Appeals court blasts PETA for using

selfie monkey as ‘an unwitting pawn’

21

Monkey can see but monkey can’t sue

By Sarah Jeong@sarahjeong Apr 24, 2018, 8:00am EDT

On Tuesday, the Ninth Circuit Court of Appeals threw out a copyright

lawsuit brought by a selfie-taking monkey.

The parties in Naruto v. Slater settled last September, but the appellate court
refused to grant their joint motion to dismiss, imposing this decision against
their respective wills, for no apparent reason other than to repeatedly dunk on
People for the Ethical Treatment of Animals (PETA). “How do we prevent
people (or organizations, like PETA) from using animals to advance their
human agendas?” asked the majority in one footnote.

A close-up photo of a Sulawesi crested macaque grinning boldly at the

camera went viral on the internet in 2011. According to wildlife photographer
David Slater, he had left some of his equipment on the jungle floor, and the
monkey had grabbed the camera and taken a selfie. PETA brought a
suit against Slater and a self-publishing book company in 2015, claiming that
he had infringed the monkey’s copyright by releasing Wildlife Personalities, a
self-published book of photography that included the famous monkey selfie.

Why is the Ninth Circuit so mad at PETA? How could a monkey sue for
copyright? Can monkeys even own copyright? Why is the monkey’s name
Naruto?

WHY IS THE MONKEY’S NAME NARUTO?

While we still don’t know the answer to the last question, the new decision
throws some light on the rest of it. The panel of three judges (Judge Carlos
Bea, Judge Randy Smith, and Judge Eduardo Robreno) ruled that not only did
PETA lack “next friend” status to bring the lawsuit on behalf of the monkey,
animals in general don’t have standing to sue under the Copyright Act.
It’s likely that PETA tried to settle the lawsuit before a decision was reached in
order to avoid a ruling that might make it harder for them to bring future
lawsuits. In a remarkable self-own, this ruling did that and more.

As expected, the panel said that it was bound by Cetacean v. Bush, a case that
says animals can’t sue unless Congress makes it clear in the statute that
animals can sue. In Cetacean, a “self-appointed attorney for all of the world’s
whales, porpoises, and dolphins” sued the government over the Navy’s use of
sonar.

The Ninth Circuit concluded that the Copyright Act does not clearly state that
animals can sue. In fact, with its numerous references to “legitimate” children
and “widows and widowers,” it probably only applies to humans.
Under Cetacean, monkey can see but monkey can’t sue.

A cite to Cetacean v. Bush and a quick analysis of the Copyright Act should take
up about three paragraphs, but the decision runs about fifteen pages, with an
even longer concurrence.

In long, rambling footnotes, the court went after PETA with a vengeance. In
one footnote that cites to the organization’s own website, the court wrote:

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,” PETA seems to employ
Naruto as an unwitting pawn in its ideological goals.

In fact, the majority thought that Cetacean v. Bush was wrongly decided
because it didn’t go far enough in barring PETA-style lawsuits.
Although Cetacean had concluded that the world’s “whales, porpoises, and
dolphins” weren’t allowed to sue under that particular statute, the case says
that the US Constitution itself doesn’t stop animals from bringing lawsuits.

“PETA SEEMS TO EMPLOY NARUTO AS AN UNWITTING PAWN IN ITS

IDEOLOGICAL GOALS.”

This panel disagreed, but said it was bound by the precedent of Cetacean until
the case was overruled by a higher court — implicitly calling for a higher court
(like a Ninth Circuit en banc panel or the Supreme Court) to go back and make
it much harder for PETA to sue for animal rights.
The 20-page concurrence was even harder on the animal rights organization,
arguing that the majority hadn’t gone far enough to stop future litigation by
PETA.

PETA originally brought the lawsuit as a “next friend,” where a very young
child or someone in prison might be too “incompetent” or unavailable to sue.
In cases like that, the law allows a third party to sue on their behalf as a “next
friend” — provided, of course, there’s a suitably close relationship.

All three judges agreed that animals in general can’t be represented by “next
friends.” But Smith wanted to go further and say that PETA’s lack of next
friend status should automatically throw the lawsuit out of court. In this case,
the court went ahead and treated Naruto, a literal monkey, as a real plaintiff.

For most laypeople, this is a legalistic quibble, but it was enough to send
Judge Smith ranting for pages and pages.

A SCOURGE OF MONKEY COPYRIGHT LAWSUITS ISN’T THE WORST KIND

OF FUTURE TO LIVE IN

“Indeed, this case is a prime example of the abuse the Majority opinion would
now allow,” he wrote in a three-page footnote raging over PETA’s actions. He
said that “PETA’s real motivation in this case was to advance its own
interests, not Naruto’s,” and that the organization “used Naruto as a ‘pawn to
be manipulated on a chessboard larger than his own case.’”

“Unfortunately, PETA’s actions could be the new normal under today’s

holding,” Smith wrote dourly.

A scourge of monkey copyright lawsuits isn’t the worst kind of future to live in.
Regardless, the Ninth Circuit appears to be very, very mad at PETA. The
court also granted Slater attorney’s fees on appeal, meaning PETA will have
to pay for the photographer’s lawyer.

Technically speaking, the animal rights organization could appeal again, but
this seems neither likely nor wise.

A timeline of Facebook's privacy issues — and its

responses
Facebook’s recent crisis is just one of many privacy issues that company has had to deal
with in its relatively short existence.

March 24, 2018, 4:02 AM PDT / Updated March 24, 2018, 4:02 AM PDT

By Alyssa Newcomb

SAN FRANCISCO — Facebook’s recent crisis is just one of many privacy issues
that company has had to deal with in its relatively short existence.

Barely two years old in 2006, the company faced user outrage when it
introduced its News Feed. A year later it had to apologize for telling people
what their friends had bought. Years after that, the Federal Trade Commission
stepped in — and is now looking at the company again. Facebook has a history
of running afoul of regulators and weathering user anger, all the while
collecting record profits and racking up more than 2 billion users.
Delete Facebook movement grows amid brewing backlash
MARCH 24, 201801:34

Those privacy issues are now front and center. Facebook's loose handling of
how its data was acquired by app developers has plunged the company into
the biggest crisis of its 14-year existence. The revelation that a data analytics
company used by Donald Trump’s presidential campaign was able to
surreptitiously collect data on 50 million people through a seemingly
innocuous quiz app has forced CEO Mark Zuckerberg to issue a public apology
— and promise changes.

Taking a step back to look at Facebook’s pattern of privacy issues provides an

important perspective on just how many times the company has faced serious
criticism. What follows is a rundown of the biggest privacy issues Facebook
has faced to date:

When: September 2006

What: Facebook debuts News Feed

Facebook’s response: Tells users to relax

Facebook was only two years old when it introduced News Feed on Sept. 5,
2006. The curated feed was intended as a central destination so users didn't
have to browse through friends' profiles to see what they had changed.

Facebook had about 8 million users at the time, and not all of them were
happy about every move of their personal life being blasted into a daily feed
for their friends.

An estimated 1 million users joined "Facebook News Feed protest

groups,"arguing the feature was too intrusive. But Facebook stayed the course.

“One of the things I'm most proud of about Facebook is that we believe things
can always be better, and we're willing to make big bets if we think it will help
our community over the long term,” Zuckerberg said in a post reflecting on the
10th anniversary of News Feed.

The outrage died down, and News Feed became a major part of Facebook’s
success.

When: December 2007

What: Beacon, Facebook’s first big brush with advertising privacy issues

Facebook’s response: Zuckerberg apologizes, gives users choice to opt out

There was once a time when companies could track purchases by Facebook
users and then notify their Facebook friends of what had been bought -- many
times without any user consent.
Facebook creator Mark Zuckerberg poses at Harvard University on May 14, 2004.Rick Friedman /
Corbis via Getty Images
In an apology on Dec. 6, 2007, Zuckerberg explained his thought
process behind the program, called Beacon, and announced that users would
be given the option to opt out of it.

“We were excited about Beacon because we believe a lot of information people
want to share isn’t on Facebook, and if we found the right balance, Beacon
would give people an easy and controlled way to share more of that
information with their friends,” he said.

At the time, Facebook was also talking to the Federal Trade Commission (FTC)
about online privacy and advertising.

When: November 2011

What: Facebook settles FTC privacy charges

Facebook’s response: Facebook agrees to undergo an independent privacy

evaluation every other year for the next 20 years.

Facebook settled with the Federal Trade Commission in 2011 over charges that
it didn't keep its privacy promise to users by allowing private information to
be made public without warning.

Regulators said Facebook falsely claimed that third-party apps were able to
access only the data they needed to operate. In fact, the apps could access
nearly all of a user’s personal data. Facebook users that never authenticated a
third-party app could even have private posts collected if their friends used
apps. Facebook was also charged with sharing user information with
advertisers, despite a promise they wouldn’t.

"Facebook is obligated to keep the promises about privacy that it makes to its
hundreds of millions of users," Jon Leibowitz, then chairman of the FTC, said
at the time. "Facebook's innovation does not have to come at the expense of
consumer privacy. The FTC action will ensure it will not."

As part of the agreement in 2011, Facebook remains liable for a $16,000-per-

day penalty for violating each count of the settlement.
When: June 2013

What: Facebook bug exposes private contact info

Facebook’s response: Facebook fixes bug, notifies people whose info may
have been exposed.

A bug exposed the email addresses and phone numbers of 6 million Facebook
users to anyone who had some connection to the person or knew at least one
piece of their contact information.

The bug was discovered by a White Hat hacker — someone who hacks with the
intention of helping companies find bugs and build better security practices.

When people joined Facebook and uploaded their contact lists, Facebook
explained it would match that data to other people on Facebook in order to
create friend recommendations.

Recommended

NEWSPatriots do it again, outlast Rams, 13-3, for sixth Super Bowl title in 17 years

NEWS4-year-old boy shoots pregnant mom in the face in Seattle

“For example, we don’t want to recommend that people invite contacts to join
Facebook if those contacts are already on Facebook; instead, we want to
recommend that they invite those contacts to be their friends on Facebook,”
Facebook’s team explained in a June 2013 message.

That information was “inadvertently stored in association with people’s

contact information,” Facebook said. That meant that when a Facebook user
chose to download their information through Facebook’s DYI tool, they were
provided with a list of additional contact information for people they knew or
with whom they may have had some association.

Facebook said it pulled the tool offline and fixed it. The company also said it
had notified regulators and pledged to tell affected users.

When: July 2014

What: Mood-manipulation experiment on thousands of Facebook users

Facebook’s response: Facebook data scientist apologizes

Facebook's mood-manipulation experiment in 2014 included more than half a

million randomly selected users. Facebook altered their news feeds to show
more positive or negative posts. The purpose of the study was to show how
emotions could spread on social media. The results were published in
the Proceedings of the National Academy of Sciences, kicking off a firestorm of
backlash over whether the study was ethical.

Adam D.I. Kramer, the Facebook data scientist who led the experiment,
ultimately posted an apology on Facebook. Four years later, the experiment no
longer appears to be online.

“I can understand why some people have concerns about it, and my co-authors
and I are very sorry for the way the paper described the research and any
anxiety it caused,” he wrote, according to The New York Times.

When: April 2015

What: Facebook cuts off apps from taking basically all the data they want

Facebook’s response: Please keep building apps

If Person A downloads an app, that app shouldn’t be able to suck data from
Person B just because they’re friends, right? In 2014, Facebook cited privacy
concerns and promised it would limit access to developers. But by the time the
policy took effect the next year, Facebook had one big issue: It still couldn’t
keep track of how many developers were using previously downloaded data,
according to current and former employees who spoke with The Wall Street
Journal.

Chris Wylie, from Canada, who once worked for the UK-based political consulting firm Cambridge
Analytica, gives a talk entitled "The Most Important Whistleblower Since Snowden: The Mind Behind
Cambridge Analytica" at the Frontline Club in London on March 20, 2018.Matt Dunham / AP

When Paul Grewal, Facebook vice president and deputy general counsel
announced Cambridge Analytica’s ban from Facebook last week, he said
Facebook has a policy of doing ongoing manual and automated checks to
ensure apps are complying with Facebook policies.
“These include steps such as random audits of existing apps along with the
regular and proactive monitoring of the fastest growing apps,” he said.

When: January 2018

What: Europe’s data protection law

Facebook’s response: Facebook complies

Facebook has also began preparing for the start of a strict European data
protection law that takes effect in May. Called the General Data Protection
Regulation, the law governs how companies store user information and
requires them to disclose a breach within 72 hours.

In January, Facebook released a set of privacy principles explaining how users

can take more control of their data.

One particularly notable principle many will be watching to see if Facebook

upholds is accountability.

"In addition to comprehensive privacy reviews, we put products through

rigorous data security testing. We also meet with regulators, legislators and
privacy experts around the world to get input on our data practices and
policies," Facebook's team said in January.

When: February 2018

What: Belgian court tells Facebook to stop tracking people across the entire
internet

Facebook’s response: Appeal the court’s ruling

In February, Facebook was ordered to stop collecting private information

about Belgian users on third-party sites through the use of cookies. Facebook
was also ordered to delete all data it collected illegally from Belgians, including
those who aren't Facebook users but may have still landed on a Facebook
page, or risk being fined up to 100 million euros.

Facebook said it has complied with European data protection laws and gives
people the choice to opt out of data collection on third-party websites and
applications. The company said it would appeal the ruling.

When: March 2018

What: Revealed that Facebook knew about massive data theft and did
nothing

Facebook’s response: An apology tour and policy changes

The world finally got the answer to the question “Where’s Zuck?” on
Wednesday when the Facebook CEO and co-founder broke his silence on the
data harvesting allegations. In a statement posted on his Facebook wall,
Zuckerberg avoided the word “sorry” but did express partial blame for
Facebook’s role in not doing enough to protect user privacy.
Facebook Founder and CEO Mark Zuckerberg speaks at the annual Facebook developers conference in
San Jose, California, in 2017.Stephen Lam / Reuters file

He laid out three steps Facebook will take now, including investigating all
apps that were able to access user data before 2014, when the company began
changing its permissions for developers. Facebook will put restrictions on the
data apps can access, limiting them to a person’s name, photo and email.
Finally, Zuckerberg said Facebook will make an easy tool that lets everyone
see which apps have access to their data and allow them to revoke access.

"I've been working to understand exactly what happened and how to make
sure this doesn't happen again,” he wrote. “The good news is that the most
important actions to prevent this from happening again today we have already
taken years ago. But we also made mistakes, there's more to do, and we need
to step up and do it."