“Nobody Speak: Trials of the Free Press”: AFIDocs shows film about secret efforts to silence the established press; what about amateurs?

Nobody Speak: Trials of the Free Press”, by Brian Knappenberger, confronts us with the problem that the wealthiest classes may try to silence the established press by secretly bankrolling litigation, and by secret hostile takeovers of media outlets.

The film does focus on the Fourth Estate, the credentialed press, as such.  The viability of the Fifth (the amateur base) would make a subject for another documentary, I think, one that could focus on open access, for example.

The film focuses on two big events.

The first of these is the lawsuit Bollea vs. Gawker, by “Hulk Hogan” against Gawker media, and personally against several employees, for posting some of a private sex tape online.  Some employees were bankrupted personally and had assets frozen by judgment.  There is a scene where one younger male employee testifies (in Florida) flippantly about the idea of fictitious sex involving minors, an idea that helped bring down Milo Yiannopoulos this year, and affected a serious incident in 2005 when I worked as a substitute teacher, the details of which I have written about elsewhere.  It also had an indirect effect on the 2016 elections, which the film gets into in its second half.  A visit to today’s Gawker shell is well worth a visit and rather sobering.  I do wonder about situations where individual speakers could be effectively silenced by aggressive litigation and bargaining, but that is another topic.

An important concept in the suit was whether Bollea’s conduct, as a WWE public figure, was newsworthy and generated a higher standard of proof from the plaintiff.  This was technically a privacy case;  similar ideas occur with defamation.

About 40 minutes into the film, the documentary introduces the clandestine role of gay Silicon Valley billionaire Peter Thiel in bankrolling the suit, as revenge for his being outed in 2007 by Gawker. In one humorous scene Thiel stumbles as he calls Gawker “sociopathic”.  Thiel’s speech in Cleveland at the RNC is quoted, but I recall Thiel’s saying that the country (including LGBTQ people) has more pressing problems than bathroom bills. Indeed, Thiel has offered scholarships to young inventors to start businesses instead of finishing college.  One of these went to nuclear fusion power inventor Taylor Wilson, now 23, very much in the clean energy business (which Trump has sidestepped) but also new levels of port security.  (Sorry, some “inventors” do need to finish college:  Jack Andraka will have to finish medical school to become a cancer researcher;  both Wilson and Andraka would deserve their own documentary feature films, as Andraka especially fits into the open access debate). The film shows Thiel with a chessboard, and indeed he is an accomplished tournament competitor, preferring direct attacking openings starting with 1 e4 (as did Bobby Fischer); he could probably be a real challenge for Magnus Carlsen to beat.

But the film focuses on the fact that Thiel’s backing of the litigation occurred in secret for a while.  So we have powerful business people (even in the LGBTQ community) silencing forces that oppose them.  Trump is not the only one.  This happens on the Left as well as the Right.

For its last third, the film shifts its narrative to Las Vegas, and the clandestine purchase of the Las Vegas Review Journal by the family of self-made billionaire Sheldon Adelson who then reportedly influenced what would be published about high-roller developers.

The film covers Donald Trump’s particular vilification of the established media as an enemy.  His speech about opening up libel laws (to resemble those in England where the defendant has to prove truth) is quoted. Presumably Trump sees journalists as “watchers” or “spectators” who don’t put their own skin in the game;  but curiously, despite his reported disdain for computers, he loves Twitters and doesn’t seem to show the same disdain for journalists from smaller companies (like OAN) or independent bloggers.

The Journal Review I believe is the same paper that was involved with “copyright troll” Righhaven starting in 2010.  The law firm bought rights to articles from various smaller client newspapers (“champerty”) and then sued even low-level bloggers who allegedly violated copyright in various trivial ways.  At the time, there was a theory that bloggers were destroying small newspapers.  I’ve covered the development with a Blogger label here.  Note the coverage in the Journal Review and in Arstechnica.

Director QA (some technical problems with feedback):

Fact Sheet:

Name:  “Nobody Speak: Trials of the Free Press”
Director, writer:  Brian Knappenberger
Released:  2017
Format:  1.85:1
When and how viewed:  2017 AFI-Docs, Landmark E St, Washington, 2017/6/16, sold out
Length:  95
Rating:  PG-13 (?)
Companies:  Luminant, Submarine, Netflix
Link:  Luminant

(Picture: Mine, 2012 trip in Las Vegas;  2015, Tampa Bay, near the litigation site; 2016, NYC midtown)

A new (updated) Permission Seeker’s Guide for writers, artists, filmmakers

I recently received a sample legal guide by Joy R. Butler, “The Permission Seeker’s Guide Through the Legal Jungle”, with a long subtitle, “Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions”, second edition, published by Donohue.

When I wrote my first “Do Ask Do Tell” book in the mid 1990s, I considered the idea of formal rights clearance for quotes I wanted to use, and there is a whole legal infrastructure of law firms in New York and Los Angeles to do this.  But, as an entry self-publisher, I lacked the scale to do this.  So I simply kept my direct quotes short (editing them down at one step) and well within any reasonable implementation of Fair Use.  (I did consult with at least two attorneys, pro bono, one of them very high profile, familiar with the whole area of “don’t ask don’t tell” at the time.)

Joy’s handbook is general purpose in nature, intended to advise content originators ranging from independent bloggers and musicians to producers of independent films for the established festival and commercial marketplace.  In six parts and 29 chapters, its sections are written in straightforward prose and numbered as if a formal legal document.

I think an underlying problem is that there is an enormous range of purpose that people have when they create and publish media.  The most common motivation is profit and sales to consumers in the conventional economic sense. Much of the system around intellectual property law does presume that artists and writers may need to make a living and provide for others (families) off their work.  Much content is tied to publicly traded media companies who rightfully believe that they have a fiduciary responsibility to protect the property of their investors, sometimes encouraging litigation that on a smaller scale of common sense, may seem counter-productive and frivolous. At the other end, there are the self-made “pundits”, for want of better word, who may have wealth accumulated from other sources and who simply want to be known for their critical views, for example, of the results of our highly partisan politics.  They may not care about economic return the same way.  This sets up a lot of tension in the legal system.  At the other end, there are also “trolls”, in copyright, trademark and especially patent areas, who set themselves up as specialists in collecting legal penalties for others, rather like companies that buy bad debt to collect on it pennies to the dollar.

Some of the areas are of more direct concern than others.  I notice her comments in 14.1.2 about linking, deep linking, and framing (normally embedding videos).  It is true that in the early days of the WWW, some corporate content providers tried to require permission to link, especially deep link, to their content on rather poorly conceived theories of consumer confusion and illiteracy—but by 2000 or so, courts had established the idea that hyperlinks are essentially like attribution footnotes in a term paper or thesis.  Electronic Frontier Foundation has written that embeds are essentially just hyperlinks – but that begs the whole question of consumer perception and literacy (which would matter more to trademark and branding than any other area).  Generally, with YouTube embeds are quite simple.  If a video author allows embedding, presumably it is OK (from a copyright perspective) to embed it anyway.  If an original video was illegally pirated and posted, and then later embedded, usually Google takes the video down after getting a DMCA request and embed just stops working.  In some cases, video authors have not realized bloggers really do embed their videos, and mark them private when they discover this. It seems practically unheard of that the blogger gets sued for linking or embedding infringing material, but I suppose it could happen, if there was an aggressive troll looking for possible targets. I do think bloggers should pay attention to whether a source or video looks legitimate and legal before linking to them   For example, it is better to link to a video marked as posted by CNN than from a copy posted by someone else.  I do find that embeds disappear and when I check I discover that YouTube account has been terminated under a “3 strikes rule” for multiple copyright complaints, but there seem to be no consequences for the blogger.

Likewise, it is quite common for people to embed music videos on Facebook, Twitter, Google-Plus, and the like.  I do this a lot with classical music.  Sometimes these videos go dark from copyright claims.  I make it my own ethics policy to purchase a legitimate CD copy of a classical work I really want (like Rattle’s recent recording of a completed Bruckner Ninth) and particularly any substantial new work from any of several young classical composers whom I know personally (mostly in New York and LA).  In one or two cases, I have tried to urge artists I know to put their work up on Amazon for legitimate sale.

The author provides some useful discussion of whether or how recipes and detailed handbook instruction or lesson plans can be copyrighted. Generally, facts cannot be copyrighted.  Some television news outlets say that their stories cannot be “reproduced, redistributed or rewritten” but they cannot stop novices from re-reporting facts in their news stories and giving proper attribution (by links). She also discusses tattoos (and that would probably extend to temporary marks like DuoSkin). It would sound as if similar considerations would apply to chess openings and endgame problems (and similarly for other games, like Go, even card games like Poker).

I did not see discussion of Creative Commons issues (like using Wikipedia pictures).

Joy also provides description of how Section 230 and DMCA Safe Harbor work, similar in purpose (downstream liability shielding) for different problem areas – defamation-privacy-publicity vs. copyright.

I have read somewhere that it is possible to be held liable for linking to defamatory content, even if litigation for secondary linking seems to be very rare in practice. In fact, Joy mentions this possibility in 8.2.1 in discussing repetition in “communicating” a defamatory statement to the public, which need only be to one other person besides the subject (as in a Facebook account with full privacy turned on) to be viewed as “published” in the narrowest sense of the law.  The concepts of “per se” and “per quod” in defamation can be important.

Her discussion of music rights is interesting.  A composer in NYC once blogged that all composing involves some copying.  How many composers have been inspired by the way the Beethoven Ninth opens?

I generally am quite careful with posting video with much disco music in bars, because some music owners seem to be quite picky and trend to use trolls, and there is not a lot of value in hip-hop music that sounds so repetitious (my opinion, at least).  But I see people videotaping disco all the time when I go out.

In Section 13.3, she covers “citizen journalism” for some special topics, like photographing police activity and the First Amendment.  I think citizen journalism can raise some other issues ironically for lack of normal commercial purpose, a concept I heard a judge call “implicit content” in the COPA (Child Online Protection Act) trial that I attended in Philadelphia one day (as a sub-plaintiff) in late 2006.  That turned out to be important in at least one “online reputation” issue when I worked as a substitute teacher from 2004-2007, which I have covered elsewhere.  In an environment where the Internet is so easily misused (for cyberstalking, bullying, sex trafficking, and terror promotion) by less well-meaning users, some people in political power may see citizen journalism as gratuitous.  Ironically, as we know from the fake news (related to defamation), hacking and Clinton email problems, some of these issues had a shocking and major effect on the 2016 elections.

The book does cover the possibility of domain names, served up as first-come first served, conflicting with trademarks, and the ICANN domain dispute procedure does not always prevent trademark litigation (trademark dilution as a legal concept was strengthened by a law in 2005 under Bush).  Again, domain names are often set up for expressive purposes, which can come into conflict with other interests who want to use the same name to make money and employ people (even give them health insurance) with real profits.  Autarky actually means something in the content world to some people.

Author: Joy R. Butler
Title, Subtitle: “The Permission Seekers Guide Through the Legalm Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions”
publication date 2017, Second Edition (complimentary copy mailed to me for review)
ISBN 978-0-9672940-7-0
Publication: Donohue, 449 pages, paper, 29 chapters, indexed, numbered sections
Link: author blog

(Posted: Friday, June 16, 2017 at 3:45 PM EDT)

 

“Killswitch” examines overzealous government copyright enforcement and surveillance on Internet

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Name: Killswitch
Director, writer: Ali Akbarzadeh
Released:  2014
Format:  regular aspect, video film
When and how viewed: 2016/5/25, from distributor site (small $$), Vimeo
Companies: Akorn, CineCities
Link: official site and viewing window

Killswitch”, in 73 minutes, shows us how Internet freedom is attack from established legacy corporate interests and from gratuitous government surveillance and prosecutorial overreach, often as an indirect result of corporate lobbying.  The film summarizes, with some detail in biography, the accomplishments and perils of Aaron Swartz (ending in tragedy) and Edward Snowden, and focuses on three main interview subjects: Lawrence Lessig, Tim Wu, and Peter Ludlow.  It also chronicles the defeat of PIPA and SOPA (Stop On-line Piracy Act of 2011) by Swartz’s activism, which included shutting down Wikipedia and some other free sites for one day in January 2012 to make a point.

The film characterizes “the hacktivist” as a nerd who repurposes the Internet infrastructure for activism. It cites Twitter as the most adopted platform for politics, citing the Arab spring, but neglecting to mention the abuse by ISIS “recruiting”.

The aggressive action by government against some infringers, mostly concerning copyright and “piracy”, has been abetted by the Computer Fraud and Abuse Act of 1986.   The Act, as per the film, views violation of a providers TOS (“terms of service”) as a possibly prosecutable crime. (The Act may have been motivated by a sensational Hollywood sci-fi film “War Games” in 1982.)  I can recall a cyberbullying prosecution back around 2007 justified by violation of Myspace’s TOS, in pre-Facebook days.  The government has, most of all in the copyright-related cases, tended to prosecute people to make examples of them (most of all Swartz, by US Attorney Carmen Ortiz, who also would be involved in prosecuting Dzhohkar Tsarnaev (the film shows a clip of the Boston Marathon bombing to make an indirect point).  The film notes the career of former Senator Chris Dodd, who went to work for the MPAA.  I’ve always wondered if what Hollywood worries about is not so much direct piracy (really, do  people who can’t afford $15 premium 3-D tickets but watch pirated DVD’s affect their bottom line that much), but “amateur” competition, from films like this one, which can capture not so much consumer dollars as consumer time at home.  (Even Mark Cuban admitted that to me an email about his “Blogmaverick” one time.) The film hints that government harassment is a way to send a message to introverted people (mostly young men) who are “too smart” to deal with other people more conventionally.

The NSA surveillance issue is a bit of a different beast.  Here the film takes the position that the government is collecting so much information that it really can’t see the real threats, missing 9/11 and the Boston Marathon incident.

The name of the film suggests another concept not covered: the idea of an “Internet kill switch”, which a president could try to pull in a national security emergency.  I think there are real concerns that Donald Trump in particular might use such a facility, particularly to shut down user generated “amateur” content that doesn’t pay for itself.

The film does not seem to be available on Amazon or Netflix, but can be watched on Vimeo from the Website for $5 by credit card or Paypal.  The technical production values are quite impressive.

Related films include “The Internet’s Own Boy” (2014, Brian Knappenberger), “Deep Web” (2015, Alex Winter), “Citizenfour” (2014, Laura Poitras)  and “The Thread” (2015, Greg Barker), and Glenn Greenwald’s book “No Place to Hide” (2014).

(Reviewed: Wednesday, May 25, 2016 at 67 PM EDT)