John Sharkey's blog

Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen. And really, the Court of Appeals' opinion (DMLP threat entry on the case here; .pdf of the opinion here) in Viacom v. YouTube is pretty decent on most of what I care about. But my focus today is on one particular spot in the opinion that turns out to be a bit squishy: the meaning of the statutory phrase "right and ability to control [infringing] activity." The parties presented two clear – albeit diametrically opposed – interpretations of the phrase, and the Second Circuit settled on... neither one. It's an unfortunate bit of fogginess in what could have been a seriously clarifying opinon. (After all, when the Second Circuit speaks on copyright, other courts tend to notice.)

A quick DMCA refresher, if you're rusty: The statute sets up a system to shield online service providers from copyright liability based on their users' activity. So in the YouTube case, the fight is over whether YouTube (and now its corporate daddy Google) can be held liable for infringing videos posted by users. If YouTube qualifies for the DMCA "safe harbor," it's in the clear. If not, there's pain on the horizon.   read more »

Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

What IL Courts will need to decide SLAPP casesSo this case slipped by me when it first came down in January, but it raises my ire enough to come back to a bit late. It's Sandholm v. Kuecker, the Illinois Supreme Court's attempt to make sense of the state's anti-SLAPP statute, and it's an impressively terrible piece of work. In it, the Court introduced what amounts to a mind-reader approach: If the plaintiff has a pure heart and really believes he's been wronged, then the anti-SLAPP law won't stand in the way.

The facts in Sandholm are pretty basic. A bunch of parents were dissatisfied with the local high school basketball coach/athletic director, so they spent a couple of months mounting a campaign to get him fired. Once the dust settled, the embattled coach brought this defamation case.

It gets interesting for my purposes because the defendant-parents brought Illinois' anti-SLAPP law into play. The Illinois statute, 735 Ill. Comp. Stat. 110/15, in the universe of all anti-SLAPP laws, is already on the narrower side, limited to some kind of broadly-defined government-participation speech. According to the statute, speech/petition/etc. activities are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."   read more »

The Curious Case of the D.C. District's Anonymity Orders

Magnifying glass and reflection by ◄bl►

Just before Christmas 2011, a federal magistrate working under D.C. District Court issued a… curious ruling. The case is Hard Drive v. Does 1-1,495, another one of these mass-joinder copyright-infringement cases. I recommend hitting that link for the full story, but here's the basic sketch:

The plaintiff – named, ahem, "Hard Drive Productions" – tries to sue 1,495 IP addresses allegedly linked to some BitTorrent activity. So, Hard Drive successfully moves for some expedited discovery, subpoenas the ISPs linked to the IP addresses in order to find out who they should sue, the ISPs notify (at least some of) the subscribers linked to those IPs, and (at least some of) the subscribers anonymously move to quash the subpoenas and keep their identities secret. So far, so good – that's how you'd expect it to work.

Problem is, the D.C. District Court has a local rule disallowing anonymous filings. So, the judge comes up with a work-around: Put your names on your motions to quash, and we'll keep them under seal from the public and from Hard Drive (who gets copies of the motions with the identifying information redacted). Seems fair enough. The case gets passed to a magistrate for management.

Then, the magistrate decides… "never mind." He issues an order telling all of the defendants that they can either (a) file their motions publicly (thus, revealing their identities and defeating the purpose of the motions), or (b) withdraw their motions (meaning their identities will be revealed).   read more »

Everybody's Public to Somebody?: Social Media and the Public/Private Divide


First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.   read more »

Why Blogs Can't Be Trusted, or: 'Statements Made Here Are Not Likely Provable Assertions of Fact'

The refrain that bloggers can't be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn't be too quick to celebrate.

The basic problem is this: As we all know, you can't sue someone for defamation based on opinion, as opposed to factual statements. That standard applies the same to the Washington Post as it does to It's possible to argue, though, that statements on a blog are inherently less "factual," making it harder to sue for defamation. Some online defendants are starting to find some success with this strategy, and more power to them.

I get nervous, though, with any legal standards based on blogs' second-class status. Other tangible legal interests could be affected by such rulings (I'm thinking in particular of reporters'-shield laws). And more generally, the "you can't trust these crazy bloggers" sentiment doesn't seem to be in the long-term interests of online media.

The case I have in mind — Obsidian Finance v. Cox, out of the federal district court in Oregon (see CMLP's full treatment of the case here) — goes something like this: Blogger runs angry, critical website. Target of criticism sues. Court says that, because blogger is obviously angry and critical, nobody would believe that she's making any factual claims.   read more »

A Look at Texas's New Anti-SLAPP Law

Back in mid-June, Texas's new anti-SLAPP law finally took effect. (Since the bill passed both houses of the Texas legislature unanimously, it took effect immediately when Gov. Rick Perry signed it.) The CMLP's legal guide is updated to reflect the new statute. It's a good bill, and the whole "unanimous passage" part is a good sign for the larger anti-SLAPP project, so it's worth taking a moment to see how the Texas statute stacks up.

The new law (the "Citizens Participation Act") casts a wide net: it covers any exercise (in any medium) of free speech, petition, or association rights. That sounds nice in the abstract, but the trick is in the definitions.

The "right of association" doesn't get any clarification beyond reference to "individuals who join together to collectively express, promote, pursue, or defend common interests," but that could provide some interesting arguments for defendants getting sued for posts on message boards and the like. It doesn't limit protections to "matters of public concern," like other sections: here, all we have are "common interests," which could be a very broad provision indeed. And the text of the "right of association" section could even cover straight-up person-to-person communication – private emails, etc. The bill only requires those "individuals" to "communicat[e]" about "common interests." If courts are willing, they could take that provision a very long way indeed.   read more »

Online Defamation, Injunctive Relief, and the Future of Prior Restraint

It's sitting there in pretty much every online speech-related defamation complaint you'll find: right along side a request for a visit from our friend Stacks O'Cash, the plaintiff asks for an injunction, forcing the defendant to take down the (allegedly defamatory) post.

Usually, nothing comes of that request -- only a tiny sliver of defamation cases ever make it to a jury (the bulk getting tossed out or settled), and even when a plaintiff wins, the result is usually just money. Since we almost never see one of these injunctions make it off the pages of the complaint, higher courts haven't had to deal with their implications -- but the idea of a court-ordered takedown of somebody's speech should send your prior-restraint klaxons blaring. After all, as Walter would say: The Supreme Court has roundly rejected prior restraint.

A new(-ish) problem

Back in the heady mid-century days of SCOTUS prior-restraint cases, the focus was (understandably enough) on forward-looking bans on publication; after all, it's hard to imagine a plaintiff strolling into court and saying, "Your honor, the New York Times has defamed me, so please make them track down every copy of their June 17, 1967 edition. They should then, via scissors, remove the vile libel from their pages."   read more »

ISP Gets Identity-Seeking Subpoena Vacated

Clapping by TheGiantVermin, on Flickr From the credit-where-credit's-due department (with the requisite hat-tip to David Ardia's Twitter account):

I've written previously about clothing company Façonnable's lawsuit against an anonymous Wikipedia editor. To sum up: The company sued a pile of John Does, then tried to subpoena an ISP (Skybeam) for the editors' identities. A magistrate judge granted Façonnable's request, but the ISP has been fighting it.

Well, it looks like the ISP won the day. CMLP's entry on the case is now updated with the new developments: Façonnable reached some sort of settlement with the Does, but Skybeam continued to fight the subpoena, looking to avoid bad precedent. And last Wednesday, the district judge agreed, vacating the subpoena.

In my last post, I was fairly dismissive of the idea that we should trust the free market to protect online anonymity. And, to tell the truth, I remain skeptical, and would like to bake more protections into our system. But at least this time, the market did its job.   read more »

At the Intersection of Anti-SLAPP and Anonymity

Slap! by Vermin Inc, on Flickr

Consider two cases: In Colorado, clothing company Façonnable is attempting to sue an anonymous Wikipedia editor (or, possibly, more than one; the number is sort of up in the air) over some unflattering edits to the company's Wikipedia page. But first, Façonnable has to figure out who the editors are--thus, a subpoena to the ISP allegedly attached to the editors' IP address. The ISP, Skybeam, is fighting the subpoena; CMLP's full treatment of the case is here.

Meanwhile, a couple of weeks ago the Texas Supreme Court quashed a subpoena seeking the identities of some anonymous bloggers. Without getting too bogged down in the niceties of Texas civil procedure, the court said that to order this type of subpoena, a court has to rule either (1) there would be a failure of justice without it, or (2) the likely benefit of the discovery outweighs the harm. The plaintiff in the case hoped to get around that requirement by cutting a deal with the company in possession of the bloggers' identities (Google, through Blogger). Google's response to the subponea was mixed at best,1 but the bloggers objected and finally succeeded in getting the subpoena quashed.   read more »

Second Circuit Rules: "Hot News" Claims Preempted

In a narrow, fact-bound decision, the Second Circuit today held that a group of investment firms' claims against a news-aggregation company were preempted by federal copyright law. (PDF of the opinion here.) The court stopped well short of reaching any larger 1st Amendment issues, however.

The case, Barclays Capital Inc. v., dealt with the latter company's republishing the i-banks' stock recommendations as news; the crux was whether republishing of non-copyrightable stock recommendations constituted so-called "hot news" misappropriation, and whether the i-banks' claim was preempted by federal law. We've written about the case before; see Sam Bayard's treatment of the district court result and the case's possible 1st Amendment issues here. For further, even more-thorough details, check out the amicus brief to which CMLP contributed, laying out the 1st Amendment implications. The quick takeaway from today's decision is twofold:   read more »

Dan Snyder Gets a Taste of D.C.'s New Anti-SLAPP Law

We've previously mentioned Washington Redskins owner Dan Snyder's lawsuit against the Washington City Paper. (Quick refresher: the City Paper published a stinging catalogue of Snyder's public failings; Snyder sued.) On Friday night, the latest chapter of the saga began: the City Paper filed a motion to dismiss under Washington, D.C.'s spanking-new anti-SLAPP statute. Those of us who care about SLAPPs could hardly have asked for a better high-publicity example.

The full pile of documents--the motion and its accompanying memo, affidavit, and exhibits--is available at the City Paper's website. The memo in particular is admirably thorough, and provides an excellent example of D.C.'s new statute in action; in it, the City Paper's lawyers lay out the two-step process--first show that the contested content is advocacy related to an issue of public interest, then show that the plaintiff cannot meet his burden of proving he is "likely" to win his claim--in detail. A few highlights, listed in the order in which they appear:    read more »

The SLAPP-Happy Story of Rakofsky v. Internet

By now, you've perhaps heard of the plight of one Joseph Rakofsky, the man who sued everyone who ever wrote about him on the Internet. In short: Man represents defendant in murder trial; judge declares mistrial; judge says scathing things about man's professional competence; newspaper covers the unusual mistrial; law bloggers pick up story; man brings 75-defendant lawsuit against everybody who wrote about him. CMLP's full run-down of the lawsuit is live; give it a click for the nitty gritty. Go ahead, I'll wait.

Got it? Good. As we point out in our threat entry, the case is starting to move: defendants are organizing into groups, and the first few motions to dismiss are starting to come through. Most of what can be said has already been said -- after all, that's why we have a lawsuit -- so I'd recommend checking out the links in our "Websites Involved" section of the case entry for some thoughtful points on what the Rakofsky affair says about the state of the legal profession, the over-supply of lawyers scrambling to piece together a practice, and so on.

There's one point I'd like to add, though. It's easy to have fun with the case, in large part because none of the defendants are really in any danger -- the defendants that aren't lawyers themselves are mostly big media companies, who can more-than-capably handle themselves when faced with a lawsuit. But that's no excuse to forget the SLAPP problems here.   read more »

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