DMLP Staff's blog

DMLP Announcement: A New Report on Media Credentialing in the United States

The Digital Media Law Project at Harvard University's Berkman Center for Internet & Society and the Journalist's Resource project at Harvard's Shorenstein Center on Media, Politics and Public Policy are pleased to release a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.

Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.

Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.

"Media credentials represent one of the most important interactions between journalists and those who control access to events and information," said Jeff Hermes, director of the Digital Media Law Project and lead author of the report. "This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States."   read more »

DMLP Announcement: Live Chat Session on Tax-Exempt Journalism (UPDATED)

UPDATE: The chat session scheduled for April 10, 2014 has been postponed.  We hope to have a rescheduled date soon, so please stay tuned.

This Thursday, April 10, 2014, at 1 p.m. ET, the Digital Media Law Project will be holding a live online session to discuss the legal environment for tax-exempt journalism in the United States. DMLP attorneys Jeff Hermes and Andy Sellars will review their experiences in helping journalism nonprofits seeking Section 501(c)(3) tax-exempt status from the IRS, as well as new DMLP resources for news organizations thinking about applying for a tax exemption.

Whether you're a journalism non-profit seeking a tax exemption from the IRS, or just interested in how the agency looks at news organizations, this session will give you the chance to learn and to ask questions about the IRS process, such as:

  • What is the IRS looking for when it evaluates a journalism organization's application for Section 501(c)(3) status?
  • Why does the IRS ask applicants certain questions about their operations?
  • Are there "red flags" that can cause problems with an application? 

We will post connection information and a link to the online session on the DMLP home page on Thursday morning. But before then, we're asking anyone who is interested to help us kick off the discussion by submitting questions to us via e-mail at staff [at] dmlp [dot] org.

We'll read all of the questions, and try to answer as many as we can during the session; of course, we'll take questions from the audience as well. Unfortunately, we won't be able to provide legal advice about specific organizations or their applications to the IRS -- that should be done in private with your own lawyer -- but we will surface general issues of interest to everyone.   read more »

A New Approach to Helping Journalism Non-Profits at the IRS

Today, the Digital Media Law Project has launched a new version of its resources for journalism organizations seeking a Section 501(c)(3) tax exemption for the IRS. As a project, we have been concerned with non-profit journalism from the beginning, providing informational resources for news ventures seeking to form as non-profits. Since the launch of our attorney referral service, the Online Media Legal Network, in late 2009, about a third of our clients have been non-profit journalism organizations; more have been individuals or for-profits interested in starting a non-profit news venture. We have worked with more than forty groups to find counsel to assist them in applying to the IRS for recognition of tax-exempt status.   read more »

DMLP Staff Presenting at CLE Events in New York and Georgia this Week

For the lawyers in our readership, we'd like to let you know that later this week the DMLP will be headed down the East Coast to bar association events in Georgia and New York:

  • On Thursday, Andy will be in New York City at the New York Chapter of the Copyright Society of the USA to discuss news aggregation in a luncheon panel entitled "Content Aggregation: Fair Use or a Use Too Far?" The event is from noon to 2pm at the Princeton Club, 15 West 43rd St., Manhattan. Discount rates for students and CSUSA members, and the event counts for an hour of New York Professional Practice credit. Info on registration can be found here.
  • On Friday, Jeff will be in Atlanta speaking at the day-long Technology Law Institute, hosted by the Technology Law section of the State Bar of Georgia. Jeff will be keynoting the event with a presentation called "Beyond Citizen Journalism:  Technology, Speech and Civic Participation in the Digital Age." The event will be held from 7:45am to 4pm at the State Bar of Georgia's headquarters, 104 Marietta St. NW, in Atlanta. The event counts for 6 Georgia CLE hours, including 1 Professionalism Hour. Registration information can be found here.

Hope to see you there!

DMLP Announcement: New Media Credentialing Survey Launches Today

Today, the Digital Media Law Project launched a new research study on media credentialing practices. Developed with Free Press, the National Press Photographers Association, Journalist's Resource, the Investigative News Network, and the Nieman Journalism Lab, this new study is designed to learn more about how federal, state, and private organizations issue media credentials to newsgatherers and journalists of all types.

Even as the very concept of journalism evolves to accommodate dramatic new ways of gathering information, the idea of media credentials remains deeply embedded in the practice of journalism in the United States. Dozens of laws at both the state and federal levels condition the right to engage in newsgathering activity on the receipt of credentials. Police departments use press identification to separate journalists from protestors subject to arrest. Political parties limit access to vital aspects of the democratic process to those approved by candidates and their campaigns.

As a result, the question of "who is a journalist" is in many cases left up to the discretion of individual agencies and organizations. While many of these organizations attempt to exercise this discretion in a manner that is fair and serves the public interest, credentialing standards can nevertheless vary significantly. Worse, this discretion can be abused to deny credentials to newsgatherers whose investigations threaten the standing of politicians, government employees, and others who control access. And yet, there is little understanding of the scope of this issue.   read more »

Vote for the Digital Media Law Project's Section 230 Panel at SXSW!

The SXSW Panel Picker is now live, and the Digital Media Law Project is pleased to announce that we have a session proposal in the mix

We have put together a fantastic session to be led by DMLP Director Jeff Hermes, discussing Section 230 of the Communications Decency Act -- arguably the most important United States law for anyone who communicates online. Joining Jeff will be Internet law scholar and Section 230 guru Eric Goldman of the High Tech Law Institute at the Santa Clara University School of Law, and Ari Shahdadi, General Counsel at Tumblr.

From our panel's description:

Section 230 of the federal Communications Decency Act is responsible for the shape of the Internet as we know it today, by freeing website operators from needing to conduct a legal review of each and every user communication that crosses their systems.

And yet, the protection granted by Section 230 is both controversial and fragile. Judges are uncomfortable with the idea that websites can publish revenge porn, pay-to-remove mugshot galleries, and prostitution ads with impunity. State attorney generals have demanded that Congress amend Section 230 to give them broad new powers to bring criminal charges against social media sites, to use them as a choke point to cut off illegal content involving child trafficking. But what would limiting Section 230 mean for the future of peer-to-peer communication?   read more »

DMLP files brief seeking First Amendment scrutiny in United States v. Auernheimer

Yesterday the Digital Media Law Project, with help from the Cyberlaw Clinic, filed an amicus brief in the United States Court of Appeals for the Third Circuit in United States v. Auernheimer, arguing that the First Amendment prohibits the government from punishing Auernheimer’s disclosure of true, newsworthy information. The case is on appeal from the United States District Court for the District of New Jersey, which found Andrew “Weev” Auernheimer guilty of felony charges under the Computer Fraud and Abuse Act (“CFAA”) and federal identity theft law.

Auernheimer was indicted after he and a partner discovered that AT&T was posting the email addresses of iPad customers on publicly-accessible websites. The two developed a script to copy all of the emails that AT&T exposed and then reported to Gawker and other members of the media the existence and evidence of the vulnerability, including the email addresses. The prosecution in this case determined that such action was punishable by the CFAA’s provisions prohibiting unauthorized access to computers, which is normally a misdemeanor, but the prosecution escalated the charge to a felony by claiming that the access was committed in furtherance of the New Jersey state equivalent to the CFAA. The only difference between the two laws is that New Jersey’s law also requires that the defendant disclose the information obtained. Therefore, the punishment of Auernheimer went from a maximum of one year to a maximum of five years because he disclosed what he found to the public. Auernheimer was sentenced to over three years in prison.   read more »

DMLP Announcement: Video from Cambridge Community Television Event Goes Live

In May, the DMLP, with our good friends at the Harvard Law School Cyberlaw Clinic and the MIT Center for Civic Media, helped to produce an event celebrating the 25th Anniversary of Cambridge Community Teleivsion. Entitled Filling the News Gap in Cambridge and Beyond, participants in the event explored the quickly expanding world of citizen journalism: how technology is fueling its growth; how that growth is changing the way we see our world, enact change, and disseminate the news; and how people in communities around the world are taking the initiative to share stories that are left untold by the mainstream media.

We are pleased to announce that video of the event sessions has now gone live on  CCTV's website. The video is available to the public, so if you were unable to attend the event -- or if you were there and want to hear parts of it again -- we invite you to check it out.  In particular, the DMLP and the Clinic presented in a session addressing legal issues facing newsgatherers, so if you'd like to put some faces and voices to the names you see mentioned around our site, this is your chance!   read more »

"Newsgathering in Massachusetts" Guide Now Available Online!

The Digital Media Law Project is pleased to announce the online release of its new legal resource, Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.  

Our new guide is a PDF document formatted for booklet printing, and provides background legal information on the rights of independent and institutional journalists to collect information in Massachusetts.  It covers core topics in Massachusetts newsgathering law, including: open meetings and public records laws; access to courts and courtrooms; recording courtroom proceedings; recording the activities of public officials in public spaces; and protection for anonymous sources.

Written by Cyberlaw Clinic and DMLP staff, Newsgathering in Massachusetts was developed for "Filling the News Gap in Cambridge and Beyond: Citizen Journalism and Grass Roots Media," an event on May 4, 2013, celebrating of the 25th anniversary of Cambridge Community Television. We are now pleased to make this guide available to the public, and hope that you find it useful!

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DMLP Co-Organizing an Event on Grassroots Media in Cambridge

As regular readers know, the DMLP spends its days analyzing the legal state of online journalism across the country and out into the rest of the world. Posts on this site address social media service of process in Texas, lèse majesté laws in France, FTC regulation of social media across the United States, defamation analysis for bloggers in Iowa, Florida laws on mugshot websites... and that's just the past couple of months! Every once in a while we here like to take an opportunity to bring our research back to our hometown, and look at all of these big picture media law issues as they apply to coverage of issues where we work and live.    read more »

DMLP UPDATE: The DMLP Asks the Sixth Circuit to Safeguard Crowdsourced Research and Data-based Journalism

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

The DMLP submitted an amicus curiae brief (pdf) last week to the Sixth Circuit in the case of Seaton v. TripAdvisor, LLC. The case concerns TripAdvisor’s 2011 “Dirtiest Hotels in America” list. The list, which was based on travelers’ ratings for cleanliness on TripAdvisor, named the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee the dirtiest hotel in America. Kenneth Seaton, the hotel’s owner, subsequently filed a claim for defamation and false light. The U.S. District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss the claim, holding that the statements at issue were purely subjective opinion and unverifiable rhetorical hyperbole. Seaton appealed the dismissal of his defamation claim to the Sixth Circuit.   read more »

Congratulations to The Lens on its Section 501(c)(3) Determination!

The Digital Media Law Project would like to congratulate The Lens, the New Orleans area's first nonprofit, nonpartisan public-interest newsroom, on obtaining a positive ruling on its Section 501(c)(3) status from the Internal Revenue Service!

This ruling will exempt from federal taxation the organizational income that The Lens derives from its mission "to educate, engage and empower readers with information and analysis necessary for them to advocate for a more transparent and just governance that is accountable to the public." It will also allow The Lens to receive tax-exempt donations from charitable foundations and the general public.

The Lens was one of several news organizations stuck in an extended IRS review of their eligibility for tax-exempt status -- in the Lens' case, for over 26 months.  The determination on The Lens' application follows a similar positive determination in September with respect to San Francisco Public Press, which received approval of its 501(c)(3) status after waiting two and a half years. These long delays are likely related to internal debate at the IRS on whether a news organization can be organized and operated exclusively for one or more of eight charitable purposes set forth in Section 501(c)(3) of the Internal Revenue Code -- specifically, whether journalism should be recognized as a method of carrying out an "educational" purpose as opposed to a purely for-profit concern. Movement on these long-delayed applications suggests that the IRS is beginning to resolve its concerns and to formulate strategies for evaluating applications from news organizations.   read more »

DMLP Victory! Mass. Appeals Court Finds No Trademark Infringement in Critical Website

 (This piece is co-authored by Jeff Hermes and Andy Sellars)

The DMLP is pleased to announce that the Massachusetts Appeals Court has ruled in favor of the result we advocated in an amicus brief in Jenzabar v. Long Bow Group, Inc

For more background you can visit our earlier releases about the case, but in quick summary: the case concerns Long Bow, a documentary film company that released a film concerning the Tienanmen Square protests. The film is critical of many of the student leaders, including a protester named Ling Chai. The film company created a website related to the film, which, among other things, criticized Chai on a particular webpage. As Chai had since moved to Boston and co-founded an educational software company called Jenzabar, the page was titled "Jenzabar," and included terms related to Jenzabar in the metadata.   read more »

ANNOUNCEMENT: Live Web Chats on Reporting at the RNC & DNC

This Thursday, August 16, and again next Thursday, August 23, the Digital Media Law Project's own Andy Sellars will be joining Free Press and the International News Safety Institute to host live online sessions on reporting in conflict areas, with a special emphasis on reporting at the upcoming Democratic National Convention and Republican National Convention. 

In the last year, nearly 90 people have been arrested while trying to report on protests in the United States, and many others have faced abuse, harassment and press suppression from local authorities. Both the RNC and DNC are expected to draw large numbers of protesters to high-security areas, increasing the risk to journalists. Join us to hear concrete tips on how to stay safe while covering these events and learn about local laws and issues that may impact the conventions. These free webcast events will feature both personal stories from journalists who have been arrested and analysis of past events and legal cases. There will be ample opportunity for participants to ask questions and share their own stories.

No registration or signup is necessary -- just visit Free Press's webinar page on August 16, starting at 7 p.m., or on August 23, starting at 8 p.m. (or both, if you're so inclined). We hope to chat with you then!

Update: You can also visit the webinar page to see the archived event if you can't make it to one of the sessions.

ANNOUNCEMENT: Panel and Fundraiser for "Without My Consent"

We would like to congratulate Without My Consent on its one-year anniversary, and announce an exciting event in celebration!

Without My Consent is a 501(c)(3) non-profit organization dedicated to empowering victims of online harassment, as well as facilitating debate and discussion around the issues of online invasion of privacy, accountability, theI nternet and free speech. The project was co-founded by Colette Vogele and Erica Johnstone as a fellow project at Stanford's Center for Internet & Society. We are excited by the work that Colette and Erica are doing at Without My Consent, as they provide critical resources to victims of online invasion of privacy while remaining focused on the risk that excessive regulation poses to the legitimate exchange of information.   read more »

CMLP ANNOUNCEMENT: Mass. SJC Rejects Prior Restraints and Supports Right to Stream and Archive Court Proceedings Online

The following is cross-posted with permission from our good friends at the Cyberlaw Clinic at Harvard Law School. The original post can be found here

In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel. Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.   read more »

CMLP ANNOUNCEMENT: Amicus Brief Filed Regarding Intersection of Trademark Law & Freedom of Speech

On January 18, 2012, the Citizen Media Law Project (under its new name, the Digital Media Law Project -- new website coming soon) filed an amicus brief in the Massachusetts Appeals Court in Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533. 

The CMLP  submitted its friend of the court brief to urge the Appeals Court to uphold several fundamental legal principles, including protecting critical speech online and preventing the misuse of trademark law in a distinctly non-trademark context to impede the free flow of information.

More information about the case and the amicus brief is available on the Berkman Center website.


Amicus Brief

Press Release

Case Entry in CMLP Database


In light of today's internet blackouts, we have received numerous requests for information about the Stop Online Piracy Act ("SOPA") and the Protect IP Act ("PIPA"), as well as the reasons for today's protest of these two bills.  In response to the demand for information, the Berkman Center for Internet & Society, the center at Harvard University that hosts the Citizen Media Law Project, has collected links to useful summaries, statements and commentary about SOPA and PIPA here.  We invite you to visit Berkman's site and learn more about SOPA, PIPA and today's protest.

If you are wondering why the CMLP's own page did not go dark today, we made an institutional decision that we could best serve the public by remaining an accessible resource for information on media law and threats to online speech during the protest.

A Look Back at 2011

As we approach the new year, the staff of the Citizen Media Law Project had the opportunity -- thanks to a kind offer from Student Press Law Center Legal Fellow (as well as CMLP friend and blog contributor) Rob Arcamona -- to take a look back at the biggest issues in media law over the past year in an article for PBS MediaShift.  Jeff and Andy worked with Rob to identify 2011's top ten legal issues in professional and citizen journalism, so go check it out and see if you agree!

We hope you are all having a wonderful holiday season, and will see you again in 2012!

The Online Media Legal Network Celebrates its Second Birthday!

We are pleased to announce that the Online Media Legal Network, the Citizen Media Law Project's legal referral service, is now two years old!

The OMLN was started in Dec. 2009 as a way to help online journalism ventures and digital media creators find lawyers experienced in the sorts of legal issues media ventures face and to provide legal services on a pro bono or reduced-fee basis. 

Now, two years later, the OMLN has a network of 232 lawyers in 49 states and the District of Columbia who are willing to offer their services to needy citizen journalists and online publishers.  And help they have: as of Dec. 9, the OMLN has over 170 clients and has found counsel for 347 different legal matters, ranging from setting up a business to authoringwebsite terms of use to defending clients against defamation claims. 

We commemorated the event with a talk this week as part of the Berkman Center's Tuesday Luncheon Series, where we discussed the history of the OMLN, how the OMLN works, and what we've learned from it. In-person attendees included attorneys from OMLN member firms Booth Sweet LLP and Hermes, Netburn, O'Connor & Spearing, P.C.; OMLN client and former Berkman fellow Tom Stites; and a host of citizen journalists, Berkman fellows, and other interested folks. Many thanks to all who attended!   read more »

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