Copyright Continues To Be Abused To Censor Critics By Entities Both Big And Small

from the tools-of-abuse dept

We've talked far too many times about how the DMCA takedown processes across internet industries as they stand are wide, wide open for abuse. From churches wielding copyright to attempt to silence critics engaging in protected speech, to lawyers using copyright to try to silence critics engaging in protected speech, to freaking political candidates abusing YouTube's DMCA notice process to silence critics engaging in protected speech... well, you get the idea. The point is that we've known for a long, long time that the current method by which the country and companies currently enforce copyright law tilts so heavily towards the accuser that it's an obvious avenue for misuse.

And this is an issue created by bad actors big and small. Hell, apparently you cannot even criticique a sophomoric prank joke troop on YouTube without being targeted using copyright law.

Last week, Tripping, a smallish YouTube creator with about 88,000 subscribers, faced an uphill battle to keep one of his videos up. It was pretty standard as far as social commentary videos go on YouTube: an 11-minute presentation about “The Rise and Fall of NELK,” a prank channel that has nearly 7 million subscribers.

But since Tripping posted it in May, it’s been flagged for “copyright” infringement several times. Last week, it was successfully taken down by YouTube before being reinstated over the weekend, when 21-year-old Quentin, who owns the account, disputed it. But Quentin is now concerned that his video criticizing the pranksters was successfully censored by the Nelk Boys themselves through a loophole he says YouTube isn’t vetting carefully enough.

That appears to be precisely what happened. The back and forth over this 11 minute video is fairly amazing. The whole video called out the Nelk Boys for doing a bunch of dumb stuff, most specifically with regards to ignoring COVID and encouraging others to do the same. Other behavior was questioned as well. A week after posting it, Quentin's video got flagged for a copyright claim and was blocked. He fought that claim and the video was put back online. Then, months later, Quentin was assessed his first copyright strike by YouTube, meaning his account was now in jeapordy of being shut down if future strikes occurred.

And the email from YouTube listed Kyle Forgeard of the Nelk Boys as the copyright owner issuing the claim resulting in the copyright strike.

“They’re using copyright ... and YouTube’s system as a way to avoid the criticism; it’s a very common thing on YouTube,” he said. “There’s no way for YouTube to determine what’s this or that. If Nelk [claims copyright], they’re going to have to accept it out of respect for Nelk and YouTube not getting sued. But with fair use and for commentary, you’re allowed to use clips in that manner.”

When I reached out, a spokesperson at YouTube said users can file a dispute if they think their account was flagged erroneously, and, in this case, it was. I then asked them how YouTube is going to improve this system — especially when algorithmic moderation has become a widespread issue time and time again — but I did not hear back.

And that's why nothing ever changes. The onus for getting protected speech back online, in the vaunted opinion of YouTube, falls squarely on the victim of the censorship-by-copyright tactic. Any time you try to kickstart a conversation about how to improve this system to make it balanced instead of tilted towards the claimaint, you get crickets. And the end result is the YouTube creator community being completely rudderless as to what exactly they're supposed to do.

Quentin said he feels somewhat powerless when something like this comes up: “[Nelk] are so much larger than me. They have millions of subscribers and fans, and I only have a minimal fraction of what they have. All I’m betting on is YouTube is finally reviewing it and coming to terms with what’s right.”

He added, “I wouldn’t be surprised if they still want that video down.”

He just hopes YouTube “implement[s] a system that prevents larger channels from filing claims like this and have it go directly through because copyright is a serious thing.”

As is fraud and censorship, I might add. But for far too long YouTube has been reluctant to do anything about that side of this equation, preferring instead to molify the copyright industries and leave some segment of its user base hung out to dry.

Filed Under: censorship, commentary, copyright, dmca, takedowns, tripping
Companies: youtube

WIPO Says Johnson & Johnson Can't Seize Parody Website Suggesting Band Aids With Corporate Sponsors

from the brand-aid dept

Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quit your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.

There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.

Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.

Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.

Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.

The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:

Here, the Panel considers that the phrase chosen by Respondent in the Domain Name – “brandedbandaids” – does not itself convey parody of Complainant, its trademarks, and related products. Moreover, and while the Panel tends not to find Respondent’s arguments on this point terribly persuasive, it is also at least debatable whether the website linked to the Domain Name targets Complainant and its BAND-AID marks, or rather is intended as a more general parody of “the capitalization of public health,” as initially claimed by Respondent. See e.g., A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. supra (“In order to constitute parody, the web site must poke fun at the goods or services associated with Complainants’ marks: use of another’s trademark to poke fun at something unrelated to Complainant’s mark is not parody.”) Of course, the Panel also recognizes that Respondent has free speech interests protected as a constitutional right in the United States; however, under the law individuals do not enjoy absolute freedom of expression especially with respect to terms protected as trademarks.

But the key issue for WIPO is really whether or not the domain was registered in bad faith, and there's no evidence to support that.

Here, there is no doubt that Respondent, when registering the Domain Name, was aware of Complainant and its BAND-AID brand. The question is whether, despite that awareness, and in view of Respondent’s asserted artistic parody intention for registering the Domain Name, the registration and use amounts to bad faith.

Complainant has contended that Respondent’s registration of the Domain Name without authorization reflects opportunistic bad faith and was intended to exploit the goodwill and fame of Complainant’s marks in bad faith to improperly deceive Internet users and benefit Respondent financially. Complainant has pointed out that when Respondent initially launched her website, the disclaimer was not prominently placed and Respondent used an allegedly infringing version of the BAND-AID mark in the font and color typically used by Complainant. Further, Complainant argued that the ultimate effect of use of the Domain Name will be to cause confusion with Complainant, and thus the registration and use of the Domain Name must be considered to be in bad faith. Complainant has sought to emphasize that Respondent’s use should not be considered “purely noncommercial” because an Internet user, by using the link to Respondent’s Twitter account and then clicking through to her personal website, could be introduced to commercial ventures offered by Respondent.

In the face of these contentions, Respondent has argued that while a given use may or may not meet the standards for the parody defense, it may still be a sufficiently plausible, good-faith motive to overcome Complainant’s proposed inference of bad faith within the meaning of the Policy. Given the facts and circumstances of this case, the Panel agrees with Respondent on this point. See The California Milk Processor Board supra (“This may or may not meet the standards for the parody defense under United States trademark law, but it is a sufficiently plausible, good-faith motive to outweigh the Complainant’s inference of bad faith within the meaning of the Policy.”). Respondent has provided evidence to demonstrate that she is, in fact, an artist who engages in parody of the Internet, capitalism, online businesses and the technology industry more generally, while using websites, domain names and social media. Respondent has not demonstrated any interest in selling or transferring the Domain Name, nor is there evidence that she has previously made a practice of acquiring domain names resembling trademarks for sale. Respondent has claimed that the website linked to the Domain Name has no revenue or plan to seek revenue, and has submitted a sworn affidavit to this effect:

“I registered and used the website solely for the purpose of artistic parody. At no time have I ever sought commercial benefit from either the website or from the registration of the domain name.”

The evidence in this case supports Respondent’s assertion concerning noncommercial use. As for the link on the Domain Name’s website to Respondent’s Twitter account, which in turn might be used to link to Respondent’s personal website that reflects one or more commercial ventures, the Panel finds that this path is too attenuated such that it would by itself disqualify the Domain Name from noncommercial use. Further, since being contacted by Complainant’s counsel, Respondent has taken steps – through a disclaimer on the website and changing the font and color of text on the site – to respond to Complainant’s demands concerning the content of the website. This point is important because UDRP panels tend to assess relevant facts concerning use of a domain name with a view to the circumstances prevailing at the time of the filing of the complaint, and Respondent made the relevant changes before the Complaint was filed. See WIPO Overview 3.0, section 2.11. Ultimately, and acknowledging that the Policy criteria are non-exclusive, looking at paragraph 4(b)(iv) in particular, the Panel finds that owing to the credibility of the sworn assertion as to the noncommercial nature of the Domain Name and attendant website, the Domain Name was not registered and used in bad faith.

Finally, the Panel emphasizes that the decision in this case is limited to the criteria under the Policy, and the Panel makes no findings concerning the parties’ rights under applicable national law – which may in any event be better suited for determination by a court.

Complainant has failed its burden to demonstrate that the Domain Name was registered in bad faith.

As the panel makes clear, that doesn't mean Baskin is totally free and clear. J&J could still go after her in court for trademark infringement, in which case the fair use, non-commercial use and other defenses would be used and could prevail (though it would still be quite a mess). Hopefully, J&J realizes not only what a wasteful headache that would be, but also how it would make the company look like a ridiculous, censorial bully who can't take a joke.

Anyway, to celebrate, I'm going to go put Techdirt logos on some generic Band-Aids.

Filed Under: advertising, brand aids, commentary, danielle baskin, domains, parody, satire, trademark, vaccines, wipo
Companies: johnson & johnson

Estate Of 'Tintin' Comic Creator Loses On Fair Use Grounds To Artist Putting Tintin Alongside Women

from the comic-con-job dept

By way of a throat clearing, there are a couple of things you need to know about Hergé, the nom de guerre for the artist behind the well-known Tintin comics of yore. First, Hergé's estate has found its way onto Techdirt's pages before and has a reputation for being wildly restrictive and litigious over any use or reference to Tintin. Alongside that, you need to know that Hergé absolutely did every last thing he could to keep women entirely out of his comic strips. His reasoning for this can be best summarized as a combination of having a too much "respect" for women to include them in his humor comic... and also that women, according to his estate, were "rarely comic elements." Women, in other words, are bad for humor.

So it makes perfect sense that a modern artist decided to create new material featuring Tintin in romantic or risqué settings with women and both parody and commentary on the original works. And, likewise, it makes perfect sense that the Hergé estate sued over it.

In Breton artist Xavier Marabout’s Hergé-Hopper mashupsTintin is variously painted into Hopper’s Road and Houses, scratching his head as he greets a woman in a car; looking disgruntled in a version of Hopper’s Cape Cod Evening, 1939; and kissing a girl in a car, in a spin on Hopper’s Queensborough Bridge, 1913. On his website, Marabout describes his work as “strip art”, in which he “strips distant artistic universes to merge them together” in a style where “parody [is] omnipresent”.

But the Moulinsart company, which manages the Tintin business, disagrees, accusing Marabout of reproducing the world of Tintin without proper consent.

“Taking advantage of the reputation of a character to immerse him in an erotic universe has nothing to do with humour,” a lawyer for the company said in court in Rennes this week, where Moulinsart has sued for infringement, as reported by Ouest-France.

Thankfully for the entire world, lawyers are not generally considered the arbiters of humor. And there is good reason for that. Most fair use equivalents throughout the world carve out specific exemptions for parody and commentary for this very reason. New artists seeking to provide social commentary, through humor or otherwise, need the room to produce that commentary. The upturned nose of some estate lawyer somewhere is not supposed to be a barrier.

With that in mind, Marabout's rebuttal to the suit is roughly what you would expect.

In response, Marabout’s lawyer claimed the paintings were parody, reported Ouest-France, and cited a “conflict between copyright and freedom of expression and creation”, asking: “Does an artist have the right to wonder about Tintin’s sex life?” and “what about artistic freedom?” The Rennes court will rule in May.

Marabout told the Guardian that his work echoed the historian Christian Jacob’s belief that “there is no cultural transmission without reappropriation”.

Imagine a world in which an artist couldn't create artistic commentary on a socially important icon simply due to copyright law. More to the point, imagine one artist attempting to restrict artistic commentary from another on those same grounds. It's absurd and negates the way that art and commentary are made, not to mention that it hand-waves the importance of that commentary to society.

Fortunately, it appears that the French courts agree.

On Monday, Moulinsart’s complaint was rejected by the court in Rennes. “The court recognised the parody exception and the humorous intention expressed by my client,” Marabout’s lawyer, Bertrand Ermeneux, said.

The Rennes court also said that Moulinsart had “denigrated” Marabout by contacting galleries showing his work to say that it was infringing, Huffington Post France reported, adding €10,000 (£8,500) in damages for Marabout and €20,000 in legal fees to its ruling.

Given how the legal system has let the Hergé estate run roughshod over others in the past, this is as good an outcome as one could hope for. To not only see the suit tossed, but to see Moulinsart punished monetarily for his bullying ways is a breath of fresh air.

Still, we're left with the never ending question: why can't fellow artists and content producers understand that the same protections that protect their work also apply to other artists?

Filed Under: commentary, copyright, culture, france, herge, tintin

Uganda Said It Would Ban VPNs To Prevent Users From Dodging Its Absurd New Social Media Tax: Guess How That Worked Out?

from the OK,-we'll-just-tax-everything-instead dept

Three years ago we wrote about African countries that thought taxing blogs and social media was an easy way to raise money -- and to muzzle inconvenient voices. A year later, Techdirt was reporting on a sudden boom in VPN use among Ugandans keen to avoid that country's levy on social media use. As Karl Bode reported, back then the authorities were pressuring ISPs to ban the use of VPNs. A post on the Rest of the World site has a useful update on how things have worked out since then. First, the money:

after three years, the tax, which amounts to about 5 cents (200 Ugandan shillings) per day to access any of more than 60 social media platforms, has failed. It has neither helped the government raise significant revenue nor curtailed lively online discussions by young Ugandans.

In its first fiscal year, the Ugandan government was projected to collect about $77.8 million (248 billion Ugandan shillings) from social media tax. Instead, it raised only about $13.5 million (49.5 billion shillings). In the next fiscal year, Uganda lowered its expectations and projected to collect $16.5 million but only just slightly beat its target by raising $18.7 million.

The reason, as expected, is that people are turning to VPNs, often the free ones, despite the intrusive pop-up ads and questionable security. It turns out that it's harder to ban VPNs than the government thought. So the Ugandan authorities have come up with Plan B:

Thanks to VPNs users have found a way around the social media tax. That's why, on April 29, the government replaced the social media tax with a 12% excise duty on internet data that will likely hike the cost of internet access in the landlocked country that already has some of the highest internet costs in the region.

The idea here is presumably that even if people use VPNs, they will have to pay the data tax. That will probably work, but the move brings with it a huge problem. It will make using the Internet for any purpose in Uganda more expensive, which will not only discourage ordinary people from taking advantage of it, but will also throttle Ugandan online startups. However much the new tax brings in, it is likely to be far less than the deeper economic harm this short-sighted move will inflict.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: blogs, commentary, free speech, internet taxes, social media, uganda, vpns

Join The Fan Fiction Deep State And Watch This Latest Video That Addison Cain Really Doesn't Want You To See

from the legal-bully dept

Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven't seen that, here it is:

The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I've ever seen (and I've seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.

Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:

I'm not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don't even want to start to think about figuring out how to explain all of the background necessary. Instead, I'm just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.

As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and "numerous false statements" that I could see no evidence of. In fact, Ellis' reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it -- though in discovery in a different lawsuit, it came out that Cain was in the driver's seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to "hide behind" them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That's kind of a big deal.

Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are... bad. You can see them in the video (so I don't have full copies to post here, as I normally would). First, Watson sent a takedown to... Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there's little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I'm not surprised to see them stand behind their user like that).

Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn't see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she's never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube's legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.

Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It's... stunningly stupid. Here's a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:

The work infringed is not "fair use". My book is not public domain; it is a creative work, not a text book. The poster reads my books to degrade my work. This is not fair use of a copyrighted work, nor was this video a review of my work. It was a personal attack framed around two lawsuits filed against me personally in which the poster did not like the outcomes....

[....] The power significantly transformed my original work, both by altering the work and by mocking it for the poster's financial gain via YouTube and Patreon. Monetizing the video does not make this fair use.

Yeah. So. About all that. Fair use applies to copyright-covered works. If it were public domain, you wouldn't need fair use because... it's not covered by copyright. So that opening line is just... weird. Second, who cares if it's not a text book? Fair use is not limited to text books. Whether it's a personal attack (it wasn't) is completely meaningless to a fair use analysis as well.

But it's that second highlighted paragraph that is truly stunning. Because a key point for a court determining whether or not something is fair use is, literally, was it "transformative." And here you have Cain saying it's not fair use because it was transformative. She even used the word transformative. Also, the fact that the video is monetized is also (mostly) meaningless. Yes, "commercial" works sometimes are considered to have a higher standard when it comes to fair use, but not by much, and tons and tons of stuff is still done commercially and is fair use. The main way in which the commercial nature comes into play is if the work is somehow competing in the marketplace with the original. And in no world is Ellis' video competing with Cain's books.

From there, the takedown demand goes off on a rant about people being mean to her on the internet and then claims that the video is defamatory. And, like, that sucks, and people shouldn't be mean to Cain (or anyone) on the internet, and shouldn't threaten people, but that's got absolutely nothing at all to do with whether or not something can or should be taken down via a copyright claim. It's pure performative emotional bullshit victim-playing. Also, the video is not defamatory.

The video then goes into a bunch of other stuff which is fascinating and insane and bad, but we'll pick it up again later on in the story, after EFF steps in to defend Ellis and sends Cain's lawyer a letter basically saying "c'mon, you know this is nonsense." Rather than just walking away, the way a smart lawyer would, Cain's lawyer doubles down in a manner I've only rarely seen before. Again, I don't have the whole letter, but the parts that Ellis highlights are... whoo boy. A journey.

It argues that EFF is part of some giant conspiracy with Ellis and the Organization for Transformative Works (OTW). OTW is a great organization. We've written about them a few times, and once even teamed up with them on an amicus brief. But they're not EFF. They've worked with EFF on some things where their work has overlapped, but... so what? Watson/Cain seem to think there's a big conspiracy:

As your organization, the Electronic Frontier Foundation ("EFF"), is a close partner with the Organization for Transformative Works ("OTW"), and was clearly working with Lindsay Ellis on the Video, the EFF is aware that for over two years, my client, Addison Cain ("Ms. Cain") has been involved in two lawsuits in which the plaintiff (Quill Ink Books, Limited) was supported by the OTW...

Huh? What does that have to do with anything beyond attempting to tie red strings to cork boards. It gets worse.

Regardless of what really happened during the two lawsuits, it is clear that you and your client were intent on spreading false allegations and outright lies about my client and the litigation in the monetized Video, which the EFF received a portion of the proceeds to produce.

Ellis did mention EFF at the end of her first video because that's a nice thing to do when talking about bogus copyright abuse to try to silence critics, but it had nothing to do with the video. This is just random nonsense conspiracy theory claptrap.

Ms. Ellis could have easily condensed use of Ms. Cain's book into a few paragraphs for illustration instead of reading from the book for over two minutes.

Er. She did condense it down to just a few illustrative paragraphs. As is kinda obvious from the fact that in her nearly hour long video, there was just about two minutes of text from the book. It's bizarre to claim that Ellis should have done... what she actually did. And then complain about it.

It gets more and more unhinged, tying Zoey Ellis (the pen name of the plaintiff in the original case, who is no relation to Lindsay Ellis and has nothing to do with the creation of any of these videos) to all of this.

Zoey Ellis and her attorneys utilized numerous methods to obtain their objective to smear Ms. Cain's name, but one common denominator has been their utilization of the OTW, of which EFF is a close partner.....

[....]

Though you failed to directly address our allegations of defamation in your letter, it is our opinion that defamation exists, and because the EFF worked in collusion with Lindsey Ellis to create the monetized Video, the EFF is also culpable for the copyright infringement and the defamation.

Just to be clear, again, though it shouldn't need to be said: the EFF did not work with Lindsay Ellis on the video (nor did OTW, which is a totally separate organization from EFF). The video is neither defamatory nor infringing. And, even if it were (which it's not), there is no way that EFF would be "also culpable" of either the infringement or the defamation (which, again, does not exist). We're in pure crazy town.

And we're not leaving crazy town any time soon:

The tie between OTW and the EFF and the history of abuse my client faced the last two years, makes the use of Lindsay Ellis, a YouTube/Patreon personality with public sway, suspicious in the least, particularly where you assisted in the creation of a monetized Video where both the EFF and Linsday Ellis could profit off copyright infringement and defamation.

Again, none of that makes any sense, either from a "this is how facts work" standpoint or a "this is how law works" standpoint. If an actual lawyer wrote this, it is truly embarrassing. It goes on and on and on in this fashion and those are only the clips that Ellis shares. The full letter was apparently 40 pages. I'm flabbergasted.

As Ellis points out, Cain/Watson are effectively arguing that there's a vast fan fiction deep state working together to bring down... this one random author of wolf kink erotica. Because that makes sense.

Here's a simple lesson that Cain and Watson might want to learn: after people call you out on bullshit DMCA notices... stop digging. Don't file more. Don't claim defamation. Don't draw stupidly obviously bullshit conspiracy theories on the cork board with red yarn. Admit you fucked up, don't do it again, and move on with your life writing terrible wolf kink erotica fiction.

Filed Under: addison cain, commentary, copyright, deep state, defamation, dmca, fair use, fan fiction, fan fiction deep state, lindsay ellis, omegaverse, transformative, tynia watson, wolf kink erotica
Companies: eff, organization for transformative works, otw, patreon, youtube

The Ellen Show Issues Copyright Takedown On Transformative Video Commenting On Her Friendship With President Bush

from the copyright-as-censorship dept

Another day, another example of copyright being used as censorship. As you may have heard, there was a bit of controversy this weekend when talk show host Ellen DeGeneres attended the Dallas Cowboys game with former President George W. Bush. This made lots of people quite upset as they argued that being friends with Bush was either support for "tolerance of hate and discrimination" or an effort at "whitewashing... his manifest crimes." Others argued, as Ellen did, that there are good reasons to be kind to people you fundamentally disagree with.

Wherever you come down on that debate, hopefully you can agree that, no matter what, the Ellen Show was wrong to use a copyright claim to take down a transformative video, created by Rafael Shimunov, that took Ellen's "be nice to each other" monologue about the situation and superimposed images on the back screen of what appears to be scenes of devastation in the Middle East that came about from President Bush's policies. This is, of course, classic fair use. Taking a bit of video (1 minute and 46 seconds) from Ellen's show, and using it in a transformative way to provide commentary and criticism of Ellen's speech. Even if you think it's unfair or heavy handed, it still should quite clearly be protected by fair use. But, instead:

That's the original tweet posting the video, showing that it has been "disabled in response to a report by the copyright owner."

Of course, in response to this, a whole bunch of folks are now reposting the video on Twitter. So far, (as I type this), they've mostly remained online -- which at least suggests that the original takedown was not an automated takedown notice or machine recognition situation, but a deliberate report. Indeed, other tweets suggest that the "social media manager" of The Ellen Show sent a DMCA takedown over the video.

It's possible (likely?) that this lower level staffer just thought she was stopping "copyright infringement" (and maybe didn't even realize the transformative nature of the video), but it still highlights the incredible censorial powers of copyright law and the DMCA, in which, by mere accusation, the content may get deleted -- especially regarding a time-sensitive and politically relevant discussion.

Still, as happens when these situations come about, tons of people are now reposting the video:

Perhaps this is something that Ellen might want to discuss with Barbra Streisand the next time she has Streisand on her show...

Filed Under: censorship, commentary, dmca, ellen degeneres, fair use, george w. bush, political speech, transformative
Companies: the ellen show, twitter

In Defense Of Slow News

from the a-hot-take-on-hot-takes dept

Many years back, I remember seeing Michael Arrington, the founder of TechCrunch, being interviewed about that site (which at the time was on its way to becoming the first "mainstream" tech news blog). I'm paraphrasing, and possibly misremembering, but what stuck with me was that he suggested that, as a blog, you basically had to focus on one of three things to succeed: being first, being funny, or being insightful. And he had chosen "being first" as the strategy for TechCrunch -- trying to break news as quickly as possible. And while that makes sense as a business strategy if you can do it, it had absolutely no appeal to me for how we ran Techdirt. We always hoped to focus on adding more insight into various issues, than breaking news. That's not to say we don't break news every so often, but it's certainly not the focus.

Last Thursday, I published a long post about the whole question of internet platforms cutting off certain users. While the actual title of the story was Platforms, Speech And Truth: Policy, Policing And Impossible Choices, it had a different title on our social media feeds:

If you can't read that, it says, "You Kept Asking For A Post About Alex Jones And Internet Platforms, So Here It Is." That was, in part, because while the various bans for Alex Jones all happened on Monday, our post didn't go up until Thursday. And, as I noted in the post, I had actually begun writing the larger post before the Jones' bans were put in place, but rather in response to a different brouhaha over a Mark Zuckerberg interview in July, where he said he didn't want to ban Holocaust deniers from his platform.

And yet, we had a number of people in our comments and on social media asking why we weren't writing about it. Sometimes those demands were done snarkily, suggesting we somehow were hiding from the subject. Sometimes they were asked legitimately. Some people seemed to take offense to the fact that we were working on other stories, as if we should drop everything to write about content moderation choices.

But, for years here on Techdirt, I've had a pretty strong belief in the value of "slow news." That is, I think I take the opposite approach to the one that Arrington talked about all those years ago. Being first may have benefits in the race for traffic and clicks. But I'm not so sure it really adds value to society. As we've seen over and over again, the quick take -- or the "hot take" -- often gets key things wrong. If you have real news to break, that's great, but it would seem to usually fall into one of two camps: a story that everyone is going to know about soon enough... or a story that you have exclusively. And, in both cases, there's little reason for us to rush out a story in those cases. If everyone's going to have it, then we might as well wait a bit to actually make sure all the details are really known and understood. And if there's an exclusive, then why not take your time to make sure you fully understand it as well.

I know that in the traditional news business, there's a premium put on "breaking news" and "exclusive!" type stories, but I'd rather put a premium on more thorough analysis that actually understands these issues. It's what we've always tried to do, even if we don't always succeed. Indeed, even when we write on key breaking stories, we'll quite often sit on a completed post for at least 24 hours before putting it on the site, just to see how things shake out and if the initial "breaking" details are really accurate. I've found that that allows us to post more thoughtful and careful posts in the long run.

Again, this has long been our internal policy, but I thought it might be useful to publish it publicly, so that people understand why we might not immediately write about the hot topic of the day, and may wait until we've had more time to understand it, and think through an analysis that maybe others covering the story didn't provide.

Filed Under: commentary, hot takes, slow news

Zillow Sends Totally Bullshit Legal Threat To McMansion Hell

from the censorious-thugs dept

There are few things I hate more than when tech platforms -- which have benefited from key rights provided to internet platforms and the public -- turn around and abuse the law to try to silence or kill off others. And the latest company to dive headfirst into this unfortunate pool of shame is Zillow, which is threatening to sue the person behind McMansionHell.com based on a number of different awful interpretations of the law that can be summed up as: "hey, you can't use our images to make fun of homes."

This threat against McMansion Hell is particularly dumb. On multiple levels. The threat letter offers up a bunch of theories for why McMansion Hell is illegal, none of which make any sense at all when you dig in. Zillow just looks like a particularly assholish, censorial thug.

McMansion Hell, if you didn't already know about it, is basically exactly what it says on the tin. It's a website that looks critically at some trends in home design. I've visited the site a few times in the past, but not in a while -- and because of the threat, the site is currently down. This is what you see as I write this:

But, before that, it looked something like this (via Google Cache):

I realize there's a lot there, but the site would take a bunch of images, of houses, sometimes adding annotations and captions and the go into great detail critiquing a trend, or style, or architectural or real estate idea. It was informative and funny. And, at least for the time being, it doesn't exist.

Zillow's legal theories here are... mostly of the crazypants variety. First, the letter says that McMansion Hell is violating Zillow's terms of service, because the terms of service forbid reproducing or modifying images on Zillow.

Zillow's Terms of Use (the "Terms") specifically prohibit reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow Site. The Terms further prohibit reproduction of any underlying images from real estate listings on the Zillow Site, as well as any use of the Zillow Site that could harm Zillow or its suppliers.

You are in violation of the Terms, and admit to this Yourself in certain posts on Your Site, wherein You state that "[a]ll photographs in this post are from real estate aggregate Zillow.com..." and reference the fact that Your posts feature "[m]anipulated photos."

First off, Zillow cannot use its terms of service to wipe out fair use as a legal defense. The only remedy for Zillow is to stop the person behind McMansion Hell, Kate Wagner, from having an account on the site. But since many of the images are publicly available, she absolutely has a right to make non-infringing fair use reproductions and derivative works. This general threat that if you violate the terms that the company comes up with itself you've run into legal trouble is nonsensical (even though some try to make CFAA arguments about this -- but we'll get to that).

Next, Zillow's lawyer insists that this is not fair use. The argument here can basically be summed up as "No Fair Use Allowed."

In addition to violating the Terms, Your actions infringe on the rights of each copyright holder of the images. You state that the Images are used "for the purposes of education, satire, and parody consistent with 17 U.S.C. § 107," which appears to be a claim that Your use constitutes fair use. Courts weight four primary factors in determining whether use of a copyright work is fair use. When those factors are applied to Your use of the Images on Your Site, none support an argument that Your use is fair use.

That's it. Say there are four factors, mention none of them, then say that none of the factors apply. While it is true that merely saying that you're using the images for fair use purposes is not enough to shield you if you are infringing, here it seems to pretty clearly be fair use under all of the factors. The use is clearly transformative. Whereas Zillow is about selling houses, McMansion Hell is about providing commentary and criticism about real estate and residential architecture. That's a very different use, and showing images of actual homes seems perfectly key to that, and we have multiple cases that have said similar uses are fair use. On top of that, there's tremendous commentary and criticism to go along with the images, which makes it an even stronger fair use argument.

And, let's not forget that, as far as I know -- and as the letter more or less admits -- Zillow doesn't hold the copyright in these images. It's merely licensing them from the actual copyright holders, and thus it can't make any credible copyright threat against McMansion Hell, as it doesn't even hold the rights in question. What a joke.

Finally we get to the CFAA argument which, of the three arguments made, is the dumbest. But at least there's an actual legal issue there -- unlike the previous two:

Furthermore, Your activities may violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state laws prohibiting fraud and interference with Zillow's business expectations and interests.

Of course, note the lack of any explanation for how this violates the CFAA. That should be a pretty strong statement that Zillow's lawyer knows there's no substance to this argument, but wants to make the threat letter sound as scary as possible (which worked). The only argument that the company could probably come up with is the claim that violating the terms is what violates the CFAA -- but those arguments have mostly (though not entirely) failed in court. Even when the argument has been accepted, I fail to see how the situations in those cases would apply here to a blog doing commentary.

In other words, all three of the supposed arguments against McMansion Hell are silly in the extreme. Zillow and its lawyer, Christopher Poole, (note: not moot) should feel bad. It appears that Poole (the lawyer one) just joined Zillow last month. Hopefully, this was the overeager new guy thinking he was doing something good, rather than shitting all over Zillow's brand as a supporter of a free and open internet.

Hopefully as this gets out, and people realize just how ridiculously censorial and obnoxious Zillow appears, the company will reconsider and apologize. This is not just bad behavior. This is attacking free speech on an open internet -- the same open internet that allowed Zillow to exist and thrive in the first place. The company should be ashamed.

Filed Under: cfaa, christopher poole, commentary, copyright, criticism, fair use, kate wagner, mcmansion hell, reporting, terms of use
Companies: mcmansion hell, zillow

City Of Inglewood Allotted $50,000 To Hire A Lawyer Flagrantly Abuse Copyright Law To Try To Silence A Citizen

from the a-disaster-in-the-making dept

Last week, we wrote about how the city of Inglewood was trying to silence a longtime vocal critic of its mayor, James Butts, by attempting to abuse copyright law. The guy in question, Joseph Teixeira, had posted a series of videos critiquing Mayor Butts, using clips from city council meetings that had been posted to YouTube, and adding a lot of commentary over them. As we noted, it was questionable if the city could even claim copyright on the videos, but even if they could, there was no way the lawsuit could pass First Amendment muster. If the work could be covered under copyright, its use was obviously fair use. Despite this being explained to the city's lawyer -- an experienced IP attorney named JoAnna Esty of Majesty Law Group -- the city filed a brief that is so ridiculous and so laughable, many have argued that she has likely opened herself up to sanctions.

Apparently the duplicitous and ridiculous argument that Esty made on behalf of Inglewood is that the city needs to silence Teixeira by abusing copyright law in order to protect free speech. No joke:

What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.

As Paul Levy pointed out in the link above, the really troubling thing here is that taxpayers are paying for this either way. And if you're wondering how much, wonder no more: the LA Times, which posted an editorial calling for Mayor Butts to resign over this, has also pointed out that the city is paying Esty more than $50,000 for this travesty of justice. Indeed, on March 17th ("Sunshine week" believe it or not), the City of Inglewood approved a $50,000 retainer for Esty for take sake of going after Teixeira, to be drawn down at $300/hour. Seriously. Meanwhile, Teixeira's top notch lawyers from Davis Wright Tremaine, have hit back with a pretty fantastic reply that lays out all the reasons why Inglewood's legal claims are outright laughable. It even kicks off with a nice reference to last month's 9th Circuit ruling in the Cindy Garcia case:

Last month the Ninth Circuit emphatically held that “a weak copyright claim cannot justify censorship in the guise of authorship.” Garcia v. Google, Inc., ... In this case, the City of Inglewood is misusing copyright law to punish a citizen for criticizing his government, and its claim is not just weak, it is non-existent.

From there, it explains why the entire theory behind the case is faulty -- and the legal filings laughable.

In its Opposition, the City ignores virtually all of the controlling authorities cited by Mr. Teixeira that show why its claim fails as a matter of law. It also overlooks the actual contents of Mr. Teixeira’s videos, despite having specifically identified and linked to these works in its own Complaint. Because these videos are incorporated by reference into the City’s pleading they are properly before the Court, and their contents supersede any contrary descriptions in the Complaint. Avoiding discussion of all of the dispositive issues, the City cannot salvage this meritless action for several reasons.

First, the City concedes that it has no specific authority to copyright public records documenting its City Council meetings, and thus its claim is barred by California law. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1335 (2009). The City makes no effort to distinguish County of Santa Clara or to question its holding. The City’s failure to counter this decision is fatal to its claim: where, as here, there is “relevant precedent from the state’s intermediate appellate court,” and no “convincing evidence” that the state supreme court would decide differently, “the federal court must follow the state intermediate appellate court decision.”

As we mentioned last week, at one point in its original filing, the city argued some nonsense about the Supremacy Clause -- arguing that because the Constitution allows for copyright, and the US Copyright Office has authority to register the works, California cannot stop the copyrighting of the city's council meetings. It made absolutely no sense at all, and the response points this out:

The City’s only argument on this point is misguided, as the Supremacy Clause is not implicated by a state’s decision not to assert copyright in its own works. This is why every authority to consider the issue has recognized that states can choose to favor broad public access to public records over copyright absent special circumstances, as California has explicitly done.

Then they point out that Esty's arguments on behalf of the city appear to flat out misrepresent Teixeira's videos to pretend that it's not fair use:

...to avoid a finding of fair use, the City ignores the actual content of the videos and merely repeats its conclusory allegations that they are “unaltered” “verbatim” copies of the original City Council meeting videos.... But the City contradicts itself elsewhere in its Opposition, where it necessarily admits that Mr. Teixeira “adulterates” the meeting videos “by manipulating and adding derogatory comments” in order “to criticize the City.” ... Either way, the City’s characterizations of Mr. Teixeira’s videos are irrelevant, because even in the context of a motion to dismiss, “the works themselves supersede and control contrary descriptions of them, including any contrary allegations … in the pleadings.”

Finally, the filing takes on that "we're doing this to protect free speech" insanity, by rightly pointing out that, at best, this argument is "Orwellian."

Fourth, the City’s Orwellian claim that it is championing free speech by trying to quash it does not withstand scrutiny... Copyright promotes creativity by protecting the “commercial interest of the author,” but claims such as the City’s, designed to “suppress a derogatory” work are “untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.” ... These principles guide the fair use inquiry here, as state law bars the City from making any money from the sale of its City Council meeting videos.... Nor could Mr. Teixeira’s highly transformative, bitingly critical videos possibly supplant the market for the City’s unadorned meeting videos, if one could even exist....

Because the City has no copyright interest in its City Council meeting videos, and even if it did this would be a classic case of fair use, the Complaint should be dismissed with prejudice.

Citizens of Inglewood should be seriously questioning just why its government is spending taxpayer funds on this kind of nonsense.

Filed Under: commentary, copyright, free speech, inglewood, james butts, joanna esty, joseph teixeira
Companies: majesty law group

City Tries To Silence YouTube Critic By Suing For Copyright Infringement

from the taxpayer-money-at-work dept

This is a pretty stunning example of censorship by copyright -- from a literal government.

Joseph Teixeira is a critic of the mayor of Inglewood, California, James Butts. As is common among people with more than a passing interest in local politics, Teixeira takes clips of videos of city council meetings -- which are available on YouTube -- and posts them to YouTube, overlaying them with his own commentary and words. Teixeira, who goes by the name "Dehol Trouth" (get it?), runs a website called "Anybody But James Butts For Anything" and, when he's not caustically criticizing Mayor Butts, likes to make fun of the way he plays with his tie. Here's one of the videos:

Whether Teixeira's criticism has any merit, I don't know. He comes across as articulate and well-researched, lacking an "I attend every city council meeting to rant about chemtrails" feel. I do know this: it's awfully hard for a public official to sue for defamation.

But of course Mayor Butts isn't afraid of a few YouTube videos viewed by a couple hundred people -- people who probably don't even live in Inglewood and were just searching for a Snoop Dogg video. After all, Mayor Butts, won his last election by the largest margin in the city's history. So the best thing to do would be to ignore the guy, right?

Of course it would. But that's not what Mayor Butts and his fellow councilcritters did. Rather, they enlisted the resources of the city they govern to sue Teixeira for copyright infringement. Here's the complaint. In its path to censoring Teixeira, the City of Inglewood makes some pretty surprising false statements, on top of being completely and utterly wrong on the law.

Teixeira moved to dismiss the lawsuit with two arguments. First, he argues that the city can't even own a copyright because California law -- which requires the city to provide a copy of the video at only the cost of reproducing it to anyone who asks -- doesn't permit a city to hold a copyright in this kind of record. And that's what this is: a record of a city council meeting. Second, Teixeira argues that if there is a copyright interest, this is a classic fair use. After all, he's a citizen making fifteen-minute videos that include snippets of meetings that last up to four hours, and doing so to criticize his elected officials. On top of that, he's not getting any money for it. It's hard to think of a clearer example of fair use.

The City of Inglewood, represented by a seasoned IP litigation attorney who should really know better, responded with one of the most transparently-wrong briefings I've ever encountered -- and I read pro se ramblings as a hobby.

First, Inglewood argues that it can have a copyright interest because that case cited by Teixeira was argued by the same international law firm that represents Teixeira now, and something about the Supremacy Clause. Second, Inglewood states -- with a straight face -- that Teixeira's 15-minute videos appropriate the entire "work"... which is usually about four hours long. Worse, according to Inglewood, adding criticism over clips of these videos doesn't transform them from being what they were (boring bloody videos of city council meetings documenting people who probably wish they were playing Candy Crush, and would be if the meeting weren't on video) into something else, like pointed political criticism. Plus, Teixeira is somehow using the video for a "commercial" purpose, although Inglewood just sort of states this without any explanation whatsoever.

lol:

Defendant merely republished substantially all of Plaintiff's unaltered videotapes of its Council meetings, with Defendant's derogatory comments overlaid on top. This is not transformative in the least. [...] Transformativeness is not about a defendant's subjective intent; it is about 'add[ing] something new.'

A lawyer facing a poor set of facts might be forgiven for arguing nonsense, and this would perhaps not be as surprising if it had been left in its native format (crayon). But Inglewood's position goes from wrong to holy-crap-do-you-even-believe-what-you-are-writing-or-is-this-a-practical-joke-am-I-on-TV-hi-mom when it comes to identifying the real threat to free speech:

What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.

Yes, that's right: if the city can't enforce a copyright over videos it has to give away for only the cost of putting them onto a CD, the city won't have any economic incentive to record its own meetings, which it already distributes for free on the internet. That -- and not a government demanding that a citizen pay them money after insulting them -- is the real threat to free speech here.

The six videos have each been seen only about 300 times. To put this in perspective, it cost Inglewood taxpayers $400 just to file the lawsuit. Add in the $595 it cost the city to register the copyrights on these videos -- some of which date back to 2011 -- and that means this suit has cost about fifty-five cents for every time one of these videos has been viewed. And that's before attorneys' fees.

Let's reduce that ratio: here are the six videos. Give them a view:

• James Butts Accuses The City Clerk Of Lying About Election Fraud
• James T. Butts Jr Misleads the Public About His Voter Registration
• James T Butts Jr Alibi or apology
• James Butts exploits the murder of Fredrick Martin for his own political benefit
• Mayor James Butts Lies About Being a Hypocrite
• Mayor James T. Butts Jr Lies, Hiding Dangerous Traffic Problems After Forum Events

Perhaps someone should find out, exactly, how much this frivolous, thin-skinned lawsuit has cost Inglewood's taxpayers. I know just the man for the job. Or you could email Mayor Butts and ask him yourself. In any event, this lawsuit is enough to make one think that this Teixeira character might be on to something: these officials are not deserving of the votes of the people they represent.

Reposted from Adam Steinbaugh's blog.

Filed Under: censorship, commentary, copyright, dehol trouth, fair use, first amendment, free speech, inglewood, james butts, joseph teixeira