from the luka-here dept
Normally when we talk about trademark disputes, they tend to look fairly similar. Some entity is upset and/or sues over a trademark they have and we spend some time analyzing whether the trademark itself ever should have been granted, whether there is true customer confusion to worry about, whether the plaintiff is simply bullying, etc. But the story of Luka Doncic’s attempt to wrest control over the trademark for his own name and jersey number is something completely different and has us in uncharted territory.
I’ll give you the background as briefly as I can. Luka77, Inc. is the company Doncic has tasked with promoting his name and likeness rights. The company attempted recently to register trademarks for Doncic’s name and some variations that include his name and other verbiage. The USPTO refused those applications due to there being a similar registered mark, “Luka Doncic 7”. That trademark is owned by none other than a woman named Mirjam Poterbin, although Luka Doncic can simply call her “mom”.
Luka77, through its attorneys from Brown Rudnick, says the USPTO “preliminarily refused” to register the company’s 2021 applications for LUKA DONCIC and ORIGINAL HOOPS OF LUKA DONCIC on grounds that they’re too similar to LUKA DONCIC 7 and might spark confusion. A third application concerning LUKA DONCIC for use in charitable fundraising services hasn’t been acted upon.
Luka77 acknowledges that Poterbin filed the original application “with Mr. Dončić’s consent.” Dončić was a 19-year-old NBA rookie at the time, and thus an adult and a professional. He was represented by agents Bill Duffy and Quique Villalobos of BDA Sports Management.
Doncic became a pro basketball player in Spain at age 13. It is no surprise that he looked to a parent to assist him with the business side of basketball at that time, busy as he probably was trying to figure out how to use a razor blade and all that. As such, he granted permission to his mother to register trademarks including his name.
But Doncic is a full-blown NBA star now, and an adult. He is contracting with a company to handle his business. As such, that company has petitioned the USPTO to cancel Poterbin’s mark for several reasons.
One is that Dončić is no longer “affiliated or associated with [Poterbin] or its goods and services.” He also “does not approve or sponsor [these] goods and services.” This is particularly problematic, Luka77 argues, since consumers are inclined to presume that, given Dončić’s fame and reputation, he is connected to LUKA DONCIC 7, which is “largely comprised of the name that identifies Mr. Dončić.” Luka77 also points out that Poterbin has allegedly “abandoned any and all rights” in the mark by not using it, with no known licensees.
The abandonment claim might end up being the most important of the bunch. Why? Well, because nobody really seems to know if permission of the sort Doncic granted his mother can be rescinded in order to cancel previously registered trademarks.
Trademark guru Professor Alexandra Roberts spells it out.
She recalls several cases in which consent was never explicitly made “of record,” so the celebrity was able to successfully cancel a registration that referenced them; courts have also canceled registrations where a celebrity granted a license to use their name and that license expired.
“But no case litigated to decision in court or before the TTAB appears to test the precise scenario Dončić now faces,” Roberts said. “Surely, Dončić is not the first and he won’t be the last to consent to the registration of a mark that references him and later change his mind. Roger Federer’s dispute with Nike over the brand’s continued use of a logo comprising his initials after he left Nike for Uniqlo offers one example, but that case was rooted in a separate endorsement contract between the parties.”
Roberts also said, “there are right of publicity concerns embedded in these doctrines as well” and that while Dončić wasn’t a minor when he gave consent, the board will consider that “he was fairly young and inexperienced.” She added that the board can cancel the registration if Dončić establishes his mother isn’t using the mark in commerce in the U.S. and lacks intent to resume any use.
Roberts goes on to note that there doesn’t seem to be any requirement in the Lanham Act that the consent to register a trademark must be ongoing after the mark is registered. If Poterbin is using or can show intent to use her trademark in the United States, well, that might be all she needs to defeat her son in front of the USPTO.
But this goes beyond one family trademark drama. With college athletes in particular suddenly having NIL rights, you can damn well bet they and their agents will be watching this case closely. If permission for this sort of thing can’t be granted temporarily, well, then you can bet athletes will be far less likely to hand over permission than they were before.
Filed Under: abandonment, likeness rights, luka doncic, mirjam poterbin, parents, trademark
Companies: luka77
from the but-why-gavin? dept
We’re still waiting to see if California Governor Gavin Newsom will sign the California Age Appropriate Design Code (AB 2273) into law, though all indications are that he will. However, he has now signed a different bad bill into law. He has happily signed what he calls the “nation-leading social media transparency measure” AB 587 into law. The bill is a disaster whether or not you support the goal of “transparency” for social media companies. Actually, the bill is a disaster especially if you support more transparency from social media companies.
As we explained last month, it’s clear that AB 587 was written by people who have never run a website, and that no one who worked on it has the first clue about how anything online actually works. The “transparency” required in the bill is basically a roadmap for propagandists, disinfo peddlers, and nonsense makers who will now have the power to force companies to keep their content up, and to figure out how best to game social media, while limiting their abilities to respond.
First, the bill requires social media companies to publish their terms of service (something all of them do) and to send them to the Attorney General every six months (earlier it was every quarter). It also has to lay out how it handles specific content:
(A) Hate speech or racism.
(B) Extremism or radicalization.
(C) Disinformation or misinformation.
(D) Harassment.
(E) Foreign political interference.
It also requires a “detailed description of content moderation practices” around these categories, including the tools the company uses, removal plans and some other items. It also requires a full report on numbers of “actioned” items, broken out by category.
In other words, updating your content moderation policies or action is now much more difficult. You’ve created a bureaucratic, legal liability mess for any website, because any mistake opens you up to legal action from the Attorney General. So, not only do you have to be much more public about your content moderation policies (which again, becomes an instruction manual for those with malicious intent), but also making changes to them is now much slower. It is much more difficult to react to changing tactics by bad and malicious actors.
And that’s not even getting into the 1st Amendment problems of all of this. Note that much of this bill reads almost identical to Texas’ HB20. Texas’ law definitely went much further in terms of enforcement and including “no censorship” provisions, but it also includes very similar transparency clauses, requiring twice a year “transparency reports” that detail all content moderation actions. Remember, this bill was initially dumped as unconstitutional, even the transparency parts. As the district court said in dismissing these parts as unconstitutional:
The Section 2 requirements burden First Amendment expression by “forc[ing] elements of
civil society to speak when they otherwise would have refrained.” Washington Post v. McManus, 944
F.3d 506, 514 (4th Cir. 2019). “It is the presence of compulsion from the state itself that
compromises the First Amendment.” Id. at 515. The provisions also impose unduly burdensome
disclosure requirements on social media platforms “that will chill their protected speech.” NIFLA,
138 S. Ct. at 2378. The consequences of noncompliance also chill the social media platforms’ speech
and application of their content moderation policies and user agreements. Noncompliance can
subject social media platforms to serious consequences
Some people seem confused by this, but I can make it pretty clear. Imagine if this same law said that news organizations, from CNN to the NY Times to Fox News to the LA Times, had to write up out their official editorial policy on what they will and won’t cover, how they rank stories, and what their editorial priorities are and submit them to the Attorney General every six months. What if, further than that, the law required them to state, explicitly, how they handled news on specific topics, including hate speech, racism, extremism, disinformation, and political interference.
I think most people would immediately see the massive 1st Amendment problems there, and those newsrooms would erupt in protest. Just the fact you would have to announce your editorial policies to the state’s chief law enforcement officer, and that you were required to reveal your policies on specific types of content — content where the editorial policies might diverge from the state’s interests — would have a very clear, and very obvious chilling effect on most newsrooms, even if the enforcement options are more limited.
And, as in Texas, having to compile a report regarding every bit of content “actioned” and sharing that with the state can, again, be both burdensome, and carries an implied restriction on speech, much of which is constitutional.
Obviously, that’s the intent of this law. By telling companies they must have policies on these categories of speech (again, all of them are mostly constitutionally protected forms of speech), the government is basically saying “you need to clean up this kind of problematic speech.” This is a wholly different approach than the federal government’s (current) approach with Section 230, which takes a hands off approach, but tells companies they won’t face liability for their decision making.
Here, instead, California is saying “hi, we’re from the government, and we’re particularly interested in how you moderate these specific categories of content we dislike, and we demand you tell us exactly what you’re doing, or we’ll punish you.”
I just can’t see how that’s even remotely constitutional.
And, of course, I’m curious how the Democrats who currently run California will feel if Republicans regain control over the state (as was the case not that long ago), and adjust that “list” of categories to contain other areas that the Democrats feel differently about? Once again, this seems to be overly aggressive lawmaking with the belief by Democrats that “we’ll always be in power.” But that’s not how it works.
The bill is an unconstitutional garbage dump of problems.
What’s incredible (and unfortunate) is how Newsom and the bill’s author, Assemblymember Jesse Gabriel clearly don’t understand any of this. Here’s Newsom’s comment:
“California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country,” said Governor Newsom. “Californians deserve to know how these platforms are impacting our public discourse, and this action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day. I thank Assemblymember Gabriel for championing this important measure to protect Californians from hate, harassment and lies spread online.”
Again, whether you like it or not, hate and disinformation is protected by the 1st Amendment. This statement alone more or less admits he’s signing this law because he believes it will be helpful in suppressing constitutionally protected speech, which is not great (and it wouldn’t surprise me if this statement makes an appearance in a future lawsuit challenging the bill).
Gabriel’s statement is worse. I’m honestly gobsmacked. Has he ever spoken to anyone who actually runs a website:
“Social media has created incredible opportunities, but also real and proximate threats to our kids, to vulnerable communities, and to American democracy as we know it,” said Assemblymember Gabriel. “This new law will finally pull back the curtain and require tech companies to provide meaningful transparency into how they are shaping our public discourse, as well as the role of social media in promoting hate speech, disinformation, conspiracy theories, and other dangerous content. I am grateful to Governor Newsom for signing this bill and for his leadership in protecting kids and vulnerable communities online.”
“For the kids,” of course. Every grandstanding politician with no understanding of how anything works goes back to the “for the kids” excuse. But this doesn’t help protect kids. It helps those who are the threats to kids, by forcing websites to tell those threats how to better game these websites, and limiting the ability of websites to respond.
It will also lead to inevitably abusive lawsuits (not directly under this bill, but because of this bill) in which malicious actors will point to the released terms of service and insist that the were moderated somehow against the posted terms. We’ve already seen this in other cases, and while it hasn’t been successful yet, the more granular demands in Gabriel’s ridiculously badly drafted bill, only help those looking to make those specious legal arguments, by giving them more to hang their claims on.
I’m honestly curious what social media companies Gabriel has ever spoken to in creating this bill, because the bill is so disconnected from the reality of actually managing a site that either he spoke to none or he deliberately ignored what they told him.
Filed Under: 1st amendment, ab 587, california, gavin newsom, jesse gabriel, transparency
from the this-is-the-part-where-we-remove-our-masks dept
Government officials may say acceptable things when pressed for comment by journalists, oversight, and members of the public. But if you really want to know what an agency thinks, just keep your eye on the rank-and-file.
So, when the West Texas branch of the Customs and Border Protection (CBP) started retweeting one of the Trump administration’s resident bigots, it showed nothing but CBP West Texas’ entire ass.
Let’s take a brief moment to reacquaint ourselves with Stephen Miller, the man who became the breathy, white voice in Trump’s spray-tanned ear when it came to immigration policy.
Stephen Miller has been subpoenaed by the January 6th committee, which is still trying to determine who in the government assisted in the attempted undermining of the election certification following Trump’s loss at the polls.
Miller started out as the “national policy director” for Trump’s 2016 “transition team.” Shortly thereafter he became the face of Trump’s increasingly ugly, increasingly xenophobic immigration polices. Let’s review a few of Miller’s greatest hits, recited here in the dry language of a Wikipedia article any dumbass at the CBP west wing could have accessed before retweeting someone whose opinions on immigration mean less now than ever.
In the early days of Trump’s presidency, Miller worked with Senator Jeff Sessions, Trump’s nominee for Attorney General, and Steve Bannon, Trump’s chief strategist, to enact policies through executive orders to restrict immigration and crack down on sanctuary cities.[53] Miller and Bannon preferred executive orders to legislation.[50] Miller’s and Sessions’s views on immigration were influenced by anti-immigration groups like the Federation for American Immigration Reform, NumbersUSA, and the Center for Immigration Studies.[54]
[…]
Miller played an influential role in Trump’s decision to fire FBI director James Comey in May 2017.[56]
[…]
In September 2017, The New York Times reported that Miller stopped the Trump administration from showing the public an internal study by the Department of Health and Human Services that found that refugees had a net positive effect on government revenues.[12][13]
[…]
In October 2018, the Financial Times reported that Miller sought to make it impossible for Chinese students to study in the United States. Miller argued that a ban was necessary to reduce Chinese espionage, but that another benefit was that it would hurt elite universities with staff and students critical of Trump.
[…]
Miller also advised Trump not to openly embrace mask-wearing to halt the spread of the coronavirus.[83]
[…]
In November 2019, the Southern Poverty Law Center acquired more than 900 emails Miller sent Breitbart News writer Katie McHugh between 2015 and 2016. The emails became the basis for an exposé that showed that Miller had enthusiastically pushed the views of white nationalist publications such as American Renaissance and VDARE, as well as the far-right conspiracy website InfoWars…
This is the person the West Texas CBP office felt worthy of retweets: an affirmed xenophobe who acted as a hype man for Trump’s anti-immigration actions.
The retweets, screenshotted here by Adam Isacson, show exactly what this CBP branch felt was worth amplifying with its official government account — one with nearly 17,000 followers.
If you can’t see the screenshot or read the CBP-amplified Stephen Miller tweets, this is what they say:
Violent criminals lay waste to our communities undisturbed while the immense power of the state is arrayed against those whose only crime is dissent.
The law has been turned from a shield to protect the innocent into a sword to conquer them.
We’ll take a brief break to applaud the man who turned the law into a sword to punish innocent immigrants while burying evidence of their positive contributions to the American way of life — one who actually claims a government that goes after people who participated in an unprecedented raid of the Capitol building cares less about the public’s safety that one that wielded the “immense power of the state” to persecute browner people just wanting a shot at the American dream.
And here’s another inconvenient fact standing in the way of Miller’s shitposting-but-I’m-serious tweeting: immigrants are far less likely to commit crimes than natural-born residents of the United States.
Moving on to the second tweet:
The media’s greatest power is its ability to frame what is a national crisis (eg “cops are racist summer ’20) and what is not: Biden’s eradication of our border means we are no longer a Republic — he’s ended nearly 250 years of constitutional government. The media is silent.
This is the kind of word salad that will only be appreciated by like-minded connoisseurs of this particular type of word salad. The rest of us will consider it as comprehensible as jello salad featuring suspended pasta and Vienna sausages: yes, it may resemble something a person could theoretically consume in extremely dire circumstances, but no one in their right mind would actually consume it voluntarily.
Biden has not “eradicated” the border. (Notably, both Miller and his retweeters have nothing to say about the northern border, which is equally in danger of being “eradicated” by policy changes.) Cops are, in fact, pretty fucking racist.
Fortunately, the CBP has decided this is something that needed to be addressed, rather than ignored. As Axios reports, CBP Commissioner Chris Magnus stepped up to inform the public the agency as a whole did not approve of this rogue action and has seized control of the regional account.
As of the writing of this post, the Twitter account is alive but inactive. The retweets of Stephen Miller have been memory-holed, something that has undoubtedly resulted in dozens of FOIA requests. But when CBP Commissioner Magnus says these tweets “do not reflect the values of this administration,” he’s only partially correct. They obviously reflected the values of the CBP West Texas employees, who decided Miller’s anti-immigration rants were worth amplifying. And that’s a problem he’ll need to address if he expects the nation to believe border enforcement agencies aren’t just playgrounds for bigots.
Filed Under: bigotry, cbp, cbp west texas, stephen miller, texas
from the contracts,-how-do-they-work? dept
Matt Levine, over at Bloomberg, whose coverage of the Elon Musk/Twitter saga has been excellent (his coverage of most things has been excellent, but especially the Musk/Twitter stuff), recently wrote that he was coming to the conclusion that Elon Musk simply does not know what a merger agreement means.
As he explains, if you want to buy a company, but still want to do due diligence, you can first do a memorandum of understanding that more or less says you’re going to buy it, but which leaves an out if your due diligence turns up some bad stuff. But what you shouldn’t do is sign a binding merger agreement that explicitly waives due diligence, and then try to demand due diligence and claim you can still get out of the deal.
I think that the simplest explanation might be that Elon Musk does not know what a merger agreement is. It is not uncommon, in the world, for two companies to get together and discuss one buying the other. And sometimes these talks will go well and they will get together and sign some sort of document — a “memorandum of understanding,” perhaps — that says, basically, “now we are going to talk really seriously about me buying you.” Sometimes they will have a price lined up when they sign this document, say $54.20, and that price will be written into the document, and the expectation will be that eventually the buyer will pay $54.20 to buy the seller. But things can go wrong. There will be continuing due diligence, where the buyer examines the seller’s business, and the buyer might change its mind. Facts might come to light in due diligence that could make the buyer walk away or want to revise the price downward. The market might crash, making the seller less valuable or making it harder for the buyer to get financing. The MOU is an agreement to talk more seriously; it reflects a general mutual desire to come to a deal at $54.20, but it is not binding. Nobody is committed to a deal at $54.20. Nothing is certain until the final deal is signed.
That, again, is a description of a thing that can happen in the world; some business acquisitions do go through a process like that. But it is not a description of US public-company merger agreements. In normal US public-company mergers, you don’t sign a memorandum saying “we’re going to negotiate seriously about buying you.” You negotiate seriously, and then you sign a merger agreement saying “we agree to buy you for $54.20.” And then if the buyer changes its mind, it still has to pay $54.20. And if the market crashes, the buyer still has to pay $54.20. The deal is the deal; once it is signed, the merger agreement is binding and definitive.
Read the whole thing for some more insights.
Anyway, the Musk/Twitter fight is continuing, and Twitter’s letter to the judge asking for sanctions against Musk, which revealed some text messages that were showed to Twitter by Musk’s financial advisors (but not by Musk himself), was finally unsealed (first noted by the excellent Chancery Daily). And some of the details suggest that Levine is 100% correct and that Musk has no clue what a merger agreement is, as he was telling his advisors at Morgan Stanley that he wanted to do more due diligence after he’d signed the deal in which he explicitly waived due diligence (first highlighted by Kostya Medvedovsky on Twitter).
In those text messages to Morgan Stanley’s Michael Grimes (and not, as some people have falsely assumed, Musk’s ex, the singer Grimes), Musk repeatedly talks about the need to do due diligence after the deal was signed, and how he wanted out of the deal if the due diligence turned up stuff he didn’t like. This is on May 8th, or two weeks after he signed the merger agreement in which he waived due diligence.
If you can’t see the above image, the texts state:
An extremely fundamental due diligence item is understanding exactly how Twitter confirms that 95% of their daily active users are both real people and not double-counted.
If that number is more like 50% or lower, which is what I would guess based on my feed, then they have been fundamentally misrepresenting the value of Twitter to advertisers and investors.
To be super clear, this deal moves forward if it passes due diligence, but obviously not if there are massive gaping holes.
That’s not how any of this works.
And, to be clear, Those texts came about half an hour after Musk texted the same guy to say he wanted to “slow down” the deal, as he was saying “it won’t make sense to buy Twitter if we’re heading into WW3.” Of course, by that point, he’d already committed.
So, anyway, there are multiple things to note about all this.
- His failure to turn over the texts is really bad. Not complying with discovery can come back to bite you.
- While the “slow down” texts were revealed in the hearing last week, it really confirms that Musk is trying to get out of the deal because of cold feet, and not for any of this nonsense about spam, something he came up with half an hour later as he realized he couldn’t just bail because of “WW3.”
- My goodness does he not understand anything. Not only does he not seem to understand that you do due diligence before you sign a merger agreement where you waive further due diligence, but he still seems to think that Twitter is claiming that 95% of their “daily active users” are “real people.” But, as we’ve explained over and over again (and surely, someone has explained to Musk), Twitter has never said that 95% of its daily active users are real people. Twitter has always made clear that the number they report, mDAU, is their estimate of “monetizable” daily active users, meaning that they already exclude bots/spam, etc. The 5% number is an estimate that is made after they already exclude all that other stuff, and hand-check a statistically significant sample to see if they missed some spam.
- What kind of fool thinks that, as the world’s richest man, with 100 million followers on Twitter, his own experience with his own feed is somehow representative of the service as a whole? I mean, I get that he’s not an empathetic kind of person, but seriously? Can’t he recognize that his personal experience is not the norm?
Honestly, this whole thing is quite incredible. Chancery Daily also notes that the formal nature and full sentences of the later texts (not to mention the 30 minute pause between the initial texts and the last one) at least would fit with a scenario in which Musk sends the “uh oh, WW3, slow down!” texts, then someone calls him and is like “dude, this is all discoverable in the inevitable lawsuit and you can’t get out ’cause of WW3” and so then Musk gets all fancy with his “due diligence” and “spam” nonsense.
The document also still suggests Musk is hiding texts from discovery, including Twitter noting an exchange between Musk and a banker, Robert Steel, in which it’s clear Steel is responding to texts from Musk, but those texts are not present.
You don’t need to be Sherlock Holmes to notice that a text message or two from Musk appears to be missing.
Anyway… while all that was going on, the Twitter shareholder vote on whether or not to approve the deal also happened. This has been in motion for a while, and if everything had gone according to plan (ha!) then this would have basically been one of the final steps before the deal actually closed. Now it’s just a thing in the background. And, yeah, the shareholders approved the deal. Because they’re not foolish and they know that’s the most likely way they’re going to get a payday of some sort.
So, in the end, the shareholders have approved the deal to sell Twitter to a guy who still doesn’t seem to understand that he signed a binding agreement to do so.
Filed Under: delaware chancery court, discovery, elon musk
Companies: twitter
from the law-enforcement-wisely-decides-to-not-argue-against-the-public’s-interests dept
In 2016, Arizona state senator John Kavanaugh tried to make it much more difficult to record police officers. He authored a bill that would create a 20-foot “no recording” zone around cops, supposedly in the interest of officer safety.
That bill went nowhere. It contained obvious First Amendment problems and reeked of protectionism that armed officers of the law do not need, much less deserve. The idea should have died forever, especially when public sentiment turned definitively against law enforcement, following the murder of unarmed black man, George Floyd, by white Minnesota police officer Derek Chauvin — a conviction that probably wouldn’t have been obtained without the assistance of a recording taken by Minnesota resident.
With that in mind — along with the apparent First Amendment issues — Kavanaugh went back to the “no recording” well again in 2021. This time, he trimmed down the diameter to eight feet, under the obviously mistaken assumption the First Amendment wouldn’t be troubled by this shorter length.
Here’s the excuse Kavanugh offered for his First Amendment Violation 2.0 bill:
Kavanagh, of course, argues that he’s just trying to prevent “violence and misunderstandings.”
He also told the Arizona Mirror that this is to prevent “the destruction of evidence and preventing police officers from harm.”
Despite there being no public demand for this legislation and despite its clear constitutional problems, the bill was signed into law by Governor Greg Ducey, who is apparently every bit as idiotic as those forwarding him this legislation.
In defense of his second assault on established rights, Sen. Kavanaugh offered up this defense in his op-ed published by AZ Central.
I agreed to run this bill because there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters. The Tucson police officers who asked me to run this bill said that in their area some of these people videotape from 1 to 2 feet behind them, even when they’re arresting people.
This statement makes it appear Arizona law enforcement supports this broadside attack on the First Amendment. Maybe some of them do. But the law was immediately challenged by a bunch of Arizona news agencies, along with the ACLU. The lawsuit seeking an injunction pointed out the obvious constitutional deficiencies.
That challenge has (at least temporarily) succeeded. A federal court has blocked the law until all the legal issues can be sorted out.
An Arizona law that would make it illegal to create video recordings of police in certain circumstances will not go into effect Sept. 24 as planned, after a federal judge temporarily blocked its enforcement.
The judge on Friday morning granted a temporary injunction of the law, essentially putting the law on hold while a court case challenging it plays out.
If you want precedent (specific to this district), you’ve got it, says the Arizona federal court in its decision [PDF]:
Under the first Winter factor, the moving party must show that it is likely to succeed on the merits. Here, Plaintiffs have done so. As Plaintiffs observe in their Motion, the Ninth Circuit has recognized that there is a “clearly established” right to “record law enforcement officers engaged in the exercise of their official duties in public places” under the First Amendment. Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018) (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing that an individual videorecording policing of protest was “exercising his First Amendment right to film matters of public interest.”)). The United States Supreme Court has also recognized a right to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Recording video of police officers performing their duties and distributing the video to the public is a news-gathering activity—it serves the Public’s First Amendment right to “receive information and ideas.” Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (citation omitted); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) (“the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”).
When a clearly established right meets a piece of boot-licking legislation, it’s the Constitution that almost always wins. That’s what the court foresees, hence the injunction.
Now, the injunction can be lifted if the Arizona government (in any and all of its forms) can convince the court this restriction is minimal, narrowly crafted to serve a legitimate government interest, and cannot be achieved without this law. Good luck with that. Despite state senator John Kavanaugh’s claims that law enforcement back his law, it appears no form of law enforcement in the state is willing to go to court to fight for the 8-foot law’s survival.
The lawsuit named Attorney General Mark Brnovich, Maricopa County Attorney Rachel Mitchell and Maricopa County Sheriff Paul Penzone as defendants. The AG’s office is almost always a defendant in litigation challenging state laws, while the Maricopa County officials will be tasked with enforcing the new law.
But Brnovich’s office on Sept. 1 told the court that it will not oppose the preliminary injunction.
The AG claims it’s “not the proper party” and will be informing legislators that they might need to mobilize county and city prosecutors to defend the law. That’s some fine buck-passing by a named defendant. But it shows the state AG does not believe the law is worth the expending its own resources to defend.
There’s no buck-passing here, however. Other law enforcement entities are flat-out uninterested in helping the state keep this bad law on the books.
[T]he next day, the Maricopa County Attorney’s Office said that neither it nor the Sheriff’s Office would defend the law or oppose the motion to block the law from going into effect.
And that’s coming from the curb-stompingest, rights-violatingest sheriff’s office in the nation.
Even the president of the state senate, Karen Fann, refused to say for sure whether the state itself would intervene in the lawsuit to save the law from being declared constitutionally dead.
“The executive branch’s role is to enforce and defend the laws passed by the Legislature and signed by the governor. We are currently considering all options and will not comment further on pending lawsuits,” she said through a spokeswoman.
If anyone should intervene, it’s the idiots who thought this was a good idea, starting with Senator John Kavanaugh. And if Governor Greg Ducey truly believed this law was necessary and actually lawful, he and his office should make an appearance in court to explain why the state government felt compelled to protect cops who don’t seem to feel they need this protection while undercutting the rights of Arizona citizens who were never asked directly if they thought cops should be shielded from additional accountability.
Filed Under: 1st amendment, arizona, free speech, recording police
from the good-deals-on-cool-stuff dept
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Filed Under: daily deal
from the failing-at-innovating dept
We’ve been writing a bit about the JCPA — the Journalism Competition and Preservation Act — the very bad bill from Senator Amy Klobuchar that would create all sorts of problems, from allowing news orgs to demand money for links (breaking the fundamental nature of how the web works), to creating a “must carry” provision that could force disinformation providers into Google News, to an underhanded method of trying to revamp copyright law, without ever admitting its revamping copyright law. We’ve explained all of these problems in previous posts.
Of course, the bill’s momentum was paused last week when Senator Ted Cruz used it as an opportunity to try to force in a “no moderation” rule, though apparently, if Klobuchar can cut a deal with others, it will return to markup tomorrow.
Either way, the main group lobbying for the bill, the News Media Alliance, the organization formerly known as the Newspaper Association of America (which has long been a mouthpiece for Rupert Murdoch’s dreams and wishes) has put out an absolutely bizarre paper attacking Google following the events of last week. I mean, there are plenty of legitimate things to yell at Google about, but the NMA is so focused on this belief that Google owes it money (because Google innovated while the NMA members sat back and watched their monopoly markets disappear out from under them), that it’s willing to undermine the interests of the actual journalists its members employ.
Specifically: the paper is an attack on fair use. This is interesting on multiple levels, starting with the fact that the supporters of the JCPA keep insisting that the JCPA doesn’t touch copyright law (even though it clearly does). But, equally ridiculous, is the fact that journalists rely on fair use all the time. These tired, flailing, legacy news organizations are so obsessed with Google they’re willing to shoot and kill provisions of copyright law that help them the most.
As set forth in this White Paper, many of Google’s current uses of news content likely exceed the
boundaries of fair use under the Copyright Act. Given that reality, Google should have to
negotiate an appropriate use-specific license with news publishers for each use of their content.
If they truly believe that, they should sue Google for copyright infringement, not push to get the JCPA passed. But they don’t believe it, because it’s laughable.
In a competitive market, news publishers would be able to resist Google’s demands by
withholding their content unless and until acceptable terms were negotiated. But as set forth
below, Google has so much power as the dominant online platform, with the ability to play one
publisher off the other, that it has been able to effectively secure acquiescence from the news
publishers for its activities, which often are harmful to publishers. At base, there has been a
market failure in the news publishers’ ability to exercise the rights granted to them under the
Copyright Act.
Look, I’ll make this very clear: if you’re relying on Google traffic for your news org, you’ve failed. You’re a bad publisher and you deserve to go out of business. I say that as a publisher that gets only a tiny fraction of our traffic from Google. Instead of relying on Google, we (and other smart news orgs) focus on building loyal audiences. Find your market, and build a community of people who go to you. Google traffic is just a bonus — a chance to convert new readers into long term community members.
But, of course, these old, flailing media organizations don’t know how to do that. They had years where they were actual monopolies: often the only game in town for local news, and they sat, fat and happy, collecting monopoly rents from local advertisers via classified ads.
Then the internet came along and the newspapers refused to innovate. They were still rolling in cash and mocked the internet. Until suddenly each piece of their monopoly got pealed off, bit by bit. And not by Google, but by the internet as a whole. Craigslist, eBay, Amazon, Nextdoor, Facebook, Airbnb, and many others picked off different parts of the old newspaper’s captive audience.
As we’ve said for years, the news business is a community business. And, for years, the newspaper was basically the only “community” offering for many people. But the internet disaggregated communities, and enabled tons of new communities. And, eventually, both users and advertisers realized there were better options — ones that treated them like valued members of a community, rather than looking down on them.
Newspapers could have adapted. Some did. Other publications have adapted as well.
But, many didn’t. And their response is to blame Google — and then jealously insist that a huge portion of Google’s revenue “belongs” to them. The JCPA and this nonsense white paper are both attempts to simply demand a wealth transfer from some of the companies that innovated and provided better tools for communities and advertisers… to those who didn’t.
That it’s being pushed by an organization that is really a mouthpiece for Rupert Murdoch should be a clear condemnation of Murdoch’s years of pretending that he supported the free market and fair competition, and that he was against government interference in the market. The JCPA is literally demanding government interfere in the marketplace, to seize money from successful companies to give it to those companies that didn’t even try to innovate.
The argument is nonsense for many reasons — including the fact that very little Google News screens show any ads at all. It’s not as if Google is raking in the cash. Second, all this does is send news orgs traffic and the fact that they can’t figure out how to monetize that traffic is on them, not Google.
The paper claims otherwise, but this is really a damning statement about themselves:
Google Search is increasingly becoming a “walled garden” — a final destination rather
than an electronic pointer to news websites. Google has again used its market dominant position
to force acquiescence to new features that diminish the chances that users will visit the news
websites.
First off, this is bullshit. If you’re talking about news, if whatever snippet Google shows is enough to satisfy readers not to click through then the news you’re providing doesn’t have much value. Good reporting isn’t fully summed up in a headline or a snippet. Those things make you click through.
What the NMA is really admitting here is that its members are shitty journalists who add so little value that no one needs to actually read their articles beyond the headline and a short snippet. What a bizarre thing to admit.
What’s hilarious is that on the very same page that it has that statement above about “walled gardens” the paper admits the exact opposite is true.
Google’s use of news publishers’ content does send substantial traffic to news publishers, but
Google is not fairly or appropriately compensating news publishers for the value of their
material, or properly treating the news industry as an important strategic partner. Instead, as set
forth in this White Paper, Google has misused its position as the dominant online platform to
reap the benefits of the news media’s substantial investments in reporting without paying a
license fee.
Who could possibly take this paper seriously when they’re admitting that their claims of the walled garden are full of shit.
On top of that, again, you don’t need a license to link. You just don’t. So this demand for “a license fee” makes no sense.
The paper’s attack on fair use is also quite troubling. It specifically insists that a seminal fair use decision, Google’s big win against Perfect 10, should no longer be considered good law.
What considerations led the Perfect 10 court to hold in 2007 that Google’s use of thumbnail
photographs in its search engine was fair? First, Google’s search engine was not seen as an
ultimate destination or publisher, but as merely as a tool or “pointer” providing direct access to
the original website containing the original copyrighted material – and hence a “transformative”
use. This was in keeping with Larry Page’s vision at the time; as he told an interviewer in 2004,
“We want to get you out of Google and to the right place as fast as possible.”3
Second, the court
did not see Google as heavily commercial. AdWords was still relatively nascent, and courts had
yet to fully appreciate the significance of search advertising. Further, the low-quality, grainy
thumbnail images in Google search results at that time were not viewed as a substitute for the
original image and had no independent aesthetic appeal. Critically, the court also did not
perceive a search engine as creating any market harm for the original publisher. Finally, the
court viewed Google’s indexing of the plaintiff’s images as “incidental” and found that Google
was acting in keeping with principles of good faith and fair dealing. At the core of its reasoning,
the court concluded that the goal of the Copyright Act was to incentivize the progress of science
and the arts, and that the public benefits of the search engine outweighed any minimal impact of
the use on the original website’s incentive to create.
Basically, all of that is wrong. Again, just a page earlier, this very paper admitted that Google sends substantial traffic to publishers. So, the first point still holds. The second point still holds for news as well. Google has no ads on Google News, and it is not a key part of Google’s commercial interests. And, third, the public benefit of being able to find news stories still stands.
And, again, more importantly, if the NMA and its members really believe this, go test it in court. Put up or shut up.
It’s amazing how much of this paper is a self own of just how bad the NMA members are at their jobs. I mean, this is the example they show of how Google News makes sure people don’t click through to news orgs’ actual stories:
That’s showing just a tiny snippet from seven different news orgs, but none of them tell anything even remotely close to a full story. If I saw that, I’d click through to find out the details.
I mean, it seems like what the NMA is really complaining about here is the fact that news consumers get to see multiple news orgs‘ version of the story, rather than being shunted to just one monopolistic local provider.
So sad, NMA, your members have to compete with each other. Boo fucking hoo.
And, again, the NMA’s own paper immediately admits that its concerns about the walled garden are bogus:
By the time the user views the full collection of articles in the “carousel” format, the user often
knows the high points of the news story. Although some news publishers get decent traffic from
the Google News app, in the view of many in the news industry the Google News app — with its
aggregation of content by topic, combined with high-quality photos, headlines, and snippets in
“carousels” — can satisfy the reader about the “news of the day” without ever having to click
through on any given story
Hey, NMA, maybe, rather than just demanding money from Google, you should talk to the news publishers who get “decent traffic from the Google News app” and figure out how they do it, rather than listening to the lazy ass publishers who provide so little value that the headline and snippet alone “can satisfy the reader about the ‘news of the day.’”
Anyway, the paper goes on and on, and makes clear two things over and over again:
NMA news orgs are shit at their jobs. They refuse to innovate. They refuse to try to build real community. They rely on Google for too much traffic rather than doing anything to build a loyal audience. They can’t figure out how to add enough value to the actual news that people care beyond the headline and a snippet.
Honestly, given all that, it seems like some of those news orgs should go out of business and clear space for organizations that actually serve a community.
Second: for all the many claims that the JCPA is not about copyright at all, this paper reveals that the NMA absolutely believes it’s about copyright. But, rather than test its laughable fair use theories in court, it’s convinced Amy Klobuchar to do an end run around copyright law, insisting that the JCPA has nothing to do with copyright, while still demanding licenses. Licenses are about copyright. Because fair use means you don’t need a license. That’s kind of fundamental.
Third: despite how much the NMA’s members all heavily rely on fair use themselves, they’re willing to burn it all down if it means that Congress will force Google to throw some spare change at them. It’s just sad.
This whole document is fairly pathetic. I mean, look, if I were running the NMA and my members were as pathetic as the NMA’s members apparently are, I guess I’d probably demand cash from Google too. But it doesn’t make it a good idea.
A smart NMA would be helping its members innovate. But, that would require actually doing work, and that’s not Rupert Murdoch’s style.
Filed Under: community, copyright, fair use, innovation, jcpa, journalism, traffic
Companies: google, news media alliance, nma
from the I’m-sorry-I-can’t-do-that,-Dave dept
During a heat wave last summer, some Texans were shocked to wake up and find that their local energy company had turned up their thermostats in the night to save energy. Houston locals weren’t exactly thrilled to wake up sweating in the night to the sound of dehydrated, crying infants.
As it turns out, consumers has participated in a “sweepstakes” that covertly enrolled them in a program named “Smart Savers Texas” operated by a company called EnergyHub. The fine print for that program effectively turned control of these folks’ smart thermostat to the utility company.
Of course, you wouldn’t need to trick users into giving up control of their thermostats using sweepstakes and mouseprint if the grid was capable of handling fluctuations. And the grid would be able to handle fluctuations if Texas utility regulators hadn’t spent the better part of the last decade fecklessly collapsing in the face of energy sector lobbying pressure time after time.
Last week, the same thing happened again in Colorado. 22,000 Denver residents suddenly found themselves locked out of their own smart thermostats during a heat wave and sweltering in 88 degree temperatures:
“I mean, it was 90 out, and it was right during the peak period,” Talarico said. “It was hot.”
That’s when he saw a message on the thermostat stating the temperature was locked due to an “energy emergency.”
“Normally, when we see a message like that, we’re able to override it,” Talarico said. “In this case, we weren’t. So, our thermostat was locked in at 78 or 79.”
On social media, dozens of Xcel customers complained of similar experiences — some reporting home temperatures as high as 88 degrees.
In this case, customers were enrolled in the Colorado AC Rewards program, which gives them a $100 credit for enrolling and $25 off their bill annually. But it also locks them out of their own thermostat during moments of grid crisis. And while enrolling in the program is voluntarily, it’s pretty clear from news reports that consumer didn’t really know what they were signing up for:
Talarico said he had no idea that he could be locked out of the thermostat. While he has solar panels and a smart thermostat to save energy, he says he did not sign up to have this much control taken away.
“To me, an emergency means there is, you know, life, limb, or, you know, some other danger out there — some, you know, massive wildfires,” Talarico said. “Even if it’s a once-in-a-blue-moon situation, it just doesn’t sit right with us to not be able to control our own thermostat in our house.”
If you somehow hadn’t noticed by now, climate change isn’t going to be pleasant. It’s going to be a continual parade of very dangerous life and death (or limb) situations. And it’s going to be getting exponentially worse, especially in central and Southern states (check out this recent map of the expected spike in consecutive 100 degree days if you haven’t yet).
It’s also going to require folks to make a significant number of concessions they won’t like if we want to, you know, survive. And mandatory systems like these may be part of that, since science, empathy, reason, sacrifice, and collaboration clearly aren’t modern Americans’ strong suits.
At the same time, it’s understandable that people want to control something they own. And a lot of these companies aren’t really making these programs completely clear to consumers, even if consumers may not have the greatest track record when it comes to actually paying attention to what they sign up for.
These are also the same utilities (and in many instances governments) that prioritized profits over infrastructure hardening and climate change mitigation measures for fifty fucking years, and would be more than happy to place the entire onus for adaptation on the backs of consumers and gimmicks, instead of developing more innovative, renewable, adaptive, and resilient energy solutions.
Filed Under: 100 degrees, climate change, colorado, heat waves, lost control, smart thermometers, texas, utilities
Companies: xcel
Source: techdirt.com
