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Billionaire Sheldon Adelson Is Trying To Use An Anti-SLAPP Law To Get Out Of Paying Anti-SLAPP Damages And It Ain't Working

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Billionaire casino mogul Sheldon Adelson has been known to be a bit litigious at times. Way back in 2015, when there was an effort underway to overturn Nevada's very good anti-SLAPP law, there was speculation that Adelson was behind the effort, due to him losing a case thanks to that law. It turns out that the remnants of that particular case are still going, despite dating all the way back to events in 2012. The issue involves the National Jewish Democratic Council posting a link concerning operations in Adelson's Macau casinos. The case went through a variety of different courts and was dismissed under Nevada's anti-SLAPP laws.But a variation on that case continued because when NJDC then sought compensatory and punitive damages for the original SLAPP suit, Adelson tried to flip the script and argued (among many other things) that the lawsuit against him for such damages was, itself, a SLAPP suit. Earlier this fall, the judge said that's not how any of this works.

Adelson next moves for dismissal under Nevada's anti-SLAPP law. He puckishly avers that his initial defamation suit even though it was dismissed as a SLAPP was itself protected conduct under the anti-SLAPP statute. He therefore argues that he is entitled to dismissal of this damages suit because it, too, qualifies as a SLAPP.[....]Under Adelson's reading of these two provisions, any anti-SLAPP damages action can itself qualify as a SLAPP if the previously dismissed SLAPP was a good faith communication i.e., if the previous suit was not objectively baseless. (Dkt. No. 30 at 6.) This interpretation of the statute, however, creates an oddity. It would be peculiar, to say the least, if Nevada wrote its anti-SLAPP statute to shield litigants who file SLAPPs from liability in a subsequent anti-SLAPP damages action. The twin aims of the statute are to protect defendants from litigation costs and to deter plaintiffs from bringing SLAPP claims. John, 219 P.3d at 1281. Those compensatory and deterrent purposes would be substantially undermined if the statute's damages provision applied only to the subset of SLAPP lawsuits that could be demonstrated to be objectively unreasonable or brought in subjective bad faith.
The court still explores this issue and then notes... sorry, Sheldon, that ain't gonna fly:
Adelson has not even attempted to meet his burden of production. For example, in order to establish that the communication was made in good faith, the movant must provide evidence that the communication was truthful or . . . made without knowledge of its falsehood. ... But Adelson has not provided any evidence whatsoever written or oral, by witnesses or affidavits, ... that the allegations in his initial lawsuit were truthful or brought without knowledge of their falsehood. Thus, Adelson has failed to demonstrate that his initial lawsuit was a good faith communication. Because he has failed this threshold showing, Adelson's special motion to dismiss is denied.
Adelson asked the court to reconsider this point, and a few days ago, the court again told Adelson that this is not how any of this works. Adelson tried to argue that he was held to a different standard when decrying this as a SLAPP suit than the folks on the other wide were held to when they called his original lawsuit a SLAPP suit. Part of the issue was that Nevada's anti-SLAPP law changed a bit between the first lawsuit and the latest one:
Adelson descries an inconsistency. But these holdings are easily reconciled. At the time of Adelson v. Harris, the Nevada statute provided only that the special motion to dismiss was to be [t]reat[ed] . . . as a motion for summary judgment.... Accordingly, the Court in Adelson v. Harris properly applied the summary-judgment standard to conclude that Adelson fail[ed] to demonstrate a genuine issue of material fact on the issue of good faith.... In 2013, however, the Nevada legislature removed the language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set forth a specific burden-shifting framework.... Under that framework, it is now the movant's initial burden to establish[], by a preponderance of the evidence, that the claim is based upon a good faith communication.... In this case, Adelson submitted no evidence whatsoever on the issue. Accordingly, Adelson failed to meet his burden, as required by the post-2013 statute, and his anti-SLAPP motion was properly denied.
In a footnote, the court also mocks Adelson trying to add "new facts" that were not brought up originally, and also points out that even if Adelson had met the burden described above, it still wouldn't have resulted in the case being dismissed, since the Plaintiffs had a legitimate claim for damages according to Nevada's anti-SLAPP law:
Further, as Plaintiffs correctly note, even if Adelson were deemed to have met his initial burden, he would still be disentitled to dismissal. The burden would then shift to Plaintiffs to demonstrate a probability of prevailing on the claim.... And because the sole precondition to prevailing on the claim for compensatory damages is the district court's grant of a special motion to dismiss, Plaintiffs would be able to do so.
While I doubt this case is anywhere close to over, despite all these years, it's looking increasingly like Adelson will, in fact, have to pay up.

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posted at: 12:00am on 21-Dec-2019
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Study: Hadopi Has Been Great For Big Artists And Labels, Bad For The Spread Of Culture And Smaller Or New Artists

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Hadopi, the French law built to punish copyright infringers in graduated steps, was always controversial. In addition to many in the public scoffing at the punishment ramp the law put on the public, the actual effects of the law have been murky at best. While Hadopi basically ceased to be in 2016, it is true that the French public has been trending towards less piracy and more legal practices in its wake. Always at question is exactly how direct a relationship that kind of trend has with laws like Hadopi. Studies have straddled both answers to that question, even as we all realize the truth, which is that the impact of laws like Hadopi is nuanced.Fortunately, the latest study looking back at when Hadopi was first introduced has a nicely nuanced output. The academic study by Ruben Savelkoul compared digital music sales across several European countries looking to answer two questions. First, did Hadopi actually correlate to increased digital music sales through its threat of enforcement? Second, how were those effects spread across the music industry landscape and how long-lasting were they?The answers are quite fascinating. As to the first question:

One of the main findings is that Hadopi had a positive effect on the sales of digital music tracks in France compared to the two control countries. This effect was the strongest for popular artists. In addition, the findings suggest that the effect of Hadopi on sales decreased over time, except for bigger artists.“The introduction of the Hadopi anti-piracy law in France had a positive effect on sales for all artists, superstars as well as artists lower in the sales distribution,” Savelkoul writes. “The effect is stronger for superstars, suggesting that smaller or niche artists gain exposure from illegal downloading, partly offsetting the negative substitution effect on sales,” he adds.
So, did Hadopi result in increased digital music sales? This study says "yes." However, the bulk beneficiaries of those increased sales were already massively popular artists. For the lesser known, or as of yet mostly undiscovered artists, the effect was low enough to have us question whether allowing for more piracy and discovery would have been even better. This gets to the heart of the modern copyright era. The entire point of copyright writ large is to promote more artistic creation and culture through limited monopolies on creations. The point of copyright is absolutely not to create a music industry monoculture where only a few artists get noticed and survive. Yet this study seems to show that's what Hadopi did.And how the culture creation cross-genre shook out after Hadopi tells an even worse story.
This leads to the second hypothesis tested by Savelkoul. Did the anti-piracy measures lead to a reduction in variation when it comes to music consumption? This indeed turned out to be the case.“We found that in the absence of piracy, consumers tend to concentrate more on genre and style,” Savelkoul writes.The researcher suggests that piracy makes it easier to discover newer music. As a result, people consume more different types of music. Stricter anti-piracy measures limit this effect and as a result music fans buy more ‘popular’ music.“In absence of the possibility to sample ‘adventurous’ music, consumers might not be willing to pay and purchase these music items to discover its quality and instead opt for ‘safer’ purchases, thus consuming less variety,” Savelkoul notes.
So, again, we find that the anti-piracy measures story is far more nuanced than some would like you to believe. The question is not: do you want artists to make money from their creations or not? Instead, the question appears to be: which do you care about more, famous artists being able to strictly control access to their content, or the larger spread of culture? Because if you answer the latter, it seems clear that anti-piracy measures like Hadopi work counter to that goal.Anyone that cares about art should understand that new, inventive, and foreign art adoption by consumers is absolutely preferred, full stop. The spread of art and culture is, in many respects, art's entire point. None of this is to say that we cannot have some form of copyright protection and enforcement that doesn't limit cultural spread, of course, but it is certainly to say that any anti-piracy measure that has the sort of effects that Hadopi had should be a complete nonstarter in the future.

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posted at: 12:00am on 21-Dec-2019
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