US Judge: Baidu's Decision To Block Certain Sites Is Protected By The First Amendment

from the of-course-it-is dept

We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it's in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York's "public accommodations law."

And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:

In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”

My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY's public accommodations law -- and whether or not that compels Baidu to "speak" in a certain way by changing its algorithms and results. It's that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu's choices are a form of protected expression.

The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case -- Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can't be forced to include groups they disagree with:

The question in Hurley was whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at 11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the parade organizers did not themselves create the floats and other displays that formed the parade and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor . . . does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”

In both of these cases, I would personally disagree with the choices made. I think it's awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it's ridiculous that various St. Patrick's Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.

This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there's really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.

Filed Under: blocking, chinese democracy, editorial choices, first amendment, free speech, search engines
Companies: baidu

The Full Story Behind The RIAA & FBI's Insanely Wasteful Prosecution Of The Dude Who Streamed Guns 'N Roses Album

from the what-a-joke dept

Back in the summer of 2008, we wrote about the bizarre move by the FBI to arrest Kevin Cogill, at gunpoint, for having posted a bunch of tracks from the as-yet-unreleased Guns 'N Roses album, Chinese Democracy. Of course, as pretty much everyone knew, GNR (actually, Axl Rose) had been working on that album for over a decade, pretty much refusing to ever release it. It was the vaporware of the music industry. As we noted at the time, pretty much every album eventually gets leaked, and it tends to get those albums more attention. In fact, many labels purposely leak albums. Cogill received the album via someone who emailed him the tracks, he put them up on his music website, Antiquiet, in a streaming-only format (so no downloading), and took them down about an hour later after the website got slammed with traffic.

And for that, you have a bunch of FBI agents show up at your door pointing guns at you? We couldn't understand why the FBI would be wasting taxpayer money on this at all. At best, it seemed like it should have been a civil matter for Universal Music to take up.

Either way, as we noted, the leak (and subsequent arrest) appeared to actually act as a huge marketing boost for the album's eventual release, and as the details of the criminal case against Cogill fell apart, prosecutors dropped the felony charges altogether, and eventually Cogill agreed to a plea deal, which was two months of house arrest and that he would do a public service announcement (PSA) for the RIAA. And then the RIAA never made him do the PSA, so instead he gave an interview talking about how people involved in file sharing can "get F'd in the A" by the RIAA.

It's been quite a few years since then... and Cogill -- statute of limitations now well behind him -- has decided to tell the full story of what happened. It's worth reading, as you learn about the typical insanity of the FBI completely overreacting, being led around by the nose by RIAA and Universal Music people who were simply misleading or lying about things -- yet another crazy story of massive overreaction by the industry to anything that seems like "piracy." In fact, as the report notes, the "leak" (which again, was about an hour's worth of streaming on a website) helped get lots of attention for the album, and Universal Music actually used the hype from the leak to sign a massive deal with Best Buy to presell 1.3 million albums. In other words, no harm done by the leak... at all.

You should read the full account, but I wanted to call out a few key sections. Cogill was officially charged under 17 USC 506(a)(1)(c), which is a special tidbit in the law that provides criminal penalties for leaking something that hasn't been released yet (that's how the FBI could pretend this was a serious criminal matter). But, Cogill and his lawyer had a rather useful response in their back pocket:

For that statute to be applicable, the work would need to be demonstrably headed towards a public release, and for it to apply to me, the court would have to prove that I had reason to believe that it was in fact being prepared for commercial distribution. In other words, the US government would have to prove, in court, that Chinese Democracy was really coming. And no one at the RIAA or the label had informed the government that these songs had been lying around for 14 years. Only that they had cost $12 million. The government would soon come to realize the RIAA had given them a pretty shitty case.

Remember, at the time, this was the album that seemed to be perpetually postponed with no plans of release. Turns out, that kind of sunk the case -- but the FBI, as it's done way too often, simply took the word of the entertainment industry guys on things that turned out to be untrue (this is neither the first nor the last time that the RIAA has led the DOJ on a wild goose chase, which the DOJ only discovered way too late). In fact, Cogill notes that once things got going, the situation was basically the DOJ trying to figure out how to extricate themselves from the disaster they'd gotten themselves into by buying the bullshit story the RIAA gave them.

David [Kaloyanides, Cogill's lawyer] made me feel invincible. He knocked out any talk of a felony copyright charge in the first round, and the entire battle from there on out became, more or less, a matter of the US government trying to save face by figuring out how to slap me with a misdemeanor. They had set out to string my body up for all would-be music pirates, but David and I shared a resentment for the fact that the government of this country that we love so much let a bunch of lobbyists do their homework for them. We were out to make a nuanced point about our disagreement with Johnny Law.

There are also a number of other bizarre asides, including wild goose chases from random other fans, including one who claimed to also have a copy of the album. Oh, and then there was this tidbit, which again undermined the case:

There was the copy of Chinese Democracy on 12″ vinyl that I bought at Amoeba Records in San Francisco, a bootleg. After the RIAA’s spotty discovery, it was a revelation to the government that any of these tracks had leaked before in any form. Let alone the facts that, first, not only were most of these tracks “out there” in some form for years, but second, that all but a couple could be casually purchased in a record store, here in our own backyard, far from a hot commodity or some underground secret.

And, as mentioned before, Universal's deal with Best Buy:

Chinese Democracy was finally released on November 23rd, 2008, exclusively at Best Buy, about 20 weeks after my leaks. That’s from no concrete plans, to going up on shelves. Pretty quickly, especially if we’re talking about the poster child for album delays. What did we know about that deal? Best Buy paid a large up front sum for the exclusive, at least seven figures, by all reports. We obtained evidence showing that the value of that exclusive was determined largely by the media hype my leaks had created. UMG had shown Best Buy charts of Google traffic for Chinese Democracy that started spiking in June, and was riding high. The iron was hot, so to speak. And before Best Buy got on board, the only heat source was the fire under my ass.

Oops.

But there's also this: Cogill notes that he's never been in the "leaking" business, but rather a journalistic one. He covers the music industry and had written about how the album would leak, because all albums leak -- and because of that, someone sent him the leak. He posted about it from a journalistic standpoint, rather than because of any attempt to "leak" the album. And, from his account, for a while he didn't seem to realize just how insane the laws, law enforcement and our legal system are. Combine that with a clueless bunch of FBI agents easily pushed around by the RIAA, and you get this kind of insanity. The fact that Cogill had told the FBI repeatedly beforehand that if they wanted to arrest him to let him know and he'd show up... and they still showed up with guns drawn is just part of the insanity that happens when you have the kind of ridiculous claims from the RIAA, MPAA and the like about how these leaks are "destroying" their business... at the same time they're using them to their own advantage. Even the judge in the case couldn't understand what happened:

The judge was suprised that they arrested me at gunpoint. He actually said, “I don’t understand why this wasn’t a summons case, like I recommended.”

At some point, perhaps the folks at the DOJ are going to finally realize that when the MPAA and RIAA tell them crazy stories about "piracy" that they're exaggerated beyond belief. Until then, every time we hear about the stories where they screwed up royally -- such as with Cogill or Dajaz1 or Rojadirecta or Megaupload -- they just look completely clueless.

Filed Under: chinese democracy, copyright, doj, fbi, guns n' roses, kevin cogill, pre-release
Companies: riaa