Sam Bayard's blog

There's an interesting debate afoot about TechCrunch's decision to publish selected documents it received from someone who hacked into the email accounts of Twitter CEO Evan Williams and other Twitter employees. There's already been some good coverage of the journalism ethics side of the debate, but I wanted to weigh in with some detail on what U.S. law has to say about the situation. Is it legal for TechCrunch to publish hacked documents?  As with most questions worth asking a lawyer, it depends.  It depends largely on whether the content of any particular published document is of legitimate concern to the public.   read more »

As if anyone needed more proof that shooting off an ill-conceived cease-and-desist letter is a bad PR move, Techdirt points us to a recent gem.  The hilarious FAIL Blog publishes user-submitted photos and videos documenting various mishaps, incongruous images, and other examples of human fallibility, which it refers to as "fails."  Last week, it published "Record Breaking Fail," which showed a screenshot from the Guinness World Records website for the entry "most individuals killed in a terrorist attack."  The "fail" captured by the screenshot was a link on the page -- apparently part of the site's template -- encouraging readers to "break this record."    read more »

In a June 30 decision, New Jersey Superior Court Judge Louis Locascio ruled that Shellee Hale, a blogger, private investigator, and "life coach," could not invoke New Jersey's journalist shield law to protect the identity of her sources in connection with postings she made to an Internet message board.

Hale sought protection for her sources under the shield law in the course of a defamation lawsuit brought against her by New Jersey-based Too Much Media, LLC, a software company that serves the online adult entertainment business.  In the lawsuit, Too Much Media claimed that Hale defamed the company on Oprano.com, a forum for those in the adult entertainment industry -- self-described as the "Wall Street Journal of porn." According to the court's decision, Hale's forum posts accused Too Much Media and two company officers of intentionally mishandling a security breach and engaging in threatening behavior.   read more »

This week brings word of two new cases testing whether state shield laws apply to user comments posted on news websites.  In Texas, a Taylor County District Court judge ruled that the Abilene Reporter-News may refrain from disclosing the identities of commenters who posted comments to articles about a murder victim and the teenager charged in connection with his death. According to a follow-up story by the Reporter-News, defense counsel in the criminal case had sought the commenters' identities to make sure they weren't chosen as jurors in the trial, which began last week.   read more »

Back in May, the CMLP joined Public Citizen, the Center for Democracy and Technology, and the Electronic Frontier Foundation in submitting an amicus curiae brief in support of Yahoo!'s petition for rehearing in the Barnes v. Yahoo! case.  On Monday, we got some good news when the Ninth Circuit Court of Appeals issued an order amending its previous decision.   read more »

A story mixing the absurd and the tragic comes to us from Florida, where Christopher  Comins, an Orlando businessman, recently filed a defamation lawsuit against Matthew Frederick VanVoorhis, who publishes a wordpress blog called Public Intellectual.  Comins objects to two of VanVoorhis' blog posts from June and August 2008, which reported and followed up on a truly bizarre incident that occurred in May, in which Comins shot two husky dogs believing they were wolves intimidating a group of cattle grazing on land being developed by one of his business partners.  According to the Orlando Sentinel, both dogs survived, one with four gunshot wounds and the other with three.

VanVoorhis blogged about the incident after video footage captured by Irish tourists who witnessed the event appeared on YouTube.    read more »

Today, a federal district court in South Carolina issued a consent order temporarily restraining South Carolina Attorney General Henry McMaster from "initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website." The order specifies that it is issued "by agreement of the parties." It will remain in place until the court rules on the merits of craigslist's claims. Craigslist sued McMaster on Wednesday, claiming that his threats to prosecute the company and its executives over user-submitted content violate its statutory and constitutional rights.

Yesterday, Yahoo! filed a petition for rehearing in Barnes v. Yahoo!, a case in which the Ninth Circuit recently held that Cecilia Barnes could pursue a promissory estoppel claim against Yahoo! based on an employee's promise to take down a false profile, notwithstanding the immunity for interactive computer services in section 230 of the Communications Decency Act. (See posts by Eric Goldman, Marc Randazza, and Concurring Opinions for details on the decision.) 

Yahoo!'s petition doesn't seek reconsideration of the main substantive holding on promissory estoppel and Section 230; rather, it asks the Ninth Circuit to revisit dicta in the opinion indicating that, as an affirmative defense, Section 230 cannot be raised on a motion to dismiss. The court said that, instead, an interactive computer service wrongly sued for user-submitted content despite the protection in Section 230 should file an answer and a "motion for judgment on the pleadings."   read more »

Tired of being bullied by South Carolina Attorney General Henry McMaster, craigslist is going on the offensive.  CEO Jim Buckmaster announced on the craigslist blog today that that craigslist is suing McMaster in South Carolina federal court, seeking "declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives."    read more »

Felix Salmon of Reuters reports that the pseudonymous lead blogger behind the financial blog Zero Hedge received DMCA takedown notices for six posts that cited or excerpted from Merrill Lynch reports authored by Merrill's former chief economist, David Rosenberg.  According to Salmon, Zero Hedge is "an insider financial blog whose writers believe the worst of the meltdown is yet to come," and the Rosenberg reports jive with this bearish view of the economy:

Rosenberg's reports are different than those of the typical investment bank economist. The bearish, even cynical reports issued from his desk have been serving as a rallying cry for financial bloggers who don't believe that the economy is recovering as fast as financial cable networks, the mainstream media, the Obama administration, and, indeed, the investment banks themselves seem to suggest. . . .

Rosenberg's reports are known for gems like this one: "We don't really share the view that the recovery, if and when it comes, will be sustained. We understand the historical record that even in the face of monumental fiscal and monetary easing, it takes a good four years for the economy to work through the aftershocks of a collapse in credit and asset values. While most economists are now waving the pom-poms, we find very few marketmakers who share their enthusiasm." (Reuters)   read more »

Wired/Epicenter reported yesterday that popular photo-sharing site Flickr, in collaboration with the Obama administration, has changed the licensing designation on photos in the Official White House Photostream to reflect that, as U.S. government works, they are in the public domain. The photos previously bore a Creative Commons Attribution license, but now are labeled "United States Government Work," with a link to § 105 of the Copyright Act, the provision relating to works created by the federal government:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.   read more »

Ben Sheffner reports that YouTube has restored the National Organization for Marriage ("NOM")'s "No Offense" video without waiting for the expiration of the DMCA's 10-14 business day counter-notification window:

In what I believe is an unprecedented development, YouTube has conducted its own legal analysis of a National Organization for Marriage video that was subject to a DMCA takedown notice, and has re-posted the video prior to the expiration of the 10-14 business day counternotice window after determining that the inclusion of a 3-second clip of Perez Hilton calling Miss California USA Carrie Prejean a "dumb [beep]" was a non-infringing fair use.

Here's the video, which was the subject of a DMCA takedown notice by celebrity blogger Perez Hilton (it was also challenged by the Miss Universe organization in a letter to NOM) :   read more »

A new sortie in the battle over craigslist's "erotic services" section came today when South Carolina Attorney General Henry McMaster sent a letter to craigslist CEO Jim Buckmaster threatening company management with "criminal investigation and prosecution" over the website's alleged facilitation of prostitution and -- more unexpectedly -- its hosting of "graphic pornographic pictures" posted by craigslist users. The letter gave the website until May 15, 2009 to permanently remove those portions of the site "containing categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material," and threatened legal action if it did not comply.

Buckmaster posted a response on the craigslist blog, stating that, while the company looks forward to speaking with Mr. McMaster about his concerns, it "see[s] no legal basis whatsoever for filing a lawsuit against craigslist or its principals and hope[s] that the Attorney General will realize this upon further reflection."    read more »

The blogosphere is buzzing about Perez Hilton's recent foray into copyright bullying. Last week, the celebrity blogger, whose real name is Mario Lavandeira, sent a DMCA takedown notice to YouTube, claiming that a new advocacy ad from the National Organization for Marriage ("NOM") which was posted on the video-sharing site violated his copyright.  (NOM is the anti-gay-marriage group that brought us the inadvertently hysterical ad "Gathering Storm," which spawned some hilarious parodies including an especially good one from Stephen Colbert.) In response to Lavandeira's notice, YouTube removed the video.   read more »

NJ.com reports that blogger Shellee Hale is asking a Monmouth County Superior Court judge to protect the identity of her anonymous sources, claiming that she is entitled to the same protection as a professional journalist. Hale was sued for defamation by New Jersey-based Too Much Media, LLC, a software company that services the online adult entertainment business.  According to NJ.com:

Hale's legal troubles began last year when she posted comments relating to a software security breach at the Monmouth County company on a message board frequented by those in the adult entertainment industry. She said the breach potentially could have given hackers access to names and addresses of account holders. Company officials said consumer information, including credit card numbers, was never compromised.    read more »

In February, a Texas jury awarded Orix Capital Markets, LLC $12.5 million in damages in a defamation case involving statements published on the cleverly named "gripe site" Predatorix.com. (The site is now disabled, but the curious can check it out on Internet Archive.)  We are a little late reporting this, but thought it merited a post because it is now the largest jury verdict in our legal threats database, beating out Scheff v. Bock by a cool $1.2 million. 

The facts of the underlying case are quite complicated.  According to the Dallas Morning News, Orix, which operates a real estate, finance, and asset management business that "cleans up the wreckage of defaulted mortgage-backed securities," foreclosed on a Louisiana apartment building owned by the Rafizadeh family of Houston. This foreclosure triggered a series of legal disputes between the Rafizadehs and Orix, and the Texas case began in 2006, when the Rafizadehs' company, Super Future Equities, Inc., brought a class action complaint against Orix and other defendants alleging breach of contract, negligence, breach of fiduciary duties, and violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO).    read more »

Earlier this month, Cherie Davis, mother of 2006 gold medal winner Shani Davis, the first African American speed skater to make the U.S. Olympic team, sued Google, Inc. in Illinois state court, seeking an injunction requiring the company to take down a blog post written by deceased sports blogger Sean Healy.

The Sun News reports that a South Carolina state court has awarded Scott Brandon $1.8 million in damages for defamation arising out of statements published on the Myrtle Beach Insider blog. Brandon, who is the head of an ad agency with offices in Charleston and Myrtle Beach, sued local businessman Donald Wizeman in April 2008, claiming that Wizeman was the author of Myrtle Beach Insider and that Wizeman had defamed him by publishing a June 2007 post calling him a "failed lawyer" and criticizing one of his ad agency's campaigns.  Wizeman denied that he was the author of Myrtle Beach Insider, but admitted agreeing with its content.

The $1.8 million award came after Circuit Court Judge Diane S. Goodstein granted summary judgment in favor of Brandon after a hearing in September 2008.  The CMLP has not obtained a copy or transcript of the judge's ruling, but she presumably found that no material issue of fact remained for a jury to decide and determined that Brandon was entitled to judgment as a matter of law (no small feat in a defamation case).  Judge Goodstein then assigned a "special referee" to determine damages.  In late January 2009, the referee awarded Brandon $800,000 in compensatory damages and $1,000,000 in punitive damages.     read more »

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar. 11, 2009).  In the decision, Justice McHugh of the Superior Court for Rockingham County ordered the publishers of the popular mortgage industry watchdog site, The Mortgage Lender Implode-O-Meter ("ML-Implode"), to turn over the identity of an anonymous source who provided ML-Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for submission to the New Hampshire Banking Department.  The court also ordered ML-Implode to reveal the identity of an anonymous commenter who allegedly posted defamatory statements about the company and enjoined the website from re-posting the financial document or the allegedly defamatory comments.

Background

ML-Implode, founded by computer scientist and mathematician Aaron Krowne in 2007, tracks the financial health of mortgage lending companies.  Krowne and ML-Implode were way ahead of the curve in recognizing the then-impending-now-catastrophic crisis in the housing market and mortgage industry.  As Louise Story of the New York Times wrote in an article about the website last summer, these days "[t]he misery in the housing market is registering on the Implode-O-Meter."  Without question, the website provides original reporting on one of the most critical issues facing the country today:   read more »

A California appellate court ruled last week that a young woman could not recover for invasion of privacy based on re-publication of material she posted on her MySpace page.

The case involves Cynthia Moreno, a UC Berkeley student who grew up in Coalinga, CA.  Like many college students who get a taste of the big city and exposed to lots of new ideas, Cynthia developed a bit of hostility towards her hometown.  After a visit in 2006, she posted some "extremely negative comments" about Coalinga and its inhabitants on her MySpace page, in a posting entitled "An ode to Coalinga."  Apparently she had second thoughts about airing her gripes online because she removed the posting six days later.  

Alas it was too late for Cynthia.  Roger Campbell, the principal of the local high school, discovered the "ode" and gave a copy to a friend who worked for the Coalinga Record, a local newspaper.  The newspaper published the "ode" in its Letters to the Editor section, attributing it to Cynthia and giving her full name.  To put it bluntly, the good citizens of Coalinga freaked out.  Unfortunately, Cynthia's family still lived in town, and the townspeople took their outrage out on them. The situation got so bad that the family moved away and Moreno's father had to abandon his 20-year-old family business.     read more »