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Another Week, Another Hollywood Company Files A Takedown Against TorrentFreak

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The news site TorrentFreak tends to get more false DMCA copyright notices than other sites, in part because of its name. It seems that people who don't bother investigating anything jump to the wrong conclusion that because it has "Torrent" in its name, it must be a "piracy" site, rather than a news site that reports on news about copyright and filesharing. So last week, TorrentFreak got some attention after Starz not only sent a bogus DMCA takedown over a TorrentFreak news article about leaked TV shows, but then started DMCAing anyone who even tweeted that Starz was abusing the DMCA this way. Starz eventually admitted it had made a mistake and issued a pretty lame apology.You might think that others in Hollywood would at least pay a little attention to this sort of thing -- but apparently not. This weekend TorrentFreak reported that yet another tweet of yet another of its stories was removed due to a copyright claim -- this time from Warner Bros. Just like last time, where Starz utilized an awful third party service (The Social Element) to handle these takedowns, this time Warner Bros employed a company called Marketly, one of a few such companies who claim they're in the "brand protection" business and go around issuing often dubious takedowns.

The takedown notice, sent by Warner Bros' anti-piracy partner Marketly, accused us of posting a tweet that made computer program(s) available for copying through downloading, without permission of the copyright owner.We hereby give notice of these activities to you and request that you take expeditious action to remove or disable access to the material described above, and thereby prevent the illegal reproduction and distribution of this software via your company's network, the notice added.
Except that nothing in the tweet in question made a "computer program" available for copying. The tweet was pointing to a story from last month entitled Former Kinox.to & Movie4k.to Admin Freed, Tax Office Retrieves €1.75m:
While it is a story about former pirate streaming sites, you'd think it's the kind of story a company like Warner Bros. would like to keep up, as it talks about the operator of such a site going to prison and handing over a ton of money.I sent Marketly a bunch of questions regarding this takedown, and the company got back to me actually defending the takedown and insisting it was appropriate. The argument was that because Twitter automatically turns URLs into links, so the headline itself was "linking" to two pirate sites:
The hyperlinks Twitter inserted in TorrentFreak's tweet directed users to webpages that are infringing on Warner Bros. content causing Marketly to issue a notice as noted in TorrentFreak's article.
But that's questionable on multiple levels. First of all, no one is using those particular links to magically discover pirate websites. Second, they are still news articles, reporting on news about these sites, and the fact that those should be censored raises serious 1st Amendment questions. Third, even if those links do go to the sites, they are still not links directly to Warner Bros. infringing material. Instead, they are links to sites whereby people might find Warner Bros. infringing material. But that's also true of Google, YouTube, Facebook, Twitter itself and much, much more. Does Marketly take it upon itself to block links to those sites as well?The DMCA does let you block links to specifically infringing content, but not to entire sites across the board, yet Marketly (and apparently) Warner Bros., don't much seem to care about the specifics of the law. Like so many in Hollywood, the incorrect assumption they make is that if a site has some infringing material, then there's no problem with wiping out the entire site.

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posted at: 12:00am on 24-Apr-2019
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Good News From The EU For A Change: A Strong Directive To Protect Whistleblowers

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A lot of bad stuff has been coming out of the EU lately, notably the awful Copyright Directive with its upload filters. So it makes a pleasant change to report on the passing of strong legislation to protect whistleblowers revealing breaches of EU law, a move which the Pirate MEP Julia Reda describes as "One of the greatest successes of this mandate!". Its scope is wide. Areas covered include public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, and -- of particular interest to Techdirt readers -- privacy, data protection and security of networks and information systems. Two key components of the new directive are "safe reporting channels" and "safeguards against retaliation", as the European Parliament's press release explains:

To ensure potential whistle-blowers remain safe and that the information disclosed remains confidential, the new rules allow them to disclose information either internally to the legal entity concerned or directly to competent national authorities, as well as to relevant EU institutions, bodies, offices and agencies.In cases where no appropriate action was taken in response to the whistle-blower's initial report, or if they believe there is an imminent danger to the public interest or a risk of retaliation, the reporting person will still be protected if they choose to disclose information publicly.The law explicitly prohibits reprisals and introduces safeguards to prevent the whistle-blower from being suspended, demoted and intimidated or facing other forms of retaliation. Those assisting whistle-blowers, such as facilitators, colleagues, relatives are also protected.Member states must ensure whistle-blowers have access to comprehensive and independent information and advice on available procedures and remedies free-of-charge, as well as legal aid during proceedings. During legal proceedings, those reporting may also receive financial and psychological support.
There is now one final vote by EU ministers, expected to proceed without the drama that accompanied the similar vote for the Copyright Directive. Once passed, there will be a two-year period during which EU Member States need to implement the directive in their national legislation.The general consensus among activists in the digital sphere seems to be that the new directive is probably as good as it could be given the past resistance of some governments to the idea of protecting those who reveal their wrongdoing. It is particularly welcome against the background of the Copyright Directive's upload filters, which will create a convenient mechanism on the main Internet services for blocking documents obtained by whistleblowers. What we need now are the creation of more online sites that are not subject to the Copyright Directive -- because they are not for profit, for example -- willing to host material from whistleblowers encouraged to act by the legal protection afforded by the new EU directive.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 24-Apr-2019
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City Of Marathon Hand-Waves Stupid Cease And Desist Sent By Councilman Over City Seal

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Earlier this month, we were discussing the odd (read: stupid) campaign by a City Councilman for the City of Marathon in Florida to get his city to trademark the city seal. The whole thing was frustratingly stupid for all kinds of reasons. For starters, trademark law is very clear that municipal governments can't trademark their seals, full stop. Councilman Mark Senmartin wanted his own government to do something it couldn't legally do. Cool. The city seemed mostly unaware of this at the time, instead refusing to bow to Senmartin's demands since there had been virtually zero issues with people using the seal inappropriately elsewhere, with one minor issue during a local political campaign notwithstanding. And, to wrap the absurdity of it all in a nice little dumb bow, Senmartin proceeded to apply for the trademark himself and send his own city a cease and desist notice, apparently in an attempt to prove a point.That point appears not to have taken, however, as the City of Marathon has flicked the C&D off of its shoulders, having apparently educated itself on trademark law.

The Marathon City Council’s refusal on March 12 to canonize an official city seal led to Councilman Mark Senmartin applying to trademark the town’s logo with the state a week later. However, according to Marathon City Attorney David Migut, that won’t prevent the city from using the logo.Senmartin gave the city a 30-day cease-and-desist notice March 26 at a Marathon council meeting, but Migut said after researching the matter that state and federal law recognizes “first-to-use” rights regardless of a trademark application being filed. The city chose the logo during a design contest after incorporation in 1999 and began using it in 2000.Migut wrote in a memo to the council April 9 that first-use rights mean the city does not have to worry about the cease-and-desist notice. Migut also wrote that a municipal insignia cannot be registered as a trademark, according to state and federal law. He added that if the city wanted more enforcement power over use of the logo, it could adopt an ordinance. Thus far, three councilman have refused to pass such an ordinance.
It's enough to make you wonder if one of you fair folk simply sent Migut a copy of our post on the topic, because he basically tracks the arguments we made. I shudder to think what the reaction from Senmartin will be, given the brash displays of ignorance in the past, but hopefully this will now all go away. I also can't imagine he made many friends in the government of which he is a part, having tried to C&D his way to a point that never had any validity.Still, there's something refreshing in the age of ownership when a group so forcefully pushes back on the idea of trademarking all the things.

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posted at: 12:00am on 23-Apr-2019
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State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records

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How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.
Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force -- nine officers, most of them armed -- was followed by more shows of force. One officer in particular -- a board investigator -- was especially enthusiastic about ensuring Dr. Okorie didn't leave the premises or disrupt the search.
On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.
This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn't the extent of the investigator's abuse of his position.
Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.
The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn't act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there's a dearth of caselaw related to the Fourth Amendment and administrative searches.The Fifth Circuit Court notes that these cases are becoming more common -- suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn't a law enforcement agent, the cases haven't been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.The last case the Fifth Circuit examined dealing with these issues resulted in a win for the accused officer and a blistering statement from Judge Don Willett on the farce that is qualified immunity.
The court is right about Dr. Zadeh’s rights: They were violated.But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.[...]To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.
There's no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie's claims are valid. There was nothing about this search that justified the show of force by Dalton.
Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.[...]Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.
Even so, the lack of anything on point means Dalton can't be held accountable, seeing as he was the first to violate someone's rights in this particular manner.
As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.
Here's the silver lining: if any armed officer decides to violate someone's rights this way in the future during an administrative search… well, they've been duly warned.
Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.
That's the bright line. It's very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented "heightened security concerns." Careful with those "furtive movements," searchees.

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posted at: 12:00am on 23-Apr-2019
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