that -- well, then Trump wouldn't be able to find that alternative.

The lawsuit is then equally hilarious in arguing that it can't possibly be Trump's offensive comments about Mexico because Trump has said the same offensive crap many times before. That seems like an odd thing to argue in such a lawsuit, but it's what Trump's lawyers have chosen to claim:

In reality, however, Mr. Trump's calls for immigration reform, particularly with respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump had, in numerous television and news interviews, consistently voiced his concerns regarding the influx of illegal immigrants pouring into the United States across the Mexican border and the crime that has resulted therefrom, views which were widely reported by every major media outlet, including, both Univision and NBC.

As Mr. Trump explained in an interview with Fox News' Bill O'Reilly on March 30, 2011, "[t]hey're coming over, and they're climbing over a fence, and there's nobody within 10 miles -- and they're selling drugs all over the place, they're killing people all over the place -- and we're not doing anything about it."

Indeed. It may be true that Trump has said offensive things in the past, but that doesn't mean that Univision can't later decide that the greater attention paid to his more recent offensive comments are such that it no longer wishes to do business with him. There's no rule anywhere that says, "Well, if you didn't complain four years ago when I said some stupid shit, you can't complaint now!" Even if it's true that Univision is only making this decision because Trump's comments went a bit viral, that's Univision's decision to make, and his previous comments are completely meaningless.

Frankly, this lawsuit is absolutely hilarious. The chances of it going anywhere are pretty slim. The First Amendment arguments are ridiculous, but meaningless, as there's no actual legal claim there. The defamation claims are going to get laughed out of court. The whole thing is fairly hilarious, and fits in with the designation of Trump as "entertainment" rather than anything even remotely serious.

Filed Under: breach of contract, contracts, defamation, donald trump, first amendment, free speech
Companies: nbc, univision

Yelp Sues Law Firm For Posting Fake Reviews

from the be-careful-what-you-review dept

Fake reviews online are something many people have just come to expect. Just recently we discussed an example of where it was obvious there were a ton of fake reviews on Amazon.com. Many sites that include user reviews work pretty hard to scrub the obviously fake ones, but it appears Yelp has taken that to a new level, deciding to sue a law firm for posting fake reviews. It should be noted that this same law firm, McMillan Group, previously had sued Yelp, claiming that it had been "coerced" into buying ads to get favorable reviews, so you could argue that there's a reason this particular firm was targeted. But, either way, it raises some fairly interesting legal questions.

Specifically, Yelp is arguing that when McMillan employees created fake accounts in order to post bogus positive reviews for their own firm, they violated the terms of service of the site. Thankfully, (unlike Craigslist), Yelp doesn't try to argue that violating the TOS is a CFAA violation. Instead, the lawsuit focuses on some specific charges including breach of contract, intentional interference with contractual relations, unfair competition and false advertising.

The filing details, rather comprehensively, how over a period of a few months, it appears that employees at the firm created accounts and immediately posted positive reviews of the firm, sometimes claiming things that are unlikely to be true. For example, certain users claim to be clients of the firm, which focuses on bankruptcy law, and then point out that the individuals in question have never filed for bankruptcy. There's also an amusing bit in which four accounts are created, one after the other, from a McMillan IP address, each leaving very positive reviews within minutes of creation, then logging out right before another account is created. And, of course, none of those accounts ever logged back in. Oh, and two of the accounts created one after the other started their posts with the identical sentence, including a typo:

They promissed [sic] me a fresh start through a Chapter 7 Bankruptcy and I got it.

Same exact sentence in both, one posted right after the other, but with different names and different accounts. Throughout the filing, you realize that these attempts to fake reviews are so hamhanded, that they were clearly done by someone who has no idea how to cover their own tracks. There were lots of cases of using the same IP address which was already associated with the company. In another case, the same email address is used for multiple accounts. It's as if they don't realize that Yelp can check these things.

No matter what, this should be an interesting lawsuit. While it does seem pretty clear that Yelp has caught this firm red-handed writing fake reviews, there are some pretty big questions as to whether or not that's actually a legal offense for the courts to sort out. There's a part of me that thinks that Yelp has every right to take action on its own site against those reviews and reviewers -- such as deleting the reviews and banning the reviewers -- but making the legal claims stick feels like a pretty big stretch. Also, some of the reviews they complain about don't even seem that questionable -- such as the so-called "circle of local lawyers" in San Diego who all reviewed each other. In some cases, those reviews just say things about how they recommend their own clients to those other lawyers when an issue comes up (such as bankruptcy) that another lawyer specializes in. That may actually be completely accurate.

There may be something to the fact that lawyer advertisements tend to be much more heavily regulated, so I could see a potential issue with false advertising, but I'm not sure that that's an issue for Yelp to take up directly, rather than whoever's in charge of making sure lawyers are advertising within the limitations of existing regulations. There's also some potential argument that a customer of the law firm could have standing to argue that they were harmed after believing fake reviews (though, even that's a stretch), but to argue that Yelp itself is harmed is, again, a bigger stretch (not impossible, but not a slam dunk).

None of this is a defense of the actions of whoever wrote those reviews, as it appears there's fairly strong evidence that the reviews are faked, I'm just not convinced that means it violates the law.

Filed Under: breach of contract, fake reviews, false advertising, law firms, reviews
Companies: mcmillan group, yelp