Attention news agencies of Planet Earth. This is an all points bulletin for your benefit: stop passing off video game footage as real-life-happenings. Yes, what seems like a thing that shouldn't be able to happen has actually happened several times in the past, from video game footage passed off as a terrorist attack to state news agencies passing off video game footage as a potential threat to a nation's enemies. Some nations appear to even be trying to take advantage of it all, such as when Russia tried to sucker world news groups into thinking that it had found proof that America is arming Ukrainians with video game footage of a weapons cache. And, yet, it keeps happening.
The latest case is an Egyptian news agency bizarrely using footage from a Russian-made video game, Apache: Air Assault, published by Activision and featuring english-speaking characters, to proclaim Russian dominance against ISIS in Syria.
Now, I realize there are cultural and linguistic barriers here, but it shouldn't be terribly hard to understand that the voices in that footage are speaking English. And, though video games are becoming more realistic by the day, the footage and audio here is still video-game-ish enough that it's fairly easy to identify it as such with just a few minutes' watching. And yet, anchor Ahmed Moussa had this to say before airing the footage.
"Yes, this is Russia; this is the Russian army. This is Putin," he said. "This is the Russian federation. Are they confronting terrorism? Yes, they are. The Americans were too soft on ISIL. The US has been there for a year and a half, and we have seen not one bullet from them, nor have we seen anyone getting killed by them."
I'll give Moussa points for originality. After all, it's not every day you hear lamentations from the Middle East that Americans just aren't killing enough people.
One of the documents the city chose to release was the District Attorney's report on the shooting. This is where the contradictions begin. Obviously, the city thought this would be the last word in the civil suit. Statements from multiple officers all suggest the same thing: the man they intentionally shot (another caught bullet fragments to the spine during the hail of gunfire) made several "threatening" moves that left officers with no other choice but to open fire.
The 14-page report is an echo chamber. Officers, responding to a call about a bike theft, encountered three Hispanic males walking with bicycles. Having reached the unfounded conclusion that these were the suspects, they detained the men. ("Detained" being a fancy word for drew their weapons and shouted a lot.)
The report contains repeated claims by multiple officers that aren't matched by the events depicted in the video. Officers claim Ricardo Diaz Zeferino "ran towards them" and made "furtive movements" in the general area of his waistband. While the video does show Zeferino having problems keeping his hands above his head, it doesn't show much in the way of "furtive movements." It definitely doesn't show his hand "hovering" over his back pocket.
The document is a fascinating depiction of all the things that could possibly make an officer fearful -- an emotion that usually results in "discharged weapons," to use the deflective parlance of hundreds of officer-involved shooting reports: "furtive movements," other officers "seeming scared," right elbow "bowing out," "losing sight" of a hand, "big swinging motion" of Diaz's right hand, "manipulating something on the right side of his body," and so on. How a motion can simultaneously be "furtive" and "big and swinging" is beyond me, but then again, I rarely have to explain why I've shot an unarmed person.
Beyond that, there's additional claims made to buttress the righteous shoot. Diaz had a "maniacal grin." Diaz's movements became "faster and more deliberate." An officer expresses his disbelief that Diaz would ignore an order to keep his hands up, believing such disregard for authority to be indicative of Diaz's intent to kill. Another officer states he believes Diaz was "testing [the officers'] limits" and "closing the ground" between them.
Considering the official background of the shooting, it's hardly surprising the city spent several months fighting to keep this video from reaching the public. Now that it has been made public, the police department has gone into damage-control mode. At best, its efforts are inept.
Police have said the shooting was justified and that the dash cam videos from the squad cars don't tell the whole story. An attorney for the city said this week that one of the videos "looks bad" but that it was not taken from the perspective of officers.
I have no doubt that if the video were more exonerating, the city would have never a) fought the release or b) claimed the video "didn't tell the whole story." And the claim that a dashcam video is somehow not a police officer's "perspective" is completely laughable.
Even more laughable is one of the city's arguments in favor of keeping the video sealed. It basically told the judge that the high-dollar settlement was offered in part to buy silence and secrecy.
The Court's rationale for sealing the subject videos was the parties' stipulated protective order—entered against the backdrop of stalled litigation. However, the parties cannot contractually agree to deprive the public of its strong First Amendment interest in accessing these videos, which were filed in connection with a dispositive motion. Defendants assert that the videos should remain sealed because they agreed to settle the case for $4.7 million—an amount above their liability insurance policy—specifically because they expected the protective order to continue and the videos to remain secret.
The court is unimpressed by the city's "Hey, we paid good money to make this go away" argument:
However, Defendants' argument backfires here—the fact that they spent the city's money, presumably derived from taxes, only strengthens the public's interest in seeing the videos. Moreover, Defendants cannot assert a valid compelling interest in sealing the videos to cover up any wrongdoing on their part or to shield themselves from embarrassment. The only valid privacy interest in this case belongs to the Plaintiffs, who have made abundantly clear that they wish the videos to be made available to the public.
Moreover, while the videos are potentially upsetting and disturbing because of the events they depict, they are not overly gory or graphic in a way that would make them a vehicle for improper purposes.
Generally such settlements include no admission of guilt by the city—the cops involved usually keep their job, and the settlement money always comes from taxpayers, not from police officers, their unions, or their pension funds. Settlements effectively end discussions on police brutality because many people view them as victories even though they come without admissions of guilt and with the punitive bill being picked up by taxpayers, not cops.
But it didn't work here. The city paid out and still has to deal with the repercussions of its officers' actions. It has already filed an appeal with the Ninth Circuit Court. And it has received the most useless of temporary restraining orders in response:
After The Times published the videos online, 9th Circuit Judge Alex Kozinski issued an order that “the police car camera video footage shall remain under seal pending further order of this court.”
And, as long as we're talking about transparency, let's discuss the other parties involved in this case. "Interested media organizations" -- including the Associated Press, the LA Times and Bloomberg News -- all filed motions in support of the video's release. And while all were more than happy to post the video as soon as it was released, not a single one of them could be bothered to post the court order that gave them access to this footage. Once again, media outlets continue to pretend public court records are somehow proprietary information. Articles quote from the order, but apparently the $1.30 they paid to download it from PACER (if these outlets paid anything at all) entitles them to interpret public documents on our behalf, rather than allow us to read them for ourselves.
Pay attention to the gaming scene and the way gamers interact with game companies and journalists and you'll see that times are a little tense these days. Without diving into any of the debates currently being had throughout Gamerdom (Gamerstan? Gaming Nation?), let's just all agree that there is a big fat trust vacuum at the moment and that this vacuum is being filled by all kinds of reactions, some of which are reasonable, some of which are silly and overreaching. What's happened since in the last year or so has exacerbated the distrust to the point where companies operate on tip-toes with their audiences or they suffer the consequences. What cannot be done in a time like this, if a company wants to make money and keep its fanbase loyal, is to further breach that trust.
Today, the Xbox YouTube channel released a rad new video for the upcoming role-playing game The Witcher 3. There’s just one problem: it’s not actually running on an Xbox. Whoops. Yep, despite that XBOX logo stamped on the bottom right corner of the above video, this is actually footage from the (presumably better-looking) PC version of the game. The easiest way to tell? You can run the YouTube video at 60 frames-per-second; the developers of The Witcher 3 (out May 19 for PS4/XB1/PC) have specified that the console versions are actually locked at 30 FPS.
Now, I can already hear every person on the planet who either isn't a gamer at all or is a casual gamer at most screaming, "There's no way this is a big deal!" And, ultimately, they're right, it's not the hugest issue in gaming today. Game-makers play these kinds of tricks all the time, whether it's showing the wrong version of the game, passing off cut-scenes as gameplay elements, or promoting features in games that aren't present upon release. But the tolerance for these tricks is completely gone. It's now common to see disclaimers that footage isn't actually of gameplay, or that the footage is from one version of the game or another. And, while the Xbox channel did eventually edit to include a disclaimer that the footage was from the PC version of the game, the bait-and-switch nature of all this seems more inexplicable when it appears on the YouTube page for the console itself.
Next thing you know, prospective customers are crying foul and the game developer, CD Projeck Red, a company that is generally awesome in terms of being customer friendly, suddenly has to scramble to assure its fans that it had no idea Microsoft was doing any of this. Again, no reason not to believe them, but in the trust vacuum everyone might be in on the conspiracy and blowback is done via carpet-bomb instead of in a measured way.
Is this false advertising or an inadvertent error? I have no idea, but I do know that gaming companies can't make these errors and think they can get away with it at the moment.
While the NFL isn't necessarily great at preserving its own historical footage in sum total, the fact is that the league makes a great deal of money by selling copies of game footage and interviews from seasons since past. Recently, three former players opted out of a settlement the league had agreed to in a class action case and decided to pursue their own rewards for the NFL's use of old game footage and interviews. Their theory is that the league violated their publicity rights. Their theory is wrong.
Now, thanks to the First Amendment and two other reasons, U.S. District Judge Paul Magnuson has ruled that the claims can't survive. In coming to the decision, Judge Magnuson looks at various productions like NFL Films' “1973 Houston Oilers Season Highlights" and "Cliffhangers, Comebacks & Character: The 1981 San Diego Chargers.” These productions weren't about Dryer, Bethea or White per se. The players were nevertheless shown on field, sometimes mentioned by name, and in some instances, interviewed about their playing days.
The judge finds that these productions weren't commercial speech. The plaintiffs brought forward a theory that the productions were advertising because they served to enhance the NFL's brand, but the judge says that "brand enhancement alone is not sufficient to render a production advertising as a matter of law."
Because the speech was deemed to not be advertising in nature, it falls under the protection of the First Amendment. That would be enough for the publicity rights claim to fall apart. Add to that the judge's finding that the former players were well-aware that game footage and interviews would be used in future broadcasts or publications before participating in the games or the interviews and you have a slam dunk dismissal. Even so, Judge Magnuson wasn't done.
Further, and not insignificantly, the judge finds a third reason why the lawsuit must fail. The judge writes that the NFL has the right to exploit "copyrighted game footage in expressive works such as the NFL Films productions at issue here. The NFL’s valid copyright in the game footage forecloses Plaintiffs’ publicity claims."
While I'm no fan of the current state of copyright in this country, seeing one form of intellectual property cannibalize another, more horrible form of IP is admittedly entertaining. Now, the NFL wins this case, but as the article points out, the NCAA may be the most interested observer in the metaphorical courtroom. The college sports megalith is in the middle of appealing the O'bannon case that is currently preventing me from playing NCAA Football '15 and could theoretically bring the association to its knees, all while giving way to an era in which college athletes get paid for their service. The NCAA's entire argument in that case rested on First Amendment grounds, which would appear to be bolstered by this NFL win.
We've written several times before about the prevalence of recording devices and the protection citizens deserve in being allowed to film public servants doing their public duties. Some police departments seem to get it better than others, such as the DCPD policy for not confiscating cell phone cameras or deleting footage. Other departments, such as those in my hometown of Chicago, seem to think they can just take your property without a warrant as a way to stave off criticism of their poor behavior. But sometimes we get an example of why this debate is so important, when an officer of the law goes to the egregious lengths of killing a citizen and then his fellow officers attempt to cover up the evidence.
Tom Landry writes in about one such extreme example, featuring Texas police pumping 41 bullets at a man, having a police dog attack him, when the officer's stated and still ridiculous reasons for doing so were pure fabrication. Then, a fellow officer confiscated a witness's camera and deleted footage of the aftermath of the incident. Michael Allen Vincent, a man who allegedly had several traffic incidents with police in the past, had led policeman Patrick Tuter on a high speed chase before pulling over into a cul de sac. That's when Tuter ordered Vincent out of the car, before discharging his weapon 41 times, for reasons we'll get into later. As you might expect, all the noise attracted the attention of neighbors.
[Mitchell] Wallace and his wife were asleep when the gunshots began, but they quickly made it to the porch to see Allen's passenger being pulled from the truck and a police dog jumping into the cab. The German shepherd bit Allen in the neck and jaw area and dragged him out of the truck and onto the pavement, Wallace said. Police officers pulled the dog off, flipped Allen on his stomach and handcuffed him before checking his pulse. Autopsy results are pending on the cause of Allen's death.
Wallace took cellphone pictures and video after the shooting stopped, but he said Mesquite police confiscated the phone and deleted the video and pictures. The phone was returned four days later, he said.
First, I have a few complicated theories on what the cause of death may have been. Most of them involve an officer shooting at an unarmed suspect 41 times, having to reload at least once mind you, and/or a large dog dragging someone out of a car by the neck. Secondly, this confiscation of the camera and the deletion of footage is a blatant violation of the 1st and 4th amendments, as the article notes.
The law states that police need a court order to confiscate a camera unless it was used in a commission of a crime. The only exception is if there are exigent circumstances, such as a strong belief that the witness will destroy the photos, therefore destroying evidence. Under no circumstances do police have the right to delete footage.
Already a Texas Public Information Act request has been filed for a copy of the investigation into the seizure of the cell phone and deletion of footage.
Now, lest you think that this man somehow deserved to have 41 bullets fired at him before being attacked by a police dog, it turns out that Officer Tuter's stated reason for reacting so violently, that suspect Vincent had "backed his truck into the patrol car" (seriously?), was a complete fabrication as found out by his own dash camera. Tuter has since been suspended.
So, in the same story, we have police deleting footage from a witness illegally, while the illegal actions of an officer are only discovered because of camera footage. The juxtaposition perfectly highlights why the confiscation of cameras and deletion of potential evidence is such a horrendous violation of the public trust. I can think of no more clear way to demonstrate the need for strong protections for the public filming their civil servants.
Back in May, we wrote about a judge ordering a documentary filmmaker to turn over the footage that didn't make the film to Chevron. The documentary was about Chevron's alleged involvement in Ecuadorian rainforest pollution, and Chevron believes that some of the cut footage will help get a case that has been filed against it in Ecuador dismissed. The filmmaker tried to raise press protections, but the district court judge shot that down, saying that the material was not confidential (and, in fact, was filmed knowing it might be made public). The case was appealed, and the appeals court wasted little time in again telling the filmmaker to hand over footage, but the court also appears to have limited the scope somewhat:
Berlinger has to turn over all footage showing (1) plaintiffs' counsel in Chevron's civil lawsuit in Ecuador, (2) private or court-appointed experts, and (3) current or former Ecuadorian officials;
Chevron can only use the material produced for litigation, arbitration or submission to official government bodies;
Chevron must pay for all reasonable costs incurred by Berlinger in turning over the footage; and
The district court below shall maintain jurisdiction to address any disputes relating to the release of the footage.
Apparently, both sides are claiming victory, but as Itai Maytal at the Citizen Media Law Project notes, the full details of the ruling (not yet issued) will matter a lot, and no matter what, this could be seen as a "weakening" of previous case law about reporter's privileges, which could lead to more lawsuits against reporters.
