precedent – Techdirt (original) (raw)

In The NetChoice Cases, Alito And His Buddies Are Wrong, But Even If They Were Right It May Not Matter, And That’s Largely Good News

from the at-last-this-time-the-calvinball-protects-the-constitution dept

I was worried after oral argument in the NetChoice cases that we were going to get a mess of a decision. Maybe it would give us the right result (the Florida and Texas laws remaining canceled), but with dicta that pulled its punches and gave future would-be censors some cover for their continued attacks on First Amendment rights. Instead we basically got the opposite, a somewhat meh result (it will take more litigation to do away with Florida and Texas’s laws, which therefore might partially survive), but with excellent, solid dicta—assuming, of course, that it even was dicta, as discussed further below.

Before continuing, first an explanation of what dicta is. Basically, it’s language in a decision that does not bear on the holding. When a court considers a legal question, it will ultimately hold Conclusion X for Reason Y. Dicta is language that isn’t part of the conclusion, or part of the rationale for the conclusion. It gets included in the decision because it gives context that helps the conclusion and rationale make more sense, but if the same conclusion could be reached without that language being included in the decision then it generally is considered dicta, and not part of the precedential holding. In other words, the holding is a declaration of what the law now is, and the dicta technically is not part of that law.

In his concurrence, Justice Alito, joined by Justices Thomas and Gorsuch, complain that the language from the decision that will be most helpful to future First Amendment challenges—namely, everything that did not lament that the plaintiffs had not brought a facial challenge—is just dicta, and thus not actually binding precedent.

The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta.

Thomas also said the same in his own concurrence. It’s possible that they are right, and normally that sort of thing should matter. The courts are not supposed to give advisory opinions, and the roadmap Justice Kagan laid out in her majority opinion could be construed as an advisory opinion that basically gives future litigants a sneak peek as to what the Court would likely hold by the time a correctly-litigated case reached them.

But while normally that sort of thing should matter, I am not sure that it should matter here:

(A) This group of judicial nihilists has basically made sure that nothing matters. Oh, now they want to be formalists and follow standard rules of jurisprudence? They didn’t even manage to stick with them this term, or even this month (oh, sorry, I mean last month, when they couldn’t even manage to publish all their remaining opinions, even when extremely time-sensitive and supposedly “expedited”).

(B) It’s not like it’s the first time that dicta has ended up functioning as precedent, partly because it’s so hard to tell what is or isn’t dicta. Alito et al. could be right here, because the overall result – sending the cases back down to the lower courts to figure out if the facial challenge was brought correctly – would be the result even without all those extra sections in the opinion addressing the substantive First Amendment questions.

On the other hand, none of this First Amendment language may actually be extraneous, even if the holding is that the facial challenge was not correctly analyzed below, because the error the Court is concerned with still had to do with how the lower courts had applied the First Amendment. So even if, for example, the Eleventh Circuit had applied it too broadly, negating more of the Florida statute than it should have, any negation can only happen when the First Amendment would demand it, so maybe it is necessary and proper for the Court to affirm here that there is no question that the First Amendment would apply, and thus the only thing at issue on remand is for the lower courts to consider how much it applies, and not whether it does.

(C) This strong First Amendment language may still actually be the holding. Especially because “whether the First Amendment applies” was what we expected the Court to rule on when it granted its review. It granted it “limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae,” which were

1. Whether the laws’ content-moderation restrictions comply with the First Amendment.

2. Whether the laws’ individualized-explanation requirements comply with the First Amendment

Which is why there was a lot of surprise that so much attention was paid in oral argument to concerns about the facial challenge. And surprise is bad, because if the parties knew this issue was what the Court was worried about it could have briefed in a way that directly addressed the issue. Instead the parties briefed the questions the Court said it wanted to consider, and all this “dicta” answered those questions, so surely that answer was actually the Court’s essential holding, and the remand order really only an ancillary exercise of procedural power that the Court is often exercising every time it issues a ruling with an instruction for what should happen in the lower courts next.

(D) One of the concerns about dicta is that it can often be convoluting, rather than clarifying, and obscure what the court is actually trying to effect. Here, however, the true officiousness of this decision is that the Court even weighed in on the facial challenge issue at all. While the majority opinion complains about the sparse record on that point, these are crocodile tears because the case was not brought to it with that question in mind. Of course there was no record; it was not the issue that had been litigated below that now necessitated the Court’s review. To then suddenly and unilaterally choose to consider an un-litigated issue is the height of hubris and if anything itself functions as the actual dicta obscuring its much more important point, and the point it was called upon to make and promised to make when the Court had granted the review.

(E) Furthermore, even if Alito and company were right and all this great language expressed by Kagan really only functions as what is basically a Justice Kagan-penned amicus brief, applicable to any future case implicating the First Amendment rights of platforms, while it might not be precedent it is certainly at least persuasive authority that will influence future courts. It will not be easy to defend a censoring law seeking to constrain a platform’s First Amendment rights by arguing that Kagan’s robust First Amendment-defending language is not binding precedent, because even if courts are not forced to make decisions consistent with it, defenders of these laws will be hard pressed to argue that these courts should not do so, in the wake of Kagan’s clearly expressed observations that platforms have these rights and why they must have these rights.

The irony is that an example of very famous dicta we’re still contending with is dicta that also arose in the First Amendment context. I speak of the the “fire in a crowded theater” trope. Consider the staying power of that language, which is not only a misstatement of law (whereas Kagan’s language is not) but also dicta from a decision that has since been entirely overturned! While much discourse about First Amendment jurisprudence continues to be polluted by that century-old throw-away line, with this new decision we now at least have some much more speech-protective language to inform these discussions and this time actually help insulate First Amendment rights from further onslaught.

Filed Under: 1st amendment, dicta, elena kagan, florida, precedent, samuel alito, texas

Everything Pundits Are Getting Wrong About This Current Moment In Content Moderation

from the pay-attention dept

Since Twitter and Facebook banned Donald Trump and began ?purging? QAnon conspiracists, a segment of the chattering class has been making all sorts of wild proclamations about this ?precedent-setting? event. As such, I thought I?d set the record straight.

1. “Deplatforming Trump sets a precedent”

That says:

Deplatforming Donald Trump, a sitting US president, sets a dangerous precedent.

It has less to do with his views and more to do with intolerance for a differing point. Ironically, those who claim to champion free speech are celebrating.

Big tech firms are now the new oligarchs.

First of all, the only “precedent” set here is that this is indeed the first time a sitting US president has been deplatformed by a tech company. I suppose that if your entire worldview is what happens in the United States, you might be surprised. But when you look outside that narrow lens, you would see that Facebook has booted off Lebanese politicians, Burmese generals, and even other right-wing US politicians…nevermind the millions of others who have been booted by these platforms, often without cause, often while engaging in protected speech under any definition.

2020 alone saw the (wrongful, even in light of platform policies) deplatforming of hundreds, perhaps thousands of people using terms related to Iran (including a Los Angeles-based crafter’s “Persian dolls” by Etsy) in an overzealous effort by companies to comply with sanctions, the booting of Palestinian speakers from Zoom on incorrectly-analyzed legal grounds, the deplatforming by Twitter of dozens of leftist Jews and Palestinians for clapping back at harassers, and so much more.

2. “This is the biggest online purge in history!”

That says:

I?ve lost over 15,000 followers today – insane how many accounts are getting terminated in the largest online purge in history

Twitter has been purging accounts of QAnon conspiracists and other right-wing accounts over the past week or more. Many of these accounts engage in dangerous rhetoric, including encouragement of violent insurrection against a democratically elected government. It is indeed interesting, particularly when one compares it to the company’s inaction against similar rhetoric in India and elsewhere. But what it isn’t is the “largest online purge in history”?not by a long shot. I would suggest that that occurred two years ago, when Twitter kicked off more than a million alleged ISIS accounts with zero transparency and the “freeze peach” galaxy brains didn’t blink.

3. “AWS kicking Parler off its servers is a step too far/is unprecedented/marks new territory in the digital rights debate”

That says:

Companies like Amazon should either get out of the hosting business, or remain agnostic about what their customers use their services for. As a very long term user, all the way back to the beginning of S3, their move today is disturbing and unacceptable.

To be completely fair, I am of the belief that infrastructure companies play a different role than platforms designed to host user speech/user-generated content, and that decisions like this should not be taken lightly. But let’s not pretend it hasn’t happened before (to be fair, Dave Winer is not doing that, and he is quite aware of the company’s history on these matters). In 2010, AWS famously booted WikiLeaks after no more than concern from the State Department?that is, WikiLeaks hadn’t been charged with anything?kicking off a series of deplatformings of the group. But WikiLeaks is not the only example here: Sanctions?or at least some legal interpretations of them?have meant that ordinary folks from countries like Iran can’t use AWS freely either. Last January saw a massive purge of Iranian users from various platforms, likely instigated by the Department of Treasury (though thus far, we have no proof of that). Some might suggest that this is a legal requirement of Amazon, but as GitHub demonstrated this week, there are indeed workarounds for companies that care enough about internet freedom.

4. “This is communism!”

Uh no, this is capitalism. Platforms have this much power because unbridled American capitalism is what y’all wanted. It is also not “Orwellian,” I can assure you.

5. “The Google Play store/Apple store booting Parler sets new precedent.”

Uh actually, no it doesn’t. Does anyone remember that Apple forced Tumblr’s hand hardly two years ago by threatening to kick it out of the App store if it didn’t do something about the child sexual abuse imagery it was unknowingly hosting, resulting in a near-total ban on nudity and sexual content on the site? Anyone?

6. “Twitter won’t let you hashtag #1984”

That says:

Twitter won?t let you hashtag #1984, a dystopian novel about an evil Big Tech government that spies on everyone, censors and manipulates speech, punishes wrong-thought, and tortures dissidents for sport.

There?s Orwellian, and then there?s banning references to Orwell Orwellian.

Twitter has never allowed number-based hashtags, next?

Got more examples? Shoot them to me on Twitter.

Republished with permission from Jillian C. York’s website.

Filed Under: content moderation, deplatforming, donald trump, precedent, pundits

2nd Circuit Appeals Court Upholds Drake Sampling Fair Use Victory, But Doesn't Think It's Useful For Anyone Else

from the only-real-music's-gonna-last dept

Two and a half years ago, we wrote about a nice fair use victory for Drake with regards to a track that he had sampled. As we noted in that post, it is stunning how bad courts have been in determining whether or not sampled music is fair use — with a couple of famously preposterous rulings on the book, including one where the judge seemed more focused on giving biblical justifications for his rulings, rather than Constitutional ones. Still, in the age of Blurred Lines-like decisions, and the influx of similar lawsuits over mere inspiration, it seemed unlikely that we’d ever get a clean ruling on whether or not certain types of sampling — such as those that use tiny bits or that alter the sample significantly — were fair use. Yet here we are.

Thankfully, the 2nd Circuit appeals court has now upheld the lower court’s fair use finding, with a quick and to the point ruling — though they made it a summary order, which means that the panel of judges “believes that no jurisprudential purpose is served by” the order, and thus it shouldn’t be cited in future cases. That’s actually quite disappointing, given how few cases there have been that actually ruled on the fair use of sampling.

That said, as I noted in the original post, however, the details here are at least somewhat specific, which might explain the court’s reasoning in making it non-precedential. Those details highlight why this is a unique case. To explain those details, I’m going to first repeat what I wrote about the background of the original case, because it’s important, before getting into the new ruling.

The details here are… rather specific. Drake’s song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear “sample” of famed jazz artist Jimmy Smith’s Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it’s just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It’s not a song. It’s just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged… but does make a few small edits, including changing Smith from saying “Jazz is the only real music that’s gonna last. All the other bullshit is here today and gone tomorrow” to just saying “Only real music’s gonna last. All that other bullshit is here today and gone tomorrow.” Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.

But here’s the oddity: Drake’s label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we’ve discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the “composition.” The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it’s often middlemen who get the money). Here, it seems that Drake’s label didn’t license the “composition” to pay the “songwriter.” And your first reaction might damn well be “what _song_writer? there’s no damn song!” And you’d be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn’t like it at all.

So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it’s this that’s found to be fair use.

Frankly, I still think it’s even more convincing to state that there’s no composition copyright here because there’s no song. It’s just him talking extemporaneously, and there’s already a copyright on the recording itself. However, for whatever reason, the case focused on a fair use argument, and as the appeals court notes, it clearly supports a ruling that this sample is fair use. On the first factor, they find the use clearly transformative, in part because the minor edit of the clip changes its meaning:

The first factor supports fair use because the use was transformative. A work is transformative when it ?uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created.? … ?Pound Cake? does just that. The message of the ?Jimmy Smith Rap? is one about the supremacy of jazz to the derogation of other types of music, which?unlike jazz?will not last. On the other hand, ?Pound Cake? sends a counter message?that it is not jazz music that reigns supreme, but rather all ?real music,? regardless of genre…. Beyond the text of the lyrics themselves, ?Pound Cake? situates its sampling of approximately thirty-five seconds of the ?Jimmy Smith Rap? at the beginning of an approximately seven-minute-long hip-hop song in which Drake and Shawn Carter, professionally known as Jay-Z, rap about the greatness and authenticity of their work. Through both the alteration of the ?Jimmy Smith Rap? and the rest of the rap?s lyrics, ?Pound Cake? emphasizes that it is not the genre but the authenticity of the music that matters. In this manner, ?Pound Cake? criticizes the jazz-elitism that the ?Jimmy Smith Rap? espouses. By doing so, it uses the copyrighted work for ?a purpose, or imbues it with a character, different from that for which it was created.?

The analysis of the second factor — the nature of the copyrighted work — perplexes me again. In both the lower court and the appeals court they actually say this leans against fair use. But, again, the fact that this is not a song, that there is no “composition” per se (and that no one registered the copyright on it until much, much later) would all seem to suggest that the “nature” of the work deserves minimal copyright protection and thus leans towards fair use. But here, the court basically says that this factor leans against fair use, but it’s not that important so we’ll just move on:

We need not spend much time on the second factor, the nature of the copyrighted work. This factor ?has rarely played a significant role in the determination of a fair use dispute,? and when a work is transformative, the factor may nonetheless support fair use…. The district court found that the second factor weighs against a finding of fair use here. This factor is of ?limited usefulness,? however, where, as we have determined applies here, ?the creative work of art is being used for a transformative purpose.?

The third factor, on how much is used, again supports fair use:

The third factor too supports fair use. This factor looks at ?whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying.?…. We have been clear, however, that ?the law does not require that the secondary artist may take no more than is necessary.? Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013). ?The secondary use must be permitted to conjure up at least enough of the original to fulfill its transformative purpose.? Id. (brackets, internal quotation marks, and citations omitted). Here, the amount used by Defendants is reasonable. While ?Pound Cake? borrows language from the ?Jimmy Smith Rap? detailing the production process for Off the Top, this was necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.

And, finally, the 4th factor, regarding the impact on the market, again easily supports fair use:

Finally, the fourth factor also weighs in favor of fair use. ?The final statutory factor considers the effect of the use upon the potential market for or value of the copyrighted work, focusing on whether the secondary use usurps demand for the protected work by serving as a market substitute.?… In the case at hand, there is no evidence that ?Pound Cake? usurps demand for ?Jimmy Smith Rap? or otherwise cause a negative market effect. ?Pound Cake,? a piece by a hip-hop artist about rap and hip-hop music, appeals to a much different audience than does ?Jimmy Smith Rap,? which was a piece by a jazz musician on a jazz album about jazz music…. Nor is there evidence of the existence of an active market for ?Jimmy Smith Rap,? which is vital for defeating Defendants? fair use defense.

And thus, fair use prevails. It’s always nice that fair use prevails, but it’s disappointing that the court felt that this ruling should remain non-precedential. Contrary to their belief, having good, clear fair use victories at the appellate level is always useful for other cases.

Filed Under: 2nd circuit, composition, copyright, drake, fair use, jimmy smith, precedent, sampling

Lawyer: Without The Monkey's Approval, PETA Can't Settle Monkey Selfie Case

from the has-the-monkey-settled? dept

Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he’s taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling — the one saying, clearly, that animals don’t get copyrights — should be thrown out.

It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto — the monkey — has been left out of the settlement, and thus not “all parties” have agreed. No, really.

PETA continued to assert that it acted as Naruto?s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed…. The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the ?significant relationship? required to establish next friend standing…. In response, PETA again asserted in writing and at oral argument that it acts as Naruto?s next friend….

Incredibly, PETA now represents that it entered into settlement with the defendants alone?without Naruto…. The settlement instead ?resolves all disputes arising out of this litigation as between PETA and Defendants.?… This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto….

The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement ?without joining or taking any position as to the bases for that request.?… The losing party?Naruto?must carry the burden of proving ?equitable entitlement to the extraordinary remedy of vacatur.?…

No Naruto, no standing, no vacatur.

No Naruto, no standing, no vacatur. What a world we live in.

PETA?s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still ?contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.?

Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway:

Alternatively, if the Court takes PETA?s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto?s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA?s stipulation should be disregarded.

Frank also takes a stab at PETA’s whole “next friend” argument and why it’s so silly in a footnote. First, he notes that if the court is concerned that Naruto is now “friendless” at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA’s claim to “next friend” status.

The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person?putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17.

And, of course, who knows if Naruto (or some other “next friend”) won’t sue again:

In any event, if Naruto?s claims were indeed not settled by PETA, vacatur should be denied because ?Naruto? (that is, someone claiming to be his ?next friend?) would remain free to file suit again for further acts of alleged infringement.

While this is a bit of a throwaway line, it’s actually important — and it’s one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto’s “next friend” might go right back to court.

Finally, Frank notes that just because the parties have announced a settlement, that doesn’t mean the court can’t reject it and issue a ruling — providing guidance to other courts in the circuit on this issue.

In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the ?opportunity to provide additional guidance to the district courts.?… PETA previously stated to this Court that the case presents ?a question of first impression [and] the issue is not a trivial one.? … Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a ?next friend,? that, if the Court is already close to a decision in this straightforward case, it should provide ?guidance to the district courts? by issuing a decision that would not require much additional expenditure of judicial resources

I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion — but at the very least, it shouldn’t ditch the district court ruling.

Filed Under: copyright, david slater, monkey selfie, naruto, precedent, public domain, settlement, ted frank, wtf
Companies: cei, peta

Monkey Selfie Case Reaches Settlement — But The Parties Want To Delete Ruling Saying Monkeys Can't Hold Copyright

from the this-is-bad dept

For many years now, we’ve been covering the sometimes odd/sometimes dopey case of the monkey selfie and the various disputes over who holds the copyright (the pretty clear answer: no one owns the copyright, because the law only applies to humans). David Slater, the photographer whose camera the monkey used, has always claimed that he holds the copyright (and has, in the past, tried to blame us at Techdirt for pointing out that the law disagrees). A few years back, PETA, the publicity-hungry animal rights group, hired big time lawyers at Irell & Manella to argue (1) the monkey holds the copyright, not Slater, (2) PETA somehow magically can stand in for the monkey in court — and sued Slater over it. Slater and I disagree over whether he holds the copyright, but on this we actually do agree: the monkey most certainly does not hold the copyright.

The district court ruled correctly that works created by monkeys are in the public domain and that PETA had no case. PETA appealed. Last month, we wrote that the case was likely to settle, because both sides were highly motivated to get it out of court. On Slater’s side, he had told some reporters that the legal fight has left him broke (which bizarrely lead to a bunch of people blaming me, which still makes no sense), while PETA desperately wanted to settle because the hearing in the case made it abundantly clear that the appeals court was not buying its argument. Indeed, it appears that the judges hearing the case could barely contain laughter at the bananas argument made by PETA’s lawyers.

So it comes as little surprise that the parties have released a joint statement saying they’ve settled the case and asking the court to dismiss the appeal. Part of the agreement is that Slater says he’ll donate 25% of any future proceeds from the monkey selfie pictures to organizations that protect the habitat of macaque monkeys in Indonesia, which seems like a good cause.

But… there is a pretty clear problem with the proposed settlement. Not only are they asking the court to dismiss the case due to the settlement, the parties have also agreed to ask the court to vacate the district court’s ruling saying that animals cannot copyright works they create. Basically, PETA and its high-priced lawyers lost really badly on a fundamental issue of copyright… and now they want to erase that precedent so they or others can try again. PETA is arguing, incredibly, that if the original ruling stands, it will unfairly bind the monkey Naruto:

Here, the settlement is between PETA and Defendants. Accordingly, under Bonner Mall, PETA maintains that Naruto should not be ?forced to acquiesce? to the district court?s judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA?s Next Friend status is contested and undecided. Rather, PETA maintains that it would be just and proper to vacate the judgment of the district court.

Wait. So PETA doesn’t want Naruto — the monkey that it claims to represent on no real basis, and who has absolutely no clue any of this is actually happening — to be “forced to acquiesce” to the ruling? That’s utter bullshit.

Of course, it’s almost certainly not the real motivation here. The more likely reason is simply that PETA doesn’t want that precedent on the books and there will likely be other cases in the very near future on other non-human created works. PETA’s lawyers, Irell & Manella, may very well be trying to position themselves as the go-to lawyers on issues like who holds the copyright on AI-created works (answer again: no one), and having this ruling on the books, even at the district court level, would be inconvenient.

Hopefully the court will see through this and leave the ruling as is. Otherwise it seems likely that we’ll be seeing a lot more of these kinds of cases. In the meantime, PETA also put a silly statement on its blog calling the case “groundbreaking.” It was not groundbreaking. It was a stupid, nonsensical argument that was clearly not correct, and was basically laughed out of court. PETA says that this “sparked a massive international discussion about the need to extend fundamental rights to animals….” Except it did nothing of the sort.

Most of the press coverage you’ll see about the case are just sort of laughing it off — saying “oh that silly monkey selfie case has settled.” But very few of them are reporting the request to vacate the lower court ruling. It’s a bad idea and hopefully the court does not allow it to happen.

Filed Under: copyright, david slater, monkey selfie, precedent, public domain, settlement
Companies: irell & manella, peta

Won't Have Perfect 10's Silly Lawsuits Setting Precedent Anymore: Judge Appoints Receiver For Perfect 10's Assets

from the well,-there-goes-that-one dept

Welp, it looks like the quite long history of Perfect 10 filing frivolous copyright lawsuits and losing (while setting useful precedent) has finally come to a close. A court has now put Perfect 10’s assets into receivership to be sold off.

We’ve written a ton about Perfect 10 over the years. As we’ve noted, while the company officially styled itself as a porn magazine company, it was an early form of copyright troll, focusing on suing basically every large company imaginable for being somehow kinda partially related to any of Perfect 10’s pictures showing up online. As such, Perfect 10 was astoundingly useful in setting some really fantastic and useful precedents concerning intermediary liability protections, and making sure that third parties and platforms weren’t held liable for copyright infringement. The key, frequently cited, cases include:

All of them resulted in major losses by Perfect 10, and really useful, citable, opinions that are regularly raised in other cases. There are more such cases as well. In one famous case, a party laid out how Perfect 10 was apparently deliberately setting things up to have more companies to sue, rather than actually doing anything to limit copyright infringement.

In the most recent Perfect 10 case, we noted that Perfect 10 lost big time earlier this year. It had sued Usenet provider Giganews, but the court found that Perfect 10’s legal arguments made no sense at all, and sided completely with Giganews. Most importantly, the court upheld the multimillion fee award that the court had dumped on Perfect 10 for filing such a bogus lawsuit. It turns out that Perfect 10 doesn’t seem to have that kind of money, so all of its assets are now controlled by a court-appointed receiver.

Pursuant to the terms of the enclosed Order, I am hereby taking possession of all of your “intellectual property,” which specifically includes but is not limited to domain names, copyrights and copyright interests, trademarks, trademark interests, and associated goodwill, and related interests, as well as all royalties, rents, issues, profits and income (including any cash) resulting from or generated by such intellectual property.

This reminds me of another famous copyright trolling case, Righthaven (the company that was spun off from newspaper company Stephens Media to shake down bloggers reposting snippets from news stories). In that case, lawyer Marc Randazza beat back Righthaven in court so many times in so many ways that it was just getting silly. Eventually, the court handed over Righthaven’s IP and it was eventually “sold” back to Stephens Media as a way to pay the outstanding legal fees.

Feel free to speculate what will be done with Perfect 10’s assets.

In the meantime, though, it truly is the end of an era. Perfect 10 has been filing lawsuits going back at least until 2002 (possibly longer…). And it’s set so many useful precedents, even as each new filing seemed more pointless than the previous one. So long Perfect 10, and thanks for all those useful rulings in cases you lost.

Filed Under: copyright, copyright trolling, dmca, precedent, receivorship, safe harbors
Companies: giganews, perfect 10

from the just-saying dept

On Thursday, FBI Director James Comey suggested that the FBI paid over a million dollars to a group of hackers who helped it get into Syed Farook’s encrypted work iPhone. Of course, just as pretty much everyone predicted, the FBI found nothing of value on the iPhone. This was hardly a surprise. It was a case where we already know who did it, and that they were already dead. We also know that they destroyed their two personal iPhones, leaving open the question why anyone would think there was anything valuable on the work iPhone.

Specifically, Comey said that buying the exploit from this group cost the FBI “more than I will make in the remainder of this job, which is seven years and four months, for sure.” Comey makes 185,100peryearathisjob,implyingthatbuyingtheexploitcostatleast185,100 per year at his job, implying that buying the exploit cost at least 185,100peryearathisjob,implyingthatbuyingtheexploitcostatleast1.3 million or so.

This has, understandably caused some to ask how it could possibly be worth it to pay so much money for an exploit that everyone must have known was worthless.

It would have been more responsible to give the FBI?s slush fund over to the victims? families than to pursue such an obvious non-lead.

— Jonathan Zdziarski (@JZdziarski) April 21, 2016

Things that would've better served the American public with $1.3M than Comey's goose chase: Mental health funding.

— Jonathan Zdziarski (@JZdziarski) April 21, 2016

Of course, that is taking a slightly narrow view on things, considering that many people believe, strongly, that the FBI’s motive here was really to extricate itself from the legal dispute over the phone that had the very strong potential of ending with a bad precedent for the FBI and the DOJ. When looked at through that lens, $1.3 million or whatever seems like very little money to pay…

Filed Under: doj, fbi, hack, iphone, james comey, precedent, syed farook
Companies: apple

Former Presidential Cybersecurity 'Czar' Slams DOJ/FBI For Its Position On Apple Encryption

from the speak-louder dept

For many years, if you mentioned the term “cybersecurity czar” in the federal government, it only meant Richard Clarke. He was one of the earliest people to focus on computer security as an issue, and as such, became an advisor to multiple presidents on the issue. I haven’t always agreed with him — there have been points in the past where he’s appeared as a leading voice in support of greater surveillance and exaggerated claims about a coming “cyberwar”. However, in the past few years, Clarke has become much better on these issues, warning (just prior to Snowden’s revelations) that the US’s focus on surveillance has actually made the public less safe by leaving vulnerabilities open, rather than closing them.

And now he’s weighed in, quite vocally, on the whole Apple v. the FBI thing, strongly in support of Apple. To some extent, this isn’t a huge surprise as he was among a large group of smart folks who signed onto a letter a year ago opposing encryption backdoors, but his NPR interview gave him a chance to be quite explicit in just how dumb the FBI/DOJ’s requests are. It’s worth listening to the whole thing, or at least reading the transcript, but here are a few key highlights. Specifically, he argues that the FBI is lying in saying that it can’t get access to the content on the phone, and just wants to set a precedent:

If I were in the job now, I would have simply told the FBI to call Fort Meade, the headquarters of the National Security Agency, and NSA would have solved this problem for them. They’re not as interested in solving the problem as they are in getting a legal precedent…. Every expert I know believes that NSA could crack this phone. They want the precedent that the government can compel a computer device manufacturer to allow the government in.

Earlier in the interview, he totally dismisses the idea that there’s a big dispute in the administration about this, saying that it’s just the FBI and DOJ exaggerating:

Well, I don’t think it’s a fierce debate. I think the Justice Department and the FBI are on their own here. You know, the secretary of defense has said how important encryption is when asked about this case. The National Security Agency director and three past National Security Agency directors, a former CIA director, a former Homeland Security secretary have all said that they’re much more sympathetic with Apple in this case. You really have to understand that the FBI director is exaggerating the need for this and is trying to build it up as an emotional case, organizing the families of the victims and all of that. And it’s Jim Comey and the attorney general is letting him get away with it.

It’s good to see more officials speaking out and calling bullshit on the FBI/DOJ claims on all of this.

Filed Under: all writs act, cybersecurity, doj, encryption, fbi, iphone, nsa, precedent, richard clarke
Companies: apple

from the and-they-want-us-to-believe-it's-not-a-pr-campaign? dept

The FBI keeps insisting that it’s legal fight with Apple is not about the precedent and not about using the tragic incident in San Bernardino as an emotional plug to break down strong encryption. And yet… now it’s come out that even before going to court, federal prosecutors from the DOJ went to the families of those killed in the San Bernardino attacks and asked them to file an amicus brief of support with the court:

Stephen Larson, the lawyer for the victims, told the Guardian the office of the US attorney for the central district of California contacted him on 14 February with a request to file a brief asking Apple to aid in unlocking the phone.

On 16 February, the federal attorney, Eileen Decker, requested a federal magistrate, judge Sheri Pym, issue a warrant for the unlocked iPhone 5C. Pym provided it that day.

Even more interesting? Larson himself hadn’t previously been representing any of the victims. Instead, the local district attorney “connected him” with survivors and relatives of those killed.

It’s not clear who he’s actually representing right now. So far, at least a few of the relatives of those murdered have actually come out in support of Apple. We already mentioned Karen Fagan:

Karen Fagan, of Upland, is the ex-wife of Harry ?Hal? Bowman and mother of their two daughters.

?This is a very different thing than asking for data that is Apple?s possession,? Fagan wrote in an email. ?They have complied with all of those requests. This is asking them to build a new piece of technology that could be used to invade the privacy of any iPhone. Furthermore, the FBI is citing an act written in 1789 (instead of new legislative action) to justify their request.

?I know that it is a tempting argument to say that we should allow government access to private information in order to make people feel safe. After all, the argument goes, people who aren?t breaking the law have nothing to hide. While that may be true, American citizens have been granted privacy rights, and this request breaches those rights,? Fagan wrote.

And then there’s Carole Adams as well:

Her son was killed in the San Bernardino, Calif., massacre ? but Carole Adams agrees with Apple that personal privacy trumps the feds? demands for new software to break into iPhones, including the phone of her son?s killer.

The mom of Robert Adams ? a 40-year-old environmental health specialist who was shot dead by Syed Rizwan Farook and his wife ? told The Post on Thursday that the constitutional right to privacy ?is what makes America great to begin with.?

[….]

?This is what separates us from communism, isn?t it? The fact we have the right to privacy,? she said. ?I think Apple is definitely within their rights to protect the privacy of all Americans.

I’m sure that plenty of others will sign on to Larson’s amicus brief, but the fact that it was all pre-vetted by the DOJ certainly seems noteworthy, and highlights how the DOJ/FBI recognize how much of a publicity stunt this case really is.

Filed Under: amicus brief, doj, fbi, precedent, publicity stunt, san bernardino, victims
Companies: apple

The List Of 12 Other Cases Where The DOJ Has Demanded Apple Help It Hack Into iPhones

from the no-precedent? dept

In our last post we noted that while FBI Director James Comey insists that it wasn’t trying to set a precedent, and this move was just about getting access to a single phone, law enforcement around the country was eagerly lining up behind the FBI to make similar requests. And… then last night it came out that even the DOJ is making similar requests in 12 other cases. And now, the full list of such cases has come out:

Now, it’s actually not entirely clear from this that all the cases really are the same. All of them do involve the DOJ using the All Writs Act to demand extra assistance from Apple — and we already knew about some of those earlier cases. And in most of them, the specifics of the “ask” is not actually public yet.

That is, it’s not known if they’re all asking for the same level of forcing Apple to build a new operating system that reduces security and enables the FBI to hack through a weak passcode. It’s safe to assume that’s probably the case in at least some of them.

Still, given all of this, the details of all of these cases were kept sealed until now. And, it’s been reported that Apple had asked for the San Bernardino case to be sealed as well, but the DOJ was the one who moved to make it public. And that lends tremendous weight to the idea that not only is the FBI desperately seeking to set a precedent, but it was waiting for a case with “good PR optics” to go public with, so that it could pull on some heart strings to get the public on its side. The high profile “terror” case in which a bunch of people were murdered in cold blood apparently was the perfect case.

But, yeah, once again, Director Comey was flat out lying when he claimed the FBI has no interest in setting a precedent.

Filed Under: all writs act, doj, encryption, fbi, going dark, iphones, james comey, precedent, privacy, security
Companies: apple