Andy Sellars's blog

Boston Police Charge Two Journalists With Felonies For Doing Their Jobs

This is a well-known story to DMLP readers, but it bears repeating today. On October 1, 2007, a lawyer named Simon Glik saw members of the Boston Police arresting a suspect on the Boston Common in a way that he thought was excessive, and began recording the police from several feet away. The police didn't notice him at first, but eventually approached him and asked him if his phone was recording audio along with the video. When he informed them that it was, he was arrested and charged for aiding the escape of a prisoner, disturbing the peace, and unlawful recording under the Massachusetts wiretap act.   read more »

Massachusetts Considers a New, Robust Shield Law

The DMLP would like to highlight a recent post by our friend and colleague Rob Bertsche, a parter at Boston law firm Prince Lobel Tye LLP. Rob reported from the Massachusetts State House, where earlier this week the Joint Committee on the Judiciary debated H.1553, the proposed Massachusetts reporters' shield law.

Read his account for details, but as a quick highlight, here's Rob's description of the general contours of the bill, as it applies to identity of sources:   read more »

The Government Responds to the DMLP Amicus Brief in United States v. Auernheimer

On Friday, the Department of Justice filed its appellee brief before the U.S. Court of Appeals for the Third Circuit in United States v. Auernheimer. We expect to see a lot of commentary on the case from others – the brief has already been called out for being almost double the limit allowed under the Federal Rules of Appellate Procedure – but I wanted to specifically mention the government's comments concerning the amicus brief that the DMLP filed in this case with help from our good friends at the Cyberlaw Clinic.   read more »

3D Printed Guns and the First Amendment

Several news organizations are reporting today that the U.S. Government, through the Department of State, through the Directorate of Defense Trade Controls (DDTC), sent a letter to the organization Defense Distributed, requesting the immediate removal of several "data files" (in their words) off of their DEFCAD website that they claim violate federal law, including the plans for the "Liberator" 3D-printed handgun. The letter was phrased in the manner of a request, but one can be sure that sanctions would follow should Defense Distributed simply ignore the letter. (The Atlantic Wire was kind enough to post the letter in question, available for download here.) Defense Distributed has complied and removed the files from their website, but has indicated that they will "appeal." In this case, that appears to mean requesting a formal determination from the DDTC as to the status of the files in question, which could provide the basis for further legal review.   read more »

The DMLP Joins EFF in an Amicus Brief Addressing DMCA Misrepresentations and Critical Speech

Earlier today the Digital Media Law Project, through our counsel at the Harvard Law School Cyberlaw Clinic, joined a brief filed by the Electronic Frontier Foundation in the United States District Court for the District of Massachusetts case Tuteur v. Crosley-Corcoran. The case concerns the Digital Millennium Copyright Act's "notice and takedown" procedures, and whether a party who sends a takedown request knowing that the target of the takedown has a valid fair use defense can be liable for such a misrepresentation. (You can read EFF's post about the filing here and download our brief here.)

As regular readers of our blog are aware, the DMCA, by immunizing online service providers from liability, incentivizes these services to implement a system whereby owners of content who discover copyright infringement by a service's users can file a notice with the service. The service will then expeditiously remove the allegedly infringing content and notify the user of the removal. The material will stay offline unless the website user files a counter notification stating that the user believes the material was incorrectly removed. After that point, the service provider has a window of no earlier than 10 and no later than 14 business days to restore the content.   read more »

Creative Lawyering or Copyright "Trolling" - a Copyright Society Event at Suffolk Law

This Thursday I'll be joining Jason Sweet from the Cambridge law firm (and OMLN member firm) Booth Sweet LLP at an event hosted by the New England chapter of the Copyright Society of the USA entitled "Creative Lawyering or Copyright 'Trolling.'" The event will be a discussion of some recent attempts by law firms and rightsholders to use enforcement of copyright law as a direct revenue source – attempts like the now-dying (but, critically, not quite dead) Righthaven LLC that sued bloggers for copying news articles, and the currently-unraveling saga around Prenda Law. Jason will be talking a bit about his litigation work defending against these groups, and I'll be talking a bit about the Righthaven case specifically and what concerns these practices should raise amongst the copyright bar.

The event is at Suffolk Law School,  120 Tremont Street, Room 295, right in the heart of downtown Boston. The event is co-sponsored with Suffolk's IP Law Student Association, School Committee of the MA Chapter of the Federal Bar Association, and their IP and Entrepreneurship Clinic. The event is free and open to all. Further details can be found on the CSUSA website. Hope to see you there!

Andy Sellars is a staff attorney at the DMLP.

DMLP at UC Hastings on March 22, Discussing the Computer Fraud and Abuse Act

On March 22nd I'll be at UC Hastings in San Francisco for an all-day symposium entitled The Computer Fraud and Abuse Act: Transformation after Tragedy. The event is meant to serve as a critical examination of the Act (18 U.S.C. § 1030) in light of the prosecution of Aaron Swartz, which ultimately lead to his tragic suicide two months ago.

Building upon my earlier writing on the topic I will be moderating a panel on the Swartz case specifically, along with panelists Prof. Rory Little from Hastings, Cathy Gellis from Digital Age Rights, and Trevor Timm from the Electronic Frontier Foundation.   read more »

Illinois Clumsily Enters the Nymwars

Update (Feb. 25, 2013): Computeworld reports that Rep. Silverstein has withdrawn the bill in question.

Last week the great state of Illinois entered into the not-so-great business of trying to govern anonymous speech online through the introduction of Illinois Senate Bill 1614 by State Senator Ira Silverstein. The bill, introduced on February 13th, seeks to force identification of anonymous online commenters by requiring that

[a] web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests clearly visible in any sections where comments are posted.   read more »

The Impact of "Aaron's Law" on Aaron Swartz's Case

Like so many around the greater Berkman community I was stunned and saddened to hear that Aaron Swartz committed suicide late last week. I truly admired Aaron's work and consider the future of Internet policy substantially worse off without his presence. For more on his life and work, I'd encourage you to visit this gathering of Berkman blog feeds, which this week is filled with posts that discuss his life and work in greater detail.

Much of my attention towards Aaron was focused on his recent federal prosecution. This week Representative Zoe Lofgren has announced on Reddit that she plans to introduce a new bill that changes computer crime law to protect activities like Aaron's from future prosecution. (This action itself is a very fitting tribute to both Aaron's work in shaping a pro-Internet political climate and his early and involved work with Reddit.)   read more »

The First Circuit Tackles Copyright in News Photography and Docudramas

On Monday the First Circuit released an important opinion addressing copyright and news photography, in Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2003).  The case is related to the famous "Clark Rockefeller" incident. For those unfamiliar, "Clark," a wealthy Boston socialite who was purportedly a member of the Rockefeller family, kidnapped his daughter and fled Boston in July 2008. This lead to a nationwide manhunt that ended a little over a week later in Baltimore. After he was apprehended it was revealed that "Clark" was actually Christian Gerhartsreiter, a German immigrant that had come to the United States as a teenager and since then assumed many different fake identities, including that of Boston socialite "Clark Rockefeller." After a conviction for parental kidnapping, Gerhartsreiter is now in California, standing trial for a 1985 murder.

If you have one image in your mind from this famous news story, it's probably this photo:

This photo was taken by freelance photographer Donald Harney for a piece in the Beacon Hill Times. The photo was used by state and federal police agencies during the manhunt for Gerhartsreiter, where it saw widespread dissemination.   read more »

Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

Fighting for the First Amendment can often mean confronting and defending vile, caustic, hurtful, and downright disgusting speech. But not all free speech cases address the words of the most hateful or offensive amongst us. Every once in a while you get a case concerning speech at its most fun and playful. In that spirit, and in light of tomorrow's holiday, I'd like to share an update from a case in New Hampshire that Marc Randazza first blogged about here last October.

The case concerns Jonathan Doyle, who decided to dress up as Bigfoot one day in September 2009 and walk around Mount Monadnock State Park to see how people would react (as you do). He filmed some of the interactions he had with passing hikers, and even convinced two park employees to write a note confirming a "bigfoot" sighting on Mount Monadnock.

Doyle decided to return a week or so later, this time announcing his trip in advance through a press release in the Keene Sentinel.  Doyle brought along some of his friends, including a friend dressed up as "Boda the Blue Yoda" (your guess is as good as mine) and a child dressed up as "the Pirate Ambassador." The trio of disparate characters hiked up the mountain and did some more filming, to the delight and amusement of the participants and scattered spectators.   read more »

No, No, Nutella! A Trademark Dispute Over a Hazelnut Milkshake

In the Tip O'Neill spirit of all politics being local, here's an interesting trademark story from right down the road from our office:

Anyone who went to college in Boston over the past decade probably knows Boloco, a local wraps-and-smoothies chain with locations at or near most of the colleges in the metro-Boston area, with scattered other locations at other college towns in New England. Among the shakes and smoothies that Boloco sells is a "Nutella Milkshake," made with Nutella, skim milk, and frozen yogurt. The picture included with this post is taken at Boloco's Harvard Square location, and shows how Boloco advertises the shake on their menu board. (And yes, it is as delicious as it sounds.)

Boloco CEO John Pepper sent a Tweet yesterday saying, "After 14 yrs as their faithful advocate, Nutella's lawyers have sent us an immediate cease & desist on the use of their name." According to subsequent reporting by the Boston Herald, the dispute appears to be over the use of the word "Nutella" in the name of the milkshake, because, according to Pepper, "[t]hey don’t endorse the use of Nutella or the Nutella brand in frozen beverages." Nutella says that Boloco can continue using the product, but cannot use the name.   read more »

The Structural Weakness of Internet Speech

It is hard to look at the international protests surrounding the Innocence of Muslims video and the contemporaneous (though seemingly unrelated) fatal attack on the U.S. Consulate in Libya and not feel as though we are witnessing an important moment in the Internet's development.

Of course, posting material online has lead to drastic, even fatal, consequences in the past. But it is hard to think of another time where a single piece of online content has brought about such an overwhelmingly serious and negative reaction. And given that the creator's initial anonymity led news reports to declare the video as coming "from the Internet," it's quite possible that this will remain a video whose origin is attributed primarily by where it was published rather than who made it. In the minds of many, this will remain an action of the Internet – and an action with very serious consequences.

This leads to a fear. We now live in a world where one person is able to cause mass chaos by posting one video. Of course, that is not what happened; the video took nearly 100 people and thousands of dollars, and the environment is especially volatile in the post-revolution countries of Libya and Egypt. (The truth is always much more nuanced.) But I suspect that the question will be asked: Can we tolerate this? Should we censor Internet speech in order to avoid the harm to others, both religious and physical? When should free speech yield to other concerns?   read more »

Announcing a Guide to Reporting at the 2012 Republican and Democratic National Conventions

Click here to download
the guide (pdf)
As you may have seen on our home page today, the DMLP has released a Guide to Reporting at the 2012 Republican and Democratic National Conventions. I wanted to share a little more about why and how we decided to release this document.

As we mentioned already, the conventions are creatures of chaos. Thousands of journalists and even more demonstrators will descend upon these cities. These crowds are typically met with an overwhelming police presence, and the clashes between protesters and the police typically result in numerous arrests. Avoiding police detention as a journalist is often a challenge, as a large tangle of laws regulates crowd behavior, and police often enforce these complex laws with sweep arrests of whole crowds.

Many experienced journalists are not strangers to such tough situations, but the nature of the conventions as "national special security events" presents special concerns, especially around the norms journalists establish with local law enforcement. The Secret Service takes the lead during these national security events, and the normal journalist–police relationships that allow journalists to report from over police lines are likely to be jettisoned in favor of a strict enforcement of the law.   read more »

DMLP Amicus Update: Narrow Victory in Massachusetts Anti-Counterfeiting Case

The DMLP recently appeared as an amicus curiae in Commonwealth v. Busa, a case brought in Boston Municipal Court under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). Yesterday morning the BMC gave us a narrow victory by granting the defendant's motion to dismiss, but without resolving the underlying question of Section 147's constitutional validity.

The case arose after defendant Matthew Busa sold anti-Vancouver Canucks shirts outside of the Boston Garden during last year's Stanley Cup Finals. The shirts had the Canucks logo with a circle and line through it (approximated in the image at right), and on the back read "Boston Fights, Vancouver Bites," a reference to an incident from game 1 of the finals. The Commonwealth arrested Busa and seized these shirts under Section 147, claiming that they were an unauthorized reproduction of the Canucks's trademark. Busa filed a motion to dismiss the indictment on a variety of grounds, including unconstitutional overbreadth and copyright preemption. At yesterday's hearing Busa also moved to report the question of Section 147's constitutional validity to the Massachusetts Appeals Court under Massachusetts Criminal Procedure Rule 34.   read more »

The Right of Publicity and Free Speech: DMLP Joins Amicus Brief in Hart v. Electronic Arts

Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc., currently before the United States Court of Appeals for the Third Circuit. [FN] Hart is yet another case concerning the ever-uncomfortable balance between free speech and intellectual property, this time in the context of "right of publicity" laws.

This case involves the NCAA Football series developed by Electronic Arts ("EA"), which allows players to play for and manage real-world collegiate football teams. EA licenses the right to use the team and league names, but not the names or likenesses of individual players. In fact, according to Wikipedia, EA does not claim that the players in the game are based on their real-world counterparts. That said, users are quick to point out that the jersey numbers, personal stats, and player hometowns of the virtual players frequently align with the real athletes.

Ryan Hart, a former quarterback for Rutgers University, claims that he appears in the NCAA Football games from 2004-06 both as a virtual player (that is, there is a character in the game who shares Hart's team, position, basic player stats, and jersey number) and in the 2009 edition of the game in a brief video clip showing the real-world Hart throwing a pass, which appears when a player selects Rutgers as a favorite team. Hart objects to his appearance in the game without his permission as a violation of his right of publicity.   read more »

DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law

Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). I wanted to share a little bit about the statute, and why we decided to take the unusual step of appearing at the trial court level to urge the court to void the statute.

Section 147, at a quick glance, may look like a traditional trademark regulation. The statute punishes whoever willfully "manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark." So far, highly unremarkable.

The statute deviates from mainstream trademark law, however, in its definition of "counterfeit mark," which includes "any unauthorized reproduction or copy of intellectual property." "Intellectual property," in turn, is defined as "any trademark, service mark, trade name, label, term, device, design or word" that is used by a person and is registered in a state trademark database or the USPTO Principal Register. Notably absent is the central test of trademark infringement: that the use is likely to cause confusion as to the origin or sponsorship of goods or services.   read more »

Jenzabar v. Long Bow: Oral Argument Focuses on Initial Interest Confusion and Search Engine Results

This morning Jeff and I had the pleasure of watching the Massachusetts Appeals Court argument in Jenzabar, Inc. v. Long Bow Group, Inc.  As we mentioned once before on this blog, the CMLP filed an amicus brief in this case with the assistance of Harvard Law School's Cyberlaw Clinic. (And thanks again to HLS students Mike Hoven and Andrew Pearson for their help!)

The case concerns a documentary film company that released a film concerning the Tiananmen Square protests, called The Gate of Heavenly Peace. The film profiles many of the figures surrounding the protest, and is critical of a student protester named Ling Chai. Chai later moved to Boston and co-founded an educational software and service company named Jenzabar. The film company, Long Bow, created a website related to the film, which, among other things, criticized Chai on a webpage. Long Bow titled the page "Jenzabar," and included terms related to Jenzabar in the metadata.   read more »

Louis Vuitton v. Hyundai: Deconstruction of a Bad Trademark Decision

From the ever-growing file of trademark cases that are bad for free speech, Eric Goldman and Techdirt bring us an interesting case concerning a recent Hyundai ad. The ad is a series of brief vignettes conveying luxurious items in non-luxury settings: a yacht parked next to a small suburban ranch house, cops in a squad car snacking on caviar, chandeliers for streetlights, lobsters and roast pigs in what looks like an office breakroom, and – most importantly for our purposes – a group of people playing basketball with a ball that appears to have what Louis Vuitton calls its "Toile Monogram" pattern on it. Baroque music plays throughout, and a sonorous voice asks the audience, "What if we made luxury available to everyone? Would it still be called luxury? Or maybe we'd need a word for it. Oh, here's one: 'Hyundai.' The all new Hyundai Sonata."

Get it? The ad asks us to ponder whether luxury is defined by its exclusivity to an upper caste, or whether we can all experience the creature comforts of "luxury" regardless of social strata, when a vendor makes high-quality goods at a convenient price point. (Also, buy our car.)   read more »

Can AP's Copyright Claims Hold (Melt)water?

By now you might have heard about the lawsuit that the Associated Press filed against on-demand software company Meltwater News. AP has been critical of aggregators in the past, and decided to file suit against this specific party, alleging copyright infringement, removal of copyright management information, and (drumroll, please…) hot news misappropriation. Yes indeed, the tort made famous by the 1918 Supreme Court case INS v. AP – and about which we here just love to write – refuses to die.   read more »

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