Thoughts on Gawker Legal Woes

My initial response to the prospect that Gawker Media might go down in flames as a result of its legal woes was somewhere between ambivalence and satisfaction.  I’m not generally sympathetic to the proposition that invasions of privacy are inherently protected by freedom of the press, particularly when the invasion involves “information” as useless to the public as a sex tape—let alone one involving a former pro wrestler.  So, if Hulk Hogan’s $140 million award from his lawsuit and another five defamation suits lined up behind that are going to send the company into bankruptcy, so be it.  Do we really need a media service whose motto declares Today’s gossip is tomorrow’s news?  In conjunction with also reading this week that just 37% of America’s high school seniors are proficient in reading at grade level and 12% (ouch) are proficient in US History, it’s hard not to cheer about even a small reduction in the gibberish industry.

But then it was confirmed late last week that Silicon Valley VC Peter Thiel has been secretly bankrolling the Hogan litigation, and this revelation is generally being reported as an act of retaliation for the company’s now-defunct Valleywag having published a story in 2007 “outing” Thiel as gay.  This narrative in itself spawns a range of opinions on the matter of how angry Thiel deserves to be, why there should be any shame in being gay, and that whole tangential line of discussion.

But more to the point, and regardless of Thiel’s motives or sexual orientation, journalist Glenn Greenwald is quoted on CNN, observing the potential hazard to the free press when he says, “Petty, vindictive billionaires like Thiel literally have the power to destroy media outlets in secret.”  Greenwald and others who echo this sentiment have a point, but then so does Thiel, who says, “Gawker … built its business on humiliating people for sport. They routinely relied on an assumption that victims would be too intimidated or disgusted to even attempt redress for clear wrongs. Freedom of the press does not mean freedom to publish sex tapes without consent. I don’t think anybody but Gawker would argue otherwise.”

Certainly, it is ironic to see this particular billionaire seek to kill the kind of creature he helped spawn as an early investor in the social media site Facebook.  There has always been money in tabloid journalism, but the internet and social media have not only had a multiplying effect on that axiom, they have also played a substantial role in blurring the line between the salacious and the edifying.  As a result, it seems that some members of the public will now more aggressively pursue a “right to know,” even in circumstances when there is nothing worth knowing.  At the same time, we can’t deny that sometimes there is real news in the dirt.   It was Gawker in 2012 that outed the super-troll Michael Brutsch (aka Violentacrez) to whom Reddit had given an award for attracting a large following to his threads promoting sexual assault of teenage girls.  And the Gawker is not without some thoughtful editorials in between its grabby, tabloid reportage.

In a New York Times OpEd this past Monday, author Stephen Marche, who has been repeatedly attacked by Gawker, wrote a defense of the site called Gawker Smeared Me, And Yet I Stand With It.  His perspective is that we should not blame the media company for reflecting the world in which we live and that there is value in the reflection itself.  He writes the following:

“Gawker is new media, but it possesses an old-fashioned sensibility that dates from the 18th century. The editors and writers want power to be made uncomfortable whether or not it deserves the discomfort, and they believe that the public right to information is more important than any individual’s right to privacy. I would say, to anyone who believes that Gawker is just the gutter press, that those values are worth something even in the gutter.”

I don’t know. That seems a bit high-falutin in this context.  I think the purpose of the free press—certainly the reason it’s part of the First Amendment—is to speak truth to power, not to make the powerful uncomfortable whether they deserve it or not.  Nobody can deny that there’s money in the latter, but that doesn’t imbue the enterprise with great social value. For instance, I don’t agree with Marche when he says “no one could possibly object” if a leaked sex tape involved a congressman.  Or perhaps he’s correct to suggest that no one would object but is missing the point that we probably should object.  People need to know if an elected official has broken a public trust, and if that violation involves a sex scandal, then that’s part of the story.  But the people don’t need the video and should not confuse mere curiosity to see the video with anything so weighty as freedom of the press.

I would no more defend the distribution of Hulk Hogan’s sex tape on First Amendment grounds than I would defend the distribution of leaked nudes of Jennifer Lawrence and other celebrities in 2014 that caused a similar stir.  Gawker Media deserved to be sued in this case and deserved to lose, in my opinion.  But at the same time, it’s hard to be entirely comfortable with the prospect that one man with a vendetta and a big checkbook might sue a media company out of existence.  Marche writes, “Mr. Thiel has turned Gawker into a scapegoat for the shifting world of celebrity culture that we all inhabit. He has made Gawker into a scapegoat for the world he himself is helping to create.”

But I don’t think that’s quite right either.  Yes, Thiel has personally invested in creating this world we now inhabit and so, perhaps he deserves in a karmic sense to be among its victims.  But Peter Thiel is not responsible for the editorial decisions at Gawker, and he is certainly not responsible for the fact that millions of people are actually interested in seeing Hulk Hogan’s stupid sex tape. Moreover, a fact that continues to manifest in the digital age is that just about anyone can be made “famous” through leaks, shaming, bullying, mob justice, etc. As such, it’s probably best that even the gossip-mongers keep their sense of a “right to know” in its proper perspective.

Looking for Censorship in All the Wrong Places

Last week, I stumbled on a tweet by a staff member at the Electronic Frontier Foundation warning California citizens to “take action” in protest against the passage of Assembly Bill 2880.  The linked article on the EFF website written by Ernesto Falcon begins by asserting in its headline, subhead, and first paragraph that California will be venturing into brand new territory with regard to registering or enforcing state-owned intellectual property and that this will have the usual litany of ill effects—“chill speech, stifle open government, and harm the public domain.” Falcon’s first sentence reads, “The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights.”  (Emphasis added.)

It is standard procedure for the EFF to make scary declarations while avoiding specifics. They have a habit of telling people that a proposal will be really bad while shirking the effort of quite explaining how. The organization also tends to focus almost entirely on copyrights when a broader view of IP might be relevant in a given circumstance, as it is with a state, which may have at least as much interest in patents and trademarks as in copyrights.  What Falcon wants the reader to conclude is that AB 2880 will grant new authority to the State of California to copyright works like public records, which would then give elected officials a means of stifling speech by misusing copyright law.  You might recognize this theme as one of the EFF’s Greatest Hits, but of course, this bill does nothing of the sort.

AB 2880 does not establish new IP rights for the State of California.  California and other states have owned intellectual property for a very long time.  A  FY2000 California audit of IP states, “In total, 125 state agencies own more than 113,000 identified items of intellectual property.” What this proposed bill does do is to clarify California’s position on its IP and then requires procedures (e.g. developing guidlines for contractors) to be overseen by the Department of Governmental Services for better management of state-owned intellectual property. A need for clarification in the law is noted in the comments from the State Assembly floor, which cites lessons learned from the widely publicized, 2015 dispute between the National Park Service and the Yosemite National Park concessioner Delaware North.  The floor comments include the following:

”…the lack of a robust intellectual property framework has led to confusion among state agencies, loose and informal practices, and possibly confusion among state and federal courts. Several recent court decisions have held that state agencies need legislative authority to hold intellectual property rights. In light of the recent Yosemite trademark issue and the recent court decisions, this bill builds on the framework established by AB 744 in order to assist state agencies manage and protect the state’s intellectual property rights, particularly in state contracts where state-owned intellectual property is at stake.” 

That’s not exactly spellbinding, but neither the character nor the language in this bill gets anywhere near the EFF’s implication that California agencies will have “new powers” to use copyright law in order to stifle speech or limit access to public records after passage of 2880.  Nevertheless,  Falcon writes, “As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.”

Not quite.  Falcon is purposely being vague in order to have the reader assume that public records will be treated the same as expressive works or other IP that is funded by California taxpayers, especially where third-party contractors are involved.  At the same time, he’s sowing a bit of confusion about the difference between public property and the public domain—as if all works funded by taxpayers are automatically in the public domain, which is not the case.

A work, invention, or process that is in the public domain is no longer property of any kind.  It is entirely fair game for anyone anywhere to use for any purpose.  Public property, on the other hand, is just that; and state agencies have a responsibility to protect the investment of the constituency who paid for the development of the property.  For instance, it is common that public property, whether physical or intellectual, may not be used by a for-profit entity without that entity paying a license fee that goes back to the public fund.  And this is as it should be; the taxpayer isn’t typically expected to fund free resources to be used by for-profit entities without getting something in return.   To manage this, states need an intellectual property regime, and AB 2880 is a rather mundane update to that regime.

On the subject of censorship, Falcon draws our attention to the case in which the City of Inglewood wrongly filed a lawsuit against Joseph Teixeira, who posted city council videos (which are public records) on YouTube in remixes that were critical of the city’s Mayor James Butts.  The lawsuit was, to put it mildly, an act of rank stupidity on the part of city officials, which is pretty much what Federal Court Judge Fitzgerald said when he not only tossed out the case as “meritless,” but also ordered the City of Inglewood to pay the full fees of bringing the case in the first place.

And although Falcon is following the EFF playbook by riling up readers with a reference to this attempted abuse of copyright law, there is nothing in AB 2880 that would newly empower a future state public official to get any further with a federal court than Mayor Butts did.  It should also be noted that nothing in AB 2880—or any other statute for that matter—can fully prevent people from attempting to misuse the law, which is one reason why a judge determines whether or not a case has any standing before it can proceed. If anything, the Teixeria story ought to chasten city and state officials against future temptation to use copyright to stifle speech.

In addition to conflating public property with the public domain, Falcon is purposely mixing public records with other types of works that are copyrightable and is also confusing federal policy with state policy.  It goes without saying that federal public property belongs to all American citizens while state public property belongs to the citizens of that state, but it is not true that all public property in either case is the same thing as the public domain.   Still, Falcon declares that AB 2880 will impose new restrictions on California’s taxpayer-funded works, as if the proposed bill will move these works from the public domain into the protection of copyright. He writes, “… a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit.”

Again, not quite. The legal precedent to which Falcon’s link refers states that the California Public Records Act “prohibits copyright in state government records unless there is specific statutory authority to do so.”  And this precedent is not overturned by the new language proposed in 2880, which reads as follows:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires. A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act. A disclosure under the California Public Records Act shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976.

All that says is that state agencies may own intellectual property (which was already true), that copyrigths may not preclude public access to public records, and that disclosure of public information does not inherently void the state’s copyrights. Not only does this language not override existing law, it seeks to clarify the law in light of some of the lessons learned from various court cases, as described in the floor comments cited above. Of course it is entirely possible that this clarification is exactly what the EFF doesn’t like about this bill. Clearer copyright laws are the opposite of no copyright laws, and it seems as though that organization is only ever interested in the latter.

A Strange Anecdote of DMCA Abuse?

I was told by a colleague who attended the Section 512 round tables in San Francisco that a consistent response from representatives of the OSPs was that anecdotes about harm to rights holders from piracy or YouTube-style infringement are not sufficient.  “We need data,” was apparently an oft-repeated imperative.  This is funny because that same crowd loves anecdotes about abuse of DMCA, and well they should because the anecdotes are likely to be more compelling than the data on that matter. But sometimes, the anecdotes are downright bizarre, as with this story reported yesterday in The Guardian by Alex Hern.  It is in fact the story of the DMCA abuse that wasn’t there.

At first reading, one assumes that this is a typical story about some non-copyright holding entity misusing the DMCA in order to attempt to censor criticism of its business.  In a nutshell, a UK citizen named Annabelle Narey had a bad experience with a UK building company called BuildTeam, and she consequently posted a negative review on a parents’ news and comment site called Mumsnet.  Her initial post prompted a thread of other users sharing their own bad experiences with the same company, which apparently prompted BuildTeam to try to have the negative reviews removed, even initimating possible defamation.  But then, Hern writes this:

“Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.”*

Initially, this description sounded odd to me for several reasons, not the least of which is that it would take about 30 mintues or less for Mumsnet to review 126 posts of this nature, which are usually quite short.  More than that, though, under the DMCA, a properly filed notice has to identify the Allegedly Infringed Work (AIW) and state under penalty of perjury that the filer is the owner, or agent of the owner, of that work. As such, what work was the filer alleging had been infringed in a thread of comments?  Because if the notice just said something as generic as “contains infrininging material,” then the notice should have been rejected by Google.  More confusing still, as Hern goes on to describe, the filer of the take down request wasn’t even BuildTeam.  Who it was is not quite clear.

Hern describes a strange sequence of events in which a guy named Douglas Bush plagiarized Narey’s original post, published it on a “spammy website,” and also pre-dated the post to a day three months prior to the day Narey had originally published it.  Then, it appears that the registered owner of said spammy website, a Mr. Ashraf of Pakistan, may have been the one to send the DMCA takedown notice pertaining to the original thread.  It sounds a bit like a ham-handed attempt at a copyright scam; but suffice to say, there is nothing legit about the take down request, and Google should not have processed it at all. Moreover, under these circumstances, Mumsnet should not have had any fear of restoring the material via counter notice, as Hern suggests they might.  He writes the following:

“Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.”  

What?? There is no such thing as “whoever sent the request.”  This DMCA filing clearly fails to meet statutory requirements, and the apparent sender is apparently in Pakistan! Mumsnet should have had no concern regarding litigation from anyone as a result of restoring this material. But then, Hern reports this:

Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”. 

Again, what in blazes is going on in this story?  Because it looks an awful lot like Google just plain messed up. Yet, for all its muddy details, Hern is presenting this tale as a prime example of how copyright becomes censorship on the internet, blaming the law itself for his own conclusion that “ … sites like YouTube, Twitter and Google … are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.”

That’s a familiar refrain that rings hollow with legitimate rights holders who make proper use of DMCA.  Meanwhile, Google has often fought tooth, nail, and elbow against delisting search results, asserting past refusals to do so as a matter of principle. And that’s in cases involving clearly infringing links.  Why is the search giant, as Hern states, suddenly on a “hair trigger” to delist this little thread of consumer comments about a building service, where a copyright infringement is highly unlikely to exist?  And why should rights holders who have an interest in legitimate take down requests continue to have those interests denigrated by the general characterization that DMCA is so often used as a tool for censorship?

The potentially compelling part of this story is the matter of what Mr. Ashraf was actually intending. If he was the one to publish someone else’s post as his own and then use DMCA to attempt to assert an infringement claim against the original, what did he hope to achieve?  Is this a new kind of scam, general mischief, or a third-party exercise in censorship? It seems to me all the parties involved, including Google, should want an answer to this question, rather than settle on the familiar but misguided conclusion that copyright itself is the villain.

*It should be noted that Mumsnet does not use an internal search tool for its comment threads, but in fact uses Google Search. This would appear to be a factor in this story.