Category: Law & Policy

Parody on Trial: The Onion Submits Amicus Brief in Novak v. Parma

On October 3, the satirical news organization The Onion filed a delightfully irreverent amicus brief with the U.S. Supreme Court in support of the petitioner seeking cert in Novak v. City of Parma, Ohio, et al. Even if you have no interest in the case, the brief is a good time—a deftly written panegyric to the art and relevance of parody that interweaves actual parody with supported legal arguments. Under its Argument I – Parody Functions by Tricking People into Thinking it is Real, the section begins …

Tu stultus es. You are dumb. These three Latin words have been The Onion’s motto and guiding light since it was founded in 1988 as America’s Finest News Source, leading its writers toward the paper’s singular purpose of pointing out that its readers are deeply gullible people.

In the next paragraph, The Onion states that the first reason its motto is central to the brief is that it knows the “federal judiciary is staffed entirely by total Latin dorks.” So, it’s like that. Enjoy!

But the issues raised in this case are more complicated than The Onion’s colorful defense of parody and satire—if not with respect to plaintiff Novak’s conduct itself, then with regard to broader questions, both social and legal, on the subjects of humor and gullible people.

Background: Novak Mocks the Parma Police Department on Facebook

In March of 2016, Anthony Novak created a bogus Facebook page designed to resemble (though not precisely match) the page for the City of Parma Police Department. He then published a handful of outlandish posts that any reasonable person should recognize as satire. For instance, one post announced a “Pedophile reform event” with “puzzles and quizzes” stating that upon successful completion of the day’s activities, participants would be removed from the sex offenders list.

The police department naturally received a few phone calls from Parma citizens, and after officers investigated, Novak was arrested, tried, and ultimately acquitted on charges that he had violated an Ohio state law prohibiting the use of a computer to “interrupt” or “disrupt” police operations. According to the petition for cert at the Supreme Court, the fake Facebook page was online for twelve hours and a total of six posts were published.

After Novak’s acquittal on the criminal charges, he filed a civil suit against the arresting officers, the department, and the city, alleging that the investigation and arrest had been retaliatory in nature and violations of his First and Fourth Amendment rights on the basis that the enforcement actions stemmed solely from his protected right to mock public officials. A district court held, and the Sixth Circuit Court of Appeals affirmed, that Novak’s complaints failed to meet the standards to show the officers’ intent to cause harm and that, within the four corners of the law, the officers did not abrogate their qualified immunity from suit. In its conclusion, however, the appellate court stated …

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

Indeed. Even if Novak caused some limited “disruption” to the department (e.g., fielding calls from complaining or confused citizens), it should have been obvious that the content of the Facebook page was intended as satire rather than intended to “interrupt” police operations in the spirit of the broadly written state law. That all the fuss was over six posts online for twelve hours is an even stronger indictment against the officials’ decisions leading to prosecution, which justifies a fair assumption that arrest was both retaliatory and unconstitutional. The questions Novak presents to the Court are as follows:

  1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.
  2. Whether the Court should reconsider the doctrine of qualified immunity.

The Sixth Circuit reasonably, if reluctantly, found that Novak did not prove that the officers investigated him solely on the basis of his protected speech. Instead, it held that the officers presented sufficient (if thin) probable cause to indicate that he had violated the state “disruption” law, and two magistrate judges granted warrants, and a DA independently proceeded with an indictment. So, SCOTUS may not agree that Novak’s case is ripe for the qualified immunity and speech questions presented. On the other hand, the petition describes a relevant circuit split thus:

The Sixth, Eighth, and Eleventh Circuits grant officials qualified immunity for First Amendment violations disguised as searches and seizures justified by probable cause under broadly written laws. In those circuits, censorship-by-arrest prevails. Three other circuits prioritize speech over immunity. The Fifth, Ninth, and Tenth Circuits look beyond pretext and deny qualified immunity to officials who should have known that their actions violated the First Amendment.

While we wait to see whether the Court will agree to hear this case, the serious intent behind The Onion’s hilarious brief raises some complicated questions if we look beyond Novak’s short career as a parodist in this instance.

Reasonable People

The Onion makes the broad argument that “reasonable people” do not need warning labels to identify parody—that indeed parody depends on impersonating the serious or the real. “Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity,” the brief states. It would, therefore, be anathema for persons in power, like police, to require some kind of notice in order to distinguish protected parody from illegal impersonation—let alone impersonation with intent to cause harm.

The Onion is, of course, right about parody as an expressive form, but the question of impersonation has become complicated in an era when mass media tools are available to anyone—to say nothing of what it currently means to be a “reasonable reader” of mass media. The Sixth Circuit, for instance, affirms that impersonating police is not protected speech “for good reason” and further notes by example the “mayhem that a scam IRS or State Department website could cause.”

In a different but related context, it would be a travesty if Alex Jones could successfully argue that InfoWars is all “opinion and hyperbole”[1] and that he is, therefore, immunized against recourse for the wanton harm he and his fans have caused the victims of the Sandy Hook murders. Not all potentially criminal speech can be made lawful by arguing some variation of the “just kidding” defense; and in the digital age, a “prankster” does not need a plurality of idiots to do a great deal of damage.

So, although I agree with The Onion that most people probably know parody when they see it, we must acknowledge that unreasonable readers abound and are living a post-parody existence that is barely literate. Content that might be assumed parody in another era turns out to be prophesy to many contemporary Americans. How is Alex Jones anything other than a joke? Ditto Pizzagate, QAnon, Mike (the pillow guy) Lindell, Steve Bannon, Marjorie Greene, the stolen election narrative, FOX News, Donald Trump, or the sincere and persistent belief that children are being harvested by Hollywood stars to make adrenochrome?

So, it is not easy to fully endorse The Onion’s premise that people have a solid grasp of the ridiculous, or that the ridiculous is easily discernable from the truth these days. Novak’s phony Facebook page, though minor and fleeting, reminds us how muddy the distinction is between lampoon and headline news. A “Pedophile reform event” may be obviously sardonic to most readers, but in a world where real people would force a child rape victim to remain pregnant, there is arguably nothing so wild the parodist can invent that does not require confirmation against fact.

So, although the officials involved in Novak’s case did not exercise common sense (as the Sixth Circuit states), the lines separating parody of public figures, outlandish lies about public figures, and the actual conduct of public figures are exhaustingly blurry—especially when the tools to spoof the real thing are available to anyone with a computer and a motive to cause mischief. Near the conclusion of The Onion’s brief, it states:

… grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are.

It would indeed be folly to require the parodist to “disclaim his own pretense,” but it is not quite true that we can rely solely on our sophistication and sense of humor. When a friend on social media shares a real story about something balls-out crazy, don’t they often label it, “Not from The Onion.”? In fact, The Onion’s generic status in this regard partly betrays its argument about disclaimers because its brand is a flag telling readers that parody and satire are present.

It is hardly original to say that we are awash in so much conspiracy theory and crime against reason that it is often hard to imagine how the writers at The Onion hope to compete. The day Kellyanne Conway said the words “alternative facts” with a straight face on national television, many of us expected satirists everywhere to throw their pens, if not themselves, out the window. And that story was a mere party trick compared to the astonishing self-parodying events that have transpired since. So, with a deep bow to the craftsmanship in The Onion’s amicus brief, I think it is fair to say that even reasonable, comedy-literate people can be forgiven these days for wanting some assurance that what they are reading is indeed a joke.

[1] I chose these words because one of FOX News’s defense in its litigation with Dominion is that the lies it reported about corrupted voting machines are “hyperbole and opinion.”

A Sound First Amendment Decision with an Odd Fair Use Kicker

A couple of weeks ago, in my post about ghost guns and trademark infringement, I argued that the EFF is wrong to defend the anonymity of the parties who flaunted their alleged infringements on Twitter. In that case, the individuals had manufactured DIY guns (ghost guns) in collaboration with the materials and tools provided by Defcad, Inc.; they had affixed their weapons with both word and design marks owned by the gun-control advocacy group Everytown For Gun Safety; and they had posted images of their products on social media along with deprecating comments about Everytown.

Because there appears to be a triable issue of trademark infringement in which the Doe defendants are plausibly implicated, I disagree with EFF’s view that the anonymous individuals used the marks for the sole purpose of protected speech. Consequently, pursuant to Everytown’s claim of infringement, its interest in discovering the identities of those individuals is reasonable in that light.

I further argued in that post that considering anonymity as coextensive to the speech right should be weighed on a case-by-case basis, and in that example, it is absurd to allege that anonymity is necessary for the general expression of anti-gun-control views in this country. There, the plaintiff has reason to argue that anonymity is merely a strategy by Doe defendants to avoid liability rather than a means of protecting their First Amendment rights.

A Poor Use of Copyright Law

By contrast, a colleague brought a new matter to my attention recently in which a wealthy claimant of questionable nature sought to use copyright law and the provisions of DMCA Section 512(h) to expose an anonymous critic—and apparently for no purpose other than to expose and intimidate the critic. No doubt, somebody will cite this story as an example of a powerful figure “weaponizing copyright” to stifle the speech of a defenseless individual, and that’s one reason I’m writing about it. Because let’s be clear:  copyright advocates don’t appreciate copyright law being used for purposes other than to protect creative expression and promote the progress of same.

This case involves an anonymous blogger who devotes his/her energy to mocking or criticizing the uber wealthy and politically powerful, including Jeff Bezos, Elon Musk, Nancy Pelosi, et al. I have neither an opinion about, nor interest in, the content of the blogs or tweets, as there is no question that anyone, whether anonymous or not, is free to criticize anyone else, especially public figures. But apparently, this party got the attention of billionaire Brian Sheth …

In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account.

That summary is at the top of the California District Court opinion denying Bayside Advisory’s subpoena to compel Twitter to unmask MoneyBags. Bayside had made the request under DMCA Section 512(h), which allows a copyright owner to compel an OSP to disclose the identity of an alleged infringer without first filing a claim against a Doe defendant and later pursuing the party’s identity in discovery.

The rationale of the statute, when all parties are acting in good faith, is that a copyright owner with a sincere intent to protect his rights, should want to identify an alleged infringer before deciding how or whether to remedy the matter. This knowledge can benefit both rightsholder and alleged infringer. But the presumption should be the contemplation of a meritorious claim of copyright infringement and not merely an intent to expose the anonymous speaker for other purposes. That should be the only reasonable basis for enforcing the subpoena to unmask a Doe defendant under Section 512.

Here, the available facts imply a narrative in which Bayside, a party with potentially limitless resources, is misusing copyright law for the sole purpose of exposing and censoring a critic. The entity LLC appears to have been formed exclusively for the purpose of hastily acquiring the rights to the six photos at issue and then registering the works with the Copyright Office after the alleged infringement of the images by MoneyBags.[1]

Although 512(h) allows a subpoena without first filing a claim of infringement, the court clarifies that the statute expressly states that the provision is subject to Federal Rule 45 and that, “A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment.”

Views will vary as to whether the First Amendment encompasses a right to speak anonymously. The EFF and similar organizations seem to think it always applies; others may say it never applies. As stated in that ghost gun post, I believe it depends on whether anonymity is reasonably necessary to protect the speech at issue and whether the speech itself may not be protected, which it is not if it amounts to copyright infringement.

In this instance, the resources and legal maneuvers the claimant appears willing and able to exploit merely to silence personal criticism makes a strong case for a nexus between the speaker and his/her anonymity. This is further emphasized by the court’s reasonable inference that Sheth is hiding his own identity behind the LLC, the website for which just happens to be a one-pager with no clear purpose.

If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter.  

Suffice to say, the complaint reeks of shadiness and a deplorable use of one fragment of the Copyright Act for a purpose that appears to have nothing to do with copyright. Based on the limited facts available, I believe the court acted correctly in finding that the First Amendment considerations outweigh Bayside’s dubious intent in exposing MoneyBags’s identity.

But About That Fair Use Analysis!

Bayside alleged that “to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the court states. I’ll be honest and say that I have no idea what Bayside is driving at here, and perhaps it is naïve about the circuit in which it attempted this argument.

Nowhere does the fair use exception “wholly account” for the First Amendment interests of a defendant, but here, Plaintiff invites a court in the Ninth Circuit to embark on a fair use analysis, which it should have declined in this instance. The court had already established a rationale for denying the subpoena and did not need to conduct a fair use consideration as though this were a case at the summary judgment phase with sufficient evidence presented. Nevertheless …

In response to Bayside, the court noted that it is bound by circuit precedent in Lenz, it calls fair use “colloquially an affirmative defense,” and then it states, “To make a prima facie case of copyright infringement for the purposes of obtaining a subpoena, then, a party must make a prima facie case that the infringing use did not constitute fair use.” And then, to add insult to speculation the court committed that chronic error in fair use factor one, writing …

… the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry. Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.

The court’s reasoning here is incorrect as a matter of law, especially without sufficient facts presented to consider the matter more fully. But based on that paragraph alone, the court errs when it opines that commentary about the subject(s) in a photograph is inherently “transformative” and, therefore, favors a finding of fair use. Such a generalized rule would excuse nearly any media company from licensing photographs simply because editors add captions and display images along with articles composed of text.

The court had not only found a basis to deny the subpoena, but it further stated that based on the record of plaintiff’s conduct that, “… even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.” That being the key finding, it makes even less sense that the court engaged in a half-blind fair use analysis and added yet another poor example of “transformativeness” to that circuit-splitting tapestry of opinions.

Independent copyright owners, who truly make a living from creative work, have a hard time protecting their rights as it is. Misuse of copyright law by wealthy and powerful individuals is both offensive and unhelpful in that it gives the anti-copyright ideologues and policy wonks grist for their mill. They cite these stories under general headlines like “copyright is broken,” and then the internet does its thing. At the same time, it is also unhelpful to the vast majority of creators when courts are tempted into fair use discussions that are speculative to the point of whimsy.

[1] The lack of timely registration is a barrier to litigation for most copyright owners because it precludes statutory damages and attorney’s fees, but if money is no object, and the intent is to censor rather than protect copyright rights, then timely registration is moot.

 

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK