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This Week In Techdirt History: October 18th - 24th

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Five Years AgoThis week in 2015, the FBI was seriously dragging its heels on a FOIA request we filed, while we were looking at a recent terrorist bust by the agency that didn't seem to be very hampered by people "going dark", and Apple was in court fighting against demands that it unlock a phone. We took a look at how cable television is the exception to a pattern of decreasing prices for tech hardware and services, while the cable industry was still trying to explain how cord-cutting wasn't a real problem. And Tim Berners-Lee was speaking out about Facebook's plan to bastardize the internet with a limited free offering.Ten Years AgoThis week in 2010, there were a lot of shots fired in the legal war over commenters, with Google being ordered to turn over the IP addresses of YouTube commenters in one case just as a Canadian cop was filing another case with a similar demand, and a Broadway actor was also suing Twitter to unmask an anonymous tweeter — though perhaps the most fiery anger towards anonymity was from Gene Simmons who... wanted the nebulous online group Anonymous thrown in jail. Blizzard was employing a dubious copyright theory to go after cheat creators, an English heritage organization was making a beyond-dubious claim that it holds effective copyright on any and all photos of Stonehenge, and Joe DiMaggio's estate was trying to block the use of a photo of DiMaggio and Marilyn Monroe with a threat that seemed like it might turn into a battle over questionable publicity rights — something we generally expected to fuel a growing category of IP trolling. There were developments in a few major copyright lawsuits too, with Righthaven losing to fair use in the first ruling to come down on its operation, the Golan case being appealed to the Supreme Court, and Viacom busting out the big guns for its YouTube appeal by hiring former solicitor general Ted Olson.Fifteen Years AgoThis week in 2005, the booming world of blogs was facing its first big spam crisis, while traditional news publishers were beginning to come to terms with how deeply they needed to rethink their operations for the internet. India joined the list of countries getting scared about Google Earth, though a tragedy in Pakistan was demonstrating how satellite images can be a good thing. Viral video makers JibJab were being awfully hypocritical about fair use and apparently failing to properly understand what it's for, while Craigslist was disappointingly fighting against scrapers and aggregators. And two of the biggest and most controversial internet names of the era were teaming up as Michael Robertson hired DVD Jon to hack for him.

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posted at: 12:00am on 25-Oct-2020
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Tom Lehrer, Still Awesome, Releases Lyrics Into The Public Domain

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Back in 2014 we had a post about Tom Lehrer and copyright. As you hopefully know, Lehrer, the unassuming retired math teacher, had a brief and massively successful music career, in part because all of his work is amazing. Years back, Buzzfeed had a fantastic article about Lehrer that is worth reading. That's what spurred my post about Lehrer and copyright, because in the Buzzfeed piece it became clear that Lehrer did not care one bit about retaining his copyrights.

While Lehrer has made startlingly little effort to ensure a future for his work, a handful of superfans have filled in the gap. One is Erik Meyn, a Norwegian who manages the Tom Lehrer Wisdom Channel on YouTube, a feed of performance videos and playlists that has received more than 10 million views since 2007. Meyn originally posted content to the channel without Lehrer's permission and called him from overseas in December 2008 to apologize, a conversation he later posted on the Tom Lehrer! Facebook page. An excerpt:
TL: Well, you see, I'm fine with that channel.EM: You're very kind. But my question is: Who in your family will take care of your copyright and your songs in the distant future?TL: I don't have a family.EM: OK, but what do you think will happen to the channel and your songs? And if you have someone who will act on your behalf, could you give them my name in case they'd want the channel taken down?TL: Yes, but there's no need to remove that channel.EM: I was just wondering what will happen in the future, because you're certainly going to continue to sell records.TL: Well, I don't need to make money after I'm dead. These things will be taken care of.EM: I feel like I gave away some of your songs to public domain without even asking you, and that wasn't very nice of me.TL: But I'm fine with that, you know.EM: Will you establish any kind of foundation or charity or something like that?TL: No, I won't. They're mostly rip-offs.
And then later, Lehrer talks about how he doesn't even care about his masters any more:
In 2011, Morris was rummaging through the Sparks Street basement, and alongside the collection of books and records Lehrer referred to as his Noel Coward shrine were two boxes marked masters. They were, to Morris, the holy grail. These were the original recordings of the 1959 album More Songs by Tom Lehrer: the orchestral session and outtakes and Lehrer's recordings. Morris offered to help Lehrer remix them from half-inch tapes into stereo recordings.Well, why don't you just take them with you? Lehrer said.I was like, 'Are you kidding?! These are the master copies!' Morris recalled. I was just trying to reassure him, I'll be very careful with them, I won't let them fall in the wrong hands, I'm not going to distribute copies to anyone without your permission.I don't care! Lehrer told him. They're not worth anything to me.
Lehrer clearly sees that he doesn't need to retain the copyrights and try to squeeze extra profits out of the works (of course, it helps that he never gave up the copyrights and masters to giant record companies). And I loved the fact that he said he was "fine with that" when told that his songs were given away to the public domain.Of course, all of that is just talk in an article. Which is why it was exciting to see earlier this week that Lehrer's website has announced that all of his lyrics should be considered in the public domain:
I, Tom Lehrer, and the Tom Lehrer Trust 2000, hereby grant the following permission:All the lyrics on this website, whether published or unpublished, copyrighted or uncopyrighted, may be downloaded and used in any manner whatsoever, without requiring any further permission from me or any payment to me or to anyone else.Some lyrics written by Tom Lehrer to copyrighted music by others are included herein, but of course such music may not be used without permission of the copyright owners. (The translated songs may be found in their original languages on YouTube.)In other words, all the lyrics herein should be treated as though they were in the public domain.In particular, permission is hereby granted to anyone to set any of these lyrics to their own music and publish or perform their versions without fear of legal action.
If you want to be technical, under US law there is no "official" way to move things into the public domain like this. You can only make an effective license not to sue about it, which is what Lehrer has done. And good for him.And while at this time it's just his lyrics, it sounds like he's looking to figure out how to do something similar for the compositions as well:
This permission applies only to the lyrics on this website. Most of the music written by Tom Lehrer will be added gradually later with further disclaimers.
Of course, it's notable that at the time he made most of his recordings, you could only get a federal copyright for the composition and not the sound recordings. Some later recordings, however were released in the 2000s (and sometimes by other companies) and I imagine the copyright situation with those recordings may be a bit more complex. Still, putting the lyrics in the public domain is something worth celebrating.And, thus, in celebration, I'll embed Tom Lehrer performing "Who's Next?" in the hopes that other musicians will embrace this (even though the song is actually about who will next get the nuclear bomb).


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posted at: 12:00am on 24-Oct-2020
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Content Moderation Case Studies: Facebook Removes Militia Event Following A Shooting (August 2020)

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Summary: Following the shooting of Black man Jacob Blake by Kenosha police officers, protests erupted in the Wisconsin town.As law enforcement attempted to rein in the damage, citizens aligning themselves with private "militias" discussed taking action during the civil unrest.Some of this organizing began on Facebook. A Facebook "event" created by the Kenosha Guard account (and promoted by conspiracy theorist/far right website Infowars) possibly caught the eye of 17-year-old Kyle Rittenhouse. Rittenhouse traveled from his home in Antioch, Illinois with his weapons to the protest/riot occurring less than 30 minutes away in Kenosha, Wisconsin. Before the night was through, Rittenhouse had killed two residents and injured one other.Facebook finally removed the "event" posted by the Kenosha Guard account -- one the account referred to as a "call to arms." Posts by the group asked "patriots" to "take up arms" against "evil thugs." The event was deemed a violation of Facebook's policy regarding "Dangerous Individuals and Organizations." Facebook also claimed it could find no link between the account and this event and Kyle Rittenhouse.Some viewed this response by Facebook as too little too late. Someone had already apparently heeded the call to "take up arms" and had taken people's lives. According to a report by BuzzFeed, the event had been reported 455 times before Facebook removed it. Four moderators had responded to multiple flaggings with a determination that the event (and the account behind it) did not violate Facebook's rules. During an internal meeting with moderators, CEO Mark Zuckerberg admitted the company should have reacted sooner to reports about the event.Decisions to be made by Facebook:

  • Should moderators be given more leeway to remove events/accounts/pages (at least temporarily) that have generated hundreds of complaints, even if they don't immediately appear to violate policies?
  • Would a better/more transparent appeal process allow moderators to make more judgment calls that might address issues like this more expediently by allowing them to make mistakes that can be undone if no violation occurred?
  • How does the addition of more forms of content to the "unwanted" list complicate moderation efforts?
Questions and policy implications to consider:
  • Does the seemingly constant addition of new forms of content to "banned" lists invite closer government inspection or regulation?
  • Is a perceived failure to react quickly enough an impetus for change within the company?
  • Are policies in place to allow for judgment calls by moderators? If so, do they encourage erring on the side of caution or overblocking?
  • Does taking credit for actions not actually performed by Facebook make it appear more focused on serving its own interests, rather than its users or public safety in general?
Resolution: The event flagged by hundreds of users was ultimately removed but not by Facebook, as was earlier reported. The group that posted the event took it down following the shooting in Kenosha. The company appears to realize this delay may have contributed to events that unfolded in Kenosha and has put policies in place to make things clearer for moderators.

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posted at: 12:00am on 24-Oct-2020
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Appeals Court Reinstates Injunction Blocking Federal Agents From Assaulting Portland Journalists

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The city of Portland, Oregon is still in the midst of anti-police brutality protests stemming from the killing of Minneapolis resident George Floyd by police officer Derek Chauvin. Federal officers arrived in Portland in July, making their presence known by engaging some extremely questionable tactics.Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds' excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer "irreparable harm" if officers weren't allowed to assault members of the press and other non-protesters. The emergency stay of the district court's injunction was granted.The Appeals Court has now fully addressed the government's arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment -- not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.The Appeals Court [PDF] says a lot of what the government is asserting simply isn't true. There's ample evidence showing federal officers deliberately targeted journalists and observers.

The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them. The court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once.
The plaintiffs' arguments clearly aren't speculative. Actual harm has been shown. And, given the fact federal officers did this repeatedly despite the district court's injunction, there's every reason to believe they will continue to do so.The court also points out the government's claims that its officers' actions against journalists were not retaliatory is clearly bullshit. The Appeals Court says federal officers engaged in retaliatory actions repeatedly. Referring to evidence submitted to the district court, the Appeals Court highlights four acts of retaliation by federal officers.
On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.
That's only four incidents. The district court listed at least forty-five similar instances -- all of which occurred after the government had been hit with an injunction banning it from engaging in this behavior. The lower court also stated it was "clear" there were more instances that weren't detailed in its decision.The Appeals Court says the press has the same right to access the general public does. It can record officers' actions from public streets and sidewalks. The press certainly does not have less access than protesters, which was the government's argument. The Appeals Court says dispersing the press from these areas is not essential to protecting the government's interests.And the government's interests -- as far as Portland goes -- are very limited. The government gives the court no reason why its task of defending federal property requires it to remove press and observers from public areas away from this property or deliberately target press with crowd control weapons.Finally, the Appeals Court again notes local law enforcement had no problem abiding by the restraining order, even though its jurisdiction covered far more than federal buildings. Every argument the government raised in defense of it assaulting journalists is undercut by the agreement struck between press members and the Portland Police. The feds should have no problem abiding by the injunction, the Appeals Court says.
By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interferingwith the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowd-control devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim.
The stay is lifted. The injunction secured three months ago is back in effect. If recent history is any indication of future performance, it will soon be violated by federal agents still in Portland. But if they do violate it deliberately, they won't be given the benefit of a doubt. Qualified immunity will not apply.

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posted at: 12:00am on 23-Oct-2020
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