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On May 20, 2007, I wrote my first blog post. It also happened to be the first post on this blog. Entitled "Time to Launch," I agonized for days over what to write and struggled with the fear of putting my words out to the entire world (if you remember your first time blogging, you know exactly how I felt). Fortunately, nobody came after me with a pitchfork and I gradually learned to control that fear. I also learned that if I surrounded myself with bright and talented lawyers they would make me look good. (Hint: that's been the secret to all my successes.) 

Four years and 220 blog posts later, it's time for me to move on. This fall, I'll be joining the faculty at the University of North Carolina School of Law. I'll also become the co-director of the UNC Center for Media Law and Policy. While I am sad to leave the Berkman Center, I'm excited about the opportunity to focus more on teaching and scholarship.  Jeff Hermes, the CMLP's Assistant Director, will be taking over the project. I'm confident that under Jeff's leadership the project will continue to find creative ways to address the growing legal needs of online and citizen media.    read more »

I'm excited to announce the latest installment in a series of legal modules we are publishing in conjunction with Poynter's News University.  The free course, entitled Newsgathering Law & Liability: A Guide for Reporting, is designed for reporters, citizen journalists and anyone who wants to know more about the laws that relate to gathering content, interviewing sources and handling documents.  It's chock full of interactive exercises and quizzes and anyone can enroll at the NewsU site and take the course at their own pace. 

I co-authored the module with Geanne Rosenberg, Chair of the Department of Journalism and the Writing Professions at the City University of New York’s Baruch College.  This is our second course module at NewsU.  The first, entitled Online Media Law: The Basics for Bloggers and Other Publishers, went live in 2008 and -- shockingly -- is NewsU's most popular legal course.  Hopefully we will catch some of that magic with this one.

Funding for the course was provided by the Harnisch Foundation and Cutts Foundation.

So, the video game case came down today, Brown v. EMA. First off, a tip of the hat to SCOTUS for A) coming out the right way and declaring California's violent video games for minors ban unconstitutional and B) reaching the actual merits, rather than settling on the fairly obvious vagueness concerns. But the 7 - 2 still leaves me a little puzzled, mainly for Justice Breyer's dissent.

Note: Justice Thomas was the other dissenter. While I don't agree with his minors-have-no-speech-rights theory, at least it's consistent with Morse. Let's save the scary implications of that position for another day.   read more »

Gannett Co., the largest employer of journalists in the United States, laid off 700 employees Tuesday — 50 people lost their jobs in my home state at the Courier-Journal in Louisville, Ky., and half of that number were people working in the newsroom.

Seven hundred people who contributed to the production of news every day no longer have a job; many may have no income, period. Given the difficulty of rebounding in professional news, many of them may feel they have to enter another industry and give up their talent, their experience, and their passion.

Seven. Hundred. That's more people than were in my graduating class at journalism school. I imagine my entire class lined up in a row, everyone smiling and excited about their futures in civic journalism — and then a giant commercial printing press comes alive and severs everyone at the neck.   read more »

I am not a very big fan of the Anti-Counterfeiting Trade Agreement (ACTA). In essence, the secret agreement looks like an attempt to institute a wide swath of changes related to intellectual property without all that pesky legislation, public comment, etc. This black cauldron has birthed all sorts of interesting horrors (dramatic much?) but perhaps the most terrifying is the specter of three-strikes internet termination policies.  Read more about this terror here, here, here, here, and here.

So my heart grew three sizes when I read that a UN report on Human Rights soundly denounced any automatic Internet termination plan (I'm looking in your direction HADOPI):   read more »

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. TheFlyOnTheWall.com, 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 »

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 »

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 »

The Poynter Institute will be offering a free workshop for digital entrepreneurs and news organizations looking to start or expand an online news and information business. The Ford Foundation is paying for the costs of the seminar, so tuition and hotel costs are free. Participants need only pay travel expenses to the Poynter Institute’s office in St. Petersburg, Florida. However, you must register by Wednesday, June 15.

The seminar lasts four days from August 2-5, 2011, and will include one-on-one coaching from Poynter faculty to help you find revenue and develop a strategy for content creation.

For more information, visit Poynter’s page about the seminar.

Brittany Griffin Smith is a rising 3L at the University of Kentucky College of Law, a CMLP blogger, a journalist, and deadly ninja by night.

Eighteen months after the Federal Trade Commission revised its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," including revision of rules regarding product and service endorsements by bloggers and other social media contributors, the agency has announced that it is planning to revise its general guidelines for online advertising, which it released in 2000. Currently the Commission is soliciting comments regarding the revision.   read more »

[NOTE: The First Circuit has issued its opinion in the Glik case -- see the CMLP's coverage here.]

This morning, I attended a hearing of the U.S. Court of Appeals for the First Circuit in the case of Glik v. Cunniffe, which raises important questions regarding the existence of a constitutional right to record the activity of police officers in public areas and the scope of Massachusetts' wiretapping law.  On October 1, 2007, plaintiff Simon Glik was arrested under the Massachusetts wiretap act, Mass. Gen. Laws c. 272, § 99, as well as for aiding the escape of a prisoner and disturbing the peace, after he used his cell phone to create an audiovisual recording of three police officers arresting a suspect on Boston Common.

Glik stated that he did not attempt to conceal his use of the cell phone, and thus did not make a “secret” audio recording as prohibited by the wiretap act.  He also claimed that he in no way interfered with the arrest and that he had a First Amendment right to record the activity of the police officers.  The Commonwealth of Massachusetts dismissed the aiding escape charge, and the Boston Municipal Court dismissed the remaining charges.   read more »

Social media are abuzz about English Premier League footballer ("soccer player" to us Yanks) Ryan Giggs, who has obtained an order from a British court requiring Twitter to reveal the identity of various tweeters who identified him as having had an affair with model and Big Brother contestant Imogen Thomas.

The court's order against Twitter was based on a prior order issued by the court last month, which barred The Sun newspaper from revealing Giggs' name. At the initiative of lawyers for plaintiffs in defamation cases, British courts began issuing such "super injunctions" -- which bar not just disclosure of the information subject to the order, but also ban disclosure of the order itself -- in 2008, with the number of such orders increasing ever since.  (The Guardian newspaper detailed some of the early super injunctions, while the magazine Private Eye lists several recent examples.) The growth of such orders has become a political issue in Great Britain, and there is talk of eliminating them.   read more »

We're pleased to announce that we have updated the CMLP Legal Guide on the District of Columbia's anti-SLAPP law to incorporate its brand new anti-SLAPP statute that came into effect on March 31, 2011.  A SLAPP, or "Strategic Lawsuit Against Public Participation," is a lawsuit filed in retaliation for speaking out on a public issue or controversy.

The new D.C. statute falls on the more protective end of the spectrum of anti-SLAPP laws.  It permits a special motion to strike in lawsuits stemming from acts "in furtherance of the right of advocacy on issues of public interest," which includes both petitioning the government and addressing issues of public interest in a public forum.  It also provides a special motion to quash to those whose personal identifying information is being sought via subpoena, should that information be sought in a matter arising from an act in furtherance of the right of advocacy on issues of public interest.

We'd like to thank Caitlin Vogus for her work in writing this new section of the CMLP Legal Guide.  Caitlin is a Harvard Law School graduate and is now a clerk on the Virginia Court of Appeals.  Her update to the D.C. anti-SLAPP section is the first of several updates, as she helps us review and amend our legal guide.  We are very appreciative of her help, and look forward to her continued assistance!

We hope that you find the expanded section useful.  As always, if you have suggested improvements or additions for our Legal Guide, you can contact us.

Next month, I will be attending "Create or Die 2," a three-day Journalism That Matters conference in Greensboro, North Carolina.  Designed as a platform for journalism-oriented entrepreneurs who want to "disrupt and diversify the media   status quo," the conference is a mashup of journalists, entrepreneurs, programmers, bloggers, technologists, educators, developers, designers, social entrepreneurs, community activists and others.  Create or Die 2 is the second act of Journalism That Matters’ successful "Create or Die" diversity-and-journalism sequence that began last summer at Wayne State University in Detroit.   read more »

There's more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: "Eliminating the Financial Incentive to Steal Intellectual Property Online" (Sec. 4) gives way to "Voluntary action for Taking Action Against Websites Stealing American Intellectual Property" (Sec. 5).

Techdirt gives a good overview of the bill, so I'll just pick some details:  read more »

• Infringing activities. In defining "infringing activities," the draft explicitly includes circumvention devices ("offering goods or services in violation of section 1201 of title 17"), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of "no [substantial/significant] use other than ...." Substantial could incorporate the "merely capable of substantial non-infringing use" test of Betamax.
• Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over "nondomestic domain names", including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) "an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures ... to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site."

It is a fundamental principle of the United States legal system that courts should be open to the public.  This principle is widely regarded as more aspirational than factual, because of numerous practical barriers to courtroom access -- not the least of which is that most of us do not have the time or ability to travel to the court to witness proceedings in person.  While the news media report on judicial proceedings, their resources are limited; as a result, coverage is normally focused on specific cases of particular interest.  Moreover, audiovisual recording of judicial activity is sporadic due to a complicated patchwork of largely discretionary rules about allowing cameras in the courtroom.

OpenCourt, an experimental project launched on May 2, 2011, by WBUR, Boston's NPR news station, seeks to change all of that.  With the cooperation of the Massachusetts Supreme Judicial Court (the highest court in the Commonwealth) and the Massachusetts District Court (a department of the Massachusetts Trial Court), the OpenCourt project has started streaming live video and audio of the proceedings in the First Session of Quincy District Court.  OpenCourt also provides WiFi access to journalists and bloggers so that they can report live from the courtroom.    read more »

And boom goes the dynamite. Last month I wrote about the looming disaster that is COICA – the Combating Online Infringement and Counterfeits Act.  Thanks to a brewing fight between a United States government agency and web advocate and Firefox distributor Mozilla, we're getting a preview of the conflicts that COICA would cause if enacted.

As a quick refresher: COICA would allow the government to block sites at the domain name level. Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security (DHS), had already made a dry run of sorts, pulling down several sites earlier in the year, angering our allies who had declared the sites non-infringing. So just think of COICA as an invitation for the US to declare war on the infringing internet, casualties be damned.

I argued this would be a terrible idea for all sorts of due process reasons and wouldn’t work due to easy technological adjustments. Now we see what will be the likely US response to those technological adjustments: arbitrary demands! Let’s see how this brilliant strategy plays out.    read more »

There has been substantial controversy over the past couple of weeks arising out of revelations that some smartphones, most notably Apple's iPhone and Google's Android devices, have been logging certain location-based information.  Lawsuits have been filed, a state attorney general has started demanding answers, and an inquiry by a U.S. Senate subcommittee has been scheduled.  And then the South Korean police raided Google's Seoul offices.  But is the logging of location data really such a surprise, and is it worthy of all of this concern?   read more »

The regulation of commercial speech on social media sites continues to increase. In late March, a federal court in California held that Facebook postings fit within the definition of "commercial electronic mail message" under the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act;" 15 U.S.C. § 7701, et seq.). Facebook, Inc. v. MAXBOUNTY, Inc., Case No. CV-10-4712-JF (N.D. Cal. March 28, 2011).

The court's ruling led it to deny dismissal of a lawsuit brought by Facebook against online marketer MAXBOUNTY.  Facebook alleged that MAXBOUNTY posted misleading commercial statements to Facebook users, in violation of the CAN-SPAM Act and other legal principles. Facebook also alleged that MAXBOUNTY's ads fraudulently appeared to be coming from Facebook itself, and "tainted the Facebook experience."

The court has not yet decided on the merits of these claims.  But MAXBOUNTY sought to have the suit dismissed, in part because the company said that the CAN-SPAM Act applied only to e-mail, not to messages sent within Facebook.

The CAN-SPAM Act was passed in 2003, and generally requires accurate sender information for commercial e-mail messages; that senders allow and honor opt-out requests; and provide a physical, real-world address where the advertiser can be located.  In its suit against MAXBOUNTY, Facebook alleged that the company had violated each of these provisions.   read more »

Two legal developments in Nevada and Colorado last week make Righthaven (previous post here) a textbook example of how not to win a lawsuit.  In their cases against the Democratic Underground (of which details can be found in the CMLP legal threats database) and Brian Hill (whose case filings are available on Scribd), Righthaven appears to be suing without owning the copyright and picking a fight with the judge handling dozens of still-pending cases, respectively.   read more »