Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later

from the smiley-face dept

Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.

We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.

And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.

Apple Inc convinced a California federal judge on Wednesday to throw out a lawsuit accusing the tech giant of ripping off another company's multiracial emoji and violating its intellectual property rights.

Cub Club Investment LLC didn't show that Apple copied anything that was eligible for copyright protection, U.S. District Judge Vince Chhabria said.

Chhabria gave Cub Club a chance to amend its lawsuit but said he was "skeptical" it could succeed based on several differences between its emoji design and Apple's.

The analysis you'll see in the order embedded below basically follows our previous analysis. On the copyright claim, the judge points out that the idea of diverse emojis cannot be copyrighted and, since the accusation about similarity between the emojis themselves is made in an area where very little differences could exist, this doesn't amount to copyright infringement.

Chhabria said in a Wednesday order that even if the complaint was true, Apple at most copied Cub Club's unprotectable "idea" of diverse emoji.

"There aren't many ways that someone could implement this idea," Chhabria said. "After all, there are only so many ways to draw a thumbs up."

Exactly. As to the trade dress portion of this, well, there again the court found that the trade dress accusation concerned non-protectable elements.

To state a claim for trade dress infringement, a plaintiff must allege that “the trade dress is nonfunctional, the trade dress has acquired secondary meaning, and there is substantial likelihood of confusion between the plaintiff’s and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). The trade dress alleged in the complaint is functional. The asserted trade dress consists of “the overall look and feel” of Cub Club’s “products,” including “the insertion of an emoji into messages . . . on mobile devices by selecting from a palette of diverse, five skin tone emoji.” This is functional in the utilitarian sense...

Again, right on point.

At the end of the day, while it's true that's it's easy to point at any civil lawsuit and call it a money grab, it's hard to see how this one isn't. There's simply nothing in any of this that's particularly unique or novel, even though I grant that it's a good thing there is more representation options in emojis.

Filed Under: diverse emoji, diversity, emoji, katrina parrott, trade dress
Companies: apple, cub club

Biden Administration Poised To Give Comcast Lobbyist Canadian Ambassador Spot

from the do-not-pass-go,-do-not-collect-$200 dept

While the Biden administration still hasn't fully staffed the gridlocked FCC, it does appear to be ready to reward a top Comcast lobbyist and key Biden fundraising ally with a cushy new post.

According to the Washington Post, the Biden administration appears poised to "probably" give top Comcast lobbyist David Cohen the position of Canadian Ambassador, with a planned announcement likely coming in May:

"David Cohen, a Comcast executive who hosted Biden’s first official 2020 presidential fundraising event, probably will be nominated as U.S. ambassador to Canada."

Cohen is, if you're unfamiliar, one of the architects of Comcast's relentless monopolistic domination of US telecom, steering the company through numerous power consolidating mergers while assuring regulators that Comcast's growing power was nothing to be concerned about. Granted time showcased it was very much something to be concerned about, as Comcast's steadily growing monopoly over broadband (especially at faster speeds) is directly responsible for soaring US broadband prices, spotty coverage, and historically terrible customer service courtesy of steadily-eroding competition.

Cohen was dubbed a "wonk rock star" by the Washington Post back in 2012 for selling regulators on the 2011 Comcast NBC Universal merger. This was largely done using Internet Essentials, a program that promises discounted broadband access to low-income families. The plan was criticized heavily at first for being regulator window dressing that was intentionally difficult to qualify for while offering substandard speeds, something only fixed by Comcast after annoyed parents in Philadelphia protested in the streets (protestors who believe the program doesn't do enough to offset Comcast's overall harm were still protesting last year).

Internet Essentials was extremely helpful as a way to advertise Comcast's boundless altruism, despite the fact Comcast's monopolization and mergermania was heavily responsible for unaffordable US internet access in the first place. As the program has been launched and relaunched a thousand times over, it has provided Comcast with a bottomless well of promotional material featuring Cohen posing over the desks of beaming children. Of course the program provided something else as well: lobbying cover for access to federal, state, and local lawmakers.

Under feeble US lobbying laws, if an employee spends more than 20% of their time lobbying in DC, they have to register with the government as a lobbyist, detail their travel with lawmakers, and more fully outline their contributions to politicians and foundations. So to get around these restrictions, many companies simply call their lobbyists and policy wonks...something else. In Comcast's case, Cohen spent much of his time as the company's "Chief Diversity Officer." Around 2019 Comcast thankfully hired somebody genuinely diverse to be Chief Diversity Officer, and Cohen's role shifted to one of "counselor and adviser." Comcast has historically gotten mad at me for calling Cohen a lobbyist, despite the fact that lobbying has always clearly made up a huge percentage of his work.

Again, the news of Cohen's reward comes despite the fact the Biden team still hasn't appointed a third Democratic Commissioner (and possible permanent boss) at the FCC, leaving it mired in partisan gridlock after the rushed appointment of Trump ally Nathan Simington. Hopefully the FCC appointment comes soon, given that rewarding telecom lobbyists before you've gotten around to staffing your top telecom regulator probably won't be a great look for an administration hoping to get a vague but promising broadband agenda off the ground.

Filed Under: ambassadors, canada, david cohen, diversity, joe biden, lobbyists
Companies: comcast

Senators Tell The USPTO To Remove The Arbitrary Obstacles Preventing Inventors (Especially Women Inventors) From Getting Patents

from the patent-barred dept

There are plenty of issues with the patent system as we know it today, but one big one is with the system we use to award them. It's a problem because the more important we think patents are, the more important it is to ensure that the mechanism we use to grant them is capable of recognizing all the invention patent law is intended to protect. Unfortunately, however, right now the patent-review system is architected in a way that makes it miss all too many patent-worthy inventions – including, especially, those inventions invented by women.

The lack of diversity among patent recipients has now caught the attention of a few Senators, who in December wrote to USPTO Director Iancu to express their concern. There may be several reasons for why women inventors are, by and large, not being granted patents, but one conspicuous one that the Senators focused on in their letter is the commensurate lack of women allowed to do the specialized work of filing for patents:

In today’s increasingly competitive global economy, we must leverage the creativity and talents of all Americans—including women, minorities, and people from low-income and other disadvantaged communities—to maintain the United States’ place as the world’s leading innovator. The patent system has long played a critical role in fostering American innovation. As you well know, the USPTO faces a significant gender gap among named inventors. According to a 2020 USPTO report, only 12.8% of named patent inventors are women. The USPTO has undertaken laudable efforts in recent years to recognize and start addressing this gender gap. These efforts are good first steps.

However, we fear that the USPTO’s efforts will be undercut by an apparent gender gap among patent practitioners. While recent data on the demographic make-up of the patent bar is not publicly available, studies from 2011 and 2014 suggest women made up as little as 18% of patent agents and patent attorneys with little growth over time. Unless there has been a significant increase in the number of women admitted to the patent bar in the ensuing years, female membership lags far behind the share of women earning degrees in either science, technology, engineering, or math (“STEM”) fields (~36%) or the law (~50%).

Quoting a letter submitted by Eric Goldman and Jess Miers (disclosure: I signed it), the Senators' letter further explained why the paucity of women in the patent bar may resultingly be limiting the number of women patent recipients:

[A]ccess to women patent prosecutors can increase women’s patenting activity in several ways. Women patent prosecutors can bring extra substantive expertise on goods and services catering to women customers. This expertise can help inventors recognize patentable inventions and better describe them in patent applications. Women patent prosecutors use their unique social networks to cultivate and support women inventors, and they make it easier for women inventors to “see” themselves in the patent system. Also, women patent prosecutors may develop more effective client relationships with women inventors than would develop with male patent prosecutors. That, in turn, can help women inventors feel comfortable seeking patent prosecution assistance and produce the evidence necessary to succeed with their patent applications.

In other words, if you want to patent more inventions, and to make sure women's inventions are among them, you are going to need more women able to help inventors (including those women inventors) obtain their patents. And right now they are being kept out the profession at arbitrarily high rates and for, as the letter also explained, equally arbitrary, if not outright absurd, reasons.

For those confused by some of the vernacular being used here, the "patent bar" is a fancy way of describing the legal professionals allowed to help inventors try to obtain patent grants from the USPTO. The fancy name for this activity is "patent prosecution" and those who do it are "patent prosecutors." Patent prosecutors don't necessarily have to be lawyers able to practice in any other jurisdiction, and most lawyers are not permitted to do the specialized work of patent prosecution. Instead, to be allowed to prosecute patents you need to take, and pass, a separate exam to be able to join the patent bar. It is that exam that is at the heart of the problem.

The problem, however, isn't necessarily with the exam itself. The real issue is that only certain people are eligible to sit for it, and these limitations on exam eligibility are unduly limiting the patent bar by pointlessly excluding otherwise qualified people, including, especially, women:

The USPTO sets the requirements for patent practitioners and, as such, serves as a gatekeeper to the patent bar. To ensure a high level of patent quality, it requires that all candidates pass a six-hour, 100-question exam in order to practice before the USPTO. However, this exam is not open to all. It is reserved for those who possess certain “scientific” and “technical” qualifications. Currently, the USPTO allows college graduates with degrees in only thirty-two specific majors to automatically qualify to sit for the exam (so-called “Category A”). This list includes a wide array of majors in engineering and the physical sciences—degrees that disproportionately go to men. However, it excludes several other majors, such as mathematics, that are highly relevant to modern-day innovation and are earned by women at a rate much closer to their share of overall undergraduate degrees. The list also excludes students who major in industrial and fashion design—fields highly relevant to design patents and for which women make up a majority of students.

True, sometimes those who are not automatically allowed to sit for the exam still can establish their eligibility in other ways, but these rules are even more Byzantine, and the result is still the same: the doors to the profession end up pointlessly closed to people capable of passing the exam and doing the work of patent prosecution. And this limitation on patent prosecutors thus has an echo effect on patent diversity, because it means that only a small subset of patentable inventions are ever likely to be successfully prosecuted.

These exam-eligibility rules therefore need to be reconsidered, the Senators told the USPTO. And to make sure the USPTO takes the matter seriously, the Senators also required it to provide answers to additional questions on the matter, due back to them by January 15.

Filed Under: diversity, inventors, patent bar, sexism, upsto

WoW Alters Its Character Creation System to Add Diversity

from the art-reflects-society dept

For some years, we have been banging the drum repeatedly pointing out that video games need to be viewed through the lens of artwork. There a variety of headwinds in solidifying this stance, but they mostly revolve around older generations repeating the sins of their forefathers in declaring any art they aren't "in to" to not be art at all. And, yet, thinking about this for ten seconds will reveal just how silly that is. Video games include elements of drawing, storytelling, creative modeling, and music. Any one of those is most certainly art in and of themselves, yet combining them to make something entertaining somehow throws a lot of people for a loop. And, yet, we see revolutionaries turning to games these days to make compelling artwork, while museums have already begun curating the output of this relatively young industry.

And once we accept that video games are a form of art, it follows that the flow of culture and society will influence that art. That's the way it's always been. Art is a mirror held up to society. And one of the glaring flaws in that mirror image in gaming has, for a long time, been the multi-faceted lack of diversity in both the industry and the games themselves.

One of Nintendo's recent games, Fire Emblem: Three Houses has some downright insulting LGBTQ+ interactions, which is rife through the series dating back to Fire Emblem: Awakening in 2012. In Three Houses, your male or female avatar can romance other characters of the same gender, yes, but throughout the franchise, the LGBT options have been extremely limited and mostly amount to nothing more than platonic 'special friendships'.

Consider as well, characters like Cal Kestis from Star Wars Jedi: Fallen Order, who are seemingly considered the norm. Respawn could have meaningfully designed Kestis as literally anything other than just one more white male protagonist. The reason behind his design? Respawn has said it thought about having either an alien or female protagonist, but Kestis was ultimately used because they didn't want to “alienate” the player.

It should be immediately understood just how absurd that reasoning is. Who is at risk of being alienated... and by what? If Kestis was a female character, it would alienate men? And, if that is indeed true, doesn't it follow that the male character alienates women? Or are only men so frail as to be unable to play a game as a character of the opposite sex, whereas women are able to shrug off such base concerns? If Kestis were black, or gay, or old, or Buddhist, would that alienate anyone? And, if so, isn't the same true in reverse? Being in the majority, I would think, ought to make one more secure in this sort of thing, and yet the opposite appears to be true.

But with the reckoning and awakening of the racial justice movement that's occurring, games are changing in its wake.

Last weekend, Guerilla Collective – something of an alternative to E3 following its cancellation due to coronavirus – held dedicated broadcasts focusing entirely on Black video game studios, which make games with Black protagonists.

Among those featured were the likes DecoyGames, Gameheads, Waking Oni Games, and Jesse Wright, among several others.

This is, of course, a step in the right direction and only helps spark further conversations about why video games themselves are so white, and why games with people of colour as a starring role are seldom found.

And whereas stock main characters are indeed becoming more diverse, finally, there are also changes being made in games that allow for custom character creation, in order to add more representation and diversity as to what kind of character a player can play. World of Warcraft Shadowlands is an example of this.

Shadowlands will also bring the ability to make changes to a character’s gender on the fly. As reported in Eurogamer, Blizzard intends to make gender changes free in Shadowlands. Before, one could customize face, skin color, hair, and eye color for a nominal sum of gold in one of the game’s many barber shops. Changing a character’s gender, though, required paying real money to do. “We felt like that’s not the right message,” according to WoW executive producer John Hight. “Unfortunately we can’t fix that right now,” he told Eurogamer. “But it is our intent with Shadowlands to take that out of being a paid service thing and [put it] in the barber shop.”

The changes and additions being made to Warcraft’s character creator seem to reflect a broader push for more diversity in the game. This initiative goes beyond the start screen and delves into the world of Azeroth itself. “We are planning on broadly incorporating the range of character customizations for NPCs just across the world,” said WoW game director Ion Hazzikostas during an event yesterday. “Walking through Stormwind, walking around other parts of the world, you will see guards and random civilians that have these looks as if they’ve been there all along. Frankly I think we see this as correcting an oversight on our part over the years. [We’re] trying to improve representation more broadly.”

Like all new inclusions for the sake of diversity, these changes will surely face a backlash. There is some cadre of gamers out there that seems to think that these nods towards representation are either a threat, somehow, or else a pathetic genuflection at the altar of virtue signaling. But to break it down to its most basic: if you spend even one calorie fretting over players having more choice in the creation of their characters, you're the one that has the problem, not the gaming industry. And if you enjoy the character creation in games as much as most people do, you will realize how important it is for any gamer to be able to see themselves in those options.

Character creation is so important because, in games like WoW, it’s the only way we’re able to express our individuality as humans. We tell a bit of our stories in the flesh and fur and bone we shape to our liking. The story of World of Warcraft is one you experience. Sure, your actions drive the plot, but the story is largely not your own. This character creator and the other changes the development team are making allow the player a far greater ability to tell their own, personal, story.

These are good changes. Whatever backlash may occur from art transforming as a result of societal change, well, art always has its critics. But good art reveals more about us in how we interpret it, rather than we reveal the value of artwork by doing so. It just might be that changes like these are simply revealing how far we have to go as a people in accepting differences, diversity, and our fellow men and women.

Filed Under: character creation, diversity, world of warcraft, wow

The Next Level Of Tech Activism: Google Employees Walk Out, Demand Changes From Management

from the time-for-some-changes dept

Over the summer we wrote about the increase in employees at big tech companies leading internal protests against business decisions made by those companies -- mostly around providing tools to the government or military that might be used in ways that many people find to be immoral. It was interesting to see this play out (and stay tuned for next week's podcast, where this will be discussed). More recently, there have been similar protests from within Google over its plans to reenter the Chinese market with a government-approved version of its search engine.

Yesterday, thousands of Google employees took this to another level. Following a recent (horrific) NY Times piece on massive failures by Google management in dealing with sexual misconduct at the company, Google employees all over the world participated in a walkout protest over management's activity. They also put together what appears to be a fairly modest list of demands, including an end to forced arbitration over harassment and discrimination claims, further commitments to fight pay and opportunity inequality at the company, transparency on sexual harassment at the company, a better way for reporting sexual misconduct, an elevated role for a "Chief Diversity Officer," and adding an "Employee Representative" to the Board of Directors.

I have a bunch of thoughts on this -- some of which I may explore more deeply in future posts, but at a first pass, I think this kind of activism by employees is a very good thing. Remember, Silicon Valley has long promoted the idea that its workforce is much more closely aligned with management than traditional companies, in part because of the free flowing nature of stock options and grants. As someone who spent years studying traditional labor/management malfunctions, the more mutually aligned approach that Silicon Valley claimed to have had in the past was a huge part of its strength and a key reason why the industry as a whole has been so innovative. Unfortunately, in the past few years, it does seem that this alignment has diverged, and in too many cases, management has been pursuing growth and opportunities in ways that go against the interests and beliefs of the employees. There may be reasons for this, but they're not good ones.

While Silicon Valley has long had an antagonistic view towards traditional labor organizing and unions (which I think is the right call for a whole host of structural reasons), it's fascinating to watch employees at these companies gravitate toward these kinds of protest behaviors to make their voices heard.

As we've discussed for many years, the power of innovation in Silicon Valley is driven by its employees and their ability to continue to innovate and create wonderful new things -- and to take their brainpower and move to other companies. Perhaps it's no surprise that, as we've had a few companies become bigger and bigger over the past few years, there's a center of gravity that has allowed management and an employee base to lose the alignment of interests. It's an unfortunate trend and one that hopefully these actions can help correct.

On a related note, the idea of an employee representative on the board is a fascinating one. Other countries (most notably Germany) have done this under law (and we discussed a proposed law to do this in the US just a few months ago on our podcast). I think companies would be much better served in doing so, if only (again) to better align the incentives of the employees and the overall company, which should lead to better long term results.

My one quibble with the list of demands is with the focus on the "Chief Diversity Officer." It is not that I'm opposed to companies focusing on diversity as a goal -- I think that's actually especially valuable in a company that seeks to serve nearly the entire globe with services. But, it reminds me of the rush a decade ago for companies to create Chief Digital Officers. As I said back then, a Chief Digital Officer made it look like you treated "thinking digitally" as just another silo, rather than something the entire company had to understand at a gut level. The same is true of diversity. Having it be a "role" in the company perhaps might make sense as a forcing function to make sure that someone is making sure that the company is moving in the right direction, but to achieve true diversity within a company, you need everyone to understand, deeply, the value of diversity in helping to push companies forward, to build truly innovative products, and to understand how those products and services could potentially impact millions or billions of people (in both good and bad ways). So nothing against placing an emphasis on diversity, but creating a Chief Diversity Officer feels a bit too limiting, and creates a situation where it's too easy for people to pass the buck and assume that diversity is an issue for that role to focus on, rather than for everyone to focus on.

Filed Under: activism, diversity, management, sexual misconduct, silicon valley, tech activism, walkout
Companies: google

FCC's New 'Diversity Chair' Has Long History Of Undermining Minority Consumers At Comcast's Behest

from the with-friends-like-these... dept

For years one of the greasier lobbying and PR tactics by the telecom industry has been the hijacking of minority and civil rights groups to help parrot awful policy positions. Historically, such groups are happy to take financing from a company like Comcast, in exchange repeating whatever memos are thrust in their general direction -- even if the policy dramatically harms their constituents. The tactic of creating or "co-opting" such groups helps foster the illusion of broad support for awful, anti-consumer policies, whether that's support for the latest competition-killing merger or support for the assault on net neutrality.

Because this cozy quid pro quo is implied but never put into writing, ISPs traditionally respond with breathless indignance to the mere suggestion they're using minority voices as policy props. But Comcast has found that tactic consistently so successful, a few years back it went so far as to give its top lobbyist, David Cohen, a new title: "Chief Diversity Officer." Said title not only lets Cohen profess the company's unwavering dedication to minorities with one hand while undermining them with the other, but helps him skirt the government's flimsy restrictions on lobbying.

A few weeks back boss Ajit Pai announced the creation of a new "Advisory Committee on Diversity and Digital Empowerment," a group Pai insisted was established to champion the voice of every American, “no matter their race, gender, religion, ethnicity, or sexual orientation." But as we've noted before, Pai's breathless support of closing the digital divide is utterly illusory, as his policies (ranging from gutting popular consumer protections to protecting the cable industry's monopoly over the cable box) consistently involve undermining consumer interests while encouraging industry rate hikes.

Pai has appointed Julia Johnson, president of a consulting firm called NetCommunications, to lead the Advisory Committee. Not too surprisingly, The Intercept was quick to highlight how Johnson has a long history of actively undermining minority interests on behalf of the Multicultural Media, Telecom & Internet Council, a Comcast, AT&T and Verizon funded vessel specifically designed to help provide illusory minority community support for these companies' positions:

"Shortly after Trump named Pai to lead the FCC, the Multicultural Media, Telecom & Internet Council — a nonprofit chaired by Johnson and funded by Comcast, AT&T, Verizon, and other large telecom firms — released statements praising Pai’s appointment and endorsing his strategy for unwinding the net neutrality protections secured during former President Barack Obama’s administration. MMTC’s pro-Trump administration statements, cast as being made on behalf of communities of color, are typical of Johnson’s approach. Over the years, Johnson has used racial minorities as a cudgel to disingenuously lobby on behalf of industry."

It should go without saying, but mindlessly cheering for competition-killing mega-mergers raises rates and harms consumers -- minority or otherwise. As does advocating for the destruction of popular net neutrality and broadband privacy rules. Such protections, however imperfect, help prevent large, incumbent ISPs from abusing the obvious lack of competition in the broadband market. With little to no competition, we've watched as companies like AT&T have tried to charge users a steep premium for privacy, and companies like Comcast have slowly but surely imposed arbitrary and unnecessary usage caps.

We've also noted how this lack of competition has resulted in a large number of minority communities being left behind completely when it comes to next-generation broadband. Groups like the MMTC and dollar-per-holler allies like Johnson have consistently undermined efforts to actually do something about these problems. And getting them to admit their financial ties to giant ISPs has long proven comical, as Ed Markey found out in a 2006 hearing when he tried to uncover whether Johnson was being paid by the telecom industry to oppose policies aimed at forcing ISPs to expand broadband coverage to disadvantaged areas:

Markey: Is your organization financially supported by the Bell [telephone] companies in any way?

Johnson: No, we’re not.

Markey: At all.

Johnson: Yes, and let me elaborate upon that too. We’re a relatively new organization.

Markey: No, that’s OK. I can go along with that answer. That’s fine. Thank you. And are you compensated in any way by the Bell companies?

Johnson: I have a consulting firm that works for a variety of companies, generally in the regulatory space.

Markey: But are the Bell companies amongst those companies that pay you?

Johnson: Yes.

Traditionally the media hasn't shown much of an interest in connecting what are often fairly-obvious dots, a major reason this disinformation and lobbying tactic has been so successful over the last decade. Knowing this all too well, the FCC appears poised to lean on this tactic heavily as it works to kill net neutrality and eliminate most meaningful oversight of one of the least competitive markets in American industry. All while groups like the MMTC and industry allies like Johnson proclaim that gutting consumer protections will somehow aid the very communities these decisions will harm the most.

Filed Under: ajit pai, diversity, fcc, julia johnson

Court Sends John Oliver, HBO Back To State Court To Fight Bob Murray

from the what-an-odd-footnote dept

Second Bob Murray post in a day? Second Bob Murray post in a day! It would appear that the whole ACLU amicus brief side show will remain a side show. The federal district court has sent the case back to state court where it originated. We had written about HBO moving the case to federal court and (correctly) predicted that Murray would likely try to have it sent back to state court, but (incorrectly) predicted that it wouldn't work.

Just as background: in many cases, defendants want these cases in federal court because of the general belief (and you can debate whether this is accurate or not) that federal court judges are more sophisticated in understanding legal issues than their state court counterparts. This can be a little unfair to state judges (and a little too nice to some federal judges), but the general rule of thumb is if you have a strong case, it's better to be in federal court. But, this case is moving back to state court over lack of "diversity." I'll leave it to lawyers to offer a more complete explanation of diversity, but the short layman's version is that it's basically about whether or not the parties are in different states. If they are, you can move to federal court. If they aren't, you're in state court. As we explained, HBO/John Oliver had tried to argue that Murray's inclusion of various West Virginia companies that he owned was a fraudulent attempt to avoid diversity rules, as those companies weren't really mentioned in Oliver's piece. Murray and Murray Energy are based in Ohio. Oliver and HBO are based in NY.

However, here the court finds that it was proper for Murray to include the various West Virginia coal mining companies he owns as plaintiffs.

The Plaintiff Corporations in question were, therefore, properly joined, and the case should be remanded to state court. First, Mr. Murray is the CEO and director of each of the Plaintiff Corporations and is listed as the controller of the mines owned by those corporations. Not only is Mr. Murray heavily interrelated with these corporations in a formal business sense, but a reasonable person who knows of Mr. Murray, especially in West Virginia or another coal state, would find it nearly impossible to separate Mr. Murray from his corporations and mines. With such a strong interrelationship between Mr. Murray and the Plaintiff Corporations, defamatory statements made about Mr. Murray in his professional capacity may be easily seen as negatively implicating the operation of his corporations.

The court admits that the statements by Oliver were about Murray himself, and not his companies, but says the two are so closely identified with one another that it doesn't matter for this purpose. Also some of the comments Oliver made, while about Murray, were specifically about actions at Murray-owned companies.

The allegedly defamatory statements made about Mr. Murray did refer to him in his professional capacity. First, the Crandall Canyon Statement refers to a collapse at a mine Mr. Murray chaired and operated regarding the cause of the collapse. Second, The Black Lung Statement refers to Mr. Murray in his professional capacity because his decisions regarding Black Lung regulation would be made as the chairman and operator of the mines. The alleged “character assassinations” of Mr. Murray, including the Geriatric Dr. Evil Statement, refer to Mr. Murray in his capacity as a private individual because they bear no relation to his professional conduct. However, because the interrelationship between Mr. Murray and the Plaintiff Corporations is so strong, it is possible that those comments may defame the corporations if it was determined that the comments discredited the way the Plaintiff Corporations were operated. The Crandall Canyon statement implies that the Plaintiff Corporations are run by a dishonest figure, while the Black Lung statement implies a lack of care for the safety of Mr. Murray’s employees. Even without the character statements, there would be sufficient cause for the Plaintiff Corporations to have a possible chance of success in a defamation action based on comments made about Mr. Murray

Random aside: for reasons that I do not understand, in the midst of the above paragraph the court adds a footnote explaining Dr. Evil in much greater details than seems necessary.

1 For those who might not be familiar, Dr. Evil, whose real name is Douglas Evil Powers, gained notoriety as the villain of the Austin Powers film franchise. He is a parody of Ernst Stavro Blofeld, a nemesis of James Bond. Along with his cat, Mr. Bigglesworth, a colorful supporting entourage, and a plethora of secret lairs, Dr. Evil made several attempts at taking over the world, before ultimately finding redemption by the end of the final film.

First: SPOILER ALERT. And second, I mean, sure. That's a decent summary (and I must admit I don't remember Dr. Evil even having a real name, but it's been a while since I've seen the films), but I'm not sure why this footnote is necessary in a straightforward decision to remand. Almost feels like the judge wanted to get in something oddly humorous in such a weird case.

But back to the meat of the ruling. The court says that since the statements could defame the companies in West Virginia and (whoops...) HBO and those West Virginia coal companies are incorporated in Delaware, there's no diversity jurisdiction to move the case to federal court:

Defendants’ primary contention is that the Plaintiff Corporations were not properly joined because the defamatory statements were not of and concerning the corporations, giving the corporations no possibility of asserting a right to relief. As discussed herein, this Court finds that defamatory statements made about an executive of a business may be sufficient to defame his business where the statement was made about the individual in his professional capacity and reflects negatively on the operation of the business. Therefore, the Plaintiff Corporations may have been defamed by statements made about Mr. Murray, giving them a possibility of success in this action as set forth by Ashworth, 395 F.Supp.2d at 403. Because the Plaintiff Corporations have this possibility of success, they were properly joined. This joinder destroys the diversity jurisdiction, which would have allowed a removal to this Court because the Plaintiff Corporations and Home Box Office, Inc. are all incorporated in Delaware. Therefore, this action should be remanded to state court.

All in all, a pretty straightforward decision on remanding -- and, of course, it makes no statement on the merits (or lack thereof) of the actual defamation claims. This is probably not a big deal in the overall case, as Oliver/HBO's argument is much, much stronger when it comes to whether or not his statements were defamatory (as the ACLU so nicely explained in their now-irrelevant amicus brief), but it is at least something of a setback for Oliver and HBO. And, in case you're wondering, the 4th Circuit (where this is) does not tend to allow remand orders like this to be appealed. So they're likely stuck in state court. That's a bit of a hassle for Oliver/HBO, and a bigger annoyance for reporters like myself who do have access to federal court records while state court records in West Virginia are (annoyingly) not so easy to access.

Filed Under: bob murray, diversity, dr. evil, john oliver, remand, west virginia
Companies: hbo, murray energy

Silicon Valley Needs To Get Its Act Together On Sexual Harassment & Discrimination

from the this-is-bad dept

You may have heard, recently, about a series of reports about sexual harassment (and general sexism and other similarly awful behavior) in Silicon Valley. It's not a new thing, but it's getting a lot of necessary attention right now and it's seriously messed up. It's unacceptable. It needs to stop -- and people need to speak up about it, and to come down hard on anyone who's engaging in it or letting it slide. If you're doing the kind of crap being discussed, stop it now (and go apologize). If someone tells you you're acting inappropriately, listen to them. And if you see someone else doing something awful, tell them to knock it off and then follow through.

It's no secret that, in general, I'm a fan of Silicon Valley and the innovations that are created here. Indeed, it's been argued by some that I'm too supportive of Silicon Valley at times. But, to me, it's the innovation that's important, and the way that it can make our lives better. When companies are doing bad things that can negatively impact that innovation, they should be called out on it. For example, a few years ago, we thought it was a good thing that many companies in Silicon Valley got into serious trouble for colluding to prevent poaching of workers from one another. That was bad news, anti-competitive and anti-innovation. As we've discussed for years, widespread job mobility is a key component to innovation in the tech sector.

Another thing that's a key component to innovation? Diversity and a range of perspectives and ideas. That's one of the (many) reasons we've advocated for more immigration for high tech workers and also against this administration's effort to restrict immigration of all kinds. The basic human issues behind it are most important, but the diversity of viewpoints and perspectives is in there as well. To create better innovations that help the world, we need it to be driven by more than just a subset of the population who come from similar backgrounds.

That's another reason why it sucks to see more and more evidence of massive, and widespread, sexism and sexual harassment in Silicon Valley. Again, this isn't something new. It's been going on for a while. But it's finally getting some necessary sunlight. It kicked off with a somewhat horrifying post by Susan Fowler about her experiences at Uber, in which the HR department appeared to bend over backwards to not do anything in response to repeated reports of seriously inappropriate behavior at the company. The Guardian has now published a similar account from an engineer at Tesla.

The Guardian also has another article detailing even more horrific stories of totally inappropriate behavior towards women. I've seen some arguing that at least some of these claims are exaggerated, but that doesn't matter and it's a bullshit excuse. Just the fact that anything even remotely like this happened is disgusting and unacceptable.

Haana was so repulsed by what happened to her, she covered up her mirror so she wouldn’t have to look at herself. The Silicon Valley tech worker said that after drinks with startup colleagues last year, a male executive at her company put his hand up her shirt and groped her while they walked down the street.

“I felt disgusted for months after that,” said Haana, who requested that the Guardian not include her full name or identify the small tech startup where she used to do marketing. “It affects me on a level that I wish it didn’t.”

I know that this doesn't happen everywhere and it doesn't happen to everyone, but it appears to be happening. And if it's happening anywhere it's happening too much. The NY Times has a story mostly about the situation at Uber, but it also includes the following anecdote:

“This stuff is deeply entrenched,” Ms. Kapor Klein said, relaying a story she had recently heard about a group of programmers at a different tech company. “I heard about this engineer who said that what he and his friends do at work for fun is rate women job applicants according to who they wanted to marry, or who they wanted to kill, and there was a third thing.” Suffice it to say the third thing was not the women’s qualifications for the job in question.

You know what the third thing is. It's a dumb party joke game that has always been stupid in that kind of setting. Bringing it into the office is horrifying. I'll admit that I don't get to experience this. I'm a white guy in Silicon Valley. But the more you talk to people, the more you find out how frequently this happens. I've wanted to believe that it's not widespread around here -- but that doesn't appear to be the case at all. It is widespread, and it's happening all the time. There are just too many stories -- and each time it's allowed, it just enables more to happen. That has to stop.

Part of the lore of Silicon Valley is that so-called "disruptive innovation" sometimes involves breaking some rules, or at least pushing the boundaries of norms. And, for the sake of innovation, that's often worthwhile. But it needs to be done for the sake of innovation, and it shouldn't mean that all other basic human decency goes out the window at the same time. Silicon Valley has faced a lot of criticism over the last couple of years -- much of it unjustified in my opinion. But shit like this undermines all of that on so many levels. It's disgusting and inhumane. It's stupid and self-defeating.

For a long time, I've resisted the description many (frequently outsiders) have given to the culture at many Silicon Valley startups and tech firms that it's a "fraternity-like culture." Because so many of the people and companies I've known are absolutely nothing like that. But it's clear that some are very much like that -- and, no doubt, the success and money and public attention that Silicon Valley has been getting has driven more people to show up believing that's the culture, and then making it a self-fulfilling prophecy. That's bad.

It needs to stop. It should stop because treating women that way is just wrong -- full stop (treating anyone that way is just wrong -- but it mostly happens to women). You shouldn't need to read beyond that (and you should really know that already). But if that's not a good enough reason for you (and if it's not, check your priorities, because they're messed up), you can pile on many others: a lack of diversity (which goes beyond just the male/female issue) is really damaging for innovation. It leads to less innovation and less interesting innovation. Having a diversity of perspectives and insights is what makes innovation happen faster and it makes that innovation more powerful. You get more with diversity and it should be embraced, celebrated and sought after. You also can get a better understanding of a much larger market. Building products solely from a singular perspective and viewpoint limits who will use your products and how. On top of that, Silicon Valley and many of its innovations are under attack from a variety of different directions -- and that's likely to continue. Giving more ammunition to critics by doing stupid stuff like harassing women and treating people like crap makes things much, much worse. But, again, even adding these justifications seems silly to me, because the first one should be enough.

Yes, people like to make fun of the "we're changing the world" attitude that is often exuded from this region of the country. But here's the thing: it's often true. Many of the innovations from this small area of the world really have changed the wider world around us, and there's plenty of opportunity to do more of that. And over the years, I've met and dealt with tons of people for whom changing the world and making it a better place truly is a driving force. But, there are a lot of people here and not everyone is driven by the same motivations. And some people just don't know how to behave. If Silicon Valley is going to continue to lead the world in innovation, it needs to stamp out this kind of behavior completely. It is completely unacceptable and it shouldn't be left just upon those who are the vicitims of that kind of activity to speak up. We should all be speaking up and should be calling out any sort of inappropriate behavior like that.

Filed Under: discrimination, diversity, innovation, sexism, sexual harassment, silicon valley
Companies: tesla, uber