Cathy Gellis

Sep 012018
 

This post originally appeared on Techdirt on 4/30/18.

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others’ speech or otherwise lawful activity, then it is not a good law.

The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.

But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.

In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.

Per the letter, federal courts have been increasingly “reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling.”

But under the CASE Act, these provisions would not apply. Instead

[L]egally unsophisticated defendants—the kind most often targeted by copyright trolls—are likely to find themselves bound by the judgments of a non-judicial body in faraway Washington, D.C., with few if any avenues for appeal. The statutory damages of up to $30,000 proposed in the CASE Act, while less than the $150,000 maximum in federal court, are still a daunting amount for many people in the U.S., more than high enough to coerce Internet users into paying settlements of $2,000–$8,000. Under the Act, a plaintiff engaged in copyright trolling would not need to show any evidence of actual harm in order to recover statutory damages. And unlike in the federal courts, statutory damages could be awarded under the CASE Act even for copyrights that are not registered with the Copyright Office before the alleged infringement began. This means that copyright trolls will be able to threaten home Internet users with life-altering damages—and profit from those threats—based on works with no commercial or artistic value.

And that’s not all:

Another troubling provision of the CASE Act would permit the Copyright Office to dispense with even the minimal procedural protections established in the bill for claims of $5,000 or less. These “smaller claims”—which are still at or above the largest allowed in small claims court in 21 states—could be decided by a single “Claims Officer” in a summary procedure on the slimmest of evidence, yet still produce judgments enforceable in federal court with no meaningful right of appeal.

Also:

[T] he federal courts are extremely cautious when granting default judgments, and regularly set them aside to avoid injustice to unsophisticated defendants. Nothing in the CASE Act requires the Copyright Office to show the same concern for the rights of defendants. At minimum, a requirement that small claims procedures cannot commence unless defendants affirmatively opt in to those procedures would give the Copyright Office an incentive to ensure that defendants’ procedural and substantive rights are upheld. A truly fair process will be attractive to both copyright holders and those accused of infringement.

The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.

It also gives would-be censors additional tools to chill their critics through the use of a new subpoena power administered through the Copyright Office, without sufficient due process built into the system to ensure that these subpoenas are not being used as a means of unjustly stripping speakers of their right to anonymous speech.

The CASE Act also gives the Copyright Office the authority to issue subpoenas for information about Internet subscribers. The safeguards for Internet users’ privacy established in the federal courts will not apply. In fact, the bill doesn’t even require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court.

EFF was joined on this letter by many other lawyers (including me) and experts who have worked to defend innocent people from unjust threats of litigation, in the hope that it can help pressure Congress not to give the green light to more of it.

Sep 012018
 

This post originally appeared on Techdirt on 4/23/18.

And now for the moment you’ve all been waiting for: a decision from the Ninth Circuit in the Monkey Selfie case.

Upshot: the case remains dismissed, and the defendants get to recover attorney fees for the appeal. There’s also relatively little to say on the copyright front. This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation anyone, but PETA in particular, might want to bring on behalf of animals.

First, the court skewers PETA over the quality of its “friendship” with Naruto, casting significant side-eye towards PETA’s apparent settlement of the lawsuit, which led to its attempt to dismiss the appeal, while at the same time leaving some question as to whether Naruto himself was down with this settlement and plan to dismiss his appeal. From footnote 3:

We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey- selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by ChiefJustice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). See infra page 9 for exact language.

But repudiating PETA’s “next friend” standing doesn’t end the inquiry. There is a 2004 case from the Ninth Circuit, Cetacean Community v. Bush, which established the precedent that animals might be able to sue for themselves, even without a “next friend” to do the suing for them. The court decides it has to defer to that precedent, although so reluctantly as to undermine its persuasive effect in future cases.

Reaching that conclusion didn’t end the inquiry, however. Cetacean Community means that animals might be theoretically able to sue for themselves in the Ninth Circuit, but it doesn’t mean they will necessarily have a viable claim. To figure out whether they do, we have to look at the applicable statute, which in this case is the Copyright Act. And here the court concludes that Naruto, being a monkey, has no standing to sue for copyright infringement.

Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” Id. § 203(a)(2)(A). The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court’s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.

So there you go. Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved. We may now go about our lives confident in the knowledge that they cannot, at least not in the Ninth Circuit.

Sep 012018
 

This post originally appeared on Techdirt on 4/17/18.

Over the weekend Trump tweeted:

 

If you can’t read that it says:

 

Attorney Client privilege is now a thing of the past. I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned!

 

Attorney-client privilege is indeed a serious thing. It is inherently woven into the Sixth Amendment’s right to counsel. That right to counsel is a right to effective counsel. Effective counsel depends on candor by the client. That candor in turn depends on clients being confident that their communications seeking counsel will be confidential. If, however, a client has to fear the government obtaining those communications then their ability to speak openly with their lawyer will be chilled. But without that openness, their lawyers will not be able to effectively advocate for them. Thus the Sixth Amendment requires that attorney-client communications – those communications made in the furtherance of seeking legal counsel – be privileged from government (or other third party) view. Continue reading »

Sep 012018
 

This post originally appeared on Techdirt on 4/13/18.

In today’s fast-paced news cycle it’s easy to overlook the important things: the copyright status of the monkey selfie.

Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.

It cited several other cases as analogs. As in Albers v. Eli Lily, “this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that ‘the investment of public resources already devoted to this litigation will have some return.'” Furthermore, as was the case in Ford v. Strickland, “a decision in this developing area of the law would help guide the lower courts.”

Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from “manipulating precedent in a way that suits their institutional preferences.”

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.” Suntharalinkam v. Keisler, 506 F.3d 822, 828 (9th Cir. 2007) (en banc) (Kozinski, J., dissenting from the denial of rehearing).

In other words, enough of this procedural monkey business. The appeal remains a live matter, and at some point the court will presumably substantively rule on it.

Sep 012018
 

This post originally appeared on Techdirt on 4/4/18.

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states’ ability to right the wrongs that misuse of the DMCA’s censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows. Continue reading »

Sep 012018
 

This post originally appeared on Techdirt on 3/23/18.

Last week the Tenth Circuit refused to let New Mexico’s anti-SLAPP statute be used in federal court in diversity cases. The relatively good news about the decision is that it is premised heavily on the specific language of New Mexico’s statute and may not be easily extensible to other states’ anti-SLAPP laws. This focus on the specific language is also why, as the decision acknowledges, it is inconsistent with holdings in other circuits, such as the Ninth. But the bad news is that the decision still takes the teeth out of New Mexico’s statute and will invite those who would abuse judicial process in order to chill speech to bring actions that can get into the New Mexico federal courts. Continue reading »

Sep 012018
 

This post originally appeared on Techdirt on 3/22/18.

Hold on tight to those memories of all the good things the Internet has brought. SESTA has just passed the Senate, and at this point it’s a clear legislative path to undermining Section 230, the law that has enabled all those good things the Internet has offered.

It is not entirely Facebook’s fault: opportunists from Hollywood saw it as a chance to weaken the innovation that weakens their antiquated grip over people’s creativity. Ill-informed celebrities, who understood absolutely nothing about the cause they professed to advocate for, pressed their bumper-sticker demands that something be done, even though that something is destructive to the very cause the bumper-stickers were for. Willfully ignorant members of Congress then bought into the bumper-sticker rhetoric, despite all the evidence they had about how destructive this law would be to those interests and online speech generally.

Even frequent innovation ally Senator Wyden joined the chorus mounting against the tech industry, lending credence to the idea that when it came to a law that would undermine the Internet, the Internet had it coming.

With all due respect, that criticism is not fair. Setting aside that many of these companies didn’t even exist twenty years ago, we have never before lived in a world where we could all talk to each other. It makes no sense to punish the people who have enabled this gift simply because we haven’t quite figured out how best to manage it. We are but toddlers in Internet time, and just as we would not crush a toddler’s ability to learn to do better, it makes no sense to punish today’s Internet service providers, or future innovators, or speakers, simply because figuring out how to handle the promise of this global interconnectivity is hard. We cannot let the reactionary antipathy against Facebook mask difficult issues that need to be carefully teased apart before applying regulatory “solutions.”

But when we tally the score on whose fault today is, plenty can still be laid at Facebook’s door. Again, not all of its current troubles are necessarily of its own making: in addition to being square in the eye of the worst growing pains that computer-mediated communication can offer, it has also been misused, and even potentially illegally manipulated, by bad actors keen to exploit the inherent vulnerabilities presented by this shift from a world of physical scarcity to a world of digital plenty. Meanwhile doctoral theses in organizational theory could be written about the challenges faced by large companies, especially those that have grown so quickly, in reacting to the challenges their success has invited. In other words, we need to separate which expectations of the company are reasonable from those that are not necessarily fair to expect from an enterprise pioneering a new business that could not have even existed just a few years ago.

Yet while much of what Facebook does should be viewed charitably, it is not beyond criticism. To say it is like a bull in a china shop would be unfair to bulls, who at least seem to have some awareness of the chaos they leave in their wake as they throw their weight around. Whereas Facebook seems to have little insight into just what it is that it does, where it lives in the Internet ecosystem, and who is in there with it. As it blunders about, stoking outrage that makes people too upset to see the need for nuance in regulatory response, it also interferes with those advocating for that nuanced regulatory response. It is becoming very hard to trust Facebook as a partner in addressing the complex issues its business choices raise when the company itself seems to lack any coherent understanding of what those choices are. After all, what exactly is the business of Facebook? Is it to aggregate data, or to connect people and intermediate their speech? Or something else? These competing agendas antagonize users and cloud the regulatory waters, leading to overreactions like SESTA that end up hurting everyone. The bitter irony of SESTA, of course, is that it only punishes the good things Facebook does—the being a global platform facilitating speech and interpersonal connections around the world—that benefit our lives, and not those that give us pause. But it also makes sure that no one else will be able to come along and perform any of these functions any better.

Furthermore, it should not be forgotten that, as a matter of politics, Facebook allowed this regulatory travesty to happen. Its shocking endorsement of these dysfunctional policies undermined the resistance that the speakers and innovators were trying to mount against these policies that so that threaten them. Facebook may be foolish enough to believe it can endure the regulatory shift SESTA will bring, but even if it were correct, no one else can. Not even Facebook’s own users.

Today is a sad day for the future and all the speech, innovation, and interconnectivity we were counting on to help us confront the challenges of living together in this increasingly small world. There is plenty of blame to go around, but the oblivious insularity of one of the biggest actors in the policy space is a deserving recipient of much of it. Not only was it a lightning rod for regulatory outrage, not entirely undeservedly, but it then greased the skids for the worst of it, indifferent to the effects on others. It will surely suffer from its choices, but so will everyone else.

Sep 012018
 

This post originally appeared on Techdirt 3/16/18.

It’s become quite fashionable these days to gripe about the Internet. Even some of its staunchest allies in Congress have been getting cranky. Naturally there are going to be growing pains as humanity adapts to the unprecedented ability for billions of people to communicate with each other easily, cheaply, and immediately for the first time in world history. But this communications revolution has also brought some extraordinary benefits that we glibly risk when we forget about them and instead only focus the challenges. This glass is way more than half full but, if we’re not careful to protect it, soon it will be empty.

As we’ve been talking about a lot recently, working its way through Congress is a bill, SESTA/FOSTA, so fixated on perceived problems with the Internet (even though there’s no evidence that these are problems the Internet itself caused) that it threatens the ability of the Internet to deliver its benefits, including those that would better provide tools to deal with some of those perceived problems, if not outright make those same problems worse by taking away the Internet’s ability to help. But it won’t be the last such bill, as long as the regulatory pile-on intending to disable the Internet is allowed to proceed unchecked.

As the saying too often goes, you don’t know what you’ve got till it’s gone. But this time let’s not wait to lose it; let’s take the opportunity to appreciate all the good the Internet has given us, so we can hold on tight to it and resist efforts to take it away.

Towards that end, we want to encourage the sharing and collection of examples of how the Internet has made the world better: how it made it better for everyone, and how it even just made it better for you, and whether it made things better for good, or for even just one moment in one day when the Internet enabled some connection, discovery, or opportunity that could not have happened without it. It is unlikely that this list could be exhaustive: the Internet delivers its benefits too frequently and often too seamlessly to easily recognize them all. But that’s why it’s all the more important to go through the exercise of reflecting on as many as we can, because once they become less frequent and less seamless they will be much easier to miss and much harder to get back.

Sep 012018
 

This post originally appeared on Techdirt on 2/27/18.

Lately I’ve been enjoying watching re-runs of Rowan & Martin’s Laugh-In. It’s somewhat reassuring to watch a previous generation get through a period of political angst as we go through this current one, especially as there are quite a few parallels that can be drawn. Continue reading »

Sep 012018
 

This post originally appeared on Techdirt on 2/26/18.

These days a lot of people are upset with Facebook, along with many other of its fellow big Internet companies. Being upset with these companies can make it tempting to try to punish them with regulation that might hurt them. But it does no good to punish them with regulation that will end up hurting everyone – including you.

Yet that’s what the bill Congress is about to vote on will do. SESTA (or sometimes SESTA-FOSTA) would make changes that reduce the effectiveness of Section 230 of the Communications Decency Act. While a change to this law would certainly hurt the Facebooks of the world, it is not just the Facebooks that should care. You should too, and here’s why.

Section 230 is a federal statute that says that people who use the Internet are responsible for how they use it—but only those people are, and not those who provide the services that make it possible for people to use the Internet in the first place. The reason it’s important to have this law is because so many people – hundreds, thousands, millions, if not billions of people – use these services to say or do so many things on the Internet. Of course, the reality is, sometimes people use these Internet services to say or do dumb, awful, or even criminal things, and naturally we have lots of laws to punish these dumb, awful, or criminal things. But think about what it would mean for Internet service providers if all those laws that punish bad ways people use the Internet could be directed at them. Even for big companies like Facebook it would be impossibly expensive to have to defend themselves every time someone used their services in these unfortunate ways. Section 230 means that they don’t have to, and that they can remain focused on providing Internet services for all the hundreds, thousands, millions, if not billions of people – including people like you – who use their services in good ways.

If, however, Section 230 stops effectively protecting these service providers, then they will have to start limiting how people can use their services because it will be too expensive to risk letting anyone use their services in potentially wrongful ways. And because it’s not possible for Internet service providers to correctly and accurately filter the sheer volume of content they intermediate, they will end up having to limit too much good content in order to make sure they don’t end up in trouble for having limited too little of the bad.

This inevitable censorship should matter to you even if you are not a Facebook user, because it won’t just be Facebook that will be forced to censor how you use the Internet. Ever bought or sold something on line? Rented an apartment? Posted or watched a video? Found anything useful through a search engine? Your ability to speak, learn, buy, sell, complain, organize, or do anything else online depends on Internet services being able to depend on Section 230 to let you. It isn’t just the big commercial services like Facebook who need Section 230, but Internet service providers of all sorts of shapes and sizes, including broadband ISPs, email providers, online marketplaces, consumer review sites, fan forums, online publications that host user comments… Section 230 even enables non-commercial sites like Wikipedia. As a giant collection of information other people have provided, if Section 230’s protection evaporates, then so will Wikipedia’s ability to provide this valuable resource.

Diminishing Section 230’s protection also not only affects your ability to use existing Internet services, but new ones too. There’s a reason so many Internet companies are based in the United States, where Section 230 has made it safe for start-ups to develop innovative services without fear of crippling liability, and then grow into successful businesses employing thousands. Particularly if you dislike Facebook you should fear a future without Section 230: big companies can afford to take some lumps, but without Section 230’s protection good luck ever getting a new service that’s any better.

And that’s not all: weakening Section 230 not only hurts you by hurting Internet service providers; it also hurts you directly. Think about emails you forward. Comment threads you allow on Facebook posts. Tweets you retweet. These are all activities Section 230 can protect. After all, you’re not the person who wrote the original emails, comments, or tweets, so why should you get in trouble if the original author said or did something dumb, awful, or even criminal in those emails, comments, or tweets? Section 230 makes many of the ordinary ways you use the Internet possible, but without it all bets are off.