Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.
Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don’t know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law — so his involvement was noteworthy.
Since November, when the lawsuit was initially filed, there’s been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp’s autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process — which courts have clearly rejected — by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they’ve newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.
Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California’s anti-SLAPP law. Now, we’ve been huge supporters of California’s anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it’s clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for “Strategic Lawsuit Against Public Participation.”) However, I’m hard pressed to see how robocalling someone demanding they pay up or get sued is “public participation” in any way.
Tag: USA
Comcast Deeply Offended By Claims It Pays People To Support Its Merger
Comcast has consistently crowed about the volume of individuals and organizations that support the company’s $45 billion merger with Time Warner Cable. Of course the company has just as consistently failed to mention how much of this “support” is from people paid to regurgitate pretty much any Comcast dreck-filled missive that comes stumbling down the road. Want funding for a new events center or a “closing the digital divide” photo op? Just leave independent thought at the door and send lawmakers a pre-written form letter with your name or organization’s logo on it.
It doesn’t take much sleuthing to uncover the money trail, because Comcast (and the politicians and groups beholden to it) usually (with some think tank exceptions) don’t bother hiding it. They just outright deny that the money impacts policy positions whatsoever. For example, take reports this week that clearly highlight how Comcast can effectively buy a media sound wall of merger support, then pretend there’s nothing untoward about an army of “consultants,” minority groups, and fauxcademics all paid to effectively be glorified parrots:
“Increased Concentration Does Not Equal Anticompetitive Effect,” Mr. Manne wrote last August, summarizing his submission. He separately wrote pieces in Wired magazine, extolling the virtues of the deal, and through a separate advocacy organization he helps run, called TechFreedom, wrote a blog post that appeared the same day that the deal was announced early last year. Each time, he praised the transaction. But nowhere in these statements does Mr. Manne directly disclose that Comcast is among a small group of donors that finances his nonprofit group, a fact that Mr. Manne confirmed in response to a question late last week. “We are no value to our donors or ourselves unless we maintain our independence and academic rigor,” he said, before adding that “maybe there is some subconscious thing there.”
Yes, surely Comcast’s cash comes associated not with an expectation that you’ll give automated and artificial justification to what’s frequently very anti-consumer and anti-competitive policies, but that you’ll exercise your “independence and academic rigor” and tell Comcast to piss off when you’re approached to help “correct perceptions” about the latest Comcast PR campaign. You see there’s nothing untoward going on here — because we say there’s nothing untoward going on here. We’re all just healthy American patriots busy expressing our First Amendment rights, after all.
That logic was mirrored by Comcast’s top lobbyist David Cohen — who calls himself the company’s “Chief Diversity Officer” to help skirt lobbying rules (I bring that up every time I write about Cohen because to me it just never gets old). Cohen says he’s “offended” by the very idea that Comcast has to pay for its policy support:
“He did not dispute that many of the voices supporting the deal received donations from Comcast. But he said he was offended by the suggestion that their endorsements had been made in return for the financial help. “We have never provided financial support to an organization in exchange for support in a transaction,” he said. “Our support is based on the quality of the work they do in the community.”
Now I’m sure that somewhere there exists a person that actually believes that, but I’d recommend not putting them in charge of your finances (or even lawn care). In Mr. Cohen’s head, this is just another conspiracy contributing to the unfair overall “atmospherics” of anti-Comcast sentiment:
“The atmospherics around our customer service clearly stir some antipathy among some consumers,” Mr. Cohen said. “And it does provide a basis for opponents of the transaction to gin up three-sentence, nonsubstantive communications to the F.C.C. saying that they don’t like Comcast or they don’t like Time Warner Cable.”
That’s a company with arguably the worst customer satisfaction ratings in any industry — one that manufactures support for bad policies out of thin air — trying to claim its horrible reputation is somehow manufactured. It’s still not clear if regulators plan to deny the merger (or approve it with something vaguely-resembling meaningful conditions), but whatever happens it will spell the end of some fantastic entertainment that easily tops anything in Comcast’s channel lineup.
State Trooper Disciplined For Taking Photo With Person With ‘Well-Known Criminal Background’
Tired of hearing about just the bad cops? Here’s one with a good cop, surrounded by worse cops, and the amazing amount of pettiness the latter group can display.
Texas State Trooper Billy Spears was working an approved security detail at the recent South by Southwest conference when he was approached by one of the performing artists and his publicist. The artist asked for a photo with the trooper, who obliged. The photo was taken by the publicist and later posted to Instagram. Here’s the photo.
Trooper Spears is on the left.
In most other realities, this would have been the end of the story — one Billy Spears would be able to tell for years. Instead, it’s turned into something else. It’s still a story that Spears will be able to tell for years, but there won’t be many happy memories attached to it.
TSA ‘Behavior Detection’ Program Targeting Undocumented Immigrants, Not Terrorists
A controversial Transportation Security Administration program that uses “behavior indicators” to identify potential terrorists is instead primarily targeting undocumented immigrants, according to a document obtained by The Intercept and interviews with current and former government officials.
The $900 million program, Screening of Passengers by Observation Techniques, or SPOT, employs behavior detection officers trained to identify passengers who exhibit behaviors that TSA believes could be linked to would-be terrorists. But in one five-week period at a major international airport in the United States in 2007, the year the program started, only about 4 percent of the passengers who were referred to secondary screening or law enforcement by behavior detection officers were arrested, and nearly 90 percent of those arrests were for being in the country illegally, according to a TSA document obtained by The Intercept.
Nothing in the SPOT records suggests that any of those arrested were associated with terrorist activity.
Those results aren’t surprising, according to those involved in the program, because the behavior checklist was, in part, modeled after immigration, border and drug interdiction programs. Drug smugglers and undocumented immigrants often exhibit clear signs of nervousness and confusion, or may be in possession of fraudulent documents.
“That’s why we started rounding up all the Mexicans,” said one former behavior detection officer.
The American Healthcare System
If you can’t read it, it says:
I have a coworker that is refusing treatment for lung cancer because he doesn’t want to put his three daughters and wife in debt for the rest of their lives.
He is literally choosing to die of a treatable disease because the debt of treatment would be such a burden on his family.
So yeah… Tell me that the american healthcare system isn’t broken.
How portugal handles drugs
Progress On The Police-Filming Front
Two or three pieces of good news here. First, the Texas bill that would have made it illegal for you to film a cop beating you (see “Texas Bill Would Make It Illegal for You to Film a Cop Beating You” (Mar. 26)) seems to have been withdrawn by its sponsor, the probably-well-meaning-but-not-too-thoughtful Rep. Jason Villalba. The legislature’s site just says “no action taken in committee” on HB 2918 (the bill was scheduled for a hearing on March 26), but there are reports that Villalba decided to drop it completely after the state’s largest union of police officers said it would oppose the bill.
Villalba reportedly insisted that he had only withdrawn the bill temporarily because “it’s being amended and the hearing [was going to] run very late,” but some (specifically, me) are suggesting that in fact he pulled it because pretty much everybody hates it.
Turns out there was already a competing proposal in Texas, HB 1035, which would not only state that recording officers is legal, it would make it illegal for law enforcement to alter, destroy, or conceal a recording of police operations without the owner’s written consent. I don’t know what that bill’s chances are, but would guess they are approximately infinitely better than those of HB 2918.
Second, as Courthouse News reports (also PINAC), lawmakers in both California and Colorado have also introduced bills aimed at protecting the right to film public servants in public.
California’s SB 411, sponsored by Sen. Ricardo Lara, would amend two anti-police-obstruction laws to state that, as long as an officer is in a public place or you are somewhere you have a right to be, taking a picture or making an audio or video recording of said officer “does not constitute, in and of itself, a violation” of those laws. Nor is it probable cause for an arrest on actual obstruction charges, or even reasonable suspicion for a brief detention.
Weirdly, on their face(s) the existing laws seem to punish attempted obstruction more severely than actual obstruction, which seems like a bad idea. That’s one area where you don’t want to encourage people to finish what they started. Anyway, you shouldn’t do either, but the bill would make it clear that a mere recording is not a violation of either law. The first hearing on that bill is set for April 7.
Colorado HB 15-1290, introduced on March 19, is aimed at the same problem but would address it by giving the photographer a right to sue the law-enforcement agency for the violation, and would establish a civil penalty of $15,000 (plus actual damages). It would also make it illegal for an officer to seize or destroy a lawful recording without either permission or a warrant.
These laws shouldn’t be necessary, but unfortunately they are. Taking pictures in public isn’t obstruction. Obstruction is obstruction. Also, just a suggestion—if you tell me I can’t film you in public, no matter what, filming you in public is going to move way up my priority list. Because what you’re telling me is, “I’m about to do something ridiculous, illegal, or ridiculously illegal. So don’t look.” I’m not only looking, I’m deleting all my other videos right now so I have room to get all of whatever you are about to do. So that’s how that works.
Under President’s New Cybersecurity Executive Order… Is Wikileaks Now An Evil Cyberhacker For Releasing Trade Deal?
Yesterday we talked about the ridiculousness of President Obama’s new cybersecurity executive order, in which he declares a national emergency around “malicious cyber-enabled activities” and enables his own government to do mean things to anyone they think is responsible for cyber badness (that his own NSA is the primary instigator of serious cyberattacks gets left ignored, of course). One of the points we made is that the definitions in the executive agreement were really vague, meaning that it’s likely that they could be abused in all sorts of ways that we wouldn’t normally think of as malicious hacking.
Helpfully, the ever vigilant Marcey Wheeler has provided some examples of how the vague language can and likely will be twisted:
The EO targets not just the hackers themselves, but also those who benefit from or materially support hacks. The targeting of those who are “responsible for or complicit in … the receipt or use for commercial or competitive advantage … by a commercial entity, outside the United States of trade secrets misappropriated through cyber-enabled means, … where the misappropriation of such trade secrets is reasonably likely to result in, or has materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States” could be used to target journalism abroad. Does WikiLeaks’ publication of secret Trans-Pacific Partnership negotiations qualify? Does Guardian’s publication of contractors’ involvement in NSA hacking?
And, that’s not all. How about encryption providers? Not too hard to see how they might qualify:
And the EO creates a “material support” category similar to the one that, in the terrorism context, has been ripe for abuse. Its targets include those who have “provided … material, or technological support for, or goods or services in support of” such significant hacks. Does that include encryption providers? Does it include other privacy protections?And the EO creates a “material support” category similar to the one that, in the terrorism context, has been ripe for abuse. Its targets include those who have “provided … material, or technological support for, or goods or services in support of” such significant hacks. Does that include encryption providers? Does it include other privacy protections?
We’ve already seen some — including government officials — argue that Twitter could be deemed to be providing “material support” to ISIS if it didn’t take down Twitter accounts that support ISIS. Twitter wouldn’t directly qualify under this executive order (which targets non-US actors), but it shows you how easy it is to stretch this kind of thinking in dangerous ways.
Making sure the technology we use every day is secure is important. But vaguely worded executive orders and an over-hyped “national emergency” isn’t the solution. Instead, it’s likely to be abused in serious ways that harm our freedoms.
Patrick Cherry: Best Cop Ever
This guy wants $78,942 to make a documentary defending this guy
The New York City police detective caught in a viral video berating an Uber driver in a profane, xenophobic rant has been stripped of his gun and badge, NYPD Commissioner William Bratton told reporters Wednesday.
I assume the documentary would be an exact clone of Officer Maggot
East Texas judge who oversaw 1,700 patent cases joins biggest IP law firm
US District Judge Leonard Davis said this week he’s going to leave the bench to join Fish & Richardson, a large law firm focused on intellectual property.
Davis, who has presided in the Eastern District of Texas since 2002, has one of the most active patent dockets in the nation and has presided over some of the biggest technology lawsuits of the past decade. Corporate Counsel magazine reported this week that he has handled more than 1,700 individual IP cases as a judge. Before becoming a judge, he worked for 23 years in private practice.Statistics for 2013 showed 263 new patent cases being assigned to Davis, about one-sixth of the 1,700 patent cases that were filed in the district, the busiest in the nation. Only four other judges, three in Delaware and one in East Texas, had more patent cases assigned to them.