The FCC 'Investigation' Into Stephen Colbert Is A Complete Non-Story

from the words-are-but-wind dept

Last week comedian and "The Late Show" host Stephen Colbert found himself in a little hot water after he made an oral sex joke about Donald Trump and Vladimir Putin at the tail end of his opening monologue. If you missed it, here's the relevant bit (the easily-offended can skip down the page).

Obviously, the monologue wasn't exactly enjoyed by Trump supporters, who collectively backed a somewhat rudderless and unsuccessful attempt to pressure CBS into firing the comedian (whose ratings have, non-coincidentally, been soaring thanks to his Trump tirades). Colbert ultimately issued a follow up comment in which he stated he probably could have more carefully chosen his words, but quite intentionally fell well short of offering an apology to Donald and Vlad.

Normally this is where the story would have ended. But last Friday afternoon The Hill ran a piece stating that the FCC had received an entirely-ambiguous number of complaints about the monologue, and was going through the process of determining whether or not Colbert's comments violated FCC broadcast TV indecency guidelines. Under current FCC rules, the agency keeps an eye out for broadcast TV content deemed "indecent" before 10PM, and attempts to police "obscene" content after that point. This is all pretty standard FCC practice, with the end result most frequently either resulting in a modest fine or no action whatsoever.

When asked about Colbert's comments, FCC boss Ajit Pai made a fairly innocuous comment to a talk radio station stating that the FCC would, in essence, manage the Colbert complaints in much the same way they handle every other obscenity complaint:

"We are going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action,” he told Talk Radio 1210 WPHT Thursday. “Traditionally, the agency has to decide, if it does find a violation, what the appropriate remedy should be,” he said. "A fine, of some sort, is typically what we do."

Again, this is a fairly inane comment by an FCC boss, effectively stating that he was simply going to follow normal FCC process. Yet somehow the narrative quickly shifted in the media, with outlets immediately complaining that Pai's actions were somehow a frontal assault on free speech, or worse. The Writers Guild of America fanned these flames by issuing a statement claiming it was "appalled" by Pai's behavior:

"“As presidents of the Writers Guilds of America, East and West, we were appalled to read recent remarks by Federal Communications Commission chair Ajit Pai,” said WGA East boss Michael Winship and WGA West chief Howard Rodman this morning. “He said the FCC would investigate a joke about Donald Trump by Writers Guild member Stephen Colbert, ‘apply the law’ and ‘take appropriate action’ if the joke were found to be ‘obscene,'” the duo added of the FCC chair’s May 5 response in a radio interview.

Again though, all Pai really said is that the FCC would do what it has always done when investigating obscenity complaints. In fact, you'll note he never even uses the word "investigation." Yet somehow this idea that Pai was engaged in a rogue attack on free speech quickly ballooned to becomce this week's media narrative du jour.

Look, Ajit Pai has done plenty of arguably horrible things in just his first few months in office. He has helped the cable industry protect its cable box monopoly. He's helped prison phone monopolies rip off inmate families. He has started dismantling efforts to bring broadband to the poor. He has begun the process of killing net neutrality, solely for the benefit of telecom duopolies. He helped pave the way to the elimination of consumer broadband privacy protections. He's even taken aim at already-finalized telecom merger conditions intended to improve broadband competition.

Make no mistake: Pai wants to replace meaningful oversight of companies like Comcast with the policy equivalent of wet cardboard. All while pretending -- with the help of misleading, cherry picked data -- that this is all of immeasurable benefit to consumers.

There's been a torrent of controversial or otherwise abysmal things Pai has been up to that deserve attention. Yet somehow the focus this week has been a hysterical over-reaction to a non-story. Yes, Pai has obvious post-FCC political ambitions and enjoys throwing the occasional red meat to what he hopes will be his future constituents. But his comments on the Colbert indecency complaints are quite arguably the least interesting and most innocuous thing the FCC has been up to.

Not only did the press hysteria over the Colbert non-story take the media's eye off the ball, it reinforced the narrative that the press is awash in a "fake news" -- requiring a litany of hand wringing and soul-searching -- despite nobody really knowing what the term even means. And while many were quick to insist this proves "the left" also engages in "fake news," that tends to obfuscate the fact that the problem with modern news most frequently isn't that it's fake (though it sometimes is) -- it's that much of it is just good, old-fashioned shitty reporting.

Filed Under: ajit pai, fcc, investigation, obscenity, stephen colbert

Intellectual Property Fun: Is Comedy Central Claiming It Owns The Character Stephen Colbert?

from the stephen-colbert-stephen-colbert-stephen-colbert dept

For years, when Stephen Colbert was on Comedy Central, he actually would discuss intellectual property issues with surprising frequency, including taking on SOPA back when it was a thing. Perhaps this is because he has a brother who is an intellectual property lawyer (who apparently works for the Olympics, which is not very encouraging). So it's interesting to see that Colbert is now claiming that a lawyer from Comedy Central or Viacom (he's not entirely clear) has contacted CBS to say that it holds the rights to the "character" of Stephen Colbert.

If you're not at all familiar with Colbert, this will take some unpacking. For many years, Colbert hosted a TV show on Comedy Central (owned by Viacom) called The Colbert Report, in which he played a pompous/clueless TV news blowhard... also named Stephen Colbert. A big part of the conceit was that this was a character, quite different than the actual Stephen Colbert in real life. More recently, Colbert ended that show, to move to network TV to take over David Letterman's old slot, where it's now the Late Show with Stephen Colbert. Importantly, on the Late Show, Colbert insisted that he was leaving "the character" of Stephen Colbert behind and would actually be himself, Stephen Colbert. Got that?

In the last few months, however, there have been some concerns that this new network non-character Colbert wasn't performing well in the ratings -- and part of the blame placed on that was the fact that he was no longer using the character of Stephen Colbert from the Colbert Report.

“Late Show” has had trouble finding the funny. That’s not surprising, given how reliant his Comedy Central show was on the character he played: a smug, self-absorbed conservative talk host. That character is gone now, and now the hunt is on for what works with the “real Stephen.” Some of the standing bits toss off some good one-liners, including a fake confessional booth where Colbert admits to nonsensical sins. But too many set-ups fall flat. The “cold open” at the start of the show could develop into a keeper but at the moment it feels forced and ends abruptly, rather than naturally flowing into the title sequence.

Perhaps because of this, and as an attempt to boost ratings, last week at the Republican Convention, Colbert did two things -- he brought Jon Stewart on to return to the main desk to do a story on Donald Trump... and he brought back the Stephen Colbert character: Except... according to (not a character... we think...) Colbert, some bigwig lawyer, at Viacom or Comedy Central has called up the lawyers at CBS to say they can't do that any more. I'm almost surprised that Colbert didn't have his brother on to talk about this, but perhaps his brother is busy sending nastygrams to companies telling them they can't tweet about the Olympics. Either way, Colbert's "solution" to this issue is to say that the character of Stephen Colbert from the Colbert Report will no longer appear on his show... but instead, there will be a character named Stephen Colbert who is the other (character) Stephen Colbert's "identical twin cousin." You can see it all in the video above, which also concludes with Colbert bringing back one of his popular Colbert Report segments "The Word," which is now rebranded as "The Werd."

Of course, with Colbert, it's never entirely clear how much of what he says is serious or not, so it's possible that this is all a ploy to boost the ratings. However, usually when he does these things, they're at least based on a kernel of truth. And, if that's the case, it'll be interesting to see if the Viacom/Comedy Central lawyers take exception to this workaround. It would certainly be a fun lawsuit to see them arguing over which forms of Stephen Colbert Stephen Colbert can use...

Filed Under: characters, colbert report, intellectual property, late show, stephen colbert
Companies: cbs, comedy central, viacom

The Supreme Court Succumbs To Truthiness, Leading Librarians And Stephen Colbert To Bicker

from the a-made-up-icus-curiae dept

A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits -- and at times that's problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen's paper notes:

The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check.

That's definitely interesting, and certainly opens up the Supreme Court to responding to "truthiness"-type arguments. Given that, it's perhaps not that surprising that Stephen Colbert, the man who coined "truthiness" in the very first episode of his (soon to be ending) TV show, did a segment on Larsen's law review article a few weeks ago.

In that segment -- which we'd embed if Colbert/Comedy Central offered SSL embeds (they don't appear to) -- he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen's paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is "no longer available."

Jonathan Band, the author of that amicus brief, took offense to his "hero," Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available -- it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints:

But then I realized that you, my hero, were actually criticizing the brief because it cited to a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the shock and humiliation of this criticism, I offer the following response:

1. What difference does it make if the source can’t be found? This is the perfect example of truthiness. The number we cited sounds right, and we’re a bunch of librarians and librarians never lie.
2. The law professor who wrote the article that pointed out the missing blog post, Allison Orr Larsen, teaches at William & Mary Law School. That’s a silly name for a law school; it’s like Dick & Jane Law School.
3. It’s not our fault that the blog post was moved.
4. The blog post is actually still available in the website’s archive.
5. The person who wrote the blog post, Ed O’Neil, is an expert on the subject, and has access to the catalogues of the collections of every library in the country.
6. Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In fact, no one has challenged the accuracy of the number.

So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen -- and Stephen Colbert -- may have misfired on this particular one.

Filed Under: alli orr larsen, amicus briefs, amicus curiae, facts, jonathan band, kirtsaeng, stephen colbert, supreme court, truthiness

Stephen Colbert Creates Royalty-Free Alternative To Happy Birthday For Happy Birthday's Happy Birthday

from the got-that? dept

For years, we've covered the insanity of Warner Music claiming to own the copyright on the song Happy Birthday -- a claim that is finally being challenged in court because Warner's claims are almost certainly bullshit, and the song should be in the public domain. The history of the copyright claim in the song is highly questionable, as the original "copyright holders" appear to have written neither the music nor the lyrics to "Happy Birthday," and what they did write was widely used decades before any copyright claim was made. Still, Warner gets somewhere around $2 million each year licensing the song (making it the most valuable song ever) and has no intention of giving up that free revenue stream.

A year or so ago, the folks at the Free Music Archive and WFMU asked people to create a new royalty-free song to add to the countless variations that restaurants have come up with over the years to avoid paying Warner. Not surprisingly, the "winner" of that contest has yet to catch on.

However, last week was technically the 90th anniversary of the song's "publication" date (from which the copyright claim comes, despite the song itself existing for decades prior). In response to this, Stephen Colbert did what Stephen Colbert does best, and mocked the ridiculous copyright situation by demonstrating that he was unable to "sing Happy Birthday for Happy Birthday's Happy Birthday." Instead, he decided to perform a new alternative, which he declares to be royalty-free for anyone to use, and basing it on the (public domain) melody of the American national anthem, The Star Spangled Banner (apologies ahead of time for those in various locations that Comedy Central geoblocks and who can't see this video -- I wish they didn't, but they do): I'm not sure this one is any more likely to catch on than any of the other alternatives (and the lyrics may not be entirely appropriate for all birthdays...), but Colbert does have quite the loyal audience. At the very least, perhaps this version will become popular among copyright scholars.

Filed Under: copyright, happy birthday, stephen colbert
Companies: warner music

Colbert On NSA Surveillance: Expect The Most Transparent Bulls**t Legally Allowed

from the there-we-go dept

As a bunch of folks have been sending in, on Thursday evening Stephen Colbert took on the NSA surveillance program in a clip that was filmed before all those additional details came out about the program. Still, it's worth watching: He starts out amusingly:

Now, it's no secret I'm in favor of government surveillance. It's certainly no secret from the government.

Then there's this:

The President has heard your calls for more oversight. In fact, he's heard all your calls...

And then, of course, he discussed the fact that President Obama has confessed Congressional liar James Clapper setting up the oversight group:

See? Outside experts. Independent groups... which will be chosen by independent outside Director of National Intelligence James Clapper. The guy who lied to Congress 5 months ago about these programs, but assured us he gave "the least untruthful" answer he could. And I am confident that the group's report will include the most transparent bullshit legally allowed.

Nicely done. And yet more evidence of how mainstream this controversy is becoming.

Filed Under: james clapper, nsa surveillance, stephen colbert

Did Stephen Colbert And President Bill Clinton Violate The CFAA?

from the another-day,-another-example dept

Last night, former President Bill Clinton joined Stephen Colbert on his TV show, The Colbert Report. As many people have noted, at the very end of the program, Colbert told Clinton that he had taken the liberty of signing him up for a Twitter account, since Clinton does not currently use Twitter (he joked that he was afraid no one would reply to his tweets). The Twitter account is @PrezBillyJeff, and Colbert sent Clinton's first tweet live while on the air. If you're in the US or the one or two other places that Hulu actually works, you can see the exchange below (if you're elsewhere, blame Viacom for being stupid): Of course, as we've been discussing this week, the CFAA is an awful bill concerning hacking, and needs to be reformed. A big part of the problem is that it appears to criminalize what seems like every day behavior, and the DOJ has interpreted the CFAA broadly. While not all courts agree, the DOJ has argued that merely disobeying a website's terms of service means that you've violated the CFAA by accessing content either without authorization or by exceeding authorization.

Let's jump over to Twitter's terms of service. There, they clearly forbid impersonation:

Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

Now, you could argue that Colbert registering an account for Clinton without his permission does not reach that level, but are you confident that someone else doing the same thing less publicly wouldn't run into problems if their tweets pissed someone off? An account that many people believe actually belongs to Bill Clinton would be highly valuable. Indeed, just overnight the account has racked up tens of thousands of followers. In the meantime, it's not even entirely clear who actually controls the account. Colbert registered it and tweeted from it. Are any future tweets coming from Colbert or Clinton or someone else? It's not difficult to make an argument that the account is intended to confuse others. Furthermore, if Colbert is transferring the account over to Clinton, it means that Clinton never actually agreed to the terms of service in the first place. Would that mean he is then abusing the use of the service?

While they appear to now have been deleted, according to the Washington Post, after the inaugural post done live on the air, there were a series of other tweets in which it was not clear if it was Clinton or Colbert tweeting. One had "Clinton" refer to "Colbert" as his new "BFF" and the tweets used the hashtag "#notColbertpretendingtobeme." At the very least, there is clear confusion, and a regular person might assume that this is Bill Clinton tweeting. If it's actually Colbert, it could be seen as a CFAA violation.

Yes, this is a stretch -- no doubt about it. But that's part of the problem with the CFAA. It is so broadly worded that simple activities like these can be twisted into a violation should someone in power wish to do so.

Filed Under: bill clinton, cfaa, cfaa reform, impersonation, stephen colbert, terms of service
Companies: twitter

Colbert Takes On First Sale Rights; Mocks Kirtsaeng Case

from the first-sale-goes-mainstream dept

Copyright issues don't often become "mainstream" stories. SOPA was the exception, not the rule, and it only really went fully mainstream at the very end with the January 18th blackouts. But it's always nice to see when big copyright issues get some mainstream love. Stephen Colbert actually has covered copyright (and other IP) issues a few times on his show (perhaps because his brother is an IP lawyer). He was actually among the first on TV to cover SOPA. Still, it's a bit surprising to hear that he devoted an entire segment of his show to First Sale, and specifically the Kirtsaeng case that we've been covering. If you're in the US or one of the very small number of countries that Viacom's streams work in, you can watch it below (blame Viacom, not me, if you can't): For those who can't watch it, Colbert gives a basic explanation of what's at stake in the Kirtsaeng case, even calling out that the First Sale Doctrine was codified by the courts over a century ago (and then joking "I'm sorry, I don't buy this 'First Sale' argument... and if I did buy it, I would not resell it, because I don't have the right!"). Then he notes that the Kirtsaeng issue would only apply to goods manufactured outside of the US, and cracks a joke about how little is still manufactured in the US these days. After highlighting how this could hurt sites like eBay, he notes that he's planning a garage sale, and that he now needs to get permission from the copyright holders on any goods made outside the US... and proceeds to call up Elvis Costello to haggle with him over his plan to sell a vinyl copy of My Aim is True.

It may not be the funniest Colbert bit, but it's still quite amazing to see first sale issues get such mainstream coverage. Even though the Kirtsaeng case is at the Supreme Court and a certified "big deal," it's still pretty obscure outside of copyright circles. So it's great that it appears to be getting some mainstream love. Colbert uses clips from a few popular news shows discussing the case, including the O'Reilly Factor, again showing the issue is getting plenty of attention.

And, while we're used to commentators screwing up the details, Colbert mostly seems to get them right here (again, I wonder if he ran some stuff by his brother). It gets a little fuzzy at times when he seems to suggest that all goods are covered by copyright, but that can likely be chalked up to trying to simplify the explanation for the sake of lining up a good punchline. Of course, it's also worth noting that Colbert's bosses at Viacom are members of the MPAA (via Paramount, which is owned by Viacom), and the MPAA filed a ridiculous brief in the case that effectively argues that the US economy might collapse if the Supreme Court doesn't wipe out your first sale rights. It would have been really amazing if Colbert dug into the insanity therein...

Filed Under: copyright, first sale, kirtsaeng, stephen colbert

Viacom Uses Fans As Hostages: Blocks Daily Show, Colbert Streams For Everyone To Spite DirecTV

from the um.-overkill dept

So, as the dispute between Viacom and DirecTV over how much money Viacom wants for its channels wore on, the various Viacom channels like MTV, Comedy Central and Nickelodian disappeared for DirecTV subscribers. As often happens in such situations, DirecTV told its customers that they regretted the situation and were working on it, but in the meantime, they could check out missing programs online. Viacom's massive overkill response? Pull the free streams it offers online of two of its most popular shows: The Daily Show and The Colbert Report. For everyone. Not just DirecTV subscribers. Because, apparently, pissing off consumers and driving them to unauthorized means, is... um... I don't know... supposedly going to get them on Viacom's side? This is the kind of "strategic" thinking that goes on at Viacom, apparently. Of course, this really highlights the exceptionally distorted economics of the cable/satellite TV business, where it makes more sense to block your direct relationship with fans and piss them off... in the hopes that it might make the satellite provider to pay you more money. Viacom's new motto, apparently, is: Using our fans as hostages. This is why the TV market is so ripe for disruption.

Filed Under: stephen colbert, television, the daily show
Companies: directv, viacom

Colbert Takes On SOPA

from the can-we-get-some-internet-policement dept

By the way, I wanted to embed the clips of Colbert's show in this post -- as is clearly allowed by the site. But because Viacom is crazy, they appear to set the embeds to autoplay as soon as you load up the page. And that's freaking annoying. I tried to find hidden variables to stop the autoplay... and nothing worked. So, sorry, no embeds. Meanwhile, Colbert: please, please, turn off autoplay, or at least make it an option. Thankfully, a few folks sent over the secret code to make it work...

Want to see just how mainstream the issues of SOPA and PROTECT IP are becoming? Last night they made it on to The Colbert Report, where he had a bit of a debate about SOPA, between record label owner Danny Goldberg and Harvard professor Jonathan Zittrain. It kicked off with a short segment, where Colbert explained the issue.

As a content provider, I am wholeheartedly against the infringement of copyright... so much so that I had that phrase trademarked and then I had it emblazoned on a Mickey Mouse doll

Which, of course, he then shows to the audience.

But the awesomest part? He quotes the famous $200 to $250 billion in losses claim that always gets thrown around... but then immediately says:

That is a shocking number. Especially when you realize the FBI admits it has "no record of source data or methodology for generating the estimates and that it cannot be corroborated." Now folks, that's what happens when the FBI buys bootleg reports off a card table in Chinatown.

Honestly, this might be the first time I've seen mainstream media -- and a Viacom-owned property, no less -- call out the bogus numbers for being bogus. He finishes by pointing out that YouTube, Twitter and Facebook could be in trouble under the law, and that people uploading infringing videos may face problems as well.

From there, he went into the debate. In his typical satirical way, he introduces Zittrain by claiming he was here to "defend thieves & pirates," and asks him "why do you want artists to starve?" Zittrain did a great job:

"I want artists to thrive. The internet allows artists to find their audiences. When Justin Bieber started singing his favorite songs on YouTube, he got discovered because of the internet. And the odd thing is, under this law, SOPA, the behavior of Justin Bieber, singing his favorite songs, without authorization, over the internet, could make him a felon, in jail for three years."

It's actually five, but close enough. Goldberg, of course, says this is all an exaggeration, and then claims (incorrectly) that the bill only targets foreign sites. Zittrain did note that there were different parts of the bill (but leaves out that many of them target US companies), but then makes the second key point, about how this law uses the same mechanism that China & Iran use to censor the internet there. To which Colbert replies: "I don't know about Iran, but China is kicking our ass in business right now. Wouldn't it be good for American business? Because if we shut down parts of the internet, won't people at work actually do the work they were hired for?"

Goldberg continues to play the "but something must be done" line, leading Colbert to make his alternative proposal: "What if the artist gets something from the company stealing from them? An eye for an iPod?" to which Goldberg says "it's a good line, but..." and Colbert points out, "it's an excellent line, not a good line" and then threatens to sue anyone who "steals" it.

Wasn't expecting much for an under 5 minute interview, but overall Zittrain did a great job, and got in a few key points. The Bieber point is a little exaggerated, because Bieber would have to do a few more things (such as embedding the videos on his own site), but the overall point he's getting at is clear: the bill is overreaching and will harm legitimate activities which artists rely on today.

Filed Under: copyright, danny goldberg, jonathan zittrain, justin bieber, pipa, protect ip, sopa, stephen colbert
Companies: viacom

Stephen Colbert's On Like Donkey Kong, As He Seeks Trademarks On Other Dated Catch Phrases

from the you-don't-know-jack dept

Last week, we wrote about the publicity stunt involving Nintendo claiming to have filed for a trademark on "It's On Like Donkey Kong," a phrase they did not actually come up with. A number of folks passed along the news that Stephen Colbert also noticed this story and decided to stake a claim to other "dated catchphrases," in the hopes that various corporate brands would later wish to buy from him such classics as "It's all that and a bag of chips" (for Frito Lay), "Talk to the Hand" (for Isotoner) and "Show me the money" (for E*trade).

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Stephen Trademarks Dated Catchphrases
www.colbertnation.com

Filed Under: donkey kong, parody, stephen colbert, trademark