lawsuit

CEO of “health care terrorists” sues senators after contempt of Congress charges

health, health care, HELP committee, lawsuit, ralph de la torre, Science, Senate, steward / Blake Jones / September 30, 2024

“not the way this works” —

Suing an entire Senate panel seen as a “Hail Mary play” unlikely to succeed.

Beth Mole – Sep 30, 2024 9: 36 pm UTC

Enlarge / The empty chair of Steward Health Care System Chief Executive Officer, Dr. Ralph de la Torre who did not show up during the US Senate Committee on Health, Education, Labor, & Pensions Examining the Bankruptcy of Steward Health Care: How Management Decisions Have Impacted Patient Care.

The infamous CEO of a failed hospital system is suing an entire Senate committee after being held in contempt of Congress, with civil and criminal charges unanimously approved by the full Senate last week.

In a federal lawsuit filed Monday, Steward CEO Ralph de la Torre claimed the senators “bulldozed over [his] constitutional rights” as they tried to “pillory and crucify him as a loathsome criminal” in a “televised circus.”

The Senate committee—the Committee on Health, Education, Labor, and Pensions (HELP), led by Bernie Sanders (I-Vt.)—issued a rare subpoena to de la Torre in July, compelling him to testify before the lawmakers. They sought to question the CEO on the deterioration of his hospital system, which previously included more than 30 hospitals across eight states. Steward filed for bankruptcy in May.

Imperiled patients

The committee alleges that de la Torre and Steward executives reaped millions in personal profits by hollowing out the health care facilities, even selling the land out from under them. The mismanagement left them so financially burdened that one doctor in a Steward-owned hospital in Louisiana said they were forced to perform “third-world medicine.” A lawmaker in that state who investigated the conditions at the hospital described Steward executives as “health care terrorists.”

Further, the financial strain on the hospitals is alleged to have led to the preventable deaths of 15 patients and put more than 2,000 other patients in “immediate peril.” As hospitals cut services, closed wards, or shuttered entirely, hundreds of health care workers were laid off, and communities were left without access to care. Nurses who remained in faltering facilities testified of harrowing conditions, including running out of basic supplies like beds. In one Massachusetts hospital, nurses were forced to place the remains of newborns in cardboard shipping boxes because Steward failed to pay a vendor for bereavement boxes.

Meanwhile, records indicate de la Torre and his companies were paid at least $250 million in recent years and he bought a 190-foot yacht for $40 million. Steward also owned two private jets collectively worth $95 million.

While de la Torre initially agreed to testify before the committee at the September 12 hearing, the wealthy CEO backed out the week beforehand. He claimed that a federal court order linked to the bankruptcy case prevented him from speaking on the matter; additionally, he invoked his Fifth Amendment right to avoid self-incrimination.

The HELP committee rejected de la Torre’s arguments, saying there were still relevant topics he could safely discuss without violating the order and that his Fifth Amendment rights did not permit him to refuse to appear before Congress when summoned by a subpoena. Still, the CEO was a no-show, and the Senate moved forward with the contempt charges.

“Not the way this works”

In the lawsuit filed today, de la Torre argues that the senators are attempting to punish him for invoking his Constitutional rights and that the hearing “was simply a device for the Committee to attack [him] and try to publicly humiliate and condemn him.”

The suit describes de la Torre as having a “distinguished career, bedecked by numerous accomplishments,” while accusing the senators of painting him as “a villain and scapegoat[ing] him for the company’s problems, even those caused by systemic deficiencies in Massachusetts’ health care system.” If he had appeared at the Congressional hearing, he would not have been able to defend himself from the personal attacks without being forced to abandon his Constitutional rights, the suit argues.

“Indeed, the Committee made it abundantly clear that they would put Dr. de la Torre’s invocation [of the Fifth Amendment] itself at the heart of their televised circus and paint him as guilty for the sin of remaining silent in the face of these assaults on his character and integrity,” the suit reads.

De la Torre seeks to have the federal court quash the Senate committee’s subpoena, enjoin both contempt charges, and declare that the Senate committee violated his Fifth Amendment rights.

Outside lawyers are skeptical that will occur. The lawsuit is a “Hail Mary play,” according to Stan M. Brand, an attorney who represented former Trump White House official Peter Navarro in a contempt of Congress case. De la Torre’s case “has very little chance of succeeding—I would say no chance of succeeding,” Brand told the Boston Globe.

“Every time that someone has tried to sue the House or Senate directly to challenge a congressional subpoena, the courts have said, ‘That that’s not the way this works,’” Brand said.

CEO of “health care terrorists” sues senators after contempt of Congress charges Read More »

Court clears researchers of defamation for identifying manipulated data

defamation, lawsuit, Policy, Science, Scientific Misconduct / Ari B / September 12, 2024

Evidence-supported conclusions aren’t defamation —

Harvard, however, will still face trial over how it managed the investigation.

John Timmer – Sep 12, 2024 9: 17 pm UTC

A formal red brick building on a college campus. — Enlarge / Harvard Business School was targeted by a faculty member’s lawsuit.

Earlier this year, we got a look at something unusual: the results of an internal investigation conducted by Harvard Business School that concluded one of its star faculty members had committed research misconduct. Normally, these reports are kept confidential, leaving questions regarding the methods and extent of data manipulations.

But in this case, the report became public because the researcher had filed a lawsuit that alleged defamation on the part of the team of data detectives that had first identified potential cases of fabricated data, as well as Harvard Business School itself. Now, the court has ruled on motions to dismiss the case. While the suit against Harvard will go on, the court has ruled that evidence-backed conclusions regarding fabricated data cannot constitute defamation—which is probably a very good thing for science.

Data and defamation

The researchers who had been sued, Uri Simonsohn, Leif Nelson, and Joe Simmons, run a blog called Data Colada where, among other things, they note cases of suspicious-looking data in the behavioral sciences. As we detailed in our earlier coverage, they published a series of blog posts describing an apparent case of fabricated data in four different papers published by the high-profile researcher Francesca Gino, a professor at Harvard Business School.

The researchers also submitted the evidence to Harvard, which ran its own investigation that included interviewing the researchers involved and examining many of the original data files behind the paper. In the end, Harvard determined that research misconduct had been committed, placed Gino on administrative leave and considered revoking her tenure. Harvard contacted the journals where the papers were published to inform them that the underlying data was unreliable.

Gino then filed suit alleging that Harvard had breached their contract with her, defamed her, and interfered with her relationship with the publisher of her books. She also added defamation accusations against the Data Colada team. Both Harvard and the Data Colada collective filed a motion to have all the actions dismissed, which brings us to this new decision.

Harvard got a mixed outcome. This appears to largely be the result that the Harvard Business School adopted a new and temporary policy for addressing research misconduct when the accusations against Gino came in. This, according to the court, leaves questions regarding whether the university had breached its contract with her.

However, most of the rest of the suit was dismissed. The judge ruled that the university informing Gino’s colleagues that Gino had been placed on administrative leave does not constitute defamation. Nor do the notices requesting retractions sent to the journals where the papers were published. “I find the Retraction Notices amount ‘only to a statement of [Harvard Business School]’s evolving, subjective view or interpretation of its investigation into inaccuracies in certain [data] contained in the articles,’ rather than defamation,” the judge decided.

Colada in the clear

More critically, the researchers had every allegation against them thrown out. Here, the fact that the accusations involved evidence-based conclusions, and were presented with typical scientific caution, ended up protecting the researchers.

The court cites precedent to note that “[s]cientific controversies must be settled by the methods of science rather than by the methods of litigation” and concludes that the material sent to Harvard “constitutes the Data Colada Defendants’ subjective interpretation of the facts available to them.” Since it had already been determined that Gino was a public figure due to her high-profile academic career, this does not rise to the standard of defamation.

And, while the Data Colada team was pretty definitive in determining that data manipulation had taken place, its members were cautious about acknowledging that the evidence they had did not clearly indicate Gino was the one who had performed the manipulation.

Finally, it was striking that the researchers had protected themselves by providing links to the data sources they’d used to draw their conclusions. The decision cites a precedent that indicates “by providing hyperlinks to the relevant information, the articles enable readers to review the underlying information for themselves and reach their own conclusions.”

So, overall, it appears that, by couching their accusations in the cautious language typical of scientific writing, the researchers ended up protecting themselves from accusations of defamation.

That’s an important message for scientists in general. One of the striking developments of the last few years has been the development of online communities where scientists identify and discuss instances of image and data manipulation, some of which have ultimately resulted in retractions and other career consequences. Every now and again, these activities have resulted in threats of lawsuits against these researchers or journalists who report on the issue. Occasionally, suits get filed.

Ultimately, it’s probably good for the scientific record that these suits are unlikely to succeed.

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Turns out Martin Shkreli copied his $2M Wu-Tang album—and sent it to “50 different chicks”

culture, lawsuit, pleasrDAO, Shkreli, wu-tang clan / Ryan Harris / August 27, 2024

STILL MAKING FRIENDS —

“Of course I made MP3 copies, they’re like hidden in safes all around the world.”

Nate Anderson – Aug 27, 2024 8: 27 pm UTC

Martin Shkreli—he's back, and he's still got copies of that Wu-Tang Clan album. — Enlarge / Martin Shkreli—he’s back, and he’s still got copies of that Wu-Tang Clan album.

The members of PleasrDAO are, well, pretty displeased with Martin Shkreli.

The “digital autonomous organization” spent $4.75 million to buy the fabled Wu-Tang Clan album Once Upon a Time in Shaolin, which had only been produced as a single copy. The album had once belonged to Shkreli, who purchased it directly from Wu-Tang Clan for $2 million in 2015. But after Shkreli became the “pharma bro” poster boy for price gouging in the drug sector, he ended up in severe legal trouble and served a seven-year prison sentence for securities fraud.

He also had to pay a $7.4 million penalty in that case, and the government seized and then sold Once Upon a Time in Shaolin to help pay the bill.

The album was truly “one of a kind,” a protest against the devaluation of music in the digital age and the kind of fascinating curio that instantly made its owners into “interesting people.” The album came as a two-CD set inside a nickel and silver box inscribed with the Wu-Tang logo, and the full package included a pair of customized audio speakers and a 174-page leather book featuring lyrics and “anecdotes on the production.”

In a complicated transaction, PleasrDAO purchased the album from an unnamed intermediary, who had first purchased it from the government. As part of that deal, PleasrDAO created a non-fungible token (NFT—remember those?) to show ownership of the album. The New York Times has a good description of what this entailed:

To tie “Once Upon a Time” to the digital realm, an NFT was created to stand as the ownership deed for the physical album, said Peter Scoolidge, a lawyer who specializes in cryptocurrency and NFT deals and was involved in the transaction. The 74 members of PleasrDAO… share collective ownership of the NFT deed, and thus own the album.

Makin’ copies…

But after purchasing the album and sharing the collective ownership of its NFT, PleasrDAO discovered that its “one of a kind” object wasn’t quite as exclusive as it had thought.

Shkreli had, in fact, made copies of the music. Lots of copies. On June 30, 2022, PleasrDAO said that Shkreli played music from the album on his YouTube channel and stated, “Of course I made MP3 copies, they’re like hidden in safes all around the world… I’m not stupid. I don’t buy something for two million dollars just so I can keep one copy.”

Shkreli began taunting PleasrDAO members about the album, telling one of them, “I literally play it on my discord all the time, you’re an idiot” and claiming that PleasrDAO was concerned about an album that “>5000 people have.” Shkreli claimed on a 2024 podcast that he had “burned the album and sent it to like, 50 different chicks”—and that this had been extremely good for his sex life.

Shkreli even offered to send copies of the album to random Internet commenters if they would just send him their “email addy.” He also told people to “look out for a torrent” and hosted listening parties for the album on his X account, which reached “potentially over 4,900 listeners.”

We know all of these details because PleasrDAO has sued Shkreli, claiming that he is acting in violation of the asset forfeiture order and that he is misappropriating “trade secrets” under New York law.

Shkreli “knew that by distributing copies of the Album’s data and files or by playing it publicly, his actions would decrease the Album’s marketability and value,” said PleasrDAO. They have asked a federal judge to stop Shkreli—and also to get them a list of everyone he has distributed the album to.

Enlarge / The Wu-Tang Clan album sits inside this box.

Not a secret

Shkreli’s response to all this is, in essence, “so what’s the problem?”

When he purchased the album for $2 million in 2015, he also acquired 50 percent of the copyrights to the package. Before the album was seized by the government, Shkreli says he took advantage of his copyright ownership to make copies as he was “permitted to do under his original purchase agreement.” The government, he says, seized only the individual, physical copy of the album, and Shkreli was within his rights to retain the copies he had already made.

As for trade secrets, well—a trade secret actually has to be “secret.” Thanks to his own actions, Shkreli has made sure that the album is not a secret. “Because Defendant legally purchased and shared the work before the Forfeiture Order and the Asset Purchase Agreement, the work is no longer a trade secret,” his lawyers wrote in his defense.

The Empire State strikes back

On August 26, 2024, a federal judge in Brooklyn issued a preliminary injunction (PDF) in the case as the two parties prepare to battle things out in court. The injunction prevents Shkreli from “possessing, using, disseminating, or selling any interest in the Wu-Tang Clan album ‘Once Upon a Time in Shaolin’ (the ‘Album’), including its data and files or the contents of the Album.”

Furthermore, Shkreli has to turn over “all of his copies, in any form, of the Album or its contents to defense counsel.” He also must file an affidavit swearing that he “no longer possesses any copies, in any form, of the Album or its contents.”

By the end of September 2024, Shkreli further must submit a list of “the names and contact information of the individuals to whom he distributed the data and files” and say if he made any money for doing so.

Turns out Martin Shkreli copied his $2M Wu-Tang album—and sent it to “50 different chicks” Read More »

Appeals Court denies stay to states trying to block EPA’s carbon limits

carbon capture, carbon emissions, clean air act, EPA, lawsuit, Policy, Science / Ari B / July 23, 2024

You can’t stay here —

The EPA’s plan to cut carbon emissions from power plants can go ahead.

John Timmer – Jul 23, 2024 7: 34 pm UTC

Cooling towers emitting steam, viewed from above.

On Friday, the US Court of Appeals for the DC Circuit denied a request to put a hold on recently formulated rules that would limit carbon emissions made by fossil fuel power plants. The request, made as part of a case that sees 25 states squaring off against the EPA, would have put the federal government’s plan on hold while the case continued. Instead, the EPA will be allowed to continue the process of putting its rules into effect, and the larger case will be heard under an accelerated schedule.

Here we go again

The EPA’s efforts to regulate carbon emissions from power plants go back all the way to the second Bush administration, when a group of states successfully sued the EPA to force it to regulate greenhouse gas emissions. This led to a formal endangerment finding regarding greenhouse gases during the Obama administration, something that remained unchallenged even during Donald Trump’s term in office.

Obama tried to regulate emissions through the Clean Power Plan, but his second term came to an end before this plan had cleared court hurdles, allowing the Trump administration to formulate a replacement that did far less than the Clean Power Plan. This took place against a backdrop of accelerated displacement of coal by natural gas and renewables that had already surpassed the changes envisioned under the Clean Power Plan.

In any case, the Trump plan was thrown out by the courts on the day before Biden’s administration, allowing his EPA to start with a clean slate. Biden’s original plan, which would have had states regulate emissions from their electric grids by regulating them as a single system, was thrown out by the Supreme Court, which ruled that emissions would need to be regulated on a per-plant basis in a decision termed West Virginia v. EPA.

So, that’s what the agency is now trying to do. Its plan, issued last year, would allow fossil-fuel-burning plants that are being shut down in the early 2030s to continue operating without restrictions. Others will need to either install carbon capture equipment, or natural gas plants could swap in green hydrogen as their primary fuel.

And again

In response, 25 states have sued to block the rule (you can check out this filing to see if yours is among them). The states also sought a stay that would prevent the rule from being implemented while the case went forward. In it, they argue that carbon capture technology isn’t mature enough to form the basis of these regulations (something we predicted was likely to be a point of contention). The suit also suggests that the rules would effectively put coal out of business, something that’s beyond the EPA’s remit.

The DC Court of Appeals, however, was not impressed, ruling that the states’ arguments regarding carbon capture are insufficient: “Petitioners have not shown they are likely to succeed on those claims given the record in this case.” And that’s the key hurdle for determining whether a stay is justified. And the regulations don’t pose a likelihood of irreparable harm, as the court notes that states aren’t even expected to submit a plan for at least two years, and the regulations won’t kick in until 2030 at the earliest.

Meanwhile, the states cited the Supreme Court’s West Virginia v. EPA decision to argue against these rules, suggesting they represent a “major question” that requires input from Congress. The Court was also not impressed, writing that “EPA has claimed only the power to ‘set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly,’ a type of conduct that falls well within EPA’s bailiwick.”

To respond to the states’ concerns about the potential for irreparable harm, the court plans to consider them during the 2024 term and has given the parties just two weeks to submit proposed schedules for briefings on the case.

Appeals Court denies stay to states trying to block EPA’s carbon limits Read More »

Lawsuit opens research misconduct report that may get a Harvard prof fired

Harvard, Human behavior, lawsuit, psychology, research misconduct, Science / Ari B / March 15, 2024

Image of a campus of red brick buildings with copper roofs. — Enlarge / Harvard’s got a lawsuit on its hands.

Glowimages

Accusations of research misconduct often trigger extensive investigations, typically performed by the institution where the misconduct allegedly took place. These investigations are internal employment matters, and false accusations have the potential to needlessly wreck someone’s career. As a result, most of these investigations are kept completely confidential, even after their completion.

But all the details of a misconduct investigation performed by Harvard University became public this week through an unusual route. The professor who had been accused of misconduct, Francesca Gino, had filed a multi-million dollar lawsuit, targeting both Harvard and a team of external researchers who had accused her of misconduct. Harvard submitted its investigator’s report as part of its attempt to have part of the suit dismissed, and the judge overseeing the case made it public.

We covered one of the studies at issue at the time of its publication. It has since been retracted, and we’ll be updating our original coverage accordingly.

Misconduct allegations lead to lawsuit

Gino, currently on administrative leave, had been faculty at Harvard Business School, where she did research on human behavior. One of her more prominent studies (the one we covered) suggested that signing a form before completing it caused people to fill in its contents more accurately than if they filled out the form first and then signed it.

Oddly, for a paper about honesty, it had a number of issues. Some of its original authors had attempted to go back and expand on the paper but found they were unable to replicate the results. That seems to have prompted a group of behavioral researchers who write at the blog Data Colada to look more carefully at the results that didn’t replicate, at which point they found indications that the data was fabricated. That got the paper retracted.

Gino was not implicated in the fabrication of the data. But the attention of the Data Colada team (Uri Simonsohn, Leif Nelson, and Joe Simmons) had been drawn to the paper. They found additional indications of completely independent problems in other data from the paper that did come from her work, which caused them to examine additional papers from Gino, coming up with evidence for potential research fraud in four of them.

Before posting it on their blog, however, the Data Colada team had provided their evidence to Harvard, which launched its own investigation. Their posts came out after Harvard’s investigation concluded that Gino’s research had serious issues, and she was placed on administrative leave as the university looked into revoking her tenure. It also alerted the journals that had published the three yet-to-be-retracted papers about the issues.

Things might have ended there, except that Gino filed a defamation lawsuit against Harvard and the Data Colada team, claiming they “worked together to destroy my career and reputation despite admitting they have no evidence proving their allegations.” As part of the $25 million suit, she also accused Harvard of mishandling its investigation and not following proper procedures.

Lawsuit opens research misconduct report that may get a Harvard prof fired Read More »

Here’s how the makers of the “Suyu” Switch emulator plan to avoid getting sued

Emulation, emulator, gaming, lawsuit, legal, Nintendo, Switch, yuzu / Ari B / March 11, 2024

Enlarge / Is a name like “Suyu” ironic enough to avoid facing a lawsuit?

Suyu

Last week, the developers behind the popular Switch emulator Yuzu took down their GitHub and web presence in the face of a major lawsuit from Nintendo. Now, a new project built from the Yuzu source code, cheekily named Suyu, has arisen as “the continuation of the world’s most popular, open-source Nintendo Switch emulator, Yuzu.”

Despite the name—which the project’s GitHub page notes is “pronounced ‘sue-you’ (wink, wink)”—the developers behind Suyu are going out of their way to try to avoid a lawsuit like the one that took down Yuzu.

“Suyu currently exists in a legal gray area we are trying to work our way out of,” contributor and Discord moderator Sharpie told Ars in a recent interview. “There are multiple plans and possibilities for what to do next. Things are still being organized and planned.”

Doing things differently

The Suyu project arose out of “a passion for Switch emulation” and a desire not to see “years of impressive work by the Yuzu team go to waste,” Sharpie said. But that passion is being tempered by a cautious approach designed to avoid the legal fate that befell the project’s predecessor.

After consulting with an unnamed “someone with legal experience” (Sharpie would only say “they claimed three years of law school”), the Suyu development team has decided to avoid “any monetization,” Sharpie said. The project’s GitHub page clearly states that “we do not intend to make money or profit from this project,” an important declaration after Nintendo cited Yuzu’s profitability a few times in its recent lawsuit. Other emulator makers also told Ars that Yuzu’s Patreon opened the project up to a set of pesky consumer demands and expectations.

The Suyu devs have also been warned against “providing step-by-step guides” like the ones that Yuzu offered for how to play copyrighted games on their emulator. Those guides were a major focus of Nintendo’s lawsuit, as were some examples of developer conversations in the Yuzu Discord that seemed to acknowledge and condone piracy.

Xenoblade Chronicles the day before its release.” height=”626″ src=”https://cdn.arstechnica.net/wp-content/uploads/2024/03/yuzuleak-640×626.png” width=”640″>

Enlarge / In a blog post cited in Nintendo’s lawsuit, the Yuzu developers discuss compatibility with a leaked copy of Xenoblade Chronicles the day before its release.

Suyu, by contrast, is taking an extremely hard line against even the hint of any discussion of potential piracy on its platforms. The Suyu GitHub page is upfront that the developers “do not support or condone piracy in any form,” a message that didn’t appear on Yuzu’s GitHub page or website.

The No. 1 rule listed on the Suyu Discord is that “piracy is prohibited.” That includes any talk about downloading games or “asking for system files, ROMs, encryption keys, shader caches, and discussion of leaked games etc.” Even a mention of the word piracy with regard to legal questions is enough to earn a warning on the Discord, according to those rules.

Here’s how the makers of the “Suyu” Switch emulator plan to avoid getting sued Read More »

OpenAI clarifies the meaning of “open” in its name, responding to Musk lawsuit

AI, AI lawsuit, Biz & IT, chatgpt, chatgtp, elon musk, google deepmind, greg brockman, Illya Sutskever, large language models, lawsuit, machine learning, non-profit, openai, sam altman, Tesla / Mike M. / March 6, 2024

Enlarge (credit: Benj Edwards / Getty Images)

On Tuesday, OpenAI published a blog post titled “OpenAI and Elon Musk” in response to a lawsuit Musk filed last week. The ChatGPT maker shared several archived emails from Musk that suggest he once supported a pivot away from open source practices in the company’s quest to develop artificial general intelligence (AGI). The selected emails also imply that the “open” in “OpenAI” means that the ultimate result of its research into AGI should be open to everyone but not necessarily “open source” along the way.

In one telling exchange from January 2016 shared by the company, OpenAI Chief Scientist Illya Sutskever wrote, “As we get closer to building AI, it will make sense to start being less open. The Open in openAI means that everyone should benefit from the fruits of AI after its built, but it’s totally OK to not share the science (even though sharing everything is definitely the right strategy in the short and possibly medium term for recruitment purposes).”

In response, Musk replied simply, “Yup.”

Read 8 remaining paragraphs | Comments

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Emulation community expresses defiance in wake of Nintendo’s Yuzu lawsuit

Emulation, gaming, lawsuit, Nintendo, ryujinx, yuzu / Ryan Harris / March 1, 2024

Enlarge / Power (glove) to the people.

Aurich Lawson

Nintendo’s recent lawsuit against Switch emulator-maker Yuzu seems written like it was designed to strike fear into the heart of the entire emulation community. But despite legal arguments that sometimes cut at the very idea of emulation itself, members of the emulation development community I talked to didn’t seem very worried about coming under a Yuzu-style legal threat from Nintendo or other console makers. Indeed, those developers told me they’ve long taken numerous precautions against that very outcome and said they feel they have good reasons to believe they can avoid Yuzu’s fate.

Protect yourself

“I can assure [you], experienced emulator developers are very aware of copyright issues,” said Lycoder, who has worked on emulators for consoles ranging from the NES to the Dreamcast. “I’ve personally always maintained strict rules about how I deal with copyrighted content in my projects, and most other people I know from the emulation scene do the same thing.”

“This lawsuit is not introducing any new element that people in the emulation community have not known of for a long time,” said Parsifal, a hobbyist developer who has written emulators for the Apple II, Space Invaders, and the CHIP-8 virtual machine. “Emulation is fine as long as you don’t infringe on copyright and trademarks.”

Other hobbyist emulator makers take more serious precautions to protect themselves legally. “I always had some fear of Nintendo’s lawyers coming after my work, which is part of the reason I still keep it private,” said StrikerX3 of his work on a Nintendo DS emulator. “I’ve only released the emulator’s binaries to a handful of people, and only two others have access to the source code besides me.”

Just a little light console hacking... — Enlarge / Just a little light console hacking…

Aurich Lawson

And others feel operating internationally protects them from the worst of the DMCA and other US copyright laws. “I have written an NES emulator and I am working on a Game Boy emulator… anyway I’m not a US citizen and Nintendo can kiss my ass,” said emulator developer ZJoyKiller, who didn’t provide his specific country of residence.

Stick to the old stuff

Some of those potential legal precautions might seem a little insufficient on further inspection—a lack of copyrighted code in the emulator wasn’t enough to protect Yuzu from Nintendo’s legal sights, after all. Still, other emulator developers pointed out a number of differences in their projects that they felt set them apart.

Chief among those differences is the fact that Yuzu emulates a Switch console that is still actively selling millions of hardware and software units every year. Most current emulator development focuses on older, discontinued consoles that the developers I talked to seemed convinced were much less liable to draw legal fire.

“There is a difference between emulating a 30-year-old system vs. a current one that’s actively making money,” Parsifal said.

In a response on the Yuzu Discord, the development team wrote, “We do not know anything other than the public filing, and we are not able to discuss the matter at this time.” Multiple developers who work on Ryujinx, another prominent Switch emulator, have yet to respond to a request for comment from Ars Technica.

“The consoles I’ve worked on [such as the Nintendo 3DS] don’t really generate much revenue anymore,” one anonymous dev said. “It would be a waste of time to sue like they did Yuzu.”

“There is a difference between emulating a 30-year-old system vs. a current one that’s actively making money.”

Emulator developer Parsifal

Systems from before the turn of the millennium also often fall into something of a different legal category, developers pointed out, if their software and/or hardware was not protected by any encryption. That means emulators for those older systems don’t have to worry about falling afoul of the strict anti-circumvention portions of the Digital Millennium Copyright Act. Developers have also reverse-engineered open source BIOS and BootROM files for some classic systems, eliminating the need to distribute that copyrighted code or even ask users to provide it.

“For most [older] emulators, users don’t have to break copyright [or encryption], at all,” Lycoder pointed out. “A lot of talented people have worked on methods to dump [copyrighted] BootROMs, firmware, etc. out of original hardware, any user that owns an original system should be able to dump these files themselves.”

Legal differences aside, emulator developers also pointed out some major philosophical differences in working on consoles that are no longer being actively marketed. “In my opinion, emulating the Switch at the moment has nothing to do with preservation,” one anonymous developer told me. “The developers might be enthusiasts and passionate but they need to be very naive to think it’ll be used for lawful preservation and use.”

Emulation community expresses defiance in wake of Nintendo’s Yuzu lawsuit Read More »

How strong is Nintendo’s legal case against Switch-emulator Yuzu?

Emulation, gaming, hacks, lawsuit, legal, Nintendo, yuzu / Ryan Harris / February 28, 2024

The eye of Nintendo's legal department turns slowly towards a new target. — Enlarge / The eye of Nintendo’s legal department turns slowly towards a new target.

Aurich Lawson

Nintendo has filed a lawsuit against Tropic Haze LLC, the makers of the popular Yuzu emulator that the Switch-maker says is “facilitating piracy at a colossal scale.”

The federal lawsuit—filed Monday in the District Court of Rhode Island and first reported by Stephen Totilo—is the company’s most expansive and significant argument yet against emulation technology that it alleges “turns general computing devices into tools for massive intellectual property infringement of Nintendo and others’ copyrighted works.” Nintendo is asking the court to prevent the developers from working on, promoting, or distributing the Yuzu emulator and requesting significant financial damages under the DMCA.

If successful, the arguments in the case could help overturn years of legal precedent that have protected emulator software itself, even as using those emulators for software piracy has remained illegal.

“Nintendo is still basically taking the position that emulation itself is unlawful,” Foundation Law attorney and digital media specialist Jon Loiterman told Ars. “Though that’s not the core legal theory in this case.”

Just follow these (complicated) instructions

The bulk of Nintendo’s legal argument rests on Yuzu’s ability to break the many layers of encryption that protect Switch software from being copied and/or played by unauthorized users. By using so-called “prod.keys” obtained from legitimate Switch hardware, Yuzu can dynamically decrypt an encrypted Switch game ROM at runtime, which Nintendo argues falls afoul of the Digital Millennium Copyright Act’s prohibition against circumvention of software protections.

Crucially, though, the open source Yuzu emulator itself does not contain a copy of those “prod.keys,” which Nintendo’s lawsuit acknowledges that users need to supply themselves. That makes Yuzu different from the Dolphin emulator, which was taken off Steam last year after Nintendo pointed out that the software itself contains a copy of the Wii Common Key used to decrypt game files.

Absent the inherent ability to break DRM, an emulator would generally be covered by decades of legal precedent establishing the right to emulate one piece of hardware on another using reverse-engineering techniques. But Yuzu’s “bring your own decryption” design is not necessarily a foolproof defense, either.

Nintendo’s lawsuit makes extensive reference to the Quickstart Guide that Yuzu provides on its own distribution site. That guide gives detailed instructions on how to “start playing commercial games” with Yuzu by hacking your (older) Switch to dump decryption keys and/or game files. That guide also includes links to a number of external tools that directly break console and/or game encryption techniques.

“Whether Yuzu can get tagged with [circumvention] simply by providing instructions and guidance and all the rest of it is, I think, the core issue in this case.”

Attorney Jon Loiterman

Through these instructions, Nintendo argues, “the Yuzu developers brazenly acknowledge that using Yuzu necessitates hacking or breaking into a Nintendo Switch.” Nintendo also points to a Yuzu Discord server where emulator developers and users discuss how to get copyrighted games running on the emulator, as well as publicly released telemetry data that shows the developers were aware of widespread use of their emulator for piracy (as the Yuzu devs wrote in June 2023, “Tears of the Kingdom is by far the most played game on Yuzu”).

While Loiterman says that “instructions and guidance are not circumvention,” he added that “the more layers of indirection between Yuzu’s software and activity and distribution of the keys the safer they are. The detailed instructions, the Discord server, and the knowledge of what all this is used for are at least problematic.”

“Whether Yuzu can get tagged with [circumvention] simply by providing instructions and guidance and all the rest of it is, I think, the core issue in this case,” he continued.

How strong is Nintendo’s legal case against Switch-emulator Yuzu? Read More »

Over a decade later, climate scientist prevails in libel case

climate change, defamation, lawsuit, Michael Mann, Policy / Mike M. / February 10, 2024

What a long, strange trip it’s been —

But the case is not entirely over, as he plans to go after the publishers again.

John Timmer – Feb 9, 2024 7: 56 pm UTC

Image of a middle-aged male speaking into a microphone against a dark backdrop. — Enlarge / Climate scientist Michael Mann.

This is a story I had sporadically wondered whether I’d ever have the chance to write. Over a decade ago, I covered a lawsuit filed by climate scientist Michael Mann, who finally had enough of being dragged through the mud online. When two authors accused him of fraud and compared his academic position to that of a convicted child molester, he sued for defamation.

Mann was considered a public figure, which makes winning defamation cases extremely challenging. But his case was based on the fact that multiple institutions on two different continents had scrutinized his work and found no hint of scientific malpractice—thus, he argued, that anyone who accused him of fraud was acting with reckless disregard for the truth.

Over the ensuing decade, the case was narrowed, decisions were appealed, and long periods went by without any apparent movement. But recently, amazingly, the case finally went to trial, and a jury rendered a verdict yesterday: Mann is entitled to damages from the writers. Even if you don’t care about the case, it’s worth reflecting on how much has changed since it was first filed.

The suit

The piece that started the whole mess was posted on the blog of a free market think tank called the Competitive Enterprise Institute. In it, Rand Simberg accused Mann of manipulating data and compared the investigations at Penn State (where he was faculty at the time) to the university’s lack of interest in pursuing investigations of one of its football coaches who was convicted of molesting children. A few days later, a second author, Mark Steyn, echoed those accusations at the publication National Review.

Mann’s case was based on the accusations of fraud in those pieces. He had been a target for years after he published work showing that the recent warming was unprecedented in the last few thousand years. This graph, known as the “hockey stick” due to its sudden swerve upwards, later graced the cover of an IPCC climate report. The pieces were also published just a few years after a large trove of emails from climate scientists were obtained illicitly from the servers of a research institution, leading to widespread accusations of misconduct against climate scientists.

Out of the public eye were a large number of investigations, both by the schools involved and the governments that funded the researchers, all of which cleared those involved, including Mann. But Simberg and Steyn were part of a large collection of writers and bloggers who were convinced that Mann (and by extension, all of modern climate science) had to be wrong. So they assumed—and in Simberg and Steyn’s case, wrote—that the investigations were simply whitewashes.

Mann’s suit alleged the exact opposite: that, by accusing him of fraud despite these investigations, the two authors showed a reckless disregard for truth. That would be enough to hold them responsible for defamation despite the fact that Mann was a public figure. The authors’ defense was largely focused on the fact that they genuinely believed their own opinions and so should be free to express them under the First Amendment.

In essence, the case came down to whether people who appear to be incapable of incorporating evidence into their opinions should still be able to voice those opinions without consequences, even if doing so has consequences for others.

Victory at last-ish

In the end, the jury decided they did not. And their damage awards suggest that they understood the present circumstances quite well. For starters, the compensatory damages awarded to Mann for the defamation itself were minimal: one dollar each from Simberg and Steyn. While Mann alleged he lost grants and suffered public scorn due to the columns, he’s since become a successful book author and received a tenured chair at the University of Pennsylvania, where he now heads its Center for Science, Sustainability, and the Media.

But the suit also sought punitive damages to discourage future behavior of the sort. Here, there was a dramatic split. Simberg, who now tends to write about politics rather than science and presents himself as a space policy expert, was placed on the hook for just $1,000. Steyn, who is still actively fighting the climate wars and hosts a continued attack on Mann on his website, was told to pay Mann $1 million.

That said, the suit’s not over yet. Steyn has suggested that there are grounds to appeal the monetary award, while Mann has indicated that he will appeal the decision that had terminated his case against the Competitive Enterprise Institute and National Review. So, check back in another decade and we may have another decision.

Over a decade later, climate scientist prevails in libel case Read More »

George Carlin’s heirs sue comedy podcast over “AI-generated” impression

AI, carlin, dudesy, lawsuit / Ryan Harris / January 26, 2024

AI’ll see you in court —

Suit alleges copyright infringement and illegal use of Carlin’s name and likeness.

Kyle Orland – Jan 26, 2024 4: 11 pm UTC

A promotional image cited in the lawsuit uses Carlin's name and image to promote the Dudsey podcast and special. — Enlarge / A promotional image cited in the lawsuit uses Carlin’s name and image to promote the Dudsey podcast and special.

The estate of George Carlin has filed a federal lawsuit against the comedy podcast Dudesy for an hour-long comedy special sold as an AI-generated impression of the late comedian.

In the lawsuit, filed by Carlin manager Jerold Hamza in a California district court, the Carlin estate points out that the special, “George Carlin: I’m Glad I’m Dead,” presents itself as being created by an AI trained on decades worth of Carlin’s material. That training would, by definition, involve making “unauthorized copies” of “Carlin’s original, copyrighted routines” without permission in order “to fabricate a semblance of Carlin’s voice and generate a Carlin stand-up comedy routine,” according to the lawsuit.

“Defendants’ AI-generated ‘George Carlin Special’ is not a creative work,” the lawsuit reads, in part. “It is a piece of computer-generated click-bait which detracts from the value of Carlin’s comedic works and harms his reputation. It is a casual theft of a great American artist’s work.”

The Dudesy special “George Carlin: I’m glad I’m dead.

The use of copyrighted material in AI training models is one of the most contentious and unsettled areas of law in the AI field at the moment. Just this month, media organizations testified before Congress to argue against AI makers’ claims that training on news content was legal under a “fair use” exemption.

The Dudesy special is presented as an “impression” of Carlin that the AI generated by “listening” to Carlin’s existing material “in the exact same way a human impressionist would.” But the lawsuit takes direct issue with this analogy, arguing that an AI model is just an “output generated by a technological process that is an unlawful appropriation of Carlin’s identity, which also damages the value of Carlin’s real work and his legacy.”

In his image

There is some debate as to whether the Dudesy special was actually written by a specially trained AI, as Ars laid out in detail this week. But even a special that was partially or fully human-written would be guilty of unauthorized use of Carlin’s name and likeness for promotional purposes, according to the lawsuit.

“Defendants always presented the Dudesy Special as an AI-generated George Carlin comedy special, where George Carlin was ‘resurrected’ with the use of modern technology,” the lawsuit argues. “In short, Defendants sought to capitalize on the name, reputation, and likeness of George Carlin in creating, promoting, and distributing the Dudesy Special and using generated images of Carlin, Carlin’s voice, and images designed to evoke Carlin’s presence on a stage.”

A Dudesy-generated image representing AI's impending replacement of human stand-up comedy. — Enlarge / A Dudesy-generated image representing AI’s impending replacement of human stand-up comedy.

While the special doesn’t present images or video of Carlin (AI-generated or not), the YouTube thumbnail for the video shows an AI-generated image of a comedian with Carlin’s signature gray ponytail looking out over an audience. The lawsuit also cites numerous social media posts where Carlin’s name and image are used to promote the special or the Dudesy podcast.

That creates an “association” between the Dudesy podcast and Carlin that is “harmful to Carlin’s reputation, his legacy, and to the value of his real work,” according to the lawsuit. “Worse, if not curtailed now, future AI models may incorrectly associate the Dudesy Special with Carlin, ultimately folding Defendants’ knockoff version in with Carlin’s actual creative output.”

Anticipating potential free speech defenses, the lawsuit argues that the special “has no comedic or creative value absent its self-proclaimed connection with George Carlin” and that it doesn’t “satirize him as a performer or offer an independent critique of society.”

Kelly Carlin, the late comedian’s daughter, told The Daily Beast earlier this month that she was talking to lawyers about potential legal action. “It’s not his material. It’s not his voice,” she said at the time. “So they need to take the name off because it is not George Carlin.”

“The ‘George Carlin’ in that video is not the beautiful human who defined his generation and raised me with love,” Kelly Carlin wrote in a statement obtained by Variety. “It is a poorly executed facsimile cobbled together by unscrupulous individuals to capitalize on the extraordinary goodwill my father established with his adoring fanbase.”

The lawsuit asks a court to force Dudesy to “remove, take down, and destroy any video or audio copies… of the ‘George Carlin Special,’ wherever they may be located,” as well as pay punitive damages.

George Carlin’s heirs sue comedy podcast over “AI-generated” impression Read More »

Twin Galaxies, Billy Mitchell settle Donkey Kong score case before trial

billy mitchell, defamation, Donkey Kong, gaming, lawsuit, twin galaxies / Ari B / January 15, 2024

Two men give a presentation in what appears to be a hotel room. — Enlarge / Billy Mitchell (left) and Twin Galaxies owner Jace Hall (center) attend an event at the Arcade Expo 2015 in Banning, California.

The long, drawn-out legal fight between famed high-score chaser Billy Mitchell and “International Scoreboard” Twin Galaxies appears to be over. Courthouse News reports that Mitchell and Twin Galaxies have reached a confidential settlement in the case months before an oft-delayed trial was finally set to start.

The settlement comes as Twin Galaxies counsel David Tashroudian had come under fire for legal misconduct after making improper contact with two of Mitchell’s witnesses in the case. Tashroudian formally apologized to the court for that contact in a filing earlier this month, writing that he had “debased myself before this Court” and “allowed my personal emotions to cloud my judgement” by reaching out to the witnesses outside of official court proceedings.

But in the same statement, Tashroudian took Mitchell’s side to task for “what appeared to me to be the purposeful fabrication and hiding of evidence.” The emotional, out-of-court contact was intended “to prove what I still genuinely believe is fraud on this Court,” he wrote.

Billy Mitchell reviews a document in front of a <em>Donkey Kong</em> machine decked out for an annual “Kong Off” high score competition.” height=”1024″ src=”https://cdn.arstechnica.net/wp-content/uploads/2020/07/mitchellpaper.jpg” width=”683″></img><figcaption>
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Twin Galaxies, Billy Mitchell settle Donkey Kong score case before trial Read More »