Blog Ipsa Loquitur

Shot: Texas court throws out “upskirt” photo law.

The state’s highest criminal court on Wednesday tossed out part of a Texas law banning “improper photography or visual recording” - surreptitious images acquired in public for sexual gratification, often called “upskirting” or “downblousing” - as a violation of federal free-speech rights and an improper restriction on a person’s right to individual thoughts. […]

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are “inherently expressive” and, therefore, are protected by the First Amendment.

Chaser: Texas Bill Would Make It Illegal for You to Film a Cop Beating You.

Section 38.15 of the Texas Penal Code makes it an offense to interrupt, disrupt, impede, or otherwise interfere with “public duties,” including those being exercised by a police officer. That’s the law pretty much everywhere, of course, but the question that has arisen in recent years is whether you are “interfering” (etc.) with a police officer just because you are recording what he or she is doing. The Texas statute doesn’t say anything specific about recording, although it does say a person can’t be prosecuted if the interfering acts “consisted of speech only.” […]

Okay, now along comes Rep. Jason Villalba (R-Dallas) with H.B. 2918. This bill would amend section 38.15 to expressly include within the definition of “interference” the conduct of “filming, recording, photographing, or documenting the officer within 25 feet of the officer,” or doing so “within 100 feet of the officer” if you are also carrying a concealed handgun.

Sure, maybe the upskirt law was a little overbroad, and it stepped on the toes of the first amendment. I get it. I don’t know that I would have tossed out the whole statute, but hey. Texas doesn’t mess around with free speech.

But come on. If you have the right to film kids in bathing suits (no, really, that’s what that case was about), then you should at least be allowed to film a cop. Especially one who’s beating you.

Published on under Not the Onion

Mike Fabio wrote a great post about Spotify a couple weeks back. It accompanied the relaunch of Tidal, a streaming music service owned in part by Jay-Z. Tidal had an elaborate press event in which a parade of artists took the stage to decry the pittance they’re paid by other streaming music services.

Here’s the gist:

It’s scary for artists to learn how many people have listened to their music, and compare to the fractional royalty statements they’re being sent. Thing is, it’s not Spotify’s fault.

It’s the labels.

See, all those artists on the stage are signed to labels. Their contracts dictate that the music they record is owned by those labels, sometimes in perpetuity. And most of those artists have publishing deals that take a chunk out of their performance and mechanical royalties.

The reason artists don’t get paid from streaming services is that they don’t own the music that they record.

I’d take issue with that “music is owned by the labels in perpetuity” bit, but otherwise, Fabio’s post is great and you should read every word.

As an aside, copyright lasts for 70 years after the artist dies, which probably feels like an eternity, but it’s not. Let’s just agree that record companies own the copyrights to the music for almost forever.

That’s important, because when you own the copyrights, you get the money. And there’s a lot of money here. Take Pandora. They paid record companies over $440 million last year. Subscription music services as a whole paid out $1.57 billion in the year 2014.

That same Guardian story quotes the same music industry trade group, the International Federation of the Phonographic Industry, which says the global music industry as a whole generated just under $15 billion last year. So streaming music is just about one-tenth of the music industry.

Well, for now. Streaming music revenue was up 39% from 2013 to 2014. That’s a pretty insane jump. Artists complaining about streaming music services are looking to the future.

But really, if artists are upset at the size of their royalty checks, they ought to be looking at record companies, not streaming music services.

Published on under The Digital Age

Walter Scott was shot in the back three days ago by a police officer in South Carolina. The police officer claimed that Scott ran (on foot) from the police, seized the officer’s Taser stun gun, and attempted to use it against him.

But that’s not what actually happened. The New York Times has video of the shooting, and it’s horrifying. The officer uses his Taser on Scott, and Scott runs from the officer. The officer fires wildly at the unarmed Scott and kills him. And then it gets worse.

The officer walks over to Scott’s body, handcuffs him, walks back to the spot where he dropped the Taser, picks up the Taser, and drops the Taser next to the corpse. This is horrifying. This should really, really upset you. This is shooting an unarmed man in the back, this is tampering with a crime scene, this is lying about whether or not the unarmed guy was armed, and so on.

I’m not an expert on South Carolina laws about self defense, but I don’t have to be. In 1986, the Supreme Court ruled in Tennessee v. Garner that it’s unconstitutional to simply shoot fleeing unarmed suspects. The police cannot use deadly force (firing a pistol is always deadly force) unless it’s necessary to prevent the escape of a fleeing suspect who the officer has probable cause to believe “poses a significant threat of death or serious physical injury to the officer or others.”

The Worst Part(s)

Walter Scott is dead. But here’s the second-worst part.

Who was the highly dangerous Walter Scott? What violent felony were the police attempting to halt his flight from? If he is such a hardened criminal, why did he forget to bring his own flamethrower?

It was a traffic stop. Scott’s Mercedes had a taillight out. It wasn’t a felony. It wasn’t even a misdemeanor.

It actually wasn’t even a violation. South Carolina only requires cars to have a single taillight. Scott wasn’t even breaking the law. The officer was apparently as ignorant about the legality of shooting unarmed fleeing suspects as he was about the niceties of the local traffic law.

If this taillight business sounds familiar, that’s because the ink is barely dry on a Supreme Court opinion about the consequences of confusion around a broken taillight. That case happened in North Carolina, where a police officer was mistaken about the legality of having a broken taillight. During the traffic stop and subsequent search, the police found drugs in the car. That used to be an illegal search, but the Supreme Court ruled that reasonable ignorance of the law is okay.

Of course, reasonable ignorance of the law usually doesn’t lead straight to wild shootouts where only one of the parties has a gun. That’s a special kind of ignorance. I can’t wait to see how the local prosecutor fails to indict this one.

Published on under Nuke Us From Orbit

Adam Steinbaugh goes full law nerd on the Revenge Porn (I hate that term) industry’s first prison sentence. It couldn’t happen to a nicer guy.

Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft. Bollaert was the chief operator of (later, which published the nude photos of over ten thousand men and women, almost uniformly without their permission.

Bollaert, with his partner Eric Chanson, monetized his site with both advertisements and a more devious plan. He launched, which ‘advertised’ on YouGotPosted as an independent service which could remove the photos from YouGotPosted in exchange for a few hundred dollars. […]

Kevin Bollaert is the first revenge porn site operator to be convicted and sent to prison. Hunter Moore, widely viewed as the progenitor of revenge porn sites, will be sentenced in June after taking a plea deal on CFAA charges. Craig Brittain, the patron saint of harnessing revenge porn as a means of extortion, somehow escaped with only a light bruising on the wrist from the FTC, despite having the most bizarre (and malicious) plot.

This is great news, and hopefully this is the first of many jail sentences for people like this. Al Franken would like to see a world like that, too. However, Steinbaugh isn’t just reporting, he’s analyzing. He examines two potential routes for Bollaert’s appeal, and actually finds one of them a probable winner. Which sucks. We’re both left hoping that the appellate court finds any excuse to keep Bollaert in jail, even if bad facts make for bad laws.

Published on under Motion to Point and Laugh

Yesterday, Apple said another thing about its Apple Watch; it previously announced when people could get one, but now we know when Apple will officially grant permission for money to be thrown in their general direction. The Apple Watch is probably going to make a lot of money, but Apple’s other big development in the last month is ResearchKit.

Michael McConnell wrote last month about ResearchKit, but the gist is that it makes at much easier for people to volunteer to participate in universities’ medical studies. For example, eleven thousand people enrolled in a Stanford University study virtually overnight. It usually takes 50 medical centers a year to enroll even ten thousand folks, so this is kind of huge.

It’s huge, but not because an iPhone ought to be a gateway to participating in medical research. That’s called selection bias and it’s bad. Rather, ResearchKit could serve as a model for using technology to improve medical research, no matter what kind of phone someone has.

ResearchKit is still in very early days, but I have sky-high expectations for it. Using smartphones to provide medical researchers with the information that will help them cure disorders caused by overuse of smartphones is beyond poetic. It represents the best and worst and silliest in humanity, and that’s something I can get behind.

Published on under Disrupt Everything

Brooklyn’s own Janos Marton, writing for Salon, reviews Michael Shnayerson’s new book about the governor of New York, Andrew Cuomo. The book is critical enough of Cuomo that Cuomo’s team hustled to preempt it with a competing biography, but Marton finds the Shnayerson account lacking:

At times it feels as if Shnayerson is trying to shine up his subject a little too hard. Shnayerson claims, “No one was immune from Andrew’s charm when he turned it on,” and credits him with a “charm offensive few could resist,” even though “The Contender” presents little evidence of charm.

More significantly, Shnayerson portrays a hardscrabble kid from Holliswood, Queens: the car mechanic who is never comfortable rubbing shoulders with New York’s elite. This psychoanalysis feels misplaced. First, even Cuomo’s early upbringing was at least middle class: His father was a prominent lawyer tangling with Robert Moses when Andrew was a small child, and Andrew was a teenager when Mario began his campaigns for citywide and statewide office.

Second, ascribing his enmity of Eliot Spitzer and Eric Schneiderman to their blue bloodedness feels simplistic; after all, he was similarly antagonistic with Shelley Silver and Bill de Blasio. Maybe he just doesn’t play well with others? Besides, distaste for opulence didn’t prevent him from marrying a Kennedy.

Marton’s review points out plenty of other shortcomings and omissions. The controversial dismantling of the Moreland Commission to Investigate Corruption, the Democratic primary against Zephyer Teachout, and other truly interesting events of Governor Cuomo’s tenure are nowhere to be found.

According to Marton, anyone interested enough in New York politics to read Shnayerson’s book won’t find it terribly educational.

Published on under Fourth Estate Chronicles