reviews – Techdirt (original) (raw)

NetEase Backs Down On Requirement For Early Streamers Of ‘Marvel’ Game To Not Critique The Game

from the about-face dept

It’s a funny thing what game publishers sometimes try to do when it comes to releasing games early to internet streamers as a way to boost interest in their games. I’ve heard stories of all kinds of crazy stipulations that streamers have to sign off on contractually in order to get access to the game. They can only show certain parts of the game, or they can only play so far into it, or they have guardrails put up around what they can and cannot say about the game they are showing off to the public. What tends to get lost in all of this is that these streamers are essentially an advertising channel to generate more hype about these future games, yet they’re treated like some kind of a threat.

And where this gets really pernicious is when publishers want to both get messaging about their games out in the form of independent streaming personalities, but also want to control what that message will be. Perhaps one of the most extreme forms that type of thing can take showed up with NetEase, who is developing the upcoming Marvel Rivals game, attempted to contractually prohibit these streamers from saying anything negative about the games.

The controversial early access contract gained widespread attention over the weekend when streamer Brandon Larned shared a portion on social media. In the “non-disparagement” clause shared by Larned, creators who are provided with an early download code are asked not to “make any public statements or engage in discussions that are detrimental to the reputation of the game.” In addition to the “subjective negative review” example above, the clause also specifically prohibits “making disparaging or satirical comments about any game-related material” and “engaging in malicious comparisons with competitors or belittling the gameplay or differences of Marvel Rivals.”

It should be obvious to anyone why this is a problem and why there’s no way this wasn’t going to become public. The contract, as written, essentially asked these streaming personalities, who have only their reputations with their fans to go on, to not just let the company tread on their own editorial credibility, but to actually mandate the full torpedoing of that credibility. Anyone who agreed to this, or other contracts like it, are almost purely shills.

After this all went public, NetEase unsurprisingly apologized and promised to make changes on their end.

In a follow-up posted to social media this morning, NetEase went on to “apologize for any unpleasant experiences or doubts caused by the miscommunication of these terms… We actively encourage Creators to share their honest thoughts, suggestions, and criticisms as they play. All feedback, positive and negative, ultimately helps us craft the best experience for ourselves and the players.” NetEase says it is making “adjustments” to the contract “to be less restrictive and more Creator-friendly.”

There are always going to be some restrictions in these arrangements. After all, these streamers are getting early access to a game and publishers will certainly want to exert some control over what is messaged and shown and what isn’t. But any attempt to tread upon the editorial integrity of those that are being used as the mouthpieces of hype for these games ought to be a non-starter.

Otherwise, the destruction of trust in those streamers in the public would render them useless, anyhow.

Filed Under: criticism, non-disparagement, non-disparagement clause, reviews, video games
Companies: netease

Nigerian Woman Faces Jail Time For Facebook Review Of Tomato Sauce

from the saucy dept

Nigeria doesn’t exactly have a stellar reputation when it comes to respecting the speech rights of its own citizens, nor the rights of platforms that its citizens use. By way of examples, there was the time that the country suspended Twitter for several months for the crime of taking down a tweet from its president that sure sounded like a threat of genocide. The country has also been known to abuse its cybercrime laws to wage legal battles with citizens that have dared to criticize the government.

But I will admit that even with that reputation in place, I’m a bit at a loss as to why the country decided to arrest and charge a woman for violating those same laws because she wrote an unkind review of a can of tomato puree on Facebook.

A Nigerian woman who wrote an online review of a can of tomato puree is facing imprisonment after its manufacturer accused her of making a “malicious allegation” that damaged its business.

Chioma Okoli, a 39-year-old entrepreneur from Lagos, is being prosecuted and sued in civil courtfor allegedly breaching the country’s cybercrime laws, in a case that has gripped the West African nation and sparked protests by locals who believe she is being persecuted for exercising her right to free speech.

By now you’re wondering what actually happened here. Well, Okoli got on Facebook after having tried a can of Nagiko Tomato Mix, made by local Nigerian company Erisco Foods. Her initial post essentially complained about it being too sugary. So pretty standard fair for a review-type post on Facebook. When she started getting some mixed replies, some of them told her to stop trying to ruin the company and just buy something else, with one such message supposedly coming from a relative of the company’s ownership. To that, she replied:

Okoli responded: “Help me advise your brother to stop ki***ing people with his product, yesterday was my first time of using and it’s pure sugar.”

By the way, you can see all of this laid out by Erisco Foods itself on its own Facebook page. The company also claims that she exchanged messages with others talking about how she wanted to trash the product online so that nobody would buy it and that sort of thing. Whatever the truth about that situation is, this all stems from a poor review of a product posted online, which is the kind of speech countries with free speech laws typically protect.

In Okoli’s case, she was arrested shortly after those posts.

According to the police, Okoli was charged with “instigating Erisco Foods Limited, knowing the said information to be falseunder Section 24 (1) (B) of Nigeria’s Cyber Crime Prohibition Act.” If found guilty, she could face up to three years in jail or a fine of 7 million naira (around $5,000), or both.

Okoli was separately charged with conspiring with two other individuals “with the intention of instigating people against Erisco Foods Limited,” which the charge sheet noted was punishable under Section 27(1)(B) of the same act. She risks a seven-year sentence if convicted of this charge.

Okoli is pregnant and was placed in a cell during her arrest that had water leaking into it, by her account. She was also forced to apologize to Erisco Foods as part of her bond release, which she then publicly stated was done under duress and refused to apologize once out of holding. Erisco Foods, for its part, has said it didn’t instigate the arrest — note: I find this hard to believe — and that it was suing in civil court because of how much harm Okoli’s post did to its total business.

The Lagos-based food company said it also “suffered the loss of multiple credit lines” and had therefore filed a civil lawsuit against Okoli that sought 5 billion naira (more than $3 million) in damages. This case is due to be heard on May 20, her lawyer, Inibehe Effiong, told CNN.

It was one person’s review of a can of tomato puree. If a single review really could result in the destruction of multiple credit lines and millions of dollars of harm, I would like the company to please show me any evidence of that, because I don’t believe that either. And the claim that the company is purusing the civil case because of the harm that Okoli did to its reputation sure looks silly considering the harm that the company is doing to its reputation by going after Okoli, in true Streisand Effect.

“Harassment and intimidation of Chioma Okoli must end now,” Amnesty International Nigeria said earlier this month, as Nigerians began crowdfunding online to support her legal fees.

Okoli’s case has sparked protests at Erisco’s Lagos facility as many on social media called for a boycott of its products. The company’s founder, Eric Umeofia, refused to budge, however, saying in a recent documentary on the local Arise Television channel that he won’t drop the lawsuit against Okoli and that he would “rather die than allow someone to tarnish my image I worked 40 years to grow.”

Okoli is also countersuing both Erisco Foods and the police, arguing for a violation of her speech rights.

Now, those speech rights aren’t the same as exist in America, of course, but if a country doesn’t even allow for an online review of a can of tomato puree, then what actual speech rights does the company have anyway?

Filed Under: chioma okoli, cybercrime, free speech, lagos, malicious allegation, nigeria, reviews, tomato puree
Companies: erisco foods, facebook

from the HAH! dept

Customer service matters. Suing patients unhappy with your work just ain’t it.

That’s what Texas cosmetic surgeon Dr. Wilbur Hah has just learned, after being handed a loss in four concurrent opinions dealing with four anti-SLAPP motions filed by unhappy patients the (allegedly not-so-good) doctor sued for daring to besmirch his reputation with social media posts.

Here’s the rundown, courtesy of longtime anti-SLAPP bulldog, Eric Goldman:

Dr. Wilbur Hah is a board-certified cosmetic surgeon in Texas. In 2020, he performed procedures for four patients, Chesson, Gage, Melton, and Robinson (tragically now deceased). All of the patients signed a “Contract of Reasonable Expectations” that restricted “post[ing] any defamatory, derogatory, mean spirited, or negative comments, reviews that is [sic] designed to damage the online reputation regarding Dr. Hah, Dr. Chen-Hah or Beauty MDs, LLC team based on my perception of not having my cosmetic outcome expectations met.” Despite the contract, the defendants allegedly posted negative remarks about Hah’s work online.

Hah sued the four defendants. The defendants filed an anti-SLAPP motion pursuant to Texas’ anti-SLAPP law (the Texas Citizens’ Participation Act (TCPA)). The district court didn’t act on the motions, which acted as a pocket denial. The appeals court reverses, dismisses Hah’s lawsuits, and orders Hah to pay the defendants’ attorneys’ fees.

One problem (and it’s pretty problematic) is that the lower courts never bothered to address these four motions to dismiss. By ignoring them, they gave Dr. Hah the impression his arguments have merit. They don’t, but this refusal to address the counterarguments forced the plaintiffs to take their anti-SLAPP case to the next level of the judicial system at their own expense.

The good news is that Hah has now lost every one of these lawsuits. All four end with wins for the defendants after appellate review. Goldman links to all four decisions (one, two, three, four) but I’ll just be posting one of those [PDF] here since they’re all pretty much the same form of defeat — one that utilizes Texas’ anti-SLAPP law (the Texas Citizens’ Participation Act [TCPA]) to find in favor of those sued. And because it’s an anti-SLAPP law analogue, that means Hah will be opening his checkbook at least four times in the near future. Back to Goldman:

For his failed lawsuits, Hah will be writing checks to the defendants’ attorneys. Because he sued four patients, he’ll presumably pay 4x the fees. FAAFO.

The allegations are windy and wordy, but they’re not allegations of anything actually actionable.

Hah alleged that after Robinson underwent surgery, she and several other patients began posting on social media about their experience with Hah. In August 2022, Hah sued Robinson and three other patients in separate lawsuits. He alleged that Robinson “contractually agreed[] to refrain . . . from posting false, defamatory, derogatory, mean-spirited or negative comments or reviews on social media designed to damage the Plaintiff’s reputation or livelihood, or to interfere with Plaintiff’s business relations with other patients.”

_Hah further alleged he provided Robinson “with informed, elective cosmetic services within such reasonable expectations and without any violation of the standard of care.” Hah also claimed that in “direct violation of Defendant’s agreement,” Robinson “published defamatory, derogatory, mean-spirited, or negative comments or reviews on social media[.]” He specifically claimed that Robinson “published in a website labeled ‘Botched Cosmetic Surgeries in Orange Texas’ and ‘Local Failed Cosmetic Surgeries’ false, defamatory, derogatory, mean-spirited and negative materials on social media, intentionally, and with malice, designed to damage” his livelihood or reputation and interfere with his business relations with other patients_…

The thing is that it takes a lot more than being simply “mean-spirited” or critical of someone to rise to the level of defamation. Yet when given an opportunity to make his case, Hah preferred to recite the law repeatedly, rather than actually specify what about these posts was defamatory. He also failed to show anything other than his feelings had been damaged by these posts, which isn’t the sort of thing that allows for the recovery of actual money from the people who’ve hurt your feelings.

Specificity matters. Hah decided shotgun pleadings in front of an apparently disinterested court would be enough to sustain his defamation claims. The appeals court corrects his misapprehension, as well as the lower court’s inattentiveness.

Like his business disparagement claim, Hah failed to substantively address the essential elements of his defamation cause of action in his Responses to Robinson’s TCPA Motion to Dismiss. While he generally attached screenshots of Robinson’s social media posts to his Response, he did not explain which of these statements were defamatory, the defamatory nature of the statements, or specify how Robinson’s statements damaged him.

More importantly, in the trial court, Hah did not raise or argue in his responses or in his affidavit that any particular statements constitute defamation per se. Rather, in his Responses, Hah confined his argument to his breach of contract cause of action and asserted he “has met his burden to establish by clear and specific evidence a prima facie case for each element of his breach of contract claim against Defendant that Defendant did not attempt to establish a valid defense to the claim.” However, “[T]he TCPA requires that on motion the plaintiff present ‘clear and specific evidence’ of ‘each essential element[,]’”which Hah failed to do here.

Lose. Lose. Lose. Lose.

Hah won’t even get another chance to re-argue his cases in front of the court that could barely be bothered to hear it in the first place. Open up your wallet, Dr. Hah.

Hah failed to establish a prima facie case for his defamation, business disparagement, invasion of privacy, and breach of contract claims, and his claim for injunctive relief was derivative of those claims. We hold the trial court erred by denying Robinson’sTCPA Motion to Dismiss. We reverse the trial court’s denial of Robinson’s TCPA Motion to Dismiss, remand the case to the trial court so that it can enter a judgment dismissing Hah’s defamation, business disparagement, invasion of privacy, breach of contract, and injunctive relief claims, and instruct the trial court to award Robinson reasonable attorney’s fees, costs, and other expenses incurred as allowed under the TCPA.

Even if you’re not a public figure, you still have plenty of options to deal with criticism. A lawsuit is rarely the answer. And that’s what Dr. Hah has discovered, along with a new set of line items on the ledger he didn’t expect to show up in the Accounts Payable column. Unhappy customers can be made whole. Or they can be ignored. Or they can expect their speech to be met with more speech. This rarely results in a blowout win for those being criticized, but it’s a far better outcome than paying out legal fees to the people you thought you’d sue into silence.

Filed Under: anti-slapp, defamation, non-disparagement, reviews, slapp, tcpa, wilbur hah

Moving Company That Threatened People With 1,000ADayFeesForNegativeReviewsToPay1,000 A Day Fees For Negative Reviews To Pay 1,000ADayFeesForNegativeReviewsToPay125,000 Settlement

from the something-only-a-terrible-company-would-do dept

If you’re a good company, you try to make customers happy and deal honestly with their complaints. If you’re Liberty Bell Moving and Storage, Inc., you threaten unhappy customers with lawsuits and steadily escalating fees for expressing their displeasure with your service.

It seems only the worst entities insist on tucking non-disparagement clauses into their fine print. We’ve covered several of those, including Roca Labs, KlearGear, and a handful of real estate firms offering both vacation rentals and fine print thuggery. This list also includes political campaigns and entire cities.

This attempt to extort people into silence is now going to cost the Maine-based moving company, as Hannah Laclaire reports for the Portland Press Herald.

The state has settled a lawsuit with a Windham-based moving company that illegally prevented some customers from posting negative reviews online and threatened others into removing existing negative reviews.

An investigation by the Office of the Attorney General found that Liberty Bell Moving and Storage Inc. and its owner, Kevin Finkenaur, violated the federal Consumer Review Fairness Act, the Maine Unfair Trade Practices Act and regulations for businesses that engage in interstate moving operations.

As part of the settlement, Finkenaur must pay $125,000 and “refrain from engaging in a number of illegal business practices,” including no longer using a misleading email address posing as Liberty Bell’s attorney.

There was some truly wild stuff going on at Liberty Bell, all apparently ordained, if not directly carried out by the company’s owner. The complaint [PDF] filed last summer provides more details on Liberty Bell’s hellish interpretation of customer service.

The company’s cheapest moving coverage plan (which is no coverage at all as the “No Valuation Protection” name makes clear) forced customers to agree to be punished in multiple ways should they be less than impressed with the moving company’s least expensive package.

Any bad reviews posted against Liberty Bell on any social media platform or other review sites due to alleged damage, or lost items will be deemed false and defamatory. Any such false and defamatory remarks are [sic] made against Liberty Bell Moving & Storage will make the signer of this document liable in court for punitive damages for making these false allegations.

There are numerous reasons a clause like this can’t be enforced. Certainly the company knew it couldn’t actually declare something defamatory without a court weighing in on it. But that would force users to defend themselves against a clearly bogus lawsuit. And while they shelled out for legal help, Liberty Bell would apparently just keep running the credit card it had on file to inflict even more financial pain.

Any bad reviews posted against Liberty Bell Moving & Storage on any social media platform or review sites will be deemed false and defamatory thus making the signer of this document liable in court for punitive damages. Also, a $1000 defamation management fee will be added to the cost of the move if negative reviews are not removed after 3 days from being posted. You will be notified of this from attorney@libertybellmoving.com.

Obviously no actual attorney wrote this. Not only is it riddled with legal errors, it’s riddled with spelling and grammatical errors. The addition of an email address hinting that an attorney was handling Liberty Bell’s (illegal) work undoubtedly made this look a lot scarier. But I have to believe at least a few potential customers found themselves laughing at the horrendously written legal threats contained in the moving company’s contracts.

Liberty Bell is not responsible in ANY WAY for items left behind, not put in proper location or any other issues that arise from not having somebody there to instruct the movers or to do a final walkthru [sic] when they get done. Any bad reviews left on line [sic] when this situation arises, will make the customer or agent of the customer liable defamtion [sic], and for punitive damages in court as the result of the defamation.

If a customer did leave a negative review, an email from the “attorney@libertybellmoving.com” address would arrive, loaded with sloppily written fauxlerplate from a nonexistent member of Liberty Bell’s nonexistent “attorneys office,” threatening to enforce the unenforceable “non-disparagement provision” and charge an obscene amount while doing so. [Emphasis in the inadvertently hilarious original.]

We will seek $2500 per day the review(s) are left up, and will also seek to be reimbursed for lawyer fees upwards of $9500, which you also agreed to pay by digitally signing the OFS. If the review (s ) are not down by 12:00pm on [date], we will file this lawsuit. Once the lawsuit is started, we WILL NOT remove the lawsuit even if the reviews are taken down after the [date] deadline.

Pretty much all of this violated Maine consumer laws in one way or another. (It also violates federal law.) Hence the settlement, which not only takes $125,000 out of Liberty Bell’s pockets, but forces it to play by the state’s rules. The settlement may seem a bit light, but it seems unlikely these poorly written threats ever resulted in substantial payouts from unhappy customers.

Oh, and here’s a fun postscript: this may not be the full extent of the company’s CEO’s legal problems. Here’s earlier reporting from the Portland Press Herald about the founder of Liberty Bell Moving:

His name is Kevin Finkenaur. He runs a local moving and storage company.

He’s also a self-identified insurrectionist.

“Saw first hand today how close the citizens of the US came to overthrowing a corrupt government,” said a Facebook post under Finkenauer’s name following Wednesday’s invasion of the U.S. Capitol by thousands of Donald Trump die-hards.

“I was there…you weren’t,” said another post under Finkenaur’s name. “On the upper level, there was thousand of US citizens (versus) 40 or so riot police.”

Well, Finkenauer’s boy is also a fan of non-disparagement clauses. And, just like Trump, Finkenauer’s post-2020 losing streak doesn’t appear it will end anytime soon.

Filed Under: crfa, kevin fineknaur, maine, negative reviews, non-disparagement clause, reviews, threats, unfair trade practices
Companies: liberty bell moving

Pro Tip: If Your Game Gets Trashed In Reviews For Sucking, Don’t Blame It On ‘Woke Reviewers’

from the woke-or-broke? dept

There are lots of shitty ways game developers and publishers can handle their games getting crappy reviews. The best bet would obviously be to read the reviews from customers, learn something from them, and make a better product. Far too often, however, developers and publishers instead try to disappear bad reviews, fake reviews, or otherwise juice their review scores.

But then there’s the writer and director for Days Gone, John Garvin. Garvin stared at a wide swath of negative reviews for the game, most of which largely panned the game for being unoriginal, having a poor gameplay experience, and otherwise being all kinds of “meh.” Garvin then distilled this into an explanation for why the game was reviewed so poorly into the following list:

Three reasons:

1. it had tech issues like bugs, streaming and frame rate; 2. it had reviewers who couldn’t be bothered to actually play the game 3. And three, it had woke reviewers who couldn’t handle a gruff white biker looking at his date’s ass

Garvin wrote that in a now-deleted tweet. You will immediately notice that the list consists of two-thirds of blaming reviewers for the negative reviews. On the one hand, there is a certain amount of this that is understandable. After all, being a creative and having people you don’t know call your baby ugly is never a fun thing.

But that’s also something you sign up for when you release a creative work to the public. There’s no evidence presented by Garvin that reviewers hadn’t “bothered to actually play the game.” That statement is just made as though it’s expected to be taken as gospel. And the “woke reviewers” thing appears to be largely nonsense. There is a scene in the game that went semi-viral that consists of the player character following a female character. She bends over while asking if what she was looking at is what the player is looking for. He looks at her backside and basically says yes. It’s fairly dumb and a bit gross, but certainly nothing that the gaming public is going to lose its mind over. Were that the case, every GTA game would be completely panned by reviewers as well.

But because a certain segment of the population now seems to think you can shout “teh woke!” at any problem to make it not your fault, well, here we are. It’s a crappy way to run a game studio, frankly. If your customers are telling you what’s wrong with your product, that should be useful information to internalize and use for the future.

Or I guess you just blame the “woke,” and suddenly your product that is reviewed poorly and hasn’t sold particularly well is no longer your problem.

Filed Under: days gone, john garvin, reviewers, reviews, video games
Companies: bend studio

Appeals Court Smacks Down Unconstitutional Injunction Obtained By A Lawyer To Silence Someone Who Left A Negative Review

from the you-can't-unprotect-speech-just-because-you-don't-like-it dept

Tennessee has long been home to a truly astounding amount of First Amendment violations, some of which were enabled by courts’ willingness to entertain far too many bogus defamation lawsuits. And Daniel Horwitz has been a constant thorn in these courts’ sides, securing wins for clients facing bogus lawsuits.

Fortunately, the legislature recently improved the state’s rather weak anti-SLAPP law, making it far more of a gamble for litigants filing questionable lawsuits by making it far easier for defendants to make plaintiffs pay their legal bills when lawsuits are dismissed.

But that’s not stopping people from finding new, but still unconstitutional ways, to silence and intimidate critics. That’s what happened to Mary Grace Anderson, who left a negative review of law firm Schell & Oglesby, LLC after feeling jerked around by one of its attorneys. Here’s the review:

Here’s what Anderson claims happened to her: Schell & Oglesby attorney Elizabeth Russell subpoenaed Anderson in a case Anderson says “had nothing to do with her.” Anderson was first told she wouldn’t need to appear in court. Then Russell told Anderson she would need to appear, which was a problem since Anderson was scheduled to work that day. This message to appear apparently arrived at 4:30 pm, 30 minutes before the law firm closed. Anderson spoke to Russell’s assistant, informing her she had been told she would not have to appear. The assistant allegedly responded with, “I’m hanging up now. We will see you tomorrow.”

Anderson arrived at court at 8:45 am and spent the entire day there, finally leaving at 4:45 pm. Russell never called her in to testify or present evidence. In fact, as Anderson later found out, Russell had actually released her from appearing, telling the court much earlier in the day Anderson’s appearance wouldn’t be necessary. Anderson says that Russell never informed Anderson of this change in plans, despite seeing her outside the courtroom on more than one occasion. Russell also apparently told the judge she had been unable to locate Anderson.

Apparently the review of the law firm angered Russell, who approached the court with a request for a restraining order against Anderson. Despite Anderson not being a party to the case Russell was litigating, the court granted [PDF] the request.

A mandatory injunction shall immediately issue which orders that the Defendants, Defendants agents, and Mary Grace Anderson immediately remove, delete, and otherwise take down any and all statements made regarding the Plaintiffs, Plaintiffs counsel, and the law firm of Schell & Oglesby LLC…

This would have been concerning enough if it had limited itself to the litigating parties. But it targeted Anderson, who was not involved in the lawsuit. And it appears to have been prompted by her negative review of the law firm following her apparent mistreatment by one of its attorneys.

Even more concerning, the order was signed by Judge Michael Binkley. Binkley was one of the founding members of Schell, Binkley & Davies, LLC, which is now Schell & Oglesby, LLC. So, this a judge issuing an injunction forbidding a non-party from badmouthing his old law firm. Seems a bit on the unethical side, but Judge Michael Binkley is no stranger to ethics violations.

Enter Daniel Horwitz, who acted quickly to get this bullshit, completely unconstitutional order struck down. His petition [PDF] on behalf of Anderson is a blast to read. Here a just a few of the best bits:

To impose a prior restraint against pure speech, a “publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.” P&G, 78 F.3d at 226–27. A negative Google review of a thin-skinned lawyer falls at least marginally below the publication of the Pentagon Papers in terms of evaluating these interests.

[…]

_[T]he scope of the prior restraint imposed by the Williamson County Circuit Court goes far beyond proscribing speech that could plausibly be deemed unprotected. Instead, it also forbids the publication of “any and all” unmistakably non-defamatory, constitutionally-protected “statements made regarding the Plaintiffs’ [sic], Plaintiffs [sic] counsel, and the law firm of Schell and Oglesby LLC_…

[…]

Prior restraints against speech do not just harm speakers, either. They also abridge the public’s right to hear what a speaker has to say—in this case, statements about how a lawyer has behaved and wielded the judicial subpoena power.

Horwitz also strongly suggests Judge Binkley shouldn’t be handling this case at all, given how extremely wrong his injunction order was.

Here, the extraordinary breadth and scope of the Williamson County Circuit Court’s illegal ex parte prior restraint against Ms. Anderson’s constitutionally protected speech merits reassignment. Issuing a speech-based prior restraint enjoining—and affirmatively compelling the subject of the order to remove—such plainly protected speech is so unfathomably unconstitutional that the appearance of justice alone requires reassignment upon remand. That the unconstitutional prior restraint was issued against a non-party over whom the Circuit Court lacked any plausible jurisdiction makes the order all the more unbelievable. Reassignment to a different judge upon remand is warranted as a consequence.

The Appeals Court has already responded [PDF] to Anderson’s request, and has acted quickly to reverse the entire order issued by Judge Binkley on behalf of the Schell & Oglesby attorney Elizabeth Russell. It doesn’t go so far as to move the litigation out of Binkley’s court, but it does have some harsh words to say about his actions.

Having reviewed all of the filings, the court concludes that the trial court’s February 19, 2022 Mandatory Injunction and Temporary Restraining Order so far departs from the accepted and usual course of judicial proceedings as to require immediate review. Thus, we grant the application for an extraordinary appeal and reverse trial court’s order.

That’s the end of Elizabeth Russell’s attempt to prevent the public from hearing about her alleged jerking around of a non-party witness she didn’t even bother asking to present evidence. The review stays live. And news is spreading about Russell’s inability to handle criticism maturely and Judge Michael Binkley’s inability to respect the Constitution, at least when it’s his old law firm being criticized. And it’s one more win for Daniel Horwitz, who continues to ensure Tennesseans won’t get screwed out of the First Amendment rights by bogus litigation and bullshit restraining orders.

Filed Under: 1st amendment, daniel horwitz, elizabeth russell, free speech, mary grace anderson, michael binkley, opinion, prior restraint, restraining order, reviews, tennessee
Companies: schell and oglesby

Tenth Circuit Tells College Administrator That Ordering A Student To Stop Talking About An Instructor Clearly Violates The First Amendment

from the how-could-you-seriously-think-otherwise? dept

The First Amendment applies to school students. This is something courts seem to have particular difficulty drilling into the heads of school officials and administrators. Yes, their rights are somewhat limited due to their age and/or time and place restrictions, but they are closer to “fully respected” than “nonexistent” — the latter of which appears to be the default assumption for far too many educational entities.

Schools hope allegations of “disruption” will salvage their rights violations. But in far too many cases, the asserted disruption was localized solely in the minds of the rights violators, resulting in them having to continue facing lawsuits over their actions, rather than having complaints against them judiciously wished away into the qualified immunity cornfield.

Such is the case here in legal action involving a college and its violation of a student’s rights. (via Volokh Conspiracy) In this case, a student, who dropped a class because she was unhappy with her instructor, was subjected to discipline solely because she (very quietly) made her unhappiness with this professor known.

The plaintiff, Rowan Thompson, has an eye condition that makes her sensitive to light. In one class, taught by Dr. Megan Lazorski, avoiding aggravating this condition meant sitting in one of the first three rows. For the most part, Thompson was able to use this option. But in two instances, when she arrived late, seats up front were no longer available. Thompson chose to sit on the floor, which apparently irritated her instructor. In the second instance — with no other usable seats available — Dr. Lazorski gave Thompson this option: sit in an available seat or leave the class. Thompson left. Then she dropped the class.

She also sought mediation of her dispute over seating. The mediators asked her to submit a review of Dr. Lazorski, utilizing an online form for evaluations and class ratings. Thompson discovered she could no longer do this through the college website’s portal since she was no longer listed as a student of Lazorki’s.

Because the only option the mediator provided wasn’t available to her, Thompson emailed her fellow students, asking them to submit their own reviews of Lazorski’s class. This is taken from the Tenth Circuit Appeals Court decision [PDF]:

Hello everyone, I’m Rowan- some of you may know me as the goth girl who sat on the floor in class. For those who don’t know, I came late to class a couple of times and sat on the floor. It angered the professor enough that I was asked to leave class on the last occasion. A few weeks later, after a mediation attempt between the dean of chemistry and the professor, I had to drop the class to stop further confrontation- over sitting on the floor.

I have heard so many of you say how horrible a time you’re having in this class, that there are some bits that are ridiculous or downright unreasonable. You shouldn’t have to suffer through a class, especially one that is required, and this is not what college is supposed to be like. College is supposed to make us feel excited about our futures and finally learn what we are interested in, not ditch class because we know we won’t learn anything. You don’t need to keep your complaints and troubles private; this is what the evaluations are for. They’re online; the link to fill them out appears when you log into Blackboard, they take only a couple of minutes, are anonymous, and the more detail is said the better. Every issue you’ve had, every complaint? This is when the faculty and university is listening and wants to hear them. Students, including myself, who have dropped the class won’t be able to fill out an evaluation- our voices cannot be heard unless we speak to the deans directly, but I know for a fact that many are afraid to speak face-to-face.

Please, take the few minutes to review this chemistry class and be honest- make the faculty listen to you so that this class can change for the better. If not for yourself, than for those who have had to drop the class, feeling worthless and stupid, or for students who will have to take this class after you. Hang in there- you’re almost done and then you can leave this semester behind you! ? ?

-Rowan

This plea for action on her behalf (and on behalf of other students who may have been treated unfairly or were too intimidated to bring their complaints directly to the dean) resulted in this extreme overreaction by the college’s administrators:

On April 25, Thompson received a letter from [Associate Director of Student Conduct Thomas] Ragland informing her that “the Dean of Students Office received reports that [Thompson] may have violated provisions of the Student Code of Conduct”; that these reports concerned “the disagreement between [Thompson] and Dr. Lazorski”; that, specifically, Thompson’s email to her former classmates “may have violated the Student Code of Conduct”; that Thompson had to meet with Ragland; and that Thompson was subject to a “No Contact order” restricting her from communicating with Dr. Lazorski. Ragland’s letter specifically cautioned: “Further, due to the persistent communication and disruption your communication is about Dr. Lazorski (sic), you are restricted from discussing Dr. Lazorski with any student in the CHE 1800 course or any of Dr. Lazorski’s classes, as this would be a violation of the this No Contact Directive (sic).”

There’s your prior restraint. And there are the baseless accusations about “persistent communication” and “disruption,” neither of which the school was able to provide evidence of when defending against this lawsuit. Going back to Tinker (1969) and tracing procedural history forward, the Tenth Circuit says denying qualified immunity is a no-brainer. This right is clearly established.

We think the foregoing precedents clearly establish that Thompson’s complaint adequately states a First Amendment violation. Indeed, this case is, at least at the present stage of the proceedings, an easy one. Thompson’s speech was restricted. And there is no apparent legitimate basis for this restriction.

As for the argument that school “disruption” justified Ragland’s prior restraint, the court is having none of it.

He relies in part on the disruption caused to the two classes Thompson attended when she sat on the floor. Those two classes were in early February 2019. Ragland’s letter to Thompson was in late April. In the interim (sometime after the mediation on March 18) Thompson sent her email to fellow students. A reasonable factfinder could readily determine that the discipline was imposed on Thompson because of the email, not just because of the two classroom incidents that caused minimal disruption and had apparently been resolved by Thompson’s dropping the class.

Nor was Thompson’s email disruptive.

The other possible cause of disruption was Thompson’s email to fellow students. But there is no evidence of any disruption caused by the email; on the contrary, the complaint alleges that there was no disruption to the work of MSU, and none was mentioned in Ragland’s letter imposing the discipline. Nor could disruption be reasonably anticipated. Thompson merely sent a respectful, noninflammatory email expressing her dissatisfaction with a professor’s performance and encouraging her former classmates to submit “honest” reviews about the class and the professor.

The court’s harshest criticism is reserved for that particular argument:

What Ragland argues in his appellate brief is remarkable. He claims that Thompson’s “efforts to encourage other students to give negative evaluations would disrupt Dr. Lazorski’s career and her relationship with her students, as well as [MSU’s] efforts in employing faculty to conduct the class.” […] If we were to accept that rationale, there would be no First Amendment protection for criticism of government employees.

This reverses the lower court’s decision, which inexplicably sided with Ragland and his argument that criticism of government employees isn’t protected speech. The administrator loses his qualified immunity and will have to continue defending himself against Thompson’s lawsuit. This doesn’t mean the addition of more facts to the case might result in a delayed win for Ragland (although, given what’s detailed here, I don’t see how he possibly walks away from this), but the onus is now on the administrator to defend his apparent rights violation, rather than simply claim he had no idea ordering a student to stop talking about an instructor might violate the student’s rights.

Filed Under: 10th circuit, 1st amendment, college, free speech, megan lazorski, prior restraint, reviews, rowan thompson

YouTube Dusts Off Granular National Video Blocking To Assist YouTuber Feuding With Toei Animation

from the 'bout-time dept

Hopefully, you will recall our discussion about one YouTuber, Totally Not Mark, suddenly getting flooded with 150 copyright claims on his YouTube channel all at once from Toei Animation. Mark’s channel is essentially a series of videos that discuss, critique, and review anime. Toei Animation produces anime, including the popular Dragon Ball series. While notable YouTuber PewDiePie weighed in with some heavy criticism over how YouTube protects its community in general from copyright claims, the real problem here was one of location. Matt is in Ireland, while Toei Animation is based out of Japan. Japan has terrible copyright laws when it comes to anything resembling fair use, whereas Ireland is governed by fair dealing laws. In other words, Matt’s use was just fine in Ireland, where he lives, but would not be permitted in Japan. Since YouTube is a global site, takedowns have traditionally been global.

Well, Matt has updated the world to note that he was victorious in getting his videos restored and cleared, with a YouTube rep working directly with him on this.

But shortly after, as Fitzpatrick revealed in a new video providing an update on the legal saga, someone “high up at YouTube’’ who wished to remain anonymous, reached out to him via Discord. Fitzpatrick said the contact not only apologized for his situation not being addressed sooner, but divulged a prior conflict between YouTube and Toei regarding his videos fair use status.

“I’m not going to lie, hearing a human voice that felt both sincerely eager to help and understanding of this impossible situation felt like a weight lifted off my shoulders,” Fitzpatrick said.

Hey, Twitch folks, if you’re reading this, this is how it is done. But it isn’t the whole story. Before the videos were claimed and blocked, Toei had requested that YouTube manually take Matt’s videos offline. YouTube pushed back on Toei, asking for more information on its requested takedowns, specifically asking if the company had considered fair use/fair dealing laws in its request. Alongside that, YouTube also asked Toei to provide more information as to what and why Matt’s videos were infringing. Instead of complying, Toei utilized YouTube’s automated tools to simply claim and block those 150 videos.

The following week, a game of phone tag ensued between Toei, the Japanese YouTube team, the American YouTube team, Fitzpatrick’s YouTube contact, and himself to reach “some sort of understanding” regarding his copyright situation. Toei ended up providing a new list of 86 videos of the original 150 or so that the company deemed should not remain on YouTube, a move Fitzpatrick described as “baffling” and “inconsistent.” Toei, he concludes, has no idea of the meaning of fair use or the rules the company wants creators to abide by.

“Contained in this list was frankly the most arbitrary assortment of videos that I had ever seen,” he said. “It honestly appeared as if someone chose videos at random as if chucking darts at a dart board.”

While Matt regained control of his videos thanks to his work alongside the YouTube rep, he was still in danger of Toei filing a lawsuit in Japan that he would almost certainly lose, given that country’s laws. Fortunately, YouTube has a method for blocking videos based on copyright claims in certain countries for these types of disputes. The Kotaku post linked above suggests that this method is brand new for YouTube, but it isn’t. It’s been around for a while but, somewhat amazingly, it appears to have never been used specifically when it comes to copyright laws in specific countries.

YouTube’s new copyright rule allows owners like Toei to have videos removed from, say, Japan’s YouTube site, but said videos will remain up in other territories as long as they fall under the country’s fair use policies. To have videos removed from places with more allowances for fair use, companies would have to argue their cases following the copyright laws of those territories.

And so Matt’s review videos remain up everywhere except in Japan. That isn’t a perfect solution by any stretch, but it seems to be as happy a middle ground as we’re likely to find given the circumstances. Those circumstances chiefly being that Toei Animation for some reason wants to go to war with a somewhat popular YouTuber who, whatever else you might want to say about his content, is certainly driving interest publicly in Toei’s products, for good or bad. This is a YouTuber the company could have collaborated with in one form or another, but instead it is busy burning down bridges.

“Similarly to how video games have embraced the online sphere, I sincerely believe that a collaborative or symbiotic relationship between online creators and copyright owners is not only more than possible but would likely work extremely well for both sides if they are open to it,” Fitzpatrick said.

That Toei Animation is not open to it is the chief problem here.

Filed Under: contentid, copyright, fair dealing, geoblocking, ireland, japan, matt fitzpatrick, reviews, takedowns, videos
Companies: toei animation, youtube

Totally Bogus DMCA Takedowns From Giant Publishers Completely Nuke Book Review Blog Off The Internet

from the but-piracy-is-the-problem? dept

Just as we’re in the midst of a Greenhouse series all about SOPA, copyright industry lobbyists, and former copyright industry lawyers now running the Copyright Office are conspiring to make copyright law worse and to favor Hollywood and give the big giant legacy copyright companies more control and power over the internet.

And, yet, we pay almost no attention to how they massively abuse the power they already have under copyright law to silence people. The latest example is the book review blog, Fantasy Book Critic. I’d link to it, but as I’m writing this all you now see is a message that says “Sorry, the blog at fantasybookcritic.blogspot.com has been removed.”

Why? Because two of the largest publishing companies in the world, Penguin Random House and HarperCollins, hired a ridiculously incompetent service provider called “Link-Busters” which specializes in bullshit automated DMCA takedowns for the publishing industry. Link-Busters’ website looks like basically all of these sketchy, unreliable services, promising to “protect IP” and (even more ridiculously) “turn piracy into profits.”

The company also claims on its website that “you can be assured your work will be protected to the fullest extent,” and also: “According to multiple independent metrics, Link-Busters quarantines and/or eliminates more pirated content than other anti-piracy services.” Of course, it’s easy to get more things taken down if you don’t give a shit as to whether or not it’s actually infringing. And apparently, that is Link-Busters’ secret sauce: sending bogus DMCA takedowns for things like book review websites.

On Monday, Link-Busters, on behalf of Penguin Random House and HarperCollins sent over 50 bullshit takedown notices to Google, claiming that various reviews on Fantasy Book Critic were actually infringing copies of the books they were reviewing. Each notice listed many, many blog posts on the site. This is just a small sample of four such notices.

The actual notices do contain some links to websites that appear to have pirated copies of some books available, but also lots of links to Fantasy Book Critic’s reviews. The whole thing just seems incredibly sloppy by Link-Busters. Some of the “allegedly infringing” books in some of these notices didn’t even include links to allegedly infringing pages.

And then some show the only allegedly “infringing” links being… Fantasy Book Critic’s reviews:

That link, which again, does not exist any more, can be seen on the Internet Archive where you see that not only is it clearly a review, and not piracy, but it directly links visitors to places where they can buy the book. Turning piracy into profits, huh? By taking down review sites pushing people to places where they can buy the book?

Of course, the real problem here is that there are no consequences whatsoever for Link-Busters or Penguin Random House or HarperCollins. While the DMCA has Section 512(f), which is supposed to punish false notifiers, in practice it is a dead letter. This means, Link-Busters can spam Google with wild abandon with blatantly false DMCA notices and face zero consequences. But, more importantly, publishing giants like Penguin Random House and HarperCollins (which are currently suing libraries for offering lendable ebooks), can get away with this abuse of the law over and over again.

Fantasy Book Critic was reduced to begging on Twitter for Google to look more closely at Link-Busters bogus notifications and to restore their blog. They even contacted Link-Busters which admitted that they fucked up (though, perhaps they should have checked before sending these bogus notices?)

(7/n) As a result of this massive amount of wrong #DMCA notices, @Google Blogger removed the blog for the breach of TOS (Terms of Service) immediately. We contacted the service (@linkbusters), & they acknowledged their mistake, and promised to send a retraction notice to @Google.

— Fantasy Book Critic (@FantasyBookCrit) January 19, 2022

Either way, among the many, many reasons why we opposed SOPA was the recognition that this kind of thing happens all the time, and the “remedies” under SOPA were that entire websites would get blocked at the DNS level under mere accusations of copyright infringement. In this case, it’s slightly different because Google (under a different part of the DMCA) is required to shut down “repeat infringer” accounts, and so here it took down the entire blog that was hosted on Google’s blogspot. The punishment under SOPA would have been even more draconian — blocking all access to the blog at the DNS level entirely.

So, as Penguin Random House and HarperCollins and their lobbying arm — lead by the former director of the Copyright Office, Maria Pallante — are currently trying to convince Congress to make copyright law even more in their favor and to shut down digital libraries, perhaps we should be looking at moving copyright in the other direction, so that these “mistakes” can’t happen any more. Perhaps copyright law shouldn’t allow the shutting down of a website based on totally bogus accusations from an automated spammer hired by the largest publishers in the world, where no one cares about what they might actually be taking down?

The problem is not piracy. The problem is copyright law enabling actual censorship — using the power of the law to silence speech.

Filed Under: book reviews, copyright, copyright as censorship, dmca, false takedowns, fantasy book critic, reviews, takedowns
Companies: google, harpercollins, link-busters, penguin random house

Amazon DMCA Strikes Video About 'New World' Bug, Reinstates Video, Promises Review Of Process

from the oopsie dept

It was only a few months back that Amazon released its MMO game New World. While there was a bunch of hype around the game, it was met critically with mostly a collective “meh”. While the lack of exuberant reviews focused mostly on bland gameplay that doesn’t survive its honeymoon period, there were also bugs. So, so many bugs. So many bugs, in fact, that both gamer media covered them in detail and entire Reddit threads were created to discuss them.

This isn’t unique to New World, of course. With the unfortunate industry trend of releasing a game first and then day 1 patching most of the problems out of it afterwards, there are a ton of these stories. But what makes this one different is that a YouTuber created a video about one of the bugs and then alerted Amazon to it so that they could fix it, only to have Amazon issue a copyright strike against his channel.

New World YouTuber Video Game DataBank reported on Sunday that Amazon Games slapped his channel with a permanent copyright strike over his video reporting a bug, attempting to deplatform the creator instead of addressing the issue. According to the YouTuber, he found a bug where if you gain 3 full aptitude levels all at once while crafting, it won’t give you XP beyond that. As a result, this bug could cost players a large sum of money when they attempt to gain crafting levels. Video Game DataBank ended up making and sending a video of the bug to Amazon Games support to help them identify the problem, after which he reports they manually copyright struck his video, going out of their way to punish him for reporting the issue in their game.

Now, it’s important as we follow the plot here to note that there have been a ton of stories coming from New World players about how contacting support, when these game bugs result in issues for players, results instead in those players being banned from the game or otherwise being treated poorly. In other words, this copyright strike action is not happening in a vacuum.

“All those horror stories with Amazon Game support, are 100% accurate, is my assumption at this point,” Video Game Databank concluded. “People said they contacted Amazon Game support and the next day they got banned, and things like that, I 100% believe it now. . . I was unsure before, but I absolutely believe the majority of those players now. Because that is my experience as well, that Amazon Games support does not have your best interest in mind in the majority of cases.”

Whether you choose to believe those anecdotal stories is entirely up to you. But, again, this is a matter of timing, as we’ll get into in a second. Bug is discovered, YouTuber makes video about bug, YouTuber contacts Amazon support about bug and video, video gets a copyright strike. Whatever you think, you can certainly forgive the YouTuber for thinking all of those plot points are related.

According to Amazon, however, they are not. Instead, this was one big whoopsie. The company apologized for the copyright strike, which it also rescinded, and claimed that whoever issued the manual strike was actually trying to strike a video for selling in-game currency.

“The team has been investigating this incident and working directly with the content creator involved to resolve this issue. The intended target for the strike was an advertisement on YouTube for a gold selling website.

“By mistake, the video was reported instead,” continues the statement from Amazon. “We have since removed the strike and the video is live again. We will revise our internal processes to ensure this issue does not impact other folks in the future. We apologise for this poor experience and any concerns it created.”

I have to say that this explanation is possible but hard to believe. The timing is too coincidental for this to all make perfect sense. Instead, this reads more like the company got caught with its hand in the censorship cookie jar and is now trying to explain it all away.

But even if that’s not the case and this all was some big unhappy accident, it’s an indictment of how Amazon is enforcing its copyrights on streaming platforms like YouTube. Given what a monumentally shitty job Amazon’s competing Twitch service has done as well, ineptitude is also not entirely off the table. But it should be, as far as what what the public should be willing to accept when it comes to how Amazon is doing its business.

And, as always, content moderation and copyright enforcement at scale is impossible to do well and will always, always suck. Forever and ever. Amen.

Filed Under: copyright, copyright strikes, criticism, dmca, new world, reviews
Companies: amazon, youtube