statute of limitations – Techdirt (original) (raw)

from the not-living-up-to-the-times'-own-journalistic-standards dept

A few weeks ago, Prof. James Grimmelmann and (former Techdirt) journalist Tim Lee wrote a piece for Ars Technica, stating why the NY Times might win its copyright lawsuit against OpenAI. It’s no secret that I’m skeptical of the underpinnings of the lawsuit and think the NY Times is being silly in filing it, but I don’t think there’s any question that the NY Times could win. Copyright law (as both Grimmelmann and Lee well know) ‘tis a silly place, where judges will justify just about anything if they feel one party has been “wronged” no matter what the law might say. The Supreme Court’s ruling in the Aereo case should always be a reminder of that. Sometimes copyright cases are decided on vibes and not the law.

The main crux of the argument for why the NY Times could win is that the NYT showed how they got OpenAI to regurgitate very similar versions of stories, as lots of people commented on regarding the lawsuit. However, as we noted in our analysis, they only did so by effectively limiting the potential output to such a narrow range of possibilities, that a very near copy was about the only possible answer. Basically, the system is trained on lots and lots of input training data, but if you systematically use your prompt to basically say “give me exactly this, and exclude every other possibility” eventually an LLM may return something kinda like what you asked for.

This is why it seems that, if there is any infringement (or other legal violation), the liability should fall almost entirely on the prompter. They’re the ones using the tool in such a manner to produce potentially violative works. We don’t blame the car company because a driver drove a car recklessly and caused damage. We blame the driver.

Either way, we now have OpenAI’s motion to dismiss in the case. While I’ve seen lots of people saying that OpenAI is claiming the NY Times “hacked” their system and finding such an allegation laughable, the reality is (as usual) more nuanced and important to understand. The NY Times definitely had to do a bunch of gaming to get the outputs it wanted for the lawsuit, which undermines the critical claim that OpenAI’s tools magically undermine the value of a NY Times’s subscription.

As OpenAI points out, the claims in the NY Times’ complaint would not live up to the Times’ well-known journalistic standards, given just how misleading the complaint was:

The allegations in the Times’s Complaint do not meet its famously rigorous journalistic standards. The truth, which will come out in the course of this case, is that the Times paid someone to hack OpenAI’s products. It took them tens of thousands of attempts to generate the highly anomalous results that make up Exhibit J to the Complaint. They were able to do so only by targeting and exploiting a bug (which OpenAI has committed to addressing) by using deceptive prompts that blatantly violate OpenAI’s terms of use. And even then, they had to feed the tool portions of the very articles they sought to elicit verbatim passages of, virtually all of which already appear on multiple public websites. Normal people do not use OpenAI’s products in this way.

This is where the “hacked” headlines come from. And, frankly, claiming it’s a “hack” is a bit silly for OpenAI. The other points it’s raising are much more important. A key part of the Times’ lawsuit is claiming that because of their prompt engineering, they could reproduce similar (though not exact) language to articles, which would allow users to bypass a NY Times paywall (and subscription) to just have OpenAI generate the news for them.

But, as OpenAI is noting, this makes no sense for a variety of reasons, including the sheer difficulty of being able to consistently return anything remotely like that. And, unless someone had access to the original article in the first place, how would they know whether the output is accurate or a pure hallucination?

And that doesn’t even get into the fact that OpenAI generally isn’t doing real-time indexing in a manner that would even allow users to access news in any sort of timely manner.

OpenAI makes the obvious fair use argument, rightly highlighting how much of its business (and the wider AI) space has been built in the belief that reading/scanning of content that is publicly available is obviously fair use, and that to change that would massively upend a whole industry. It even makes a nod to the point that I raised in my initial article about the lawsuit: the NY Times itself relies regularly on the kind of fair use it now claims doesn’t exist.

Indeed, it has long been clear that the non-consumptive use of copyrighted material (like large language model training) is protected by fair use—a doctrine as important to the Times itself as it is to the American technology industry. Since Congress codified that doctrine in 1976, see H.R. Rep. No. 94-1476, at 65–66 (1976) (courts should “adapt” defense to “rapid technological change”), courts have used it to protect useful innovations like home video recording, internet search, book search tools, reuse of software APIs, and many others.

These precedents reflect the foundational principle that copyright law exists to control the dissemination of works in the marketplace—not to grant authors “absolute control” over all uses of their works. Google Books, 804 F.3d at 212. Copyright is not a veto right over transformative technologies that leverage existing works internally—i.e., without disseminating them—to new and useful ends, thereby furthering copyright’s basic purpose without undercutting authors’ ability to sell their works in the marketplace. See supra note 23. And it is the “basic purpose” of fair use to “keep [the] copyright monopoly within [these] lawful bounds.” Oracle, 141 S. Ct. at 1198. OpenAI and scores of other developers invested billions of dollars, and the efforts of some of the world’s most capable minds, based on these clear and longstanding principles

It makes that point even more strongly a bit later:

To support its narrative, the Times claims OpenAI’s tools can “closely summarize[]” the facts it reports in its pages and “mimic[] its expressive style.” Compl. ¶ 4. But the law does not prohibit reusing facts or styles. If it did, the Times would owe countless billions to other journalists who “invest[] [] enormous amount[s] of time, money, expertise, and talent” in reporting stories, Compl. ¶ 32, only to have the Times summarize them in its pages

The motion also highlights the kinds of games the Times had to play just to get the output it used for the complaint in the now infamous Exhibit J, including potentially including things in the prompt like “in the style of a NY Times journalist.” Again, this kind of prompt engineering is basically using the system to systematically limit the potential output in an effort to craft output that the user could claim is infringing. GPT doesn’t just randomly spit out these things.

OpenAI highlights how many of the claimed “infringements” fall outside the three-year statute of limitations. As for the contributory infringement claims, they are equally as ridiculous because to do that, you have to show that the defendant knew of users making use of the platform to infringe and somehow encouraged that behavior.

Here, the only allegation supporting the Times’s contributory claim states that OpenAI “had reason to know of the direct infringement by end-users” because of its role in “developing,testing, and troubleshooting” its products. Compl. ¶ 180. But “generalized knowledge” of “the possibility of infringement” is not enough. Luvdarts, 710 F.3d at 1072. The Complaint does not allege OpenAI “investigated or would have had reason to investigate” the use of its platform to create copies of Times articles. Popcornflix.com, 2023 WL 571522, at *6. Nor does it suggest that OpenAI had any reason to suspect this was happening. Indeed, OpenAI’s terms expressly prohibit such uses of its services. Supra note 8. And even if OpenAI had investigated, nothing in the Complaint explains how it might evaluate whether these outputs were acts of copyright infringement or whether their creation was authorized by the copyright holder (as they were here).

The complaint had also made a bunch of DMCA 1202 claims. That’s the part of the law that dings infringers for removing copyright management info (CMI). This (kinda silly) part of the law is basically designed as a tool to go after commercial infringers who would strip or hide a copyright notice from a work in order to resell it (e.g., on a DVD sold on a street corner or something). But clearly that’s not what’s happening here. Here, the Times didn’t even say what CMI was removed.

Count V should be dismissed at the outset for failure to specify the CMI at issue. The Complaint’s relevant paragraph fails to state what CMI is included in what work, and simply repeats the statutory text. Compl. ¶ 182 (alleging “one or more forms of [CMI]” and parroting language of Section 1202(c)). The only firm allegation states that the Times placed “copyright notices” and “terms of service” links on “every page of its websites.” Compl. ¶ 125. But, at least for some articles, it did not. And when it did, the information was not “conveyed in connection with” the works, 17 U.S.C. § 1202(c) (defining CMI), but hidden in small text at the bottom of the page. Judge Orrick of the Northern District of California rejected similar allegations as deficient in another recent AI case. Andersen v. Stability AI Ltd., No. 23-cv-00201, 2023 WL 7132064, at *11 (N.D. Cal. Oct. 30, 2023) (must plead “exact type of CMI included in [each] work”).

Another key point is that the Times claims that the parts of NY Times articles that showed up as close (but usually not exact) excerpts in GPT output couldn’t be dinged for CMI removal. This is because if that was the law it would open up tons of other organizations (including the NY Times itself) that quote or excerpt works without including the CMI:

Regardless, this “output” theory fails because the outputs alleged in the Complaint are not wholesale copies of entire Times articles. They are, at best, reproductions of excerpts of those articles, some of which are little more than collections of scattered sentences. Supra 12. If the absence of CMI from such excerpts constituted a “removal” of that CMI, then DMCA liability would attach to any journalist who used a block quote in a book review without also including extensive information about the book’s publisher, terms and conditions, and original copyright notice. See supra note 22 (example of the Times including 200-word block quote in book review).

And then there’s this tidbit:

Even setting that aside, the Times’s output-based CMI claim fails for the independent reason that there was no CMI to remove from the relevant text. The Exhibit J outputs, for example, feature text from the middle of articles. Ex. J. at 2–126. As shown in the exhibit, the “Actual text from NYTimes” contains no information that could qualify as CMI. See, e.g., id. at 3; 17 U.S.C. § 1202(c) (defining CMI). So too for the ChatGPT outputs featured in the Complaint, which request the “first [and subsequent] paragraph[s]” from Times articles. See, e.g., Compl. ¶¶ 104, 106, 118, 121. None of those “paragraphs” contains any CMI that OpenAI could have “removed.”

There’s some more in there, but I find it a very strong motion. That doesn’t mean that the case will get dismissed outright (remember, copyright land ‘tis a silly place), but it sure lays out pretty clearly how silly the examples in the Times lawsuit are and how weak their claims are as soon as you hold them up to the light.

Yes, in some rare circumstances, you can reproduce content that is kinda similar (but not exact) to copyright covered info if you tweak the outputs and effectively push the model to its extremes. But… as noted, if that’s the case, any liability should still feel like it should be on the prompter, not the tool. And the NY Times can’t infringe on its own copyright.

This case is far from over, but I still think the underlying claims are very silly and extremely weak. Hopefully the court agrees.

Filed Under: cmi, copyright, dmca 1202, fair use, prompt engineering, statute of limitations
Companies: ny times, openai

Court Dumps Trump Lawsuit Claiming Hillary Clinton Rigged The 2016 Election He Actually Won

from the election-was-fraudulent,-claims-election-winner dept

Sooooooo… this was something that happened.

Trump, the commander of a fine legal team that has included, over the years, plenty of people facing indictments, sanctions, and lawsuits of their own, sued the Clinton campaign for trying to throw an election he ended up winning.

Perhaps Trump was as surprised by his victory as millions of Americans were. But millions of Americans simply went on with their lives, hoped for the best, started dying in droves, and then took him for a ride to the farm golf course in the 2020 election. An attempted insurrection followed and somehow millions of Americans still believe the best thing for the country is Grover Cleveland 2.0. And I mean that pretty much literally.

Cleveland, like a growing number of Northerners and nearly all white Southerners, saw Reconstruction as a failed experiment, and was reluctant to use federal power to enforce the 15th Amendment of the U.S. Constitution, which guaranteed voting rights to African Americans…

Although Cleveland had condemned the “outrages” against Chinese immigrants, he believed that Chinese immigrants were unwilling to assimilate into white society. Secretary of State Thomas F. Bayard negotiated an extension to the Chinese Exclusion Act, and Cleveland lobbied the Congress to pass the Scott Act, written by Congressman William Lawrence Scott, which prevented the return of Chinese immigrants who left the United States. The Scott Act easily passed both houses of Congress, and Cleveland signed it into law on October 1, 1888.

The sorest winner in presidential history still thinks a federal court should force Hillary Clinton to pay him actual money for allegedly conspiring against him to… allow him to ascend to the Oval Office following the Electoral College vote.

Long story short, Trump sued Hillary Clinton over an election he won. His allegations were, well, seemingly incomprehensible. Trump’s lawyers are being paid per word or per ream of paper. But, either way, the court is mostly unable to figure out if Trump’s complaining contains any actionable complaints. From the decision [PDF]:

Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way.

This is followed up by a judicial sigh of resignation.

Nevertheless, I will attempt to distill it here.

So shall I. Trump alleged Clinton “colluded with a hostile foreign entity” to elicit “spurious opposition research” (referring to the Christopher Steele dossier) and another report claiming to tie Trump hotels to Russian financiers via DNS records (a report that was immediately debunked by everyone with an understanding of how internet traffic works).

According to Trump and his lawyers, this is irrefutable evidence the Clinton campaign conspired to prevent him from winning an election he won. The court is far less certain this is evidence of anything. When it comes to legal claims, quality is preferable to quantity — something Trump’s lawyers clearly don’t understand.

Plaintiff’s Amended Complaint is 193 pages in length, with 819 numbered paragraphs. It contains 14 counts, names 31 defendants, 10 “John Does” described as fictitious and unknown persons, and 10 “ABC Corporations” identified as fictitious and unknown entities. Plaintiff’s Amended Complaint is neither short nor plain, and it certainly does not establish that Plaintiff is entitled to any relief.

Brevity isn’t always wit, but in this case, brevity would be preferable to sprawling narratives with no cognizable claims. Longer is not better. An amending a complaint to make it longer, but no better, doesn’t do much else but waste the court’s time. The length of the complaints is only part of the problem. The real problems are the complete lack of anything actionable.

More troubling, the claims presented in the Amended Complaint are not warranted under existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme Court.

Tossing in a belated, unsupported wire fraud claim in an attempt to salvage doomed RICO claims only made things worse for Trump. (Emphasis in the original.)

Not only does Plaintiff lack standing to complain about an alleged scheme to defraud the news media, but his lawyers ignore the Supreme Court’s holdings that the federal wire fraud statute prohibits only deceptive schemes to deprive the victim of money or property. It is necessary to show not only that a defendant engaged in deception, but that an object of the fraud was property.

An election is not “property.” While it might be possible to insinuate that depriving Trump of the presidency deprived him of money, the dozens of pages and hundreds of paragraphs failed to show how this alleged conspiracy deprived Trump of anything. He still won the election. And, on top of that, it did not deprive Trump of money or property. He retained his (frequently overstated) wealth. And he did not lose any of his property. Instead, he gained a brand new, rent-free address located in the one of the most upscale neighborhoods of the nation’s capital.

It’s just one benchslap after another for Trump and his legal reps.

Many of the Amended Complaint’s characterizations of events are implausible because they lack any specific allegations which might provide factual support for the conclusions reached.

Back to criticizing the convolutions and length of the complaints:

Plaintiff has annotated the Amended Complaint with 293 footnotes containing references to various public reports and findings. He is not required to annotate his Complaint; in fact, it is inconsistent with Rule 8’s requirement of a short and plain statement of the claim. But if a party chooses to include such references, it is expected that they be presented in good faith and with evidentiary support. Unfortunately, that is not the case here.

Citing a DOJ Inspector General’s report on alleged election interference? Possibly good. Misstating its conclusions? Definitely bad.

Plaintiff and his lawyers are of course free to reject the conclusion of the Inspector General. But they cannot misrepresent it in a pleading.

Never a subheading anyone filing a complaint wants to see in a court’s response to a motion to dismiss.

Shotgun Pleading

Doubling down on bad pleadings is even worse.

To say that Plaintiff’s 193-page, 819-paragraph Amended Complaint is excessive in length would be putting things mildly. And to make matters worse, the Amended Complaint commits the “mortal sin” of incorporating by reference into every count all the general allegations and all the allegations of the preceding counts.

This subheading? Also seriously bad news for unserious lawyers filing unserious complaints on behalf of an extremely unserious person.

Fictitious Defendants

Much more discussion follows, mainly because the sprawling complaints have forced the court to address a ton of facially invalid arguments. Among those is the statute of limitations for RICO claims, which, at four years, gave the Trump people until October 2021, at the latest, to file. They chose not to do so until 2022. His lawyers claimed Trump should have rolling tolling, applicable until the end of his presidency in January 2021.

The court says this simply isn’t the case. The president was or should have been aware of the incidents and reporting underlying this federal complaint since October 2017. That he chose to sue several months after the statute of limitations had expired is on him. The court can’t (and won’t) save him.

And so it continues for another 25 pages. There is nothing in here Trump can continue to pursue. It’s a shutout. The entire thing (both the original and amended complaints) are dismissed with prejudice as far as the non-federal defendants are concerned. The lawsuit is still (barely) alive (dismissed without prejudice) in terms of federal defendants. But, given Trump’s inability to amend a complaint cohesively, concisely, or comprehensibly, it will only be a matter of time before those claims are dismissed definitively by this same court.

Trump won. Maybe he should just enjoy the win, rather than claim people conspired against him to keep him out of an office he ultimately held for four deeply regrettable years.

Filed Under: donald trump, elections, hillary clinton, rico, standing, statute of limitations

More Lawsuits Are Being Filed By Parents Hoping To Hold Social Media Platforms Responsible For The Deaths Of Their Children

from the this-isn't-a-path-to-justice dept

Earlier this year, we covered what appears to be the first of several lawsuits filed on behalf of parents by the Social Media Victims Law Center. In that lawsuit, the mother of an eleven-year-old who committed suicide sued Meta and Snap, claiming SnapChat’s algorithmically enabled feedback loops drove her daughter to her death. The suit recounted the last few years of her daughter’s life, which increasingly revolved around social media use. Despite taking actions to limit her daughter’s interactions with these services, along with seeking psychiatric intervention, her daughter ultimately took her own life.

Seeking some form of closure or justice often follows tragedies, but trying to hold social media platforms directly responsible for the actions of users isn’t likely to achieve either of those goals. What isn’t foreclosed by Section 230 immunity is shielded by the First Amendment. Even if the plaintiff somehow manages to get past these arguments, they still have to show how the platform contributed to the user’s death.

Those hurdles aren’t deterring the Social Media Victims Law Center from filing more lawsuits with similar allegations concerning similar tragedies. This CNN report covers the story of another family dealing with the suicide of a child and who has also secured the representation of this law center.

Christopher James Dawley, known as CJ to his friends and family, was 14 years old when he signed up for Facebook, Instagram and Snapchat. Like many teenagers, he documented his life on those platforms.

CJ worked as a busboy at Texas Roadhouse in Kenosha, Wisconsin. He loved playing golf, watching “Doctor Who” and was highly sought after by top-tier colleges. “His counselor said he could get a free ride anywhere he wanted to go,” his mother Donna Dawley told CNN Business during a recent interview at the family’s home.

But throughout high school, he developed what his parents felt was an addiction to social media. By his senior year, “he couldn’t stop looking at his phone,” she said. He often stayed up until 3 a.m. on Instagram messaging with others, sometimes swapping nude photos, his mother said. He became sleep deprived and obsessed with his body image.

On January 4, 2015, while his family was taking down their Christmas tree and decorations, CJ retreated into his room. He sent a text message to his best friend – “God’s speed” – and posted an update on his Facebook page: “Who turned out the light?” CJ held a 22-caliber rifle in one hand, his smartphone in the other and fatally shot himself. He was 17. Police found a suicide note written on the envelope of a college acceptance letter. His parents said he never showed outward signs of depression or suicidal ideation.

The wrongful death lawsuit [PDF] (which CNN didn’t include in its report for unknown reasons) presents a bunch of product liability claims, along with references to recent congressional hearings about social media moderation efforts. The biggest problem facing the plaintiffs isn’t Section 230 immunity or First Amendment protections. It’s the fact that these allegations are foreclosed by the statute of limitations. Both wrongful death and product liability suits must be brought within three years. (There is an exemption that extends the product liability statute of limitations but it only applies to latent diseases caused by products or if the manufacturer has explicitly promised the product would last more than 15 years.)

Here’s how the lawsuit hopes to avoid the statute of limitations issues.

Plaintiff did not discover, or in the exercise of reasonable diligence could not have discovered, that CJ’s death by suicide was caused by the Defendant’s unreasonably dangerous products until September or October of 2021.

This refers to the information exposed by Facebook whistleblower Frances Haugen, which provided details on the inner workings of the platform’s algorithms, and how they were skewed to ensure the company made more money even if it meant making the experience worse (and potentially more dangerous) for users.

By claiming they had no idea how much Meta and Snap manipulated users until this date, the plaintiff is apparently hoping the court will consider September 2021 to be the starting point of the injury, rather than the date her son committed suicide, which was more than seven years ago. Whether the court will agree to start the clock six years after the tragedy remains to be seen, but the rest of arguments are similar to those raised in lawsuits brought against social media services by victims of terrorist attacks… and not a single one of those lawsuits has resulted in a win for the plaintiffs.

This lawsuit goes out of its way to ensure it never refers to any content hosted by SnapChat as being a contributing factor, but it does specifically refer to moderation efforts, algorithms, and other newsfeed tweaks that would appear to raise 1st Amendment and Section 230 questions, even if it’s clear the plaintiff and their reps definitely don’t want those issues raised. Trying to plead around them may be a nice try, but is unlikely to be successful. Similar cases have been dismissed on 230 and 1st Amendment grounds and it’s likely that this one will face the same fate.

There’s also the problem that, generally speaking, you can’t blame someone’s suicide on a third party. Courts frown upon such things.

This firm’s efforts appear to be in good faith… or at least in better faith than the social media/terrorism lawsuits filed en masse by 1-800-LAW-FIRM and Excolo Law. But that doesn’t mean these better-intentioned efforts are any more likely to succeed.

Filed Under: 1st amendment, product liability, section 230, statute of limitations, suicide, wrongful death
Companies: facebook, meta, snap

from the royale-with-cheese dept

The iconic film Pulp Fiction appears to be a hot topic of conversation lately. We recently discussed Miramax’s laughable lawsuit against Quentin Tarantino over his plan to offer NFTs for certain unreleased and unused portions of the film’s drafted scripts, alongside the director’s audio commentary revealing his thought processes and “secrets” surrounding the screenplay. While that whole thing is currently making Miramax look very confused as to intellectual property laws, there was recently a lawsuit ruled in Miramax’s favor over the film’s most iconic poster.

You know the image. It’s the one with Uma Thurman laying stomach-down on a bed, smoking a cigarette, surrounded by guns and paperback books. The photo for that poster was taken by Firooz Zahedi at his studio in 1994 and has since become one of the most iconic movie posters ever. In May of 2020, Zahedi sued Miramax for copyright infringement over the extensive use of the photo on merchandise, claiming he never authorized its use for those instances. Miramax claimed the work had been done as a work for hire, which makes all the sense in the world, except, well…

Miramax claimed that he took the picture as part of a work-for-hire agreement for “Pulp Fiction,” but sometime in the last 27 years, the studio misplaced the signed documents that made the agreement official, so it couldn’t dig up anything to prove that.

Now, the whole “Sorry, the dog ate my work for hire paperwork” excuse typically doesn’t fly well in court proceedings, no matter how much logical sense such an arrangement might make. In this case, however, I mentioned that the court found in favor of Miramax. How did that happen?

Well, it came down to the timing of Zahedi’s suit coupled with the delay in filing it despite having documented knowledge of its wide use and distribution. And that documentation came in the form of an Instagram post.

Six years ago, Zahedi’s stepson posted an Instagram photo of him with the action figure. The caption on that post read, “Happy Birthday to my Stepdad @fitzphoto [emojis] Turns out he didn’t get toy royalties for his famous photo of Uma TM… But at least he has the toy now…”

Zahedi replied to the post, “Thanks… Sometimes it’s best to settle for the little things in life.”

In other words, there’s a record in 2015 that shows Zahedi knew Miramax had repudiated his ownership at least that far back. The three-year statue of limitations for that ended in 2018, so as far as the judge was concerned, it was case closed.

And so the court indicated two things. First, the statute of limitations is 3 years from the time that Zahedi discovered the “unauthorized” use of his work, if we stipulate that this was in fact not work for hire. Second, that Instagram post demonstrates publicly that Zahedi had that knowledge in 2015. The suit was filed some 2 years late, therefore.

And so Miramax came out the winner. It may still be kind of crappy to not credit the photographer out of courtesy, but there is no legal liability here. And, frankly, I don’t believe for a second that the studio didn’t contract the movie photo as a work for hire arrangement, though it turns out that is not a factor in this ruling.

Filed Under: copyright, firooz zahedi, laches, pulp fiction, statute of limitations, uma thurman, work for hire
Companies: miramax

from the oooooh-get-him dept

It takes a special kind of hubris to appropriate music and lyrics not just from another artist, but another cultural genre of artists, and then threaten someone else for “stealing” what you’ve “stolen”. Meet Barry Mann. If that name doesn’t sound terribly familiar to you, fear not, as he is known for the 1961 hit song Who Put The Bomp? and other songs from decades ago. And if that song title doesn’t sound familiar, you’ve almost certainly heard the song. To jog your memory, it includes such made up words as “ramalama ding dong”. See, those are called vocables: made up syllables used to effectuate rhythmic form rather than meaning. You can listen to the song below to get an idea of what I’m talking about.

“The Mann”, which is what I’ll be calling him from here on out, is still kicking at 82 and apparently is learning a new hobby: threatening other artists with copyright claims. He and/or his legal representatives apparently sent a cease and desist notice to Le Tigre, a feminist punk band, over a song called Decepticon. See, Decepticon takes a couple of lyrics found in The Mann’s song and repurposes them to become a feminist anthem. For that and one additional reason that we’ll get into later, Le Tigre filed suit for declaratory relief of The Mann’s copyright infringement claim. Here is Decepticon so you can go hear for yourself just how copyright-infringe-y this all isn’t.

Between the suit and the song itself, you should notice a number of things. First off, you may be thinking to yourself that this song sounds decidedly retro for punk music. That’s because the song came out twenty years ago and has long been Le Tigre’s most famous song. Why a lawsuit is only being filed now is an open question. In addition, the use of the lyrics is minimal and the song itself is nothing remotely like The Mann’s song.

Additionally, even if Defendants had a legitimate claim to ownership of the small portion of Bomp lyrics at issue, they nonetheless have no copyright infringement claim against Le Tigre or its licensees because Le Tigre’s transformative use of those lyrics in Deceptacon is an emblematic case of fair use under Section 107 of the Copyright Act, 17 U.S.C. § 107.

Transformative use? Let’s get into that. You may also have noticed that the lyrics are actually slightly different. For instance, the lyric to start the song is no longer “who put the bomp”, it’s “who took the bomp”.

Deceptacon’s reference to and inversion of the Bomp lyrics at issue delivers a stinging indictment and parody of Bomp, which is clear from a comparison of the songs’ lyrics and sharply contrasting musical styles, as critics have noted over the decades. Bomp, written from a man’s perspective, begins with the statement: “I’d like to thank the guy who wrote the song that made my baby fall in love with me.” Bomp’s singer asks, “Who put the bomp in the bomp bah bomp bah bomp?” and “Who put the ram in the rama lama ding dong?” Deceptacon, by contrast, is a feminist anthem that begins with the proposition that music “is sucking my heart out of my mind” and continues to ask, “Who took the bomp from the bomp-a-lomp-a-lomp?” and “Who took the ram from the rama-lama-ding-dong?” Thus, Le Tigre’s use of the lyrics that appear in Bomp instills those lyrics with a new meaning that is directly at odds with and a clear criticism of the message in Bomp, which is precisely the sort of fair use that Section 107 of the Copyright Act is designed to protect.

But parody and criticism of what? Well, there certainly is the feminist angle to it, yes, and Le Tigre is well known for creating that sort of stinging lyrics within its songs. But not just the feminist critique. Remember the change from “put” to “took”? Well…

The Bomp lyrics putatively at issue are mainly comprised of song titles and non-lexical vocables (nonsense syllables used in music). But Mr. Mann did not create these vocables or song titles; rather, it appears that Mr. Mann and his cowriter copied them from Black doo-wop groups active during the late 1950s and early 1960s. Specifically, it appears that Mr. Mann took “bomp-bah-bomp-bah-bomp” from The Marcels’ distinctive version of “Blue Moon,” which sold over a million copies, and “rama lama ding dong” from the Edsels’ then-popular “Rama Lama Ding Dong.” In short, the Bomp lyrics at issue are not original to Mr. Mann, and Defendants have no legitimate copyright claim in them.

And that is how this all comes full circle, in a way. The Mann threatened a punk feminist group over a song it created with lyrics designed to specifically criticize how he appropriated those lyrics from black doo-wop groups in the 60s. Like I said, that takes a nearly impressive amount of hubris.

As far as copyright cases go, this should be an easy one for the courts.

Filed Under: barry mann, bomp, copyright, decepticon, fair use, le tigre, punk, ramalama ding dong, statute of limitations, transformative

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine’s attorneys called into question that “exclusive licensing agreement,” Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself — which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal’s copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we’ll probably cover only a few of them. However, I did notice that it wasn’t Liebowitz who was representing her — which makes sense since last we’d heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called “Copyright Justice” even though his law firm’s website mostly focuses on real estate law…) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC (“LLF”), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it’s not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz’s is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn’t yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don’t think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened… in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there’s an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it’s unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can’t show that she actually knew or should have known about the publication earlier.

But… that’s still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the “damages” from 2018 through 2021… for an article published in 2015. It’s hard to see much in the way of provable damages there.

And… despite the fact that copyright law has (insane) statutory damages, those aren’t available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can’t even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys’ fees, which is also asked for.

We haven’t even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the “author” of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don’t see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it’s the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn’t seem like any would apply here.

And, finally, there’s fair use. The image was used in conjunction with a news article and was relevant to the reporting. It’s difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho… or Liebowitz.

Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs

from the civics-obviously-not-its-strong-suit dept

Private prison company CoreCivic has just learned a civics lesson. [I’ll show myself out.] Possibly a very expensive one.

Last March, it sued [PDF] Candide Group, an investment firm that “directs capital away from an extractive global economy towards investments dedicated to social justice and sustainability.” CoreCivic was one company Candide reps wanted money directed away from, citing its participation in separating parents from children at our nation’s borders. (But really only the Southern border if we’re honest.) Candide also claimed CoreCivic lobbies for harsher sentencing and tougher immigration laws since both of those would naturally provide more business for CoreCivic.

CoreCivic’s libel lawsuit said these two “falsehoods” were spread throughout the web via sites like Forbes and multiple social media platforms. It denied both assertions and said they were stated with a reckless disregard for the truth. Candide responded with an anti-SLAPP motion [PDF], which pointed out that not only could CoreCivic not prove the statements were false but also that it had filed its lawsuit past the one-year statute of limitations.

The motion worked. After some back and forth discussion about the merits of the arguments, the court disposed of CoreCivic’s lawsuit with a very short dismissal [PDF] in November. The order doesn’t say much but it says enough to indicate just how weak CoreCivic’s allegations were.

A multitude of issues have been tendered on defendants’ motion to dismiss and to strike the complaint for defamation. It turns out, however, that CoreCivic, Inc., did, in fact, operate detention facilities for parents separated from their children pursuant to the Border Patrol’s family separation policy. Thus, even though CoreCivic did not operate the detention facilities in which the children themselves were housed, CoreCivic did house the other half of the afflicted families or at least some of them. Therefore, the allegedly defamatory statements were true enough under the First Amendment and under California defamation law. Truth being a defense, the complaint is DISMISSED WITHOUT LEAVE TO AMEND. It is unnecessary to reach the remaining issues tendered. All other motions are DENIED AS MOOT.

Anti-SLAPP laws work. CoreCivic didn’t like being publicly criticized, especially by an entity that could shift investors’ money elsewhere. That these actions may have damaged CoreCivic’s future profitability isn’t really relevant — at least not when its allegations of libel couldn’t be sustained.

Whatever money is now leaking from CoreCivic is going to be (mildly) compounded by its inability to recognize largely truthful statements as protected speech, rather than the defamation it clearly desires them to be. The court says [PDF] Candide is entitled to collect legal fees from CoreCivic — an important facet of any good anti-SLAPP law. Candide’s legal reps are asking for about $165,000 in fees. However, the tail end of the order suggests it won’t be nearly that much.

First, defense counsel’s hourly rate is inflated way beyond the amount charged to the client. The anti-SLAPP attorney’s fee provision protects defendants from shouldering the costs of meritless litigation so fees should be limited to what actually “compensate[s] a defendant for the expense of responding to a SLAPP suit,” and not result in a bonus for attorneys.

[…]

_Second, defense counsel spent too long on the motion to strike, especially in light of the experience and expertise of the attorneys which should have allowed them to make quicker work of this matter. Especially where hourly fees are high, there is “an expectation that [counsel] will complete tasks efficiently and that its more senior attorneys will limit their involvement to tasks requiring their level of expertise._”

All anti-SLAPP motions are not created equal, but Judge William Alsup says this one is not that much more equal than others.

Other courts have determined a reasonable time expenditure for an anti-SLAPP motion to be between 40 and 75 hours, not 407.9 hours as here.

Whatever fees are eventually settled on, this case highlights the importance of having a strong anti-SLAPP law to work with. Without it, this case could have gone on for several more months and even a clear win for defendants would rarely result in fee shifting. CoreCivic sued because it didn’t like being criticized for doing things it was actually doing. A suit like this is designed to silence critics and deter others from making similar statements. If a defendant bleeds long enough, an eventual victory is ultimately meaningless. The damage has been done and the threat remains.

Filed Under: anti-slapp, border, defamation, detention centers, prisons, private prisons, separated families, slapp, statute of limitations
Companies: candide, corecivic

Steven Biss Loses Another Wacky SLAPP Suit; Judge Scolds, But Does Not Sanction, Him

from the slappity-slapp-slapp dept

Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it’s noteworthy how many of Biss’s clients seem to have connections to one another, and this case is no different.

This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump’s first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials “had concerns” about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories — and thus sued him and some of the media outlets that reported them.

The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don’t even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation — using Biss as her lawyer.

What’s notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who “set up” misleading evidence in order to create the Mueller investigation. This was part of Nunes’ ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report — to the point that he’s saying Mueller’s team should face criminal charges and that he’s planning to make “some type of criminal referral.” Nunes seemed to argue that whoever “accused” Flynn of “having some type of Russian fling” needs to be investigated:

“The first is involved with Gen. Flynn,” Nunes said. “Gen. Flynn was supposedly entrapped, was meeting with a Russian woman. I want to know what really happened there because we are just now finding out about this and we need a lot more information on what really was general Flynn doing. It’s a big deal if somebody within our intelligence agencies were accusing a three star general of having some type of Russian fling. It’s serious stuff. I want to get to the bottom of that.”

Either way, in April he mentions her, and then a month later she’s represented by the same lawyer representing him and a variety of other loosely connected political operatives who all seem to be pushing similar conspiracy theories. Quite a coincidence!

Anyway, as you probably know, defamation law has a statute of limitations that varies by state. In Virginia, like many states, the statute of limitations is one year. Most of the articles and statements being sued over came way before that. This is something that a good lawyer should have known about. Biss tried to argue that because people have been tweeting links to those older articles, it resets the clock. That, of course, is not how any of this works. In defamation cases, there’s something called the single publication rule, which means that you date the statute of limitations to when the statements were first made, leading the judge to easily toss out the claims on most of the articles. Other attempts to reset the statute of limitations also fail, including a claim that because a more recent NY Times article links back to the earlier one, that counts as “republication.” As the court notes, if the new article was actually referencing her, she might have an argument, but it isn’t.

Although this argument might be meritorious in other contexts, it fails here. The New York Times’ April 9, 2019 article, titled “Justice Dept. Watchdog’s Review of Russia Inquiry Is Nearly Done, Barr Says,” does not mention or concern Lokhova; instead it focuses on the Inspector General’s investigation “into aspects of the Russia inquiry, including whether law enforcement officials abused their powers in surveilling a former Trump campaign aide.” See Am. Compl. ,r 5 (linking to https://www.nytimes.com/2019/04/09/us/politics/russiainvestigation- barr.html). The article’s discussion of Halper includes a sentence containing a hyperlink to the May 18, 2018 article. Id. The underlined portion of the following sentence contains the hyperlink: “Mr. Halper’s contacts have prompted Republicans and the president to incorrectly accuse the F .B.I. of spying on the campaign.” Id. This statement does not substantively alter or add to the portion of the May 18, 2018 article that allegedly defamed Lokhova. “[U]nder traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material.” In re Philadelphia Newspapers, LLC, 690 F.3d at 175. This is because “[ w ]bile [ a reference] may call the existence of the article to the attention of a new audience, it does not present the defamatory contents of the article to the audience.” Salyer v. Southern Poverty Law Center, Inc., 701 F.Supp.2d 912, 916 (W.D. Ky. 2009) (emphasis in original). Under this persuasive case law, the New York Times’ 2019 article does not retrigger the statute of limitations for the May 18, 2018 article.

Biss, laughingly, tries to argue that because other people have linked to those older articles, that resets the liability for those beyond-the-statute-of-limitations pieces. The court is not buying it.

This argument is similarly unpersuasive. Lokhova has not cited any case holding that a media organization is liable in perpetuity for third-party tweets of its allegedly defamatory materials. Indeed, Lokhova’s argument is inconsistent with persuasive case law from other courts, which “have concluded that statements posted to a generally accessible website are not republished by” “a third party’s posting the statement elsewhere on the internet.”

There’s a lot more, but systematically the court explains over and over again why Biss’s legal arguments are wrong.

There are two publications that do fall within the statute of limitations, though. One by the Washington Post (mentioned above, which does not even name Lokhova) and a tweet by MSNBC’s Malcolm Nance. For what it’s worth, earlier in the opinion, the court pointed out that Nance was added as a defendant only with a later amended complaint, and it appears that no effort was ever made to serve him with the lawsuit. Indeed, the court throws out the claims regarding Nance on this basis alone:

Although Nance was added as a defendant in the Amended Complaint on August 29, 2019, plaintiff has made no effort to serve him with that complaint. Plaintiffs failure to serve Nance was raised at the October 25, 2019 hearing, which placed Lokhova and her counsel on clear notice that service was required. As such, in addition to the substantive reasons discussed in this Memorandum Opinion, the complaint against Nance will also be dismissed because by not making any effort to serve Nance, plaintiff has apparently abandoned her claim against him.

As for the Washington Post article, the court points out just how ridiculous those claims are, in part because the only direct statements that Biss/Lokhova claim are defamatory are… not.

The complaint identifies only two statements in the entire 2,262-word Post article (Attachment B) that are allegedly false and defamatory of Lokhova: (I) that Halper “attended” the February 2014 dinner, and (2) that “Halper and Dearlove were disconcerted by the attention the then- DIA chief showed to a Russian-born graduate student who regularly attended the seminars, according to people familiar with the episode.”… Even assuming the first statement to be false, the statement does not defame anyone, and clearly is not “of and concerning” Lokhova; it relates to Halper alone. The second statement does not name Lokhova and simply includes a generic reference to a “Russian-born graduate student who regularly attended the seminars.” Even assuming that the statement is “of and concerning” Lokhova and is false, it does not defame her. At most, the second statement suggests there were concerns about Flynn’s behavior towards Lokhova, without stating or implying that Lokhova herself did anything improper. The same conclusion applies when the two statements are considered together, and in the context of the other statements in the article as a whole, particularly because the sentence immediately following the second quote provides a clear disclaimer of any wrongdoing: “the student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred.”… In short, there is nothing in this article that defames the plaintiff.

Various other claims are easily tossed out as well for this reason or that. Throughout the ruling, though, you can steadily see Judge Leonie Brikema’s frustration with Biss’s legal strategy. Early on, in a footnote, the judge points out that Biss’s complaint has the appearance of being filed for political reasons, rather than legitimate jurispredential concerns:

Although Flynn is not a party to this action, the complaint frequently mentions him. Indeed, some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper, President Donald J. Trump, and others. For example, one paragraph of the complaint states that during a BBC radio program in May 2017, “Halper misrepresented that ‘people are deeply concerned about the erratic nature of this White House.”‘… Such unnecessary and irrelevant statements suggest that political motives, more than legitimate jurisprudential concerns, drive this litigation.

Later on, another footnote calls out another attempt by Biss to try to claim possibly defamatory statements within the statute of limitations, and notes that one of them happened after the complaint was filed, which is not how any of this works. It further notes that a mere phone call between Lokhova and a journalist isn’t “publishing” for purposes of defamation. In other words, this is just bad lawyering all around.

… the complaint alleges that on an unspecified date, Halper told a chief reporter with the Sunday Times of London that Lokhova was a Russian spy… The placement of this allegation within the complaint’s chronology suggests Lokhova is alleging that this statement occurred in December 2016, which would make it time-barred. The complaint then alleges that on December 19, 2019, the reporter “called Lokhova and repeated the false allegation.” This allegation is obviously erroneous, because December 19, 2019 had not yet occurred when the complaint was filed. Even if this phone call took place within the statute of limitations, it would not constitute defamation, because the complaint does not allege that the call involved anyone besides the reporter and Lokhova.

The judge also notes that Biss — as he has done in other cases — uses the kind of language not commonly found in legal complaints. Halper asked for sanctions against Biss, and while the court declines to issue such sanctions, the judge clearly looks skeptically upon Biss’s actions:

The record is clear that Biss filed an excessively long complaint and amended complaint on Lokhova’s behalf directing unprofessional ad hominem attacks at Halper and others. For example, the complaint calls Halper a ”ratf***er,”… and refers to the media defendants as “stooges,” … Such language adds nothing but unnecessary heat to this litigation. Moreover, the complaint exaggerates the nature and content of the allegedly defamatory statements. In addition, Biss and Lokhova had to have known that most of her claims were time-barred, as she had previously filed an unrelated defamation lawsuit in the United Kingdom, which was dismissed as untimely under the one-year statute of limitations applicable in that jurisdiction.

It’s not that surprising that the court has refused to issue sanctions. Very few judges will, and it generally takes very extreme behavior — and most judges are willing to give lawyers the benefit of the doubt for a very long time. But the judge here at least notes that she’ll be paying attention to future actions in this case, should they occur:

Although the Court does not condone the tactics employed by Biss and Lokhova in this action, their conduct is not sufficient to warrant the draconian measure of imposing sanctions at this time. The allegations of improper behavior by Biss are undoubtedly more severe than those by Lokhova, and should Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation against any of these defendants, sanctions might well be justified.

For what it’s worth, Lokhova has already announced that she will be “appealing the decision on many grounds.” That won’t work. Considering that almost all of the case was thrown out for being outside the statute of limitations, there’s not much chance of anything happening on that front. Not surprisingly, on Twitter, various Lokhova supporters are already concocting fanciful conspiracy theories about the deep state and the “leftist judge” so this nonsense isn’t over yet.

At least Biss didn’t use this case to subpoena Twitter for the identity of the satirical @DevinCow account.

Filed Under: 1st amendment, defamation, devin nunes, free speech, malcolm nance, michael flynn, statute of limitations, stefan halper, steven biss, svetlana lokhova
Companies: msnbc, ny times, washington post

from the hello...jerry dept

Copyright statute of limitations cases are relatively rare, but we have written about a few such cases at times. Still, here’s a new ruling that tosses out a case based on the statute of limitations, involving a guy suing Jerry Seinfeld claiming infringement over the latter’s Comedians in Cars Getting Coffee series. Though, it seems like the case could have been defeated other ways as well, even if it had been filed within the statute of limitations.

U.S. District Judge Alison J. Nathan of the Southern District of New York ruled Monday that the suit by Christian Charles, a writer and director who worked with Seinfeld on the show’s pilot, was barred under the three-year statute of limitations for copyright infringement claims.

In a nine-page ruling, Nathan said that Charles knew about his potential claim for ownership as early as 2011, when Seinfeld twice rejected his request for back-end compensation on “Comedians in Cars,” making it clear that Charles’ only involvement was on a work-for-hire basis.

But Charles, who claimed to have pitched the idea of two friends “driving and talking” to Seinfeld, did not file his lawsuit until February 2018.

Which was roughly around the time that Seinfeld took the show from its fun little origins on Crackle and inked a lucrative deal for the series with Netflix, where it now resides. Suddenly Charles asserted a copyright claim, stating that it was his idea to have a comedian hosting a talk show of sorts by driving around in a car and getting coffee. And if you’re thinking that such a claim would be defeated by the idea/expression dichotomy in copyright law, well, you’re right. It almost certainly would have. Such a concept is plainly a broad idea and not the kind of specific expression over which one can successfully sue on copyright grounds. Add to all of that that Seinfeld claims that Charles’ work on the pilot was work for hire, for which he was paid a six figure sum, and the lawsuit sure seemed like a loser from the get-go.

But the suit didn’t even get that far, as the judge tossed it over the 3 year statute of limitations instead.

“Even if all inferences are drawn in favor of Charles, a reasonably diligent plaintiff would have understood that Seinfeld was repudiating any claim of ownership that Charles may have,” Nathan wrote.

“Because Charles was on notice that his ownership claim had been repudiated since at least 2012, his infringement claim is time-barred,” she said.

Charles’ attorney states they intend to appeal on the grounds that the judge is misinterpreting the statute of limitations. As to what that misinterpretation might be? Well, ¯_(?)_/¯.

Filed Under: christian charles, comedians in cars, copyright, idea expression dichotomy, jerry seinfeld, statute of limitations

DOJ Stacks Charges On MalwareTech, Including Stuff Put Out Of Reach By The Statute Of Limitations

from the 'lying-to-feds'-bingo-card-complete dept

The government’s case against Marcus Hutchins, aka MalwareTech, isn’t getting any stronger. After detaining him at a Las Vegas airport following some post-conference partying, the FBI decided to hit the guy who inadvertently shut down WannaCry with charges for allegedly creating the Kronos malware. In essence, the case is about criminalizing security research, and the government’s indictment decided to hang Hutchins out to dry while allowing the people who actually sold the malware to remain unarrested and unindicted.

The charges were weak and the government appeared to know it. Deployment of malware to cause damage and wreak havoc is one thing, but creating malware — something lots of security researchers do — isn’t a criminal activity in and of itself. Thrown into the mix were wiretap charges based on the very thin premise that the malware was used to intercept communications.

Hutchins’ defense team pushed back, forcing the government to actually show its work. A discovery request intended to show Hutchins was drunk and tired when he was “interviewed” by the FBI was rebuffed by the government. It also appears — using the FBI’s own testimony and recordings — that Hutchins was never properly Mirandized.

Between them, the agents described how they flew out to Vegas the night before the arrest. Surveilling agents tracked Hutchins as he went to the airport and got through TSA then sat down at a first class lounge. As soon as Hutchins ordered a drink that turned out to be Coke but that the agents worried might be booze, Chartier, wearing business casual civvies, and two CBP agents wearing official jackets pulled Hutchins away from the lounge, placed him under arrest and cuffed him in a stairwell inside the secure area, and walked him to a CBP interview room, where Chartier and Butcher Mirandized him, then interrogated him for 90 to 100 minutes.

Even in telling that story, Chartier and Butcher’s stories conflicted in ways that are significant for determining when Hutchins was Mirandized. He said it took “seconds” to get into the stairwell and then to the interview room. She noted that the “Airport is rather large. Would have taken awhile.” to walk from place to place (it was 36 minutes between the time Hutchins cleared TSA, walked to the lounge, ordered a Coke, and the time Chartier first approached Hutchins). There seems to be a discrepancy on how many CBP agents were where when (that is, whether one or two accompanied Chartier and Hutchins all the way to to the interrogation room). Those discrepancies remained in spite of the fact that, as Butcher admitted, they had spoken, “Generally, about the interview, and Miranda, and making sure that we were on, that our facts were the same.”

Chartier described that the CBP recording equipment in the room “wasn’t functional that day,” which is why they relied on Butcher pressing a record button herself, which she didn’t do until (she said) Chartier started asking “substantive” questions, but after the Miranda warning.

With all of this going on, and the government’s charges relying on some very generous interpretations of the CFAA and wiretap laws, the feds appear unable to close this case successfully. Prosecutors were unable to get Hutchins to agree to a plea deal with their first try, so they’re going to take another crack at it. A superseding indictment [PDF] has been entered by the government and, as Marcy Wheeler explains, it’s even worse than the extremely shaky one it’s replacing.

[T]he government, which refuses to cut its losses on its own prosecutorial misjudgments, just doubled down with a 10-count superseding indictment. Effectively, the superseding creates new counts, first of all, by charging Hutchins for stuff that 1) is outside a five year statute of limitations and 2) he did when he was a minor (that is, stuff that shouldn’t be legally charged at all), and then adding a wire fraud conspiracy and false statements charge to try to bypass all the defects in the original indictment.

The government has added another piece of malware to its indictment — UPAS Kit — and is attempting to tie it to Hutchins. Even if it’s able to do this, it likely won’t help the government secure a conviction for two reasons. First, if the date is accurate, it means Hutchins was still a minor when this alleged crime took place. Second, the government has only five years to prosecute and the July 2012 date stated in the indictment means the statute of limitations has tolled.

There’s far more to it than that. Wheeler’s post detailing everything wrong with the superseding indictment is a masterpiece deconstruction of government desperation. The indictment wants jurors to believe simply writing about malware is a criminal act, even when the post cited actually details how to thwart malware. And it now includes an old DOJ favorite: making false statements to the FBI.

This last one might cause more problems for the FBI than it will solve. This will rely on statements made during the interrogation of Hutchins — one that’s already been marred by conflicting testimony by FBI agents.

First of all, as I’ve noted, one agent Hutchins allegedly lied to had repeatedly tweaked his Miranda form, without noting that she did that well after he signed the form. The other one appears to have claimed on the stand that he explained to Hutchins what he had been charged with, when the transcript of Hutchins’ interrogation shows the very same agent admitting he hadn’t explained that until an hour later.

So the government is planning on putting one or two FBI agents who have both made inaccurate statements — arguably even lied — to try to put Hutchins in a cage for lying. And they’re claiming that they were “conducting an investigation related to Kronos,” which is 1) what they didn’t tell Hutchins until over an hour after his interview started and 2) what they had already charged him for by the time of the interview.

The best case scenario, as Wheeler explains, in the government tying the 2012 (past the statute of limitations) criminal act to some “marketing” of the malware in 2014, allowing it to salvage all these charges.

In other words, they’re accusing Hutchins of wiretapping and CFAA crimes because someone else posted a YouTube.

And if it can tie anything to this YouTube video, it can nail down venue because YouTube is a US company. (Hutchins is a UK resident.)

What it may also be is another attempt to get Hutchins to cave to a plea deal. This indictment adds more charges, which could mean additional jail time and fines if he’s convicted. But that’s a huge if. What the government has shown so far doesn’t even meet the lowest standards of competency. It’s a garbage prosecution made worse by the FBI’s apparent decision to let the two people who actually marketed and sold malware walk away from this — either because the agency can’t locate them or (at least in “Randy’s” case) has already agreed to drop charges in exchange for testimony.

Filed Under: doj, fbi, indictment, malware, marcus hutchins, statute of limitations