harvard – Techdirt (original) (raw)

Bill Ackman: Nazis On ExTwitter Are Just The Price Of Free Speech; But Marxist Theory Or Anti-Israel Claims On Campus Are Beyond The Pale

from the selective-free-speech dept

Earlier this year, we wrote about about another “free speech absolutist” and Elon Musk buddy (and investor in ExTwitter), Bill Ackman threatening to file a SLAPP suit over reporting he didn’t like. He’s still promising such a lawsuit against Business Insider, and when it comes, it seems unlikely to succeed. He’s yet to show any actual false statement of fact made about his wife Neri Oxman, he just doesn’t like the way she was portrayed.

Earlier this week, NY Mag’s Intelligencer published quite a massive profile about Ackman, that has quite a few eye-opening stories in it, including one in which his wife had asked him to stop tweeting about her, and he pushed back by pointing to the memes which are mocking him for being the ultimate “wife guy” online.

Oxman, for her part, wasn’t sure what to make of her husband’s chivalrous tweeting, which had drawn even more attention to the allegations. (Through Ackman’s spokesperson, she declined to comment for this story.) Ackman wrote on X that the pressure from the Business Insider stories “could have literally killed her” and that he had seen others commit suicide in similar circumstances. “She was in a pretty dark place,” Ackman told me, adding that he tried to nudge her toward finding a silver lining: “I’m like, ‘Look, you didn’t do anything wrong; we’ll get this fixed,’ and ‘Actually, the more negative press, the -better. Once we turn this around, it’ll be good for your company.’” He wasn’t sure the pitch had landed — “There were times when she said, ‘Please don’t tweet anymore’” — but he defended himself by pointing to memes online suggesting he had become a hero to wives everywhere. “There’s a meme going around that apparently I’m causing a lot of marriages to have trouble,” Ackman said. “Like this one where a husband emails his wife, ‘Honey, I did the dishes.’ And she’s like, ‘Big fucking deal. Did you see what Ackman’s doing for his wife?’”

But for this article, to keep it relevant to Techdirt, I wanted highlight how Ackman’s “absolutist” support for free speech seems (how shall we put it?) highly selective.

When asked about antisemitic content on ExTwitter, he seems to brush it off as unimportant, and a tradeoff of enabling more speech:

This past September, Ackman, who invested $10 million in Elon Musk’s takeover of Twitter, defended Musk against accusations that X had become fertile ground for antisemitism. “Elon has basically opened up Twitter,” he said. “The downside to a very open format is there’s gonna be some hate speech.”

And, like, that’s a perfectly reasonable and defendable stance to take. If you’re consistent about it. Platforming more speech does mean more hate speech will get platformed. It’s a tradeoff, and there are reasons why some will say that tradeoff is worth it. But, again, if you’re going to support that in the name of free speech, at least be consistent about it.

But Ackman is not. Because, the article highlights how his shitfit that helped lead to the resignation of Harvard’s President Claudine Gay was… because he could not stand the fact that there were protests on campus against Israel.

What launched Ackman’s crusade was an open letter signed by more than 30 student groups at Harvard that began with the sentence “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.”

And, again, I can understand how this letter could upset people (I find it pretty naïve, given the details of what happened on October 7th, but also, the fact that some college students are naïve and prone to over-simplifying complex world situations is… not new or surprising?). But there seems to be a disconnect in claiming that it’s somehow okay for there to be “some hate speech” on ExTwitter, but that it’s unacceptable for some students to (misguidedly) wish to blame the entirety of October 7th on Israel.

Are you okay with some hate speech in the process of “opening up” speech? Or are you going to go nuclear when there’s some hate speech that you, personally, dislike? Ackman seems to think it’s totally okay for there to be hate speech on ExTwitter, but simply cannot forgive naïve youthful protests on campus.

Of course, some of this seems even more personal, in that his main complaint is that while he went to Harvard and came out a stereotypical “greed is good” capitalist, his daughter (having grown up with him as her father) at least dabbled in learning about Marxist theory in college:

His nephew enrolled at Harvard, as did his eldest daughter — which, Ackman told me recently, is where the trouble started.

“She became, like, an anti-capitalist. Like practically a Marxist,” Ackman said in January, leaning across a large conference-room table at the offices of his hedge fund, Pershing Square. “We’d talk about capitalism, and she would freak out at the table.” His daughter was in the social-studies department just like her father, and rowed crew, too, but she had chosen to write her thesis on “The Concept of Reification in Western Marxist Thought,” having come to very different conclusions than her father had about how the world should work. Ackman said it felt as though she “had been indoctrinated” into a cult.

So… when he went to Harvard and came out as someone who would do anything to make money, that was all good and natural and the way the world works. When his daughter came out of Harvard exploring Marxist theory and pushing back on his views of capitalism, he freaked out and insisted it must be “indoctrination” and such free speech on campus must be stopped.

Even more telling, he then read a book by grifter-extraordinaire, Chris Rufo, who believes in indoctrinating kids in extremist right wing ideology, and, suddenly, Ackman was totally on board… and getting his info… from ExTwitter:

Someone else sent him the book America’s Cultural Revolution: How the Radical Left Conquered Everything, by Christopher F. Rufo, the conservative activist who led the effort to stigmatize critical race theory before turning his sights on DEI. Then came the deluge. “I started following various people on Twitter,” Ackman told me. “I started getting the download.”

Again, he’s allowed to have these opinions, but it really says something when you claim that hate speech is fine on ExTwitter because “free speech” but you go nuclear and try to burn down an institution like Harvard because your daughter is at least marginally interested in Marxist thoughts and some other students have slightly naïve theories about middle-east policy.

Some might call it hypocrisy.

And, it’s the kind of hypocrisy we’ve been seeing a lot of over the past few months. The infamous congressional hearing that has already resulted in two university presidents getting fired (for which Ackman likes to take credit) clearly involved those presidents awkwardly trying to get across the nuances of how they try to support free speech on campus, by looking at the specifics of any specific example of hate speech to see if it actually violates their policies.

But, almost immediately, the “free speech brigade” who all seem to support Elon Musk platforming neoNazis in the name of free speech, took huge offense to the idea that universities might allow people on campus who protest loudly against Israel. Such people do not support free speech. They support some speech that doesn’t much bother them, but will embrace a form of “cancel culture” of their own to oust those they dislike.

Filed Under: bill ackman, free speech, hypocrisy, marxism, neri oxman, selective free speech
Companies: harvard, pershing square, twitter, x

Man Sues Multiple Social Media Services, Claims Banning His Accounts Violates The Civil Rights Act

from the new-twist,-but-not-a-smarter-twise dept

Everybody wants to sue social media platforms for (allegedly) violating the First Amendment by removing content that most platforms don’t feel compelled to host. Most of what’s sued over is a mixture of abusive trolling, misinformation, bigoted rhetoric, and harassment. Plaintiffs ignore the fact that private companies can’t violate the First Amendment. The First Amendment does not guarantee anyone the right to an audience or the continued use of someone’s services.

Then there’s Section 230 immunity, which shields platforms from lawsuits filed over content posted by users as well as their own moderation decisions. This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America. No number of complete losses appears capable of deterring the next hopeful plaintiff from lobbing a sueball into court with the hope that the presiding judge will be as batshit crazy as the allegations and arguments contained in the lawsuit.

Some litigants (and some of our stupider legislators) continue to insist platforms like Twitter are indistinguishable from phone companies. Ignoring the transitive nature of “carrying” fleeting communications, these hopefuls insist Big Tech is just Ma Bell and must be compelled to “carry” their content… forever. No court has agreed with this argument, the occasional word dump by the usually silent Justice Clarence Thomas notwithstanding.

Maybe the solution is to short-circuit this determination by presumptively declaring social media companies to be common carriers, like the plaintiff in this lawsuit, who’s angry a number of online services deleted his Zionist conspiracy theory content. This suit [PDF], filed in Massachusetts, kicks things off by declaring platforms to be common carriers, using boldface type to drive the point home.

The defendants in this case are Twitter (drink!), Facebook (drink!)… um… LinkedIn (drink?), Medium (you have reached your limit of free drinks for this month), The Stanford Daily Publishing Corp. (please create an account to drink), and The Harvard Crimson, Inc. (I graduated drunk, he casually dropped into the unrelated conversation). Plaintiff Joachim Martillo insists at least the first three are common carriers. His legal arguments for this theory are mostly the subheads.

Defendant Twitter Inc (A Common Carrier, Defendant 1)

Twitter Inc (Twitter) operates as a platform for public self-expression and conversation in real time. The company offers various products and services, including the Twitter platform that allows users to consume, create, distribute, and discover content. Twitter provides common carriage for a fee and in exchange for work.

And so it goes for both Facebook and LinkedIn. The remaining defendants are not declared to be common carriers. Martillo also notes he has filed similar lawsuits (one for each defendant in this lawsuit) in [checks filing] Dorchester Municipal Court.

After quoting Justice Clarence Thomas’ recent ramblings about how much “power” he feels these private companies have over public discourse, Martillo moves on to claim Section 230 of the CDA allows platforms to avoid their obligations under other federal anti-discrimination laws like the Civil Rights Act of 1964, the Americans with Disabilities Act, and… the Fair Housing Act (go home lawsuit, you’re drunk).

Martillo actually makes the argument that a social media platform is a physical entity that should be accessible to everyone, using verbiage apparently cribbed from the Time Cube website.

It is not necessary to consider the public accommodation that Facebook provides to be virtual. Computer scientists use virtualization to describe complex electronic structures including transient gate state structures created by a logic device like a microprocessor. These structures are completely material…

Achievement unlocked: red pill consumed.

How does this all connect?

The plain text of the CDA (Communications Decency Act) provides no indication that the CDA is meant to override civil rights law.

Martillo is correct, but not in the way he thinks. The CDA does not allow platforms to engage in discriminatory hiring practices or discriminate against certain users because of their race or other immutable characteristics. (It also does not protect them from being prosecuted or sued for federal law violations.) This does not mean they cannot moderate content, even if some users might perceive their moderation efforts to be discriminatory. And that’s the crux of Martillo’s arguments. He feels he’s been discriminated against because he is, shall we say, “anti-Zionist.”

The Title II violation by Facebook seems to be directed primarily at Palestinians, Arabs, Muslims, and Diaspora Jews that reject Zionism. No other groups protected under the CRA seems to be subject to harassment by organized persecutors attempting to establish or to maintain a cultural hegemony.

[…]

The response [of Facebook] is more akin to the behavior of a restaurateur that bans blacks from his restaurant because the KKK has threatened him or his restaurant.

What follows from this is Martillo attempting to make the case that his pro-Palestinian content was taken down by the Zionist collectives that handle Big Tech social media moderation. That includes non-Big Tech defendants like sites run by Stanford and Harvard, which removed comments of his suggesting (in a circular fashion) that Zionists are evil, resulting in the removal of comments by alleged Zionists staffing those student sites.

Martillo also apparently startled LinkedIn by sharing content on its platform, forcing it to wake up its on-call moderators to do some moderating.

According to Martillo, these moderation efforts violate the Civil Rights Act, although he is unable to explain how he’s being discriminated against. Nor does he specify which protected group he’s a member of. There’s a “denial of common carriage” claim in there (because of course there is) that Martillo feels is worth at least $3.65 million at the time of this filing.

Needless to say, this lawsuit won’t go anywhere, even if the plaintiff feels Clarence Thomas’s off-hand remarks on the power of social media companies mean something. Social media services aren’t common carriers. Section 230 will immunize all of the defendants. And the First Amendment ensures they can’t be forced to carry Martillo’s content, no matter how fervently believes he’s being discriminated against by a Zionist cabal.

Filed Under: 1st amendment, common carriers, content moderation, discrimination, joachim martillo, section 230, zionism
Companies: facebook, harvard, linkedin, medium, stanford, twitter

Universities Ask Court To Block ICE's Directive Ordering The Removal Of Foreign Students Engaged In Remote Learning

from the don't-be-a-dick,-ICE dept

MIT and Harvard are suing to have ICE’s latest attack on (legal) foreign visitors to this country blocked. A few days ago, ICE retracted an exception it had previously issued in response to the COVID pandemic. This exemption was issued back in March to allow students here on visas to continue their studies, even if all of their classes were now online.

It’s now July and the COVID crisis isn’t over. In fact, it appears to be getting worse. The US is expressing its exceptionalism by dominating the world in the number of new cases daily. Schools are prepping for the fall semester and the reality of the situation is that moving back to normal classes, rather than sticking with remote learning, just isn’t possible at this point in time.

That reality makes no difference to ICE. It has decided the crisis is over and any students here legally should exit the country if they can’t take classes in person. MIT and Harvard have no intention of moving back to physical classes when school commences in a couple of months. And the schools don’t feel their foreign students should be punished for not attending classes that aren’t being held or putting their health at risk unnecessarily just because the administration has unilaterally declared it safe to return to school.

Here’s how the schools describe the current situation in their lawsuit [PDF]:

Medical evidence and official governmental guidance indicate that indoor gatherings of any size are of particular concern. Densely populated classrooms that are attendant with on-campus instruction have the potential to turn into “super-spreader” situations that endanger the health of not only the university community, but also those in the surrounding areas and anyone else with whom community members may come into contact. Indeed, in recognition of the exceptional risk of indoor congregation, Harvard has limited undergraduate on-campus residency to 40% of capacity for the upcoming term. Similarly, MIT has limited undergraduate on-campus residency for the fall to members of the rising senior class and a limited number of additional students.

Even if it were possible to simply ignore the ramifications of bringing students back on campus to partake in “super-spreader” classes, ICE is demanding schools jump through a series of logistical hoops to ensure students here on visas can continue to be enrolled and stay in the country. The first demand is that physical classes must compose a certain percentage of the total curriculum. Then it gets even more difficult. Schools will be required to do the following for each and every foreign student enrolled.

[ICE] announced that universities that have adopted a hybrid model—a mixture of online and in-person classes—will have to certify for each student on an F1 visa that the “program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” To do so, universities on a hybrid model will be required to issue a new Form I-20 for each of these students—in some cases, numbering in the thousands per university—by August 4, 2020.

Even if ICE doesn’t care about foreigners, you’d think it might have some consideration for the Americans running these schools. But it appears it doesn’t. The clawback of the exemption means schools must start putting more people on campus — including staff and administration — even if it means increasing the risk of virus transmission. The lawsuit points out the original exemption was supposed to be in place “for the duration of the [COVID] emergency.” Without prior notice or request for comment, ICE has decided the emergency is over… at least for foreign students.

This unjustified move will do an amazing amount of damage to foreign students.

The July 6 Directive will harm continuing F-1 students immensely. For many students affected by the July 6 Directive, it is infeasible or impossible to attempt to transfer to a program that offers in-person curriculum and therefore allows them to pursue their education from within the United States on F-1 visa status. These students will therefore likely be forced to leave the country. The consequences of this sudden displacement are both financial and personal. In addition to incurring substantial expenses to make international travel arrangements in the midst of a pandemic that has significantly reduced the availability of air travel, as well as losing their homes—in many instances at great cost associated with broken leases—some students will be forced to upend their young children’s lives by returning to their home countries, while others’ families will be split apart in order to comply with the July 6 Directive.

[…]

For F-1 students enrolled in a fully online program, under the July 6 Directive those students cannot lawfully remain in the United States to continue their studies. Unless this Court intervenes, these students will be required to make precipitous arrangements to return to their home countries amid a worldwide pandemic that has caused nations to close their borders and has considerably limited international travel options. They must abandon housing arrangements they have made, breach leases, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights. And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for ten years.

The schools are asking the court to strike down the directive. They point out the guidance violates US administrative law, which prohibits “arbitrary, capricious” agency actions. Directives that fail to consider “important aspects of the problem” are the very definition of these terms. The suit also notes that directives like these are supposed to be preceded with a “notice and comment” period, which obviously did not happen here. The plaintiffs are asking the court to permanently block the new policy and declare it unlawful. Hopefully, the court will see ICE’s move for what it is: an abuse of its power to inflict misery on foreigners — even those who are here legally.

Filed Under: covid-19, education, ice, immigration, online education, students, visas
Companies: harvard, mit

Harvard Opens Up Its Massive Caselaw Access Project

from the good-to-see dept

Almost exactly three years ago, we wrote about the launch of an ambitious project by Harvard Law School to scan all federal and state court cases and get them online (for free) in a machine readable format (not just PDFs!), with open APIs for anyone to use. And, earlier this week, case.law officially launched, with 6.4 million cases, some going back as far as 1658. There are still some limitations — some placed on the project by its funding partner, Ravel, which was acquired by LexisNexis last year (though, the structure of the deal will mean some of these restrictions will likely decrease over time).

Also, the focus right now is really on providing this setup as a tool for others to build on, rather than as a straight up interface for anyone to use. As it stands, you can either access data via the site’s API, or by doing bulk downloads. Of course, the bulk downloads are, unfortunately, part of what’s limited by the Ravel/LexisNexis data. Bulk downloads are available for cases in Illinois and Arkansas, but that’s only because both of those states already make cases available online. Still, even with the Ravel/LexisNexis limitation, individual users can download up to 500 cases per day.

The real question is what will others build with the API. The site has launched with four sample applications that are all pretty cool.

Her son Julius is a confirmed thief. He did not turn over a new leaf. The vessel, not. the parking lot. Respondent concedes this in its brief.

The quality overall is… a bit mixed. But it’s fun.

Hopefully this inspires a lot more on the development side as well.

Filed Under: caselaw, caselaw access project, legal data, public info, public records, transparency
Companies: harvard, lexisnexis, ravel

Moral Muppets At Harvard Cave In To The CIA; Rescind Chelsea Manning's Fellowship

from the fucking-cowards dept

Harvard is one of the most prestigious universities in the world (and its graduates often feel the need to remind you of that). But apparently Harvard is more worried about protecting its reputation from the elite than actually fulfilling its stated mission of “educating the citizens and citizen-leaders for our society.” In an act of utter cowardice, it withdrew a Visiting Fellowship that it gave to Chelsea Manning just a couple days after announcing it — all because the CIA and its friends got upset. Harvard caving in to the CIA is not a good look.

Two days ago, Harvard’s Institute of Politics at the Kennedy School announced that Chelsea Manning would be a “Visiting Fellow” for the 2017-2018 school year. She was joining others — including former Trump press secretary Sean Spicer, former Trump campaign manager Corey Lewandowski and Clinton campaign manager Robby Mook. The Visiting Fellows program is basically a high falutin’ way of saying that these people would come give some talks at the school. But the point of the program — in theory — is to expose people to a variety of ideas from a variety of different perspectives. Personally, I think honoring Spicer, Lewandowski and Mook is fairly ridiculous, but I respect and support Harvard wishing to bring them — or anyone — in to talk about their experience

But, of course, anything having to do with Manning is controversial to some — mostly those who have bought into a misleading line of tripe from cable news. And thus people freaked out that Harvard was including her. Among those most triggered by Harvard planning to have Manning come talk to students was the CIA. On Thursday, former CIA depute director (and former acting director) Michael Morell resigned from his own fellowship (in a different program) at the Kennedy School in protest. His letter is full of debunked bullshit.

Unfortunately, I cannot be part of an organization — The Kennedy School — that honors a convicted felon and leaker of classified information, Ms. Chelsea Manning, by inviting her to be a Visiting Fellow at the Kennedy School’s Institute of Politics. Ms. Manning was found guilty of 17 serious crimes, including six counts of espionage, for leaking hundreds of thousands of classified documents to Wikileaks, an entity that CIA Director Mike Pompeo says operates like an adversarial foreign intelligence service.

Senior leaders in our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk. Upon her conviction, then Rep. Mike Rogers and Rep. Dutch Ruppersberger, the top Republican and Democrat on the House Intelligence Committee at the time, praised the verdict, saying “Justice has been served today.” They added “Pfc. Manning harmed our national security, violated the public’s trust, and now stands convicted of multiple serious crimes.”

This statement is hogwash. Yes, she was convicted of various crimes including espionage, but only because the Espionage Act is a complete unconstitutional joke that makes no distinction between leaking to the press and spying for a foreign government — and under which you’re not allowed to share your motives for leaking information. Saying she was “convicted of espionage” without context is misleading bullshit and Morell, of all people, knows that and is exploiting it.

The claim that Pompeo now says that Wikileaks is acting like an “adversarial foreign intelligence service” is bullshit and misleading in two ways. First, Pompeo is not exactly an unbiased observer. He’s long been a massive surveillance state cheerleader — who was one of the biggest supporters of having the NSA illegally spy on nearly every American, and who has a long history of grandstanding against those with the courage to blow the whistle on the unconstitutional activities Pompeo himself has championed (more on him in a moment).

Separately, even if you accept Pompeo’s recent statements about how Wikileaks acts today, anyone with any knowledge of the history (which Morell certainly has) knows that Wikileaks was a very different kind of operation back when Manning first leaked the documents to the site. Manning’s leaks to Wikileaks were really its first big “government” leak. Earlier leaks had been more targeted at corporate malfeasance, and the site’s reputation at the time was as a general home for hosting whistleblowing documents of all kind.

As for Ruppersberger and Rogers’ statements, they are in the Pompeo camp as long time defenders of the surveillance state. Ruppersberger’s district was where many NSA employees lived, and Rogers’ reputation was largely built around acting like a tough guy on “law and order” and surveillance. So, big whoop.

The really obnoxious and bullshit part of Morell’s letter, though, is the claim that “our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk.” Note Morell’s careful choice of words. He didn’t say that she put people’s lives at risk. Or that anyone was harmed by Manning’s whistleblowing. He says that some in the military publicly stated that lives were put at risk. His careful choice of words is because he knows full well that at Manning’s sentencing hearing, those same military officials admitted there was no evidence of any lives harmed as a result of the leaks. It was also admitted that the earlier claims of harm were misleading, in that some of the names that the military had claimed had died… had actually died before the Wikileaks disclosures.

Back to Pompeo. Soon after Morell’s letter became public, CIA director Pompeo refused to give a planned speech at Harvard, giving a similarly bullshit statement:

“My conscience and duty to the men and women of the [CIA] will not permit me to betray their trust by appearing to support Harvard’s decision with my appearance at tonight’s event,” Pompeo wrote, referring to the Thursday engagement. “Ms. Manning betrayed her country and was found guilty of 17 serious crimes for leaking classified information to Wikileaks.”

“Leaders from both political parties denounced Ms. Manning’s actions as traitorous and many intelligence and military officials believe those leaks put the lives of the patriotic men and women at the CIA in danger,” Pompeo continued. “And those military and intelligence officials are right.”

Again, this is bullshit for all the same reasons that Morell’s letter was bullshit.

But Harvard, as an academic institution that supports differences of opinion and free speech, stood up to these CIA spooks, right? Nope, they immediately caved and withdrew the fellowship, but tried to appease people by saying she could still come to speak.

We are withdrawing the invitation to her to serve as a Visiting Fellow ? and the perceived honor that it implies to some people ? while maintaining the invitation for her to spend a day at the Kennedy School and speak in the Forum.

I apologize to her and to the many concerned people from whom I have heard today for not recognizing upfront the full implications of our original invitation.

What a bullshit, cowardly statement in response to concern trolling from surveillance state supporters with actual blood on their hands. Mike Morell, among his many claims to fame, defended torture, and droning innocent civilians.

Here’s something else: Morell has accepted responsibility and apologized for playing a large role in providing incorrect intelligence that led the US to attack Iraq, leading to the actual deaths of thousands of US soldiers. For Havard to rescind its offer to Manning, over false claims of putting US soldiers at risk from a guy who has admitted his own decisions lead to the deaths of thousands of US soldiers, is a total travesty.

What’s more, this comes just a day after it came out that Harvard administrators deliberately overruled a decision to admit a woman who was about to be released from prison for killing her child. The story is heartbreaking in many ways — but it reminds us that prison is supposed to be a place of redemption, but the cowards at Harvard overruled what some said was “one of the strongest candidates in the country last year, period,” over fears of how it would look. One of the quotes from a Harvard professor in the article is quite incredible:

But frankly, we knew that anyone could just punch her crime into Google, and Fox News would probably say that P.C. liberal Harvard gave 200 grand of funding to a child murderer, who also happened to be a minority. I mean, c?mon.

It takes courage to stand up for what’s right. It takes courage to stand up for redemption after one has served their time for crime. Harvard has no courage. Harvard is made up of cowards.

As an aside: last night was the EFF’s Pioneer Awards, in which I had the honor and privilege of standing with Chelsea Manning, who gave a truly inspirational speech about redemption and the ability to face adversity with dignity, just minutes before Harvard showed that it had no dignity at all.

Filed Under: chelsea manning, cia, mike morell, mike pompeo
Companies: harvard

Public Domain Citation Book, Baby Blue, Renamed To Indigo Book, Following Harvard Law Review Threats

from the too-bad dept

We’ve been covering the ridiculous saga of the Harvard Law Review Association and its pricey legal threats to Carl Malamud for daring to publish a public domain set of legal citations. As a bit of background, legal citations tend to follow a standard found in the Bluebook, which is put out by the Harvard Law Review Association (which, confusingly, is actually made up of four top law schools). Many have criticized the Bluebook heavily, including appeals court judge Richard Posner who has ripped into the Bluebook, and suggested a much simpler form of legal citations, leading (in part) to something called the Maroonbook, from the University of Chicago Law Review. And, yet, the Bluebook has still mostly remained atop the heap, generating a ton of money for the law schools that back it. A few years ago, the Bluebook ran into some intellectual property issues, when Professor Frank Bennett sought to build support for the Bluebook into his open source citation tool, Zotero, and the Harvard Law Review Association obnoxiously said no, claiming copyright over citations (which seems… questionable).

After all of this, law professor Chris Sprigman and public records warrior Carl Malamud realized that an earlier version of the Bluebook had fallen into the public domain. They then announced they would use that public domain version as a base, and then build their own competing citation manual, called Baby Blue. On Christmas Eve, Harvard Law Review was so freaked out by some tweets by Malamud implying that Baby Blue was ready to release, that it had a high priced lawyer dash off a threat letter warning him not to release the book.

He did so anyway, and tons of law students (including those at Harvard Law), signed onto letters in support of Baby Blue. But, in the end, legal fights are draining — mentally, physically… and monetarily. And thus, Malamud and Sprigman have somewhat thrown in the towel, noting that since the Harvard Law Review Association seems so worked up about the use of the word “blue,” they will rename their book as the Indigo Book. You can see it here.

You and I have discussed this several times. Professor Sprigman and I believe strongly that there is absolutely zero chance of confusion, dilution, or any other harm that trademark aims to prevent in our use of the title Baby Blue. Nobody would mistake the work we?ve created with The Bluebook. This is not a trademark issue.

Nevertheless, Professor Sprigman and I, as we have repeatedly told you and your paid outside counsel, have absolutely no interest in litigation on this issue. We will defend ourselves in court if necessary, but we feel this would be a waste of your time and would quickly become a stain on the reputation of the Harvard Law Review. That you would not drop the threat of litigation in our prior conversations has baffled me, and the current renewed threats are very disturbing.

Even though your legal threats are baseless and, frankly, amount to little more than an attempt to bully into submission lawful competition, Professor Sprigman and I have decided to change the name, taking into account your preferences. In particular, you demanded that the word ?Blue? not be present in the title or the subtitle. The Indigo Book is now on our web site. I trust this will put an end to this.

It’s always at least a little bit disappointing when people feel compelled to change their plans due to what appear to be baseless legal threats, and it’s unclear what the Harvard Law Review Association will think of the Indigo Book, but one hopes that the folks at the HLRA have at least started to realize how ridiculous they look in all of this.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, legal citations
Companies: harvard, harvard law review association

from the getting-meta dept

Oh, the irony. First pointed out by Mathias Schindler, it appears that a copyright lecture about music copyright done by famed copyright expert and Harvard Law professor William Fisher has been taken down due to a copyright claim by Sony Music.

Fisher is well-known in copyright circles and has long advocated for a major reform to copyright to effectively spread a compulsive license to other uses, effectively legalizing file sharing, but with systems in place to still have artists paid. He’s detailed versions of this proposal in his book, Promises to Keep: Technology, Law, and the Future of Entertainment. That said, this takedown appears to have nothing to do with that whatsoever.

The lecture itself appears to be a part of his online course, CopyrightX, which is available under a Creative Commons Attribution 4.0 License. Thankfully, on the CopyrightX website, there are downloadable versions of the lectures, so I was able to download and watch the full lecture to see what the takedown was about. If you want to follow along at home, the lecture is the third one in section 3. Section three goes into detail on the “Subject Matter of Copyright,” and the third lecture is about… “Music.” You can download it here.

The lecture itself is 24 minutes long, and the vast majority of it is dedicated to creating and explaining this chart, which shows (partially) the messy nature of music copyright licensing today (as a side note, I really appreciate that Fisher is so thorough as to include under the table “payola” as a part of this chart):

However, towards the very end of the lecture, Fisher does play a few sound recording clips to demonstrate a point around cover songs and compulsory licenses (along with his personal opinions on the quality of Stevie Ray Vaughn v. Jimi Hendrix). The clips played are all versions of the Jimi Hendrix classic song Little Wing. You’ve heard it. In the lecture, Fisher plays approximately the first 45 seconds of the song, from 17:44 in his lecture to 18:31. Then, to demonstrate specific points about cover songs, he plays approximately 15 seconds of a cover by Santana and Joe Cocker. Then about 35 seconds of a version by Stevie Ray Vaughn, and finally about 40 seconds of a version by The Corrs. By my count, a little over 2 minutes of the entire 24-minute video are music clips.

Let’s be clear here: this is unquestionably fair use. It’s not entirely clear to me if this was an explicit takedown or merely a YouTube ContentID match, but either way there is no reason for YouTube to have allowed this to be blocked. If you run through the four factors test of fair use, all four suggest that it’s fair use. The purpose and character of the use is clearly for educational purposes, which the fair use part of the law explicitly calls out as an example of fair use. The “nature” of the work is a song, but that seems to have little bearing here on the fair use question. The amount and substantiality of the portion taken was fairly small — basically just enough for Fisher to make his point showing the differences between the songs and how that applies to the compulsory licenses issued for cover songs. And, finally, the effect of the use upon the potential market is nil. No one is listening to Fisher’s lecture as a “replacement” for going out and getting the Hendrix song, or any other version of Little Wing. And I don’t think there’s a huge “market” in “licensing music to copyright lectures.”

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

This story is reminiscent of when Warner Music issued a DMCA takedown on a presentation by another famed Harvard Law professor, Larry Lessig. Similar things have happened a few times to Lessig, including one case where Lessig sued in response, seeking a declaratory judgment of non-infringement along with damages under DMCA 512(f), which forbid “misrepresentations” in filing DMCA notices. That case eventually settled, with the record label (an Australian label called Liberation Music) paying a sum of money that went to the EFF. It’s unclear what Fisher will do in this situation, but I imagine that as this story begins to get attention, both Sony Music and YouTube may want to reconsider the original move to take down the video.

Filed Under: contentid, copyright, dmca, education, lesson, music, streaming, subject matter, takedown, william fisher
Companies: harvard, sony music, youtube

Law Students Line Up Behind 'Baby Blue' — Will Harvard Law Review Sue?

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It’s true that the Harvard Law Review Association has published the famous “Bluebook” of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish “Baby Blue” — a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

It took another month and a half or so, but Baby Blue is now available — and it appears that law students are lining up behind it, rather than the Bluebook. A bunch of folks at Yale Law School and NYU Law School have come out in support of Baby Blue. It appears other law schools are jumping on board as well — including Harvard Law School, Stanford and more.

Meanwhile, law professor David Post has provided a bit of free legal advice for the Harvard Law Review:

Here?s a bit of free legal advice: If you want to assert copyright protection over something, don?t call it ?A Uniform System of Citation? ? because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn?t be clearer:

> In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, ? regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now… everyone gets to wait and see what the Harvard Law Review Association decides to do.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, citations, copyright, legal citations, public domain
Companies: harvard, harvard law review, harvard law review association, nyu, stanford, yale

Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide

from the don't-you-guys-have-something-better-to-do? dept

In the fall of 2014, we wrote about a plan by public documents guru Carl Malamud and law professor Chris Sprigman, to create a public domain book for legal citations (stay with me, this isn’t as boring as it sounds!). For decades, the “standard” for legal citations has been “the Bluebook” put out by Harvard Law Review, and technically owned by four top law schools. Harvard Law Review insists that this standard of how people can cite stuff in legal documents is covered by copyright. This seems nuts for a variety of reasons. A citation standard is just an method for how to cite stuff. That shouldn’t be copyrightable. But the issue has created ridiculous flare-ups over the years, with the fight between the Bluebook and the open source citation tool Zotero representing just one ridiculous example.

In looking over all of this, Sprigman and Malamud realized that the folks behind the Bluebook had failed to renew the copyright properly on the 10th edition of the book, which was published in 1958, meaning that that version of the book was in the public domain. The current version is the 19th edition, but there is plenty of overlap from that earlier version. Given that, Malamud and Sprigman announced plans to make an alternative to the Bluebook called Baby Blue, which would make use of the public domain material from 1958 (and, I’d assume, some of their own updates — including, perhaps, citations that it appears the Bluebook copied from others).

There hadn’t been much said publicly in the 14 months or so since that announcement, but last week, Malamud started tweeting out some evidence that the book was nearing completion:

Laying BB 20 and Baby Blue neck to neck. Drinking whiskey while wrestling the future of legal citation to ground. pic.twitter.com/F2IRR4gL9y

— Carl Malamud (@carlmalamud) December 22, 2015

He even discussed what public domain (of course) image he might use for the cover. I like the following option the best:

Judges selected this 1869 chromolithograph as ?Baby Blue of the Year 2015? https://t.co/b2qz0NNnhh L. Prang & Co. pic.twitter.com/yDkEnzkUuP

— Carl Malamud (@carlmalamud) December 23, 2015

Apparently, this sent the Harvard Law Review into a bit of a tizzy, and they made their lawyers at the big, respectable law firm of Ropes & Gray come into the office on Christmas Eve to dash off this ridiculous threat letter to Malamud and Sprigman, demanding that they not move forward with releasing Baby Blue.

First, they ignore all the facts concerning how an earlier version fell into the public domain (and the ridiculousness of claiming copyright on citations) and again allege it will be infringing:

I write concerning Mr. Malamud?s recent Twitter postings, including several in the last few days, disclosing your imminent release of an ?implementation of the Bluebook?s Uniform System of Citation? called ?BabyBlue,? possibly as soon as December 31, 2015. Based on the description of ?BabyBlue? in these and other postings, Prof. Sprigman?s November 25, 2015 interview in the NYU Journal of Intellectual Property & Entertainment Law, and earlier correspondence from each of you, we believe that ?BabyBlue? may include content identical or substantially similar to content or other aspects of The Bluebook that constitute original works of authorship protected by copyright, and which are covered by various United States copyright registrations.

For the reasons set forth in our previous letters to Mr. Malamud dated July 2013 and May 2014 (copies of which are attached), my client has been and remains concerned that the publication and promotion of such a work may infringe the Reviews? copyright rights in The Bluebook and The Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and interests in those works.

And then they go on, in even more of a huff, claiming that the name BabyBlue would be trademark infringement, and warn them that they cannot make use of the word “blue” anywhere. Apparently, Harvard Law Review thinks it owns the word “blue” when applied to legal citations.

On a related issue, it appears from the NYU interview and the Twitter postings ? including a photograph attached to one posting ? that you intend to use the title ?BabyBlue,? and the subtitle ?A free, Creative Commons-licensed implementation of the Uniform System of Citation? in the version of your work released to the public. In addition, the pages shown in that photo include several explicit references to The Bluebook.

Please be advised that the Reviews are the collective owners of the registered trademarks THE BLUEBOOK (U.S. Reg. No. 3,756,727), THE BLUEBOOK ONLINE (U.S. Reg. No. 3,748,511), and THE BLUEBOOK A UNIFORM SYSTEM OF CITATION (U.S. Reg. No. 3,886,986) (collectively, the ?BLUEBOOK Marks?). Given these rights, it is our client?s position that the title ?BabyBlue,? or any title consisting of or comprising the word ?Blue,? when used on or in connection with your work, would so resemble the BLUEBOOK Marks as to be likely, to cause confusion, mistake, and/or deception (including over whether ?BabyBlue? was associated with or sponsored or approved by the Reviews), to the considerable detriment of the Reviews and in violation of their rights under the federal Lanham Act and state law. The same is true for the subtitle, which includes a portion of one of the registered BLUEBOOK Marks, and which suggests that ?BabyBlue? is a ?licensed implementation? of The Bluebook (which it is not). Likewise, several references to The Bluebook shown in the photo could reinforce the false and misleading impression that your work was associated with or approved by the Reviews.

Accordingly, and to avoid any risk of consumer confusion, my client respectfully demands that you agree (i) not to use the title or name ?BabyBlue,? or any other title or name including the word ?blue,? for your work, and (ii) not to include any other statement, phrase, word, term, name, symbol, device, subtitle, statement, or image in your work, or in the advertising or promotion of that work, that may be likely to cause confusion, mistake, or deception as to the source of ?BabyBlue? or as to its affiliation, connection, or association with, or sponsorship or approval by, the Reviews.

Touchy, touchy. Harvard Law Review seems really, really worried that they might face some public domain competition, huh?

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, copyright, crybabies, culture, harvard law review, public domain
Companies: harvard

Will Molecular Biology's Most Important Discovery In Years Be Ruined By Patents?

from the GNU-Emacs-for-DNA dept

Techdirt readers hardly need to be reminded that, far from promoting innovation, patents can shut it down, either directly, through legal action, or indirectly through the chill they cast on work in related areas. But not all patents are created equal. Some are so slight as to be irrelevant, while others have such a wide reach that they effectively control an entire domain. Patents on a new biological technique based on a mechanism found in nature, discussed in a long and fascinating piece in the Boston Review, definitely fall into the second category. Here’s the article’s explanation of the underlying mechanism, known as CRISPR-Cas:

> Bacteria use CRISPR-Cas to attack the DNA of invading viruses. The workings of this natural defense mechanism were elucidated through basic research carried out mostly within universities. By hijacking and recombining its bacterial parts — a flexible kind of engineering that is the hallmark of molecular biology — researchers have shown how CRISPR-Cas can be used to edit the human genome, or any genome, in principle.

CRISPR-Cas can be thought of as the first really powerful and general-purpose genome editor — a GNU Emacs for DNA. It is widely expected that it will have a massive impact on molecular biology, both for pure research and in industrial applications. Given those very high stakes, it will not come as a surprise to learn that there is already a fierce tussle over who owns a key patent in this field:

> A patent battle is raging between the University of California, Berkeley and the Broad Institute of MIT and Harvard. MIT’s Technology Review has called the legal dispute a “winner-take-all match” with “billion-dollar implications,” as the contenders all have stakes in startup companies based on the technique. The Broad team was granted the first patent in 2014, but the Berkeley group filed paperwork contesting the decision.

As the Boston Review rightly points out, the Broad Institute patent is problematic for several reasons. It is very general, and lays claim to using CRISPR-Cas to edit all animal and plant DNA. The Broad Institute has granted an exclusive license for therapeutic applications, which means that the company concerned has a monopoly on what is expected to be one of the most important areas for CRISPR-Cas. Any other company wanting to use the technique, even for non-therapeutic work, must pay for a license. To top it all, it’s generally accepted that CRISPR-Cas is the result of a global, collaborative effort:

> Academics around the globe, from Japan to Lithuania to Spain and the United States, have contributed to our understanding of CRISPR-Cas. No group can claim sole credit for discovering the system or the know-how for using it to edit genomes.

And yet the winner of the current patent battle, whether the Broad Institute, or the University of California, is likely to end up with immense power over the use of CRISPR-Cas. The article notes:

> Monopolizing a core technology developed collectively using public funding ought to require an extraordinary argument. Even if we limit ourselves to looking through the economic lens, this would require making the case that a monopoly on CRISPR-Cas therapeutics would be so wildly effective — and wide enough in scope to tackle the huge range of diseases mentioned in the patent — that it would far outweigh competitive efforts with tens, or hundreds of other companies. In the current debate, no such argument has been given.

As well as giving many other details about this important case and its historical background, the Boston Review article goes on to suggest an alternative approach to one based on intellectual monopolies, one that builds on the fact that CRISPR-Cas is a tool for editing the biological software at the heart of all life:

> We can take a leaf from the software world’s book and sketch a free biology (as in “free software”) that respects these responsibilities. This will require new mechanisms for describing research ownership and sharing that are in the public interest and that support the university?s research branch.

Although that may sound Utopian, for biology at least, it’s starting to happen:

> Synthetic biology is already making steps in this direction, with projects such as BioBricks that provide a mechanism for scientists to contribute their work to a public registry and allow others to build on it.

Moreover, for those who think the idea of free biology will never really take off, it’s worth remembering people said the same about free software, which now powers most of the digital world.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: crispr, dnam crispr-cas, patents
Companies: cal, harvard, mit, university of california berkeley