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The Lawsuit That Could Change Video Embedding As We Know It

Over at Ars Technica, Tim Lee brings news of a disturbing lawsuit, now supported by the Motion Picture Association of America, that could set a legal precedent that embedding copyright video, rather than hosting it, counts as copyright infringement:

“Although there is nothing inherently insidious about embedded links, this technique is very commonly used to operate infringing internet video sites,” the organization writes. “Pirate sites can offer extensive libraries of popular copyrighted content without any hosting costs to store content, bandwidth costs to deliver the content, and of course licensing costs to legitimately acquire the content.” The MPAA also notes that embedding can enable sites to monetize infringing content by surrounding it with ads…

Numerous websites embed content from third parties they have not personally inspected. Under the theory articulated by Grady, and supported by the MPAA, these websites would be responsible for this content, exactly as if they had stored it on their own servers. This could create a serious disincentive for sites to allow users to post embedded content, hampering the convenience and user-friendliness of the Web

I, and the rest of my colleagues at ThinkProgress (not to mention our peers elsewhere on the internet), would have to dramatically reassess the way we do business, were this precedent to become law. Embedding is an elegant tool for journalists, and a great convenience for readers. It lets us write posts and stories that have a neat flow to them, framing a piece of content, letting the reader consume that content, and then move on to our analysis all without forcing them to click away, perhaps never to return. Sure, it keeps people on our site and lets us make money, but it’s also a convenience for the reader that provides a coherent consumption experience.

If this legal precedent is established, it would create a hugely complex situation. There’s a lot of content that the copyright holders would like to see widely embedded and distributed, whether it’s move trailers, music videos, campaign ads that no one actually intends to spend money to air but they would like to be seen, speeches, etc. That desire isn’t going to disappear if a new legal regime governing embeds comes in place. And that creates a terrific problem for both people who want their content embedded and those of us who need to embed a wide variety of content to do our jobs. Given the huge amount of content out there, and the large number of vectors through which it’s made available, it’ll be extremely difficult to comply with a new regime if there’s no clear way to tell if the content’s licit or not. And without that clarity, media outlets might be less willing to distribute even licit content if they can’t clearly document its provenance. That skittishness could prevent transmedia campaigns like the Peter Weyland TED Talk that’s being used to promote Ridley Scott’s Prometheus, where video is meant to appear sui generis rather than clearly coming from a studio, from taking off, which would be a loss both for the content producers themselves, and for the people who would enjoy that content if it was distributed to them.

Given the fuzzy, burdensome precedent this lawsuit could set, I’d like to see the clear numbers that explain why the potential use of embedding for intentional copyright violation is so harmful that it justifies upending the legitimate use of embedding for the rest of us.

Disbarred Arpaio Ally Andrew Thomas Compares Self To ‘Gandhi’ And ‘Dr. King’

Earlier this week, a three-judge disciplinary panel stripped former Maricopa County Attorney Andrew Thomas of his license to practice law after Thomas launched unjustified prosecutions against his political enemies. Prior to his fall from grace, Thomas was a top ally to anti-immigrant Maricopa County Sheriff Joe Arpaio.

At a press conference following his disbarment, Thomas was far from contrite:

“Other men, far greater than I, have gone to jail in defense of principles they believed in and so they would not kowtow to a corrupt ruler,” Thomas said at one point. “People like Gandhi, people like Dr. King, people like Solzhenitsyn, people like Thomas More, people who stood for something….and I’m going to stand firm.”

“Gandhi?” wondered one onlooker in amazement.

Watch it:

Sheriff Arpaio Defends Former County Attorney: MyFoxPHOENIX.com

For the record, Gandhi freed a nation from colonial oppression through a campaign of non-violence. Dr. King stared down angry mobs and jailers to bring out Constitution’s promise of equality to all Americans. Solzhenitsyn was imprisoned in a Soviet labor camp for daring to criticize Josef Stalin. Thomas More was executed by decapitation because he refused to abandon his religious beliefs. Andrew Thomas abused his power for personal political gain.

One of these things is not like the others.

[HT: Kyrsten Sinema]

NEWS FLASH

Two More Companies — Including Candymaker Mars, Inc. — Sever Ties With ALEC | The American Legislative Exchange Council, a right-wing corporate front group that helped passed “stand your ground” laws and voter suppression initiatives in states across the country, lost two more member companies. In an email sent to Color of Change, a progressive group organizing the petition against ALEC, Mars, Inc., the maker of M&M’s and Snickers, announced that they have “decided not to renew the ALEC membership in 2012.” Arizona’s largest energy company, Arizona Public Service, has severed ties with ALEC as well. Following pressure from progressives, a host of other companies announced they would no longer contribute to ALEC in the past two weeks, including Coca Cola, Pepsi Co, Intuit, Kraft, the Bill & Melinda Gates Foundation and Wendy’s.

VA Speaker And Ex-ALEC Chair Berates Woman — ‘I’m Not Speaking In Little Enough Words For You To Understand’

Virginia House Speaker William Howell (R)

Virginia House Speaker William Howell (R)

ProgressVA recently released a report on the legislative influence of the corporate-funded American Legislative Exchange Council (ALEC) — which began hemorrhaging donors in the wake of a campaign raising awareness of its efforts to disenfranchise voters and enact Florida-style “stand your ground” laws. The group noted that the Commonwealth of Virginia has spent $232,000 of taxpayer’s dollars over the past decade to send legislators to ALEC conferences and meetings.

Virginia House Speaker William Howell (R), himself a national board member of ALEC and its 2009 national chairman, took issue with the report and called it “inaccurate.”

In an exchange caught on camera, Howell berates the group’s executive director Anna Scholl, mocking the group’s website and her. Howell criticizes the Washington Post’s article about the group’s as “full of half-truths or un-truths.”

In a failed attempt to back up his accusation, Howell notes that while the Commonwealth paid about $230,000 on ALEC-related expenses, it spent even more on travel for the same and other legislators to attend conferences by the bipartisan National Conference of State Legislators.

When by Scholl pressed as to how omission of that irrelevant detail constituted an inaccuracy, Howell berated her:

I guess I’m not speaking in little enough words for you to understand.

When Scholl responded to the slight, telling him “I’m a smart girl, actually I went to the University of Virginia,” more than capable of understanding polysyllabic words. Howell curtly replied, “We’ll good for you.”

Watch the video:

On a day when Republicans desperately are trying to play down their “war on women,” this apparent sexism by the man who presided over and backed House passage of a forced trans-vaginal ultrasound bill so extreme that even Gov. Bob McDonnell (R) wouldn’t support, hardly helps their cause.

Update

The Farm Team, a group whose goal is “to recruit, support and elect Democratic women to ALL levels of elected office in the Commonwealth of Virginia” released a statement in response to Howell’s comments:

Speaker Howell, the women of Virginia understand lots of big, multiple syllable words, like discrimination, trans-vaginal probe, and denial of preventative health care services. Your comment to Anna Scholl belittles every woman in the Commonwealth, including your wife, your daughters-in-law and grand-daughters.. We deserve and expect better. On behalf of 51 percent of Virginia’s population, we hope that you apologize to Anna Scholl. It is the very least you can do.

Pennsylvania’s Voter ID Law Adds The Amish To The Long List Of Voters Harmed By Voter ID

State Sen. Mike Folmer (R) supported Pennsylvania's voter ID law but has concerns about how it will impact Amish voters.

In March, Pennsylvania became the first state in 2012 to enact a voter ID law. It could have a disastrous impact on the 700,000 Pennsylvanians who currently lack photo ID, but it also harm those who still need an ID to vote but object to having their picture taken for religious reasons, like the Amish and Mennonite communities. They can use a nonphoto ID to vote, but only after completing an interrogation about their faith, according to the Associated Press:

The first item on PennDOT’s form asks applicants to “describe your religion.” It is followed by more questions that devout followers might struggle to answer, and some that inquire about the lives of family members.

How many members are there of your religion?

How many congregations?

What’s the process by which you came to the religion?

What religious practices do you observe?

Do other family members hold the same religious beliefs?

Submitting that form, once notarized, is not enough. Applicants must fill out another form.

If they lack proof of identification, yet another form must be completed before a nonphoto ID is issued. The ID is valid for four years, and the renewal process is simpler.

Going through this process is essential if those who hold religious objections to being photographed want to vote. Anyone who wants to vote must show identification in the November election.

Now, even state senators who supported the voter ID law are concerned about the extensive questionnaire that people who object to being photographed because of their faith must answer. State Sen. Mike Folmer (R) said it seems intrusive and questioned why that much information is needed. “They are going to be keeping them from the polls, keeping American citizens from the polls,” he said. “That’s what I’m concerned about.”

While many Amish and Mennonite people do not vote, those who do vote tend to vote for Republicans. But Republicans have led the charge across the U.S. to enact voter ID laws in an effort to disenfranchise groups of voters like groups, such as college students, low-income voters, and minorities. PennDOT reports that it has issued about 4,000 nonphoto IDs to Amish people, but there are about 61,000 Amish who live in the state. And it is doubtful more Amish will want to go through the arduous process to get a nonphoto ID simply to vote.

Ironically, this new hurdle to Amish voters was erected while many Republicans also insist that the Obama Administration is attacking religious freedom through new federal regulations that require employer-provided health insurance plans to cover contraception. It’s difficult to square the GOP’s claims about religious liberty with the impact of voter ID on specific faiths. Pennsylvania’s voter ID law requires certain people of faith to take additional steps simply to exercise their constitutional right to vote.

Most Americans Expect Health Care Ruling To Be Based On Politics, Not Law

Recently, President Obama raised the ire of conservatives when he claimed the Supreme Court would be practicing judicial activism if they struck down the health care law, despite a long record of Republican presidents railing against so-called activist judges without a similar backlash. If a new survey is any indication, the President is not the only one worried about a politicized Court.

A new Washington Post-ABC News poll released today found that most Americans expect the Supreme Court to decide the health care law’s constitutionality based on politics, not law. Fully half of Americans expect the Court will rule based on “partisan political views,” while 40 percent expect a ruling based on the legal merits of the law. As the survey notes, this view isn’t just held by supporters of the law:

The public’s perception of the court is closely tied to partisan and ideological leanings. Almost twice as many conservative Republicans think the court will decide on the basis of the law rather than politics, 58 to 33 percent. Liberal Democrats are more skeptical, saying by an equally wide margin that the court will put politics first.

Just over half of political independents think the court will base its ruling on partisan predispositions. This includes similar numbers of independents who support and oppose the health law.

The Supreme Court has made several decisions over the past few years which completely ignored decades of precedent. This probably explains why earlier surveys have found that fewer Americans view the Court positively than ever before. It is also worth nothing that this is not the first survey which showed Americans were skeptical of how the Court would rule on the health care law.

The Affordable Care Act is supported by nearly 200 years of precedent, which should make this an easy case. During oral arguments, however, the justices seemed more concerned with whether they agreed with the law then whether it is constitutional. One justice in particular parroted several Republican talking points during the arguments.

-Zachary Bernstein

NEWS FLASH

Connecticut Legislature Votes To Repeal Death Penalty | The Connecticut house voted 86-62 yesterday to repeal the death penalty in that state, at least in future cases. The bill already passed the state senate and Gov. Dannel P. Malloy (D) is expected to sign it. Unfortunately, the bill does not benefit the eleven men who are currently on death row in Connecticut and, unlike most states, the governor of Connecticut does not have the authority to commute these men’s sentences to life in prison.

Meet The Romney Campaign’s Anti-Women Surrogates

Yesterday, Democratic strategist and CAP Action board member Hilary Rosen — a partner in a PR firm who has no role in the Obama campaign — said on CNN that Ann Romney has “never worked a day in her life.” Almost immediately, the Romney campaign falsely labeled Rosen an “Obama adviser” and demanded the Obama campaign distance itself from this non-advisor. The Obama Campaign swiftly responded that Rosen’s comments were “inappropriate and offensive.”

Now that President Obama has distanced himself from this fake advisor’s statement, it’s time for Mitt Romney to show his commitment to women’s rights by also distancing himself from actual members of his campaign who’ve disrespected women or women’s rights. Unlike Rosen, these anti-woman Romney supporters are official advisors to Romney’s campaign or top campaign surrogates that Romney has proudly shared a stage with:

  • Donald Trump: The flamboyant reality show star is “a top Mitt Romney surrogate” according to Politico’s Mike Allen. Trump recorded robo-calls supporting Romney in primary states and he participated in “a ton of talk radio for Romney in Michigan, Arizona and Ohio.” Trump also has a long history of sexism, including telling the male contestants on his reality show to “rate the women” contestants on how sexually attractive they are. Calling TV personality Rosie O’Donnell a “big, fat pig” and an “animal,” after she criticized Trump. And, just this month, offering to expose his “very, very impress[ive]” penis to a top woman attorney. The top Romney surrogate, however, is also quite unfazed by criticism of his sexism. As he told Esquire in 1991, “it doesn’t really matter what [the media] write as long as you’ve got a young and beautiful piece of [expletive].”
  • Bay Buchanan: Yesterday, in an attempt to overcome Romney’s weak poll numbers with women voters, the Romney campaign hosted Bay Buchanan on a press call as an official campaign surrogate. Bay, the sister of disgraced former TV pundit Pat Buchanan, has a long history of opposition to women’s rights. In a 2003 speech on the “four failures” of feminism, Bay Buchanan claimed that women are being “sold a bill of goods” when they pursue careers instead of having children, and she compared modern women to “alleycats” with respect to sex.
  • Robert Bork: Former judge and failed Supreme Court nominee Robert Bork is the co-chair of Romney’s “Judicial Advisory Committee.” Bork opposed the Civil Rights Act of 1964, which bans employment and other discrimination against women, calling the idea that laws can require private companies to cease discriminating a “principle of unsurpassed ugliness.” More recently, the top Romney legal advisor mocked the very idea that gender discrimination even exists. In Bork’s words, “[i]t seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

Mitt Romney either believes that women who claim gender discrimination are “silly” or he does not. He either believes that women who express their sexuality are “alleycats,” or he does not. And he either believes that it is acceptable for one of his campaign’s top surrogates to offer to expose his genitals, or he does not. If the Obama campaign needs to disassociate himself from its non-advisor, than the least Romney can do is prove that he does not think women like Lilly Ledbetter are silly by abandoning his campaign’s most sexist advisors and surrogates.

NRA Drops $200K Against Republican Dick Lugar After Lugar Supports Sotomayor and Kagan

NRA Website Banner

NRA "Defeat Lugar" Website Banner

With a fiercely contested May 8 primary looming, the National Rifle Association’s Political Victory Fund (NRA-PVF) is making a big investment in support of Indiana Treasurer Richard Mourdock (R) in his efforts to unseat sixth-term U.S. Sen. Richard “Dick” Lugar (R). The group has so far reported $199,058.19 in expenditures for their new pro-Mourdock, anti-Lugar campaign — and they may well spend more. But while the gun-rights group’s attack ads say Lugar has “changed,” it appears that it is actually the NRA that has shifted its priorities – from legislative dominance to judicial control.

With a new website, television ad, and radio spot, the NRA-PVF highlights what it terms Lugar’s “anti-gun record.” The 30-second TV spot says:

Some things shouldn’t change. Our Indiana values, stewardship of the land, and the protection of our Second Amendment and hunting rights. But over his 36 years in Washington, Dick Lugar HAS changed. He’s become the only Republican candidate in Indiana with an F-rating from the NRA. It’s time for another change. Time to elect a senator who will protect our rights. Time to elect Richard Murdouck for Senate.

Watch the video:

The radio ad is more explicit with the group’s grievances, claiming that Lugar voted for gun bans, a hunting ban, and to confirm “both of Barack Obama’s anti-gun nominees to the Supreme Court.”

But Lugar’s record of supporting some gun-safety legislation is hardly a change. He voted Brady Bill and the assault weapons ban in 1993. He even ran a TV ad during his unsuccessful 1996 presidential run highlighting his assault weapons vote, explaining “being a conservative doesn’t mean you have to lose your common sense.” His 1994 NRA score was 50 percent and his lifetime NRA score as of 2000 was a C-.

In recent years, Lugar has actually cast several key votes with gun rights advocates, backing a 2009 amendment to allow Amtrak riders to check their guns on trains and 2004 and 2005 bills to shield gun manufacturers from liability and lawsuits. In 2006, the Gun Owners of America gave Lugar a 100 percent rating.

Now the NRA gives Lugar an “F,” which it says means he is a “true enemy of gun owners’ rights,” and “a consistent anti-gun candidate who always opposes gun owners’ rights and/or actively leads anti-gun legislative efforts, or sponsors anti-gun legislation.” Why did they sour on Lugar even as backed a number of gun lobby priorities? It appears that it isn’t Dick Lugar whose changed, but rather the NRA itself.

The top complaint on the anti-Lugar website is: “He voted to confirm both Elena Kagan, and Sonya Sotomayor to the Supreme Court, one of only four Republican Senators to vote for both. (Vote 262, 8/6/2009, and Vote 229, 8/5/2010).” Yet, prior to the Obama administration, the NRA had never jumped into a Supreme Court nomination battle. The group came out against Sotomayor’s confirmation and announced it would count the vote on its legislative scorecard. Some reports suggested that Sen. Mitch McConnell (R-KY) and the Senate Republican leadership pushed the NRA to score the vote. The group similarly opposed and scored the 2010 confirmation of Kagan. Both were confirmed easily, despite the NRA’s efforts.

So rather than really being about his record on legislation, the NRA-PVF appears to be punishing Sen. Lugar for not giving it a veto over judicial nominations — and betting that a Sen. Mourdock would.

Ultimately, however, it’s not clear how many potential judicial nominees could ever satisfy the NRA’s absurd standards — in its brief history in the business of judicial politics, the NRA has routinely opposed nominees who did nothing more than refuse to ignore binding legal precedents that the NRA doesn’t like. In other words, lawmakers who support judges who faithfully follow the law could be subject to the same attacks that Lugar now faces, while supporters of conservative judicial activism will get off scot free.

Justiceline: April 12, 2012

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice.

  • Sen. Dean Heller (R-NV) confirms that he is blocking a federal judicial nominee because she would not misrepresent the law in a way that benefits the NRA.
  • A federal court in Louisiana orders several people striken from the state’s sex offender registry because it was unconstitutional to require such registration after they violated the state’s anti-gay law against “crime[s] against nature by solicitation.”
  • The Third Circuit will decide whether the First Amendment still applies to students who wore “I (heart) boobies!” bracelets in support of a cure for breast cancer.
  • Missouri House Republicans rewrite a description of a voter suppression ballot initiative for the second time after a judge rules their previous attempt invalid.
  • Adam Liptak explains how out of touch our criminal justice system has become in the Michigan Law Review:

    If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

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