Facebook Caves To Australia: Will Restore Links After Government Gives It More Time To Negotiate Paying For News Links

from the still-not-great dept

Facebook is restoring news links in Australia after the government agreed to amend the proposed link tax law. We'll explain the details down below, but at the very least, this shows part of the reason Facebook did what it did, when it did. The end result still sucks, and I wish Facebook had stood its ground here because this portends a significant closing off of the open internet.

Many of the people who were annoyed over my support of Facebook's decision last week to block all news links in Australia kept saying "but the law hasn't passed yet -- why would they do this now?" Except... that ignored the reality of the situation. Facebook had announced last summer that it would remove links to all news if the law wasn't changed. And the Australian Parliament mocked Facebook and refused to make any changes to the law -- which was set to pass this week.

So, Facebook showed that it was serious about what it said last September, and it did so days before the law was supposed to pass... and now the Australian government has agreed to make changes. So, Facebook did get something out of making the move last week. Unfortunately, they didn't get nearly enough, and the end result is a disaster for the open web, but good for Rupert Murdoch.

The law is still really bad. The only major difference is that Facebook gets a little more time to cut a deal with Murdoch and other Australian news org owners:

But on Monday, the Australian government added amendments to the proposed code. That included a two-month mediation period, giving the two sides more time to negotiate commercial deals that could help Facebook avoid having to work under the code’s provisions.

In exchange, Facebook agreed to restore news links and articles for Australian users “in the coming days,” according to a statement from Josh Frydenberg, Australia’s treasurer, and Paul Fletcher, the minister for communications, infrastructure, cities and the arts.

“Importantly, the amendments will strengthen the hand of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms,” the statement added.

Campbell Brown, Facebook’s vice president of global news partnerships, said in a statement, “We’re restoring news on Facebook in Australia in the coming days. Going forward, the government has clarified we will retain the ability to decide if news appears on Facebook so that we won’t automatically be subject to a forced negotiation.”

I honestly don't know what this actually means for the future of the law, but it still looks like a mess. Having Facebook pay for any links to news articles should be a non-starter. It is fundamentally against the idea of an open web. People who keep insisting that this is not a "tax" or that it's somehow about "competition" are wrong and fundamentally misrepresenting what is happening here. Yes, Facebook and Google are big. Yes, if there were negotiating a deal they would have leverage. But -- and here's the important part -- there's nothing to negotiate over here, because there's no requirement anywhere to pay for links, because that's fundamentally stupid and against the idea of an open internet.

So, those who keep saying this is necessary because without it the media organizations in Australia "don't have bargaining power" against Google and Facebook are simply missing the point. I mean, those same media organizations do have bargaining power with a site like, let's say, Techdirt. I link to them sometimes. They're a hell of a lot bigger than me. So, does this mean that I should be able to go to the Australian Competition authority and demand they make News Corp pay me when I link to them? That makes no sense at all. There should never need to be any negotiation or any discussion about bargaining power over links because links are fundamentally free.

And, yet, the end result of this deal is that it sounds like Facebook is effectively caving and agreeing to pay for links. The "compromise" appears to be just that Facebook gets a few more months to negotiate what it will pay (and if those negotiations fail, Australian arbitrators will simply choose how much it pays). This remains a very bad and dangerous idea, that is going to lead to a big mess around the globe. Lots of other industries are going to start demanding payments for links as well, and it puts the fundamental nature of the open internet under attack.

Filed Under: australia, competition, link tax, links, negotiations, news, rupert murdoch
Companies: facebook, news corp.

John Deere Promised To Back Off Monopolizing Repair. It Then Ignored That Promise Completely.

from the freedom-to-tinker dept

Five years or so ago, frustration at John Deere's draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair (which for many owners involved hauling their tractors hundreds of unnecessary miles), or toying around with pirated firmware just to ensure the products they owned actually worked.

John Deere certainly isn't alone in trying to monopolize repair, resulting in massive backlash and proposed legislation in more than fourteen states. Hoping to appease angry consumers and lawmakers, in late 2018, John Deere and a coalition of other agricultural hardware vendors promised (in a "statement of principles) that by January 1, 2021, Deere and other companies would make repair tools, software, and diagnostics readily available to the masses. In short, they managed to stall right to repair laws in several states in exchange for doing the right thing.

As it turns out, they never bothered to really follow through:

It is now three years later. The agreement is supposed to be in effect. No right to repair legislation has been passed. Deere, the dealers, and the manufacturers got what they wanted. And, yet, farmers are still struggling to get anything promised in the agreement."

Groups like US PIRG, which are spearheading the push for right to repair legislation, were notably unimpressed in a report released last week:

"The increased presence of software in agricultural equipment has allowed manufacturers such as John Deere to take control of the repair process at the expense of the equipment owner. The creation of software locks and keys required to authorize repair severely limits farmers and independent repair shops’ ability to fix broken farm equipment themselves."

John Deere, Microsoft, Apple, and countless other companies have a vested interest in making independent repair impossible and cumbersome. And as they attempt to scuttle the more than a dozen right to repair laws winding their way through various state legislatures, they've leaned on all manner of dodgy arguments, from claims such laws will result in hackers running amok in your state, to claims that such legislation would result in a spike in sexual predators.

In reality, they just don't want to lose control and repair revenue to competition, the environmental, consumer, and real world impacts be damned.

Filed Under: drm, right to repair, tractors
Companies: john deere

Law Enforcement, Social Media Users Turn An Act Of Kindness Into A Human Trafficking Investigation

from the some-people-are-just-the-worst dept

With enough self-delusion, any act of humanity can be considered a criminal act. It works for cops. It also works for the general public. When you're a suspicious busybody with an overactive imagination and too much time on your hands, you can waste everyone's tax dollars by panicking.

A Walmart employ, who is apparently convinced human trafficking is as common as the common cold, decided to get law enforcement involved, resulting in this message from the Coshocton (OH) County Sheriff's Office:

On 2/15/2021 the Sheriff’s Office received a call from the Walmart Security Department in regards to suspicious activity in their parking lot involving a vehicle and two, what appear to be, males looking into vehicles and placing a single red rose under the windshield wipers of those vehicles. While reviewing the Walmart Surveillance Cameras, the two unknown males are seen exiting from, what appears to be, a newer style dark gray Ford Explorer, or similar looking vehicle, with chrome rims and side mirrors and placing a single red rose on it. This same sequence occurs multiple times on several vehicles that are parked on the outskirts of the parking lot. The males then get back into the vehicle and leave the area. Although there have been several Facebook posts of similar instances that have happened in Ohio regarding Human Trafficking related techniques, it is unclear at this time if this incident is related to such type of crime.

Pay attention to the last sentence and mourn with me over the state of online discourse. "Several Facebook posts of similar instances… regarding Human Trafficking related techniques." Oh wow. Maybe Facebook shouldn't be considered a trustworthy source of information about "Human Trafficking related techniques." Perhaps Google might provide a more, better informed perspective on the red rose=human trafficking assumption.

Here's a 2019 Snopes post detailing (and debunking) another stupid panic originating from Kentucky. A photo of a long-stemmed red rose slid into a car's door handle was accompanied by something even writers for Law & Order: SVU would find too far-fetched:

“There have been recent incidents in Northern Kentucky about sex traffickers leaving roses on victim’s [sic] cars. The roses have a chemical on them to make you pass out, so they can grab you. One incident happened in the Walmart parking lot in Florence, KY! Please be careful, ladies!”

The photo used by this Facebook user dates back to 2014. And the original post containing it said nothing about human trafficking. Instead, it was captioned with nothing more than a bunch of words some people might have mistakenly believed were insightful or original.

"Growth is Not Pretty"

This was local law enforcement's response to Snopes' queries:

“This is completely unfounded and has been floating around for quite a long time. There have been zero incidents anywhere in Florence, or anywhere else that I have heard, of anything remotely related to this.”

But maybe the Kentucky cops were wrong. Let's scroll through a few more search results…

Here's another fact check from September 2020, roughly a year after the Snopes debunking, deflating yet another social media panic attack dealing with roses on cars. In this case, the roses were placed under the windshield wiper.

The viral copy and paste warning is the latest in a never ending stream of baseless, alarmist, and panicked posts that claims to describe the latest and trending method used by kidnappers or sex traffickers to kidnap vulnerable females.

The warning joins a countless number of other equally spurious warnings including the plastic bottle in the wheelwell warning, the zip tie on side mirror warning, the drug laced business card warning, the paper or $100 bill on the windshield warning and the baby car seat on the side of the road warning.

Anything that looks a little strange -- but is otherwise explainable without having to conjure up waking nightmares involving swarthy men and helpless (presumably white) minors -- tends to turn into a OMG SEX TRAFFICKING when handed over to excitable social media users.

Hey, falsely reporting a crime is [wait for it] a crime. And yet, these people never seem to get charged with anything, no matter how many law enforcement resources are wasted. If there are no consequences, there's no deterrent.

One more time for the people in back who are still insisting on getting their news from internet randos:

“My mom just informed me that a new human trafficking thing that is being done is putting zip ties on girls’ [mirrors on their car doors] when they see that they are alone so when the girl comes back to her car [she is] distracted trying to take it off then they come up behind [her] and take [her],” TikTok user @ohokaygirl said in a video now deleted from the platform. “If you see one of these on your car door, please get in your car, lock your doors, roll up your windows and drive away immediately.”

Following the spread of a similar social media post last year, the San Angelo Police Department in Texas made a statement dispelling the rumor, assuring area residents that neither it nor the Angelo State University Police Department had received any reports of zip ties on cars, lamp posts, houses, apartments or fences.

Here's another law enforcement response to a similar bout of hysteria:

Michigan State Police are warning about misinformation on social media. You may have seen the viral post warning about a zip tie sex trafficking trap.

It all started with a photo of a car on Facebook with a zip tie around the side mirror.

“It's essentially like an urban legend or a scare-lore. The whole idea of the intent is just to scare people,” said Lt. Brian Oleksyk.

Oleksyk says sex traffickers are not leaving zip ties on cars.

“There’ve been other hoaxes that have been proven false like a flannel shirt on a windshield of a car or a specific parking lot of a shopping mall is grounds for sex-trafficking,” said Oleksyk.

Oleksyk says sex traffickers aren’t warning victims at all.

Everything is cyclical, including panics based on nothing more than someone seeing something unusual and deciding it must be something nefarious.

Here are the facts behind the Ohio human trafficking panic -- one unfortunately obliged by local law enforcement. But before we get to the details, let's examine the rest of the Sheriff's statement:

After contacting surrounding Law Enforcement Agencies, this type of incident involving flowers being left on vehicles has not been reported to their Agencies.

This is the law enforcement version of Google. And I would normally applaud doing due diligence, but…

This incident is being treated as suspicious at this time.

Well, neverfuckingmind.

Here's what really happened:

Brittaney Strupe had a fantastic Valentine’s Day weekend.

She got engaged and had plenty of leftover red roses to show for it.

“I think (my fiancé) ended up saying that he spent over $300 in just roses,” Strupe said. “He was just going to throw them outside or in the trash, so I told him, instead of wasting, we should pass it on.”

So Strupe enlisted the help of her sister and daughter, and the trio headed out to spread some love, by placing roses on vehicles.

Strupe’s daughter, Kiara, had the idea of going to a place where the group could find a lot of vehicles.

“We should just go to Walmart, thinking like, oh yeah, this will be a good idea, people are going to come out and think it’s awesome, and that didn’t happen,” Kiara Strupe said.

It certainly did not. And the initial report from Walmart -- one involving its surveillance cameras -- said something about two males when it was actually two females. This detail, that eluded the sharp eyes of Walmart employees, might have ended this before it began. But it didn't. And we're left with this unfortunate chain of events.

Welcome to the law enforcement version of America: no good deed goes uninvestigated, if not actually unpunished. An investigation was opened as calls "started coming in," according to Deputy Chris Johnson, who participated in the needless investigation. But it turned out to be nothing, which is where it started several hours and several hundred tax dollars earlier.

Here's the update from the Sheriff's Department:

After investigation of the Walmart rose incident and as a result of getting this information out to the fine citizens of Coshocton County, we are pleased to announce that the case has been solved and is in no way related to Human Trafficking in our county. A resident of the county called to inform us that they were the ones responsible for the incident and only had good, harmless intentions in mind. They had received the flowers as a Valentine’s Day gift and instead of throwing them way after beginning to wilt, they decided to pass on the love by leaving them for someone else to enjoy. They never meant to alarm anyone or cause any panic in our community.

This sounds great, but the Sheriff's Department genuinely wants people to remain alarmed/panicked.

Deputy Johnson also agreed that the community should keep up the good deeds. But he added that it is very important for everyone to be vigilant and aware of their surroundings. He advises people to follow their guts and to not hesitate to call law enforcement about something suspicious.

[heavy sigh] Look, we do need vigilance to keep people safe. But we also need some cooler heads -- especially heads being paid with tax dollars -- to stop encouraging people to engage in fantastical conspiracy theories just because they saw something they hadn't seen before. This may have resolved itself quickly and mostly quietly, but adding law enforcement to wild-ass suppositions is just a good way to get people hurt, killed, or at least temporarily robbed of several freedoms.

And, if you'd like some irony sprinkled on top of this social media/Sheriff's Department shit sandwich, there's this:

Every Friday night, volunteers with Out of Darkness drive the streets. They offer roses to the women for sale in our city. It's free of charge. It's a way out.

"I need to take care of my business and get myself together," one woman told them.

"Don't feel like you need to get everything together, because none of us have it all together," a volunteer responded.

The rose comes with a hotline number -- (404) 941-6024 -- and a promise: if they call, someone will pick them up any time, day or night.

The program has rescued more than 500 women from forced prostitution in the past nine years. While some of them go back, 60% of the women move on to a meaningful life outside of sex trafficking. That's double the national average for programs that do the same thing around the country.

LOL

So -- using the same logic that determined this to be a sex trafficking operation -- this spreading of roses could have been an anti-sex trafficking operation.

In the end, I'm glad no one was harmed. But it easily could have gone another way. The Sheriff Department's decision to feed an echo chamber a statement that erred on the side of uninformed statements rather than caution didn't help anything. People do need to be aware of things that are happening around them. But they shouldn't end that awareness once they've reached a conclusion that isn't supported by information only a few clicks away.

Filed Under: cars, ohio, overreacting, panic, police, roses, trafficking

Apple Settles Trademark Opposition With PrePear Recipe App After The Latter Makes A Barely Perceptible Change In Logo

from the leaf-them-alone dept

Last summer, we discussed Apple opposing the trademark application for recipe app PrePear. While the tech company and a company that attempts to promote healthy eating aren't competing with one another, Apple argued that PrePear's logo was deceptively similar to its own. Here they are, side by side.

As we pointed out previously, it should be immediately obvious how dumb Apple's claims are. The two logos look nothing alike, have different color schemes and style types, and consist of totally different fruits. That PrePear has a pear in its logo and name only drives the point home further. Despite that, rather than backing down in shame, Apple expanded its attack to Canada, where it also opposed the trademark application there. PrePear had to lay off at least one of its handful of employees as a direct results of the costs associated with the opposition.

Which probably makes it all the more irritating to find that this has all now been settled such that Apple's demands for action are so frustratingly insignificant so as to make everyone wonder what the hell the point of all this was to begin with.

Six months later, the case is now settled, and it seems Apple didn’t actually have a pear-shaped problem after all — because Super Healthy Kids has agreed to change the shape of the leaf atop that pear, and Apple has agreed that’s good enough to let the trademark go forward.

And here is the change that PrePear agreed to.

You really do have to squint at the image to even make out what change was made, didn't you? The change is so minor that its only real use is in calling into question why Apple's lawyers pursued this at all. It's not as though this dispute wasn't painful for the PrePear folks. It was. There was cost, both in terms of money and its ability to retain its employees.

So how insulting must it be for Apple's big ask... to be barely altering the shape of a pear leaf?

Filed Under: apple, pear, trademark
Companies: apple, prepair

What Landing On Mars Again Can Teach Us, Again

from the humanity-pep-talk dept

It seems I'm always writing about Section 230 or copyright or some sort of regulatory effort driven by antipathy toward technology. But one of my favorite posts I've ever written here is this one, "We Interrupt All The Hating On Technology To Remind Everyone We Just Landed On Mars." Given that we just landed on Mars again it seems a good time to revisit it, because it seems no less important today than it was in 2018 when I originally wrote it. Just as it seems no less important that we just landed on Mars again. In fact, it all may matter even more now.

Today we find ourselves even more mired in a world full of technological nihilism. It has become a well-honed reflex: if it involves technology, it must be bad. And in the wake of this prevailing distrust we've developed a political culture that is, at best, indifferent to innovation if not often downright eager to stamp it out.

It's a poisonous attitude that threatens to trap us in our currently imperfect world, with no way to solve our way out of our problems. But recognizing what an amazing achievement it was to successfully land on Mars can work as an antidote, in at least two important ways:

First, it can remind us of what wonder feels like. To dream the most fantastic dreams, and then to go make those dreams happen. Mankind hasn't gazed at the stars in ambivalence; the heavens have been one of our greatest sources of inspiration throughout the ages. That we have now managed, for the first time in the history of human civilization, to put another planet within our grasp should not extinguish that wonder, with a glib "been there, done that" shrug. Rather, it is a cause for enormous celebration and should do nothing but inspire us to keep dreaming, next time even bigger.

Because if there's one thing this landing teaches us, apart from the tangible fruits of our exploration, it is to believe in ourselves. Our failures and disappointments here on Earth are serious indeed. But what this success demonstrates is that we can overcome what was once thought impossible. It may take diligence, hard work, and faithful adherence to science. And our human imperfections can sometimes make it hard to manage these things.

But landing on Mars reminds us that we can and provides us with an amazing example of how.

Filed Under: innovation, landing, mars, technology

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

LAPD Asked Ring Users To Turn Over Footage Of Anti-Police Brutality Protests

from the I'm-pretty-sure-we-can-said-people-who-never-wondered-if-they-SHOULD dept

It's not just a home surveillance system. It's a surveillance system.

Documents obtained by the EFF and shared with The Intercept show law enforcement used footage from Ring doorbell cameras -- cameras some people have obtained for free from Ring's thousands of law enforcement "partners" -- to hunt down people protesting police violence.

The documents show the Los Angeles Police Department sent requests to Los Angeles residents asking them for footage recorded by their cameras. But the LAPD did not specify what sort of footage it was looking for. The task force making the request was charged with investigating crimes committed "during protests and demonstrations."

This information was vaguely conveyed to Ring owners in the area. The requests didn't even bother to specify whether the "incident" the LAPD was investigating could even have been captured by the doorbell cameras targeted by this request.

"The LAPD ‘Safe L.A. Task Force’ is asking for your help,” reads the message, from detective Gerry Chamberlain. “During recent protests, individuals were injured & property was looted, damaged, and destroyed. In an effort to identify those responsible, we are asking you to submit copies of any video(s) you may have for [redacted].” The request appears to have made no mention of what exactly the LAPD was pursuing; no crime, proven or alleged, is described in the unredacted portion of the request, only that the police wanted footage of an unspecified “incident” related to a protest. The redacted portion of the request does not appear to contain any substantive further description.

This was not the only message sent. The documents show the LAPD made additional requests following other demonstrations, in essence asking Los Angeles residents to rat out people engaged (for the most part) in peaceful protests. The task force wasn't asking for any info about specific crimes, but rather anything that showed people doing stuff that (again, for the most part) was protected by the First Amendment.

And there wasn't a lot of criminal activity. At least, not so much the LAPD should have felt comfortable sending out blanket requests for footage from cameras owned by private citizens.

In October, the Los Angeles Times cited LAPD data showing that the “vast majority” of the city’s Black Lives Matter rallies, part of a national wave of outraged mobilization following the police killing of Floyd, were peaceful, with only “between 6% and 7%” of protests resulting in any violence, including violence perpetrated by the LAPD itself.

But Ring has made aggressive inroads with thousands of law enforcement "partners." And it has provided them with instructions for requests like these -- ones that evade warrant or subpoena requirements.

On the plus side, the requests make any handover of footage completely voluntary. Bear in mind that law enforcement "requests" for footage are perceived by citizens as being far less voluntary than law enforcement perceives them to be. But the bottom line is these are requests, not demands. Even so, the LAPD would rather not answer questions about its mass emails or their efficiency rate.

And that's a problem Ring doesn't have an answer for. Indeed, it's an answer Ring doesn't even appear to care about. Ring likes cops. The people actually buying and/or deploying its cameras appear to be far down the list of things Ring cares about. As far as Ring is concerned, the market it has cornered is little more than an extension of existing government surveillance networks. If it did care about its users, it would have done more to protect them from malicious hackers and law enforcement officers who can't be bothered to boilerplate up a warrant affidavit.

Even if you decide the First Amendment question isn't settled enough to give Los Angeles residents pause when handing over footage to cops, the mutual appreciation society formed by Ring and law enforcement cuts private citizens out of the equation. It turns their cameras into cop cameras.

Sure, people may retain control of the devices and ignore emailed requests for footage, but Ring is doing all it can to erase the line between public and private. It allows law enforcement agencies to give cameras to citizens, increasing the chance the recipients of these freebies will be receptive law enforcement requests. It gives cops a portal that shows them where cameras are located, giving the government information it wouldn't have under other circumstances. Finally, Ring inserts itself into the PR process, giving itself final approval on press statements from law enforcement that involve its products, allowing it to craft a more self-serving narrative.

There's no indication this effort was limited to areas where criminal activity during protests was suspected. Instead, the portal provided by Ring made it possible for the LAPD to ask for private citizens' inadvertent recordings of protected speech. This is secondhand surveillance. And its encroachment into our everyday lives should be greeted with suspicion. This is an opportunistic approach to law enforcement, one that embraces mission creep.

Filed Under: black lives matter, iot, lapd, protests, ring, surveillance

Australian News Sites Shocked & Upset To Learn They Don't Need To Rely On Facebook For Traffic!

from the wait,-that's-possible?!? dept

I am still perplexed and confounded at how many people seem to think that Facebook is the one at fault for blocking links to news in Australia. Again, the law (that was about to be approved by the Australian Parliament despite Facebook warning them months ago that it would be forced to block news links if it went forward in its current form) would have been a disaster for the open web. And that's even if you believe that Facebook itself has been a disaster for the open web. You can say that Facebook is the worst company in the world... and still recognize that this was the right move.

The law mandated that if Facebook had any links to news, then it had to negotiate a deal to pay certain news organizations (mainly Australia's largest news organizations, where Rupert Murdoch is the dominant owner in a news industry that is one of the most consolidated in the world). If Facebook and Murdoch couldn't reach an agreement, then they had to go to binding arbitration in which an arbitrator would simply tell Facebook how much it had to give Murdoch and other major media owners. Some have argued that this is not a tax, but... having the government step in to force a company to pay money for doing business is, by any normal definition, a tax. Though, this is actually worse than a tax, because it's not putting the money into the hands of the government to be invested in public works. It's going to one of the richest people in the world. For what? For failing to adapt to a changing market.

As we noted a few years ago, it's truly stunning that Murdoch, who has spent much of his life going around the world preaching the gospel of "free market" and deregulation, completely changed his tune when he completely misunderstood the internet, and saw multiple internet investments disappear. So he turns around and demands that the companies who actually innovated simply have to give him money? That doesn't sound like a free market. It sounds like welfare for a billionaire who's upset he's not even richer.

Even so, the most bizarre thing about last week's story is how many Facebook haters who have insisted for years that Facebook "killed" the news business were absolutely apoplectic that Facebook was getting out of the news business entirely. You'd think they'd celebrate. Facebook can't keep killing the journalism business if it's not in that business any more.

The other bizarre reaction -- which filled my Twitter feed to a point of ridiculousness for days -- was the claim that Facebook was somehow "blocking important news" in Australia, including news about the pandemic and vaccines. Except... it wasn't. No news was "blocked." Just links to news on Facebook. All of these news organizations have websites. And many have apps. And they all still exist.

Indeed, the most amusing thing in all of this is that people in Australia are suddenly discovering that they don't need Facebook for news. The Australian Broadcasting Company (ABC) saw its own news app shoot to the top of the Apple App Store charts in Australia. Ironically, the original draft of this stupid law was so biased towards Murdoch that it originally excluded ABC from getting any money, and was only added later, after some folks pointed out how blatantly corrupt it was to leave them out and just funnel more money to Murdoch. But it's not just ABC that has benefited. In a Reuters story, News Corp's executive chairman in Australia, Michael Miller, admitted that direct traffic to their websites was way up as referrals from Facebook disappeared:

“Definitely referral traffic was nonexistent ... while at the same time direct traffic to our websites was up in double digits,” he told the inquiry.

That... seems like a good thing? But, of course, this was never actually about helping news organizations like this. It was always about the cash transfers. Because immediately after Miller admits that direct traffic to their websites is way up, he demands that the Australian Competition and Consumer Commission (ACCC) "scrutinize Facebook's move."

I mean... what the fuck is going on here?

Rather than having Facebook mitigate your traffic, which is what you've been complaining about for years, the company has exited the space, leading to a massive jump in direct traffic. The reaction here shows pretty clearly that the problem is not Facebook. The problem is that News Corp. and other Australian news organizations are too lazy to actually do anything with all of this direct interest. Facebook just dumped a direct connection to users right in these news organizations' laps -- removing Facebook as a middleman -- and the news organizations' response is... to blame Facebook and try to get the Competition authority to go after them. For what? Helping them? This whole thing is so bizarre.

The same Reuters report notes that traffic from Facebook to Australian news sites plummeted after the ban, as you'd expect. But, again, isn't that what all the Facebook haters wanted in the first place? To get Facebook out of the news intermediary business?

It seems the truth is pretty self-evident: this was all a greed play. They just want Facebook's money, but they don't want to actually do the work to earn it.

Filed Under: australia, direct traffic, link tax, news tax, tax, traffic
Companies: abc, facebook, news corp.

Daily Deal: HyperGear Quake Wireless Speaker with Built-in Power Bank

from the good-deals-on-cool-stuff dept

Ready for adventure? The HyperGear Quake Wireless Speaker is made for those who want a massive well-balanced sound that can break free from walls and outlets. It’s built tough with a rugged IPX4 shock, splash, and weather-proof exterior and powered by a high-capacity rechargeable battery. Stream music and calls from any Bluetooth device for up to 15 hours on a single charge. The Quake also features a built-in power bank so you can charge your phone while listening to your playlist. It's available in black or green, and is on sale for $45.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Karma: Twitch Replaces Live Metallica Concert With 8-Bit Music To Avoid Copyright Madness

from the napster-bad! dept

Long time copyright watchers know that Metallica sullied its reputation with tons of fans when it was the first band to sue the file sharing upstart Napster back in 2000 (and also sued three universities for "not blocking Napster"). The band's drummer, Lars Ulrich, became an outspoken critic of file sharing and the internet, the early face of super wealthy musicians whining about the internet changing the way they did things, leading to the classic Money Good! Napster Bad! meme.

Over the years, Metallica has tried to do more to "embrace" the internet, but almost every time, fans jump up to remind them about what assholes they were towards the early internet experience.

And that brings us around to Friday evening, when Metallica was set to play a streamed "live" show to kick off BlizzCon (an event for video game company Blizzard). The event was streamed live on Twitch, which has had some copyright problems of late. It appears that as Metallica was playing, and the Twitch Gaming channel was streaming the concert, someone realized that there might be a copyright problem. As first called out by Rod Breslau, the channel inserted 8-bit folks music over Metallica's live performance to avoid a situation that, uh, Metallica might sue over.

You can see a fun YouTube video of when the switch happens and it's as glorious as it is stupid:

Watching Lars "rock out" to 8-bit folk music... is really quite something:

As plenty of people pointed out, Metallica and Lars are a big part of the reason that the internet is so, well, twitchy, in trying to take down copyright-covered content these days, so this bit of idiocy demonstrating just how broken copyright is couldn't have happened to a more deserving group.

Filed Under: blizzcon, copyright, lars ulrich, licenses, metallica, music, streaming
Companies: twitch