The plaintiff, Kai Eiselein of Idaho, posted the photo to Flickr back in 2009. You can see it here. It shows a female soccer player with a ball apparently hitting her head. BuzzFeed ran a compilation called “The 30 Funniest Header Faces,” which included the photo in question. The compilation has now become the “The 29 Funniest Header Faces“.

Industry watcher Jeff John Roberts at PaidContent shares the complaint:

As noted in the complaint, “A copyright notice appears on each page where the photograph appears, along with the phrase ‘All rights reserved’. In addition, right clicking on the image brings up a copyright notice.”

“The photograph was registered with the United States Copyright Office on June 25, 2011 as part of a collection of photographs taken by the plaintiff,” it says.

While the complaint says that the plaintiff sent BuzzFeed a takedown notice, and that the photograph then “disappeared from the collection,” it also says that BuzzFeed failed to remove the image from its server, so it was still available via URL. It also asserts that BuzzFeed is responsible for 61 “contributory infringements” because of other sites that picked up the image after seeing it on BuzzFeed. SItes are listed in the complaint.

BuzzFeed has historically claimed fair use on things like this, suggesting that its compilations are transformative.

The complaint makes points to say that BuzzFeed has millions of monthly visitors and “uses this fact to help convince potential advertisers to place ads on the BuzzFeed site in hopes that the ad will get a ‘viral lift’ from the content being shared and reach a wider audience,” that it “actively encourages its users to share content, regardless of whether or not that content is owned by, or licensed to, BuzzFeed,” that the plaintiff is “an award winning photographer,” and that Getty Images had requested the image in question for licensing.

“The plaintiff feels the marketability of the image has been irretrievably damaged by the scope of the infringement and has not agreed to Getty’s request,” it says.

It’s also worth noting that the BuzzFeed compilation does not link to or credit any of the image sources. One has to wonder if a suit would have been pursued had this been the case, or even if BuzzFeed simply removed the image from its server after receiving a takedown request.

Either way, some are skeptical about Eiselein’s case. Roberts, for example, writes, “It’s unlikely that the self-represented photographer ‘contributory infringement’ theory will succeed on a legal basis,” but adds, “If he does, the case would throw a large chill over the sharing culture that has become a fixture of the social web. More likely, the case will just show once again how traditional copyright law — and its frequently abused enforcement tools — is ill-fitted for the digital age.”

Andrew Beaujon at Poynter points to comments from copyright attorney (and Verge managing editor) Nilay Ptel, who said, “the common etiquette of the Internet is not reflected in the law.”

Beaujon adds, “That inconvenience may for once be to BuzzFeed’s advantage.”

It will be interesting to see what comes of this case, as it could have some pretty big ramifications for not only how BuzzFeed operates, but for how many sites on the web do.

This also comes at a time when Google is making publishers think they should probably not be using stock photos if they want to rank in search.

Another question to remand to the future historians – what’s the deal with the NSA’s recently revealed phone data collection program? Massive invasion of privacy? A necessary, albeit heavy-handed tactic in the ongoing fight against terrorists?

I don’t know. I have opinions, but I don’t know. One thing I do know is that June 12th, 2013 will always be remembered as the day one defense attorney first turned the tables on the NSA’s no-longer-secret surveillance program.

This is beautiful, really. Marshall Dore Louis, attorney for Florida’s Terrance Brown, has decided to use recent revelations to his avantage. “Oh, NSA, I hear you’re spying on all of our phone calls. Well, how bout you let me see what you found so I can prove my client’s innocence”* – or something like that.

According to the Sun-Sentinel, Brown is one of five men accused of robbing a series of armored trucks making cash deliveries to banks a few years ago. The prosecution has been using phone records to prove that the men were all nearby when the robberies occurred.

Well, the only problem is that prosecutors have been unable to obtain records for Brown during the period before September, 2010 (when at least one of the robberies took place). You see, Brown’s carrier, MetroPCS, simply doesn’t keep records that far back.

But wait a minute. Louis says he wants those records to exonerate his client by proving he was nowhere near the area of the robbery at Lighthouse Point in July, 2010.

“Who has extensive phone records on American citizens? Aha! The NSA of course! I just heard about that on the news.”**

“The president of the United States has recognized this program has been ongoing since 2006…to gather the phone numbers [and related information] of everybody including my client in 2010,” Louis said.***

He has a point. Imagine if this ploy actually worked. Seriously. Imagine it. Imagine lawyers all over the country asking the NSA to help prove their clients’ innocence.

Imagine the NSA laughing and saying no. That’s a lot easier to imagine, I guess.

————

* I don’t know what Mr. Louis was thinking. This is what I would have been thinking.
** Once again, I assume he must’ve had this train of thought. Just go with it, please.
*** He really said that – in court on Wednesday.

[Image via gadgetdan, Flickr]

Bin Laden was killed on May 2nd, 2011 and President Barack Obama revealed shortly thereafter that the death photos would not be released.

“The risks of release outweigh the benefits,” Obama said at the time. “Conspiracy theorists around the world will just claim the photos are doctored anyway, and there is a real risk that releasing the photos will only serve to inflame public opinion in the Middle East.”

“Imagine how the American people would react if Al Qaida killed one of our troops or military leaders, and put photos of the body on the internet,” he added. “Osama bin Laden is not a trophy – he is dead and let’s now focus on continuing the fight until Al Qaida has been eliminated.”

In January, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in the case, which stems from a Freedom of Information Act (FOIA) request made by the group Judicial Watch. The group appealed the decision of a U.S. District court, which ruled that the images could harm national security. The group had said in a brief:

Specifically, Defendants have failed to provide any evidence that all 52 images, including those depicting bin Laden’s burial at sea, pertain to “foreign activities of the United States.” Defendants also have failed to provide any evidence that images depicting the burial at sea actually pertain to “intelligence activities.” Nor have they demonstrated that the release of images of a somber, dignified burial at sea reasonably could be expected to cause identifiable or describable exceptionally grave damage to national security.

The U.S. Justice department said there were obvious “sensitivities” with the situation, and that releasing the images could lead to violence against Americans.

Reuters reports that the court ruled today that the risk of violence is indeed a justification to keep the images classified.

There are some fakes out there, however, easily found with a Google image search.

Should a Facebook “like” be considered free speech, and protected under the First Amendment? Let us know what you think in the comments.

Carter appealed the decision, and Facebook stepped in to argue that a like is free speech in the same way that a political bumper sticker is. Facebook filed a brief in Carter’s defense, saying, “When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment.”

“The district court’s holding that ”liking’’ a Facebook page is insufficient speech to merit constitutional protection’ because it does not ‘involve actual statements,’ J.A. 1159, betrays amisunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent,” the company continued. “Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.”

“When Carter clicked the Like button on the Facebook Page entitled ‘Jim Adams for Hampton Sheriff,’ the words ‘Jim Adams for Hampton Sheriff’ and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, J.A. 570, 578 – the 21st-century equivalent of a front-yard campaign sign,” Facebook continued. “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.”

The debate certainly has large ramifications for not only practices on Facebook, but on the Internet at large, which as we all know, has become very, very social.

This week, a panel of three judges in Richmond, Virginia heard the case, and Facebook once again stepped up to defend Carter, though really it’s a defense of Facebook users in general. It can’t be good for Facebook if people start becoming afraid of what they can or cannot say on Facebook. Some people have even talked about leaving the social network because they don’t allow pictures of breasts. More censorship can’t be good for user growth.

According to a report from Bloomberg’s Tom Schoenberg, Facebook lawyer Aaron Panner told the judges, “Any suggestion that such communication has less than full constitutional protection would result in chilling the very valued means for communication the Internet has made possible.”

The company was reportedly given three minutes of argument time, and the judges refrained from asking Facebook any questions. The report also shares some quotes about Facebook “likes” from Robers’ lawyer:

“It’s like opening a door into a room,” Rosen, of Pender & Coward PC in Virginia Beach, Virginia, said. “You can’t see what’s in there until you click on the button. That’s not speech.”

“Facebook has 3 billion ‘like’ clicks a day,” he said. “Is each one of those speech? I don’t think so.”

As far as Facebook and many others are concerned, yes, each one of those is free speech.

At the same time, Roberts is claiming that the Facebook activity is not even the reason Carter (along with other employees) was fired, and that performance was the real reason. Still, the subject of the Facebook “like” remains the hot button issue, and has been argued throughout the case.

What do you think? Should a Facebook “like” be considered free speech, or do you not consider a “like” to be an act of speech at all? Let us know what you think in the comments.

Yahoo announced the news with the following statement:

Yahoo! Inc. today announced that the Superior Court of Justice for the Federal District in Mexico has granted the company’s appeal and reversed the ruling of the 49th Civil Court of Mexico, which had entered a non-final judgment of $2.75 billion against Yahoo! and Yahoo! Mexico on November 28, 2012.

The appellate decision pertains to the lawsuit filed by World Wide Directories, S.A. de C.V. and Ideas Interactivas, S.A. de C.V. against Yahoo! Mexico and Yahoo Inc. in 2011. On December 12, 2012, and December 13, 2012, respectively, Yahoo! Mexico and Yahoo! Inc. appealed the judgment to a three-magistrate panel of the Superior Court of Justice for the Federal District.

This rounds out a pretty big week for Yahoo, who also struck a deal with Twitter to bring Tweets to the Yahoo Homepage newsfeed, and is reportedly been in talks to acquire Tumblr (though word is they face some serious competition from Facebook).

Dr. Kermit Gosnell, a former abortion doctor in Philadelphia, was found guilty of three out of four counts of first-degree murder today, and could face the death penalty. Gosnell was reportedly known for performing late-term abortions, and allegedly (alleged by prosecutors) delivered babies alive, then killed them by cutting their spinal cords with scissors.

Vince Lattanzio of NBC Philadelphia reports:

According to court observers, as the verdict was read by the jury forman, Gosnell didn’t react at first. Once the full charges had been announced, he shook his head from side-to-side, trying to make eye contact with members of the jury.

The jury of seven women and five men weighed a total of 263 crimes against Gosnell with the most serious being four counts of first-degree murder.

Gosnell was acquitted of the fourth first-degree murder charge, which involved an aborted fetus, and of a third-degree murder charge, but was charged with involuntary manslaughter in the overdose death of former patient Karnamaya Mongar, who was 41. Mongar died after being given pain killers and anesthesia during an abortion procedure in 2009.

The entire jury reportedly consisted of people who either said they were pro-choice or had no opinion at all on a woman’s right to choose.

Sentencing is scheduled to place next Tuesday.

Here’s what Allen said in her initial post:

Last post on someone i’m completely over. I’ve never been lonelier in my entire life. To all my friends who loved me for who I am – thank you. Power hungry people, I loved Michael Arrington for 8+ years starting when i implemented Eurekster search at the time on Techcrunch in 2006 and throughout the years i didn’t know he cheated on me multiple times, then tells people it was me immediately after he did it. It hurts when you love someone borderline and they can’t feel anything at all for you, and threaten to murder you if you told anyone about the physical abuse – all for keeping his reputation. The emotional abuse was equally bad. On a positive note, it can’t get any worse than this and I can’t get myself of this bed.

And here’s what she said in the comments on the Gawker article:

I’ve looked inward and outward long enough to finally say something and know exactly why I had to say it. His lies, abuse, threats and what he did to a friend of mine 5 months ago was unforgivable as well. He raped her, and she told me in person he called her to confirm he did it after the fact. I’ll leave it up to her if she ever wants to report it or say anything. This madness needs to stop, or he needs to start controlling his rage and rape ‘disorder.’

Arrington remained quiet for a period, while others rushed to throw in their judgments of his character, until finally, he put out a statement saying:

There have been some extremely serious and criminal allegations against me over the last week. All of the allegations are completely untrue, and I’ve hired a law firm to represent me in the legal actions against the offending parties.

I’ve also asked my attorneys to contact appropriate law enforcement agencies about these false allegations. Given the gravity of the claims, I think it’s important that the police be involved in this now.

The whole thing had largely been ignored by the media and blogs other than a select few, until Arrington’s statement, then everyone started covering it. Likewise when former TechCrunch CEO Heather Harde jumped to Arrington’s defense. She wrote:

During my five years at TechCrunch, there were no complaints or cases of sexual harassment or misconduct against Michael Arrington. If there had been any rumors of misconduct from staff or other third parties, I would have taken the matters seriously and investigated them. Many people, including Michael’s friends and girlfriends, sought me out as a confidante for disagreements or challenges they faced with Michael, so I would have been aware of rumored bad behavior.

You can read her full post here.

About a month ago, Arrington posted a detailed letter refuting the allegations. Here’s that letter:

And now this week, the lawsuit has been filed. In it, Arrington alleges that Allen felt “betrayed and slighted,” and aimed to “destroy his reputation and to deter third persons from associating with him.” The suit includes a demand for jury trial, and seeks $75,000 in damages.

Here’s the court document:

The filing alleges that Gawker is “flagrantly” violating the court order, which Gawker has appealed.

In a post called, “A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won’t,” Gawker’s John Cook wrote:

It requires us to remove the video as well as “the written narrative describing activities occurring during he private sexual encounter, including: (a) all descriptions of visual images and sounds captured on the Sex Tape or any other video of this private sexual encounter, and (b) all direct quotations of words spoken during this private sexual encounter and recorded on the Sex Tape or any other video of this private sexual encounter.” Campbell, who represented the parents of Terri Schiavo in their effort to portray their daughter as conscious and alert and was appointed to the bench by former Florida Gov. Jeb Bush, described her order as serving “the public interest.” She stated very clearly during the hearing that she had never watched, and did not intend to watch, the video that she was ordering us to remove: “I’m not going to look at the tape. I don’t think at this point in time I need to look at the tape.”

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend’s ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell’s order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

Here, you can see the latest filing in its entirety:

Where this goes from here is anybody’s guess.

Image: Gremlins Wiki

The case involves Jeffrey Feldman, a software engineer with a degree in computer science from University of Wisconsin-Madison. Suspected of possessing child pornography, FBI agents raided his home and seized 16 storage devices, 9 of which were encrypted.

The FBI filed an order to compel Feldman to decrypt his devices, and order which has been shot down by Judge William Callahan.

“This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity” – namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination,” said Judge William E. Callahan Jr.

The Judge concedes that the state knows the encrypted devices contain data, and that they already know the names of the files and that they probably exist on said devices. He also concedes that the state has shown that Feldman is surely capable of decrypting the devices.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption, that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu, here, Feldman has not admitted access and control.

It’s clear that the Judge thinks that this is a very tricky case, and his decision toes the line.

In the end, however, the conclusion is that the state simply doesn’t know enough already about the contents of the drives and the defendant’s ties to them to compel him to access them.

An attorney with the Electronic Frontier Foundation told Wired that “this isn’t just about child porn. It’s about anything on your computer that prosecutors or government officials may want.”

Don’t think that encrypting your data shields you from the long reach of the law, however. Not only is encryption less than 100% effective, but this is simply one ruling. In the past, we’ve seen courts compel decryption – for instance in the aforementioned Boucher case, where a man was forced to unlock his laptop after authorities suspected it contained child pornography.

If convicted, Tsarnaev faces the death penalty or life in prison.

The Justice Department released a statement, as well as the complaint document. In this, we learn some interesting details. For example, there is a description of a carjacking episode the suspects engaged in. Here’s the relevant section from the document:

Near midnight on April 18, 2013, an individual carjacked a vehicle at gunpoint in Cambridge, Massachusetts. A victim of the carjacking was interviewed by law enforcement and provided the following information. The victim stated that while he was sitting in his car on a road in Cambridge, a man approached and tapped on his passenger-side window. When the victim rolled down the window, the man reached in, opened the door, and entered the victim’s vehicle. The man pointed a firearm at the victim and stated, “Did you hear about the Boston explosion?” and “I did that.” The man removed the magazine from his gun and showed the victim that it had a bullet in it, and then re-inserted the magazine. The man then stated, “I am serious.”

The man with the gun forced the victim to drive to another location, where they picked up a second man. The two men put something in the trunk of the victim’s vehicle. The man with the gun took the victim’s vehicle. The man with the gun took the victim’s keys and sat in the driver’s seat, while the victim moved to the front passenger seat. The second man entered the victim’s vehicle and sat in the rear passenger seat. The man with the gun and the second man spoke to each other in a foreign language.

While they were driving, the man with the gun demanded money from the victim, who gabe the man 45 dollars. One of the men compelled the victim to hand over his ATM card and password. They then drove to an ATM machine and attempted to withdraw money from the victim’s account. The two men and the victim then drove to a gas station/convenience store in the vicinity of 816 Memorial Drive, Cambridge. The two men got out of the car, at which point the victim managed to escape.

You can read the full complaint here (pdf).

In related news, this afternoon, reddit issued an apology for “dangerous speculation” that occurred on its site in the wake of the bombings.