Appeals Court Strikes Down the Child Online Protection Act (Again)

Yesterday, the Third Circuit Court of Appeals affirmed a lower court decision ruling that the Child Online Protection Act (COPA) violates the First Amendment.  COPA makes it a crime to knowingly post sexually explicit material that is "harmful to minors” on the web  “for commercial purposes.” Although Congress apparently intended that COPA apply to commercial pornographers, the statute's broad definition of "commercial purposes" could draw in ordinary websites that make money from advertising, which is why Salon Media Group,, and Dan Savage, among others, joined in the lawsuit challenging the Act.

Among other things, the Third Circuit determined that "COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,' and thus is overbroad." The court also ruled that the statute was unconstitutionally vague and not narrowly tailored to the government's admittedly compelling interest in protecting minors from harmful material on the Internet.    read more »

Candidate for U.S. Congress Threatens Legal Action Against Blogger

George Lilly, the Republican candidate for Colorado's First Congressional District, says on his website that he considers defense of the U.S. Constitution a "sacred oath."  But after he threatened a libel lawsuit against the Rocky Mountain Right ("RMR") blog, one wonders about his views on the First Amendment.

In a June 9, 2008, post, RMR editor Anthony Surace announced the blog's endorsement of George Lilly's rival in the Republican primary, Charles Crain.  Calling Lilly "no Republican," Surace claimed that Lilly was not sufficiently supporting the Republican ticket in Colorado.  Surace also asserted that Lilly's supporters "made clear they would not support [presumptive Republican presidential nominee] John McCain or [Republican candidate for the U.S. Senate] Bob Schaffer" in the coming elections, and that Lilly's presence on the ticket "could be disruptive enough to harm other Republican candidates running statewide."

This past weekend, Lilly emailed Surace, demanding that the offending post be removed and that RMR issue an apology.  In his email, which Surace posted on RMR, Lilly alleged that Surace had libelously misstated Lilly's support for Schaffer.   read more »

More Trademark Goodness From Bill McGeveran

Bill McGeveran, our good friend from University of Minnesota Law School, recently posted on SSRN a new article about the practical and procedural problems associated with trademark fair use and other free-expression-related defenses to a trademark claim. The article, Rethinking Trademark Fair Use, which will appear in the Iowa Law Review at the end of 2008, is an expanded treatment of the issues raised in his Four Free Speech Goals for Trademark Law, which I blogged about back in April. Here's the abstract:   read more »

Attention Entrepreneurial Bloggers: A Model Blog Operating Agreement for an LLC

Imagine the following hypothetical: I've joined forces with a few friends and some Internet affiliates (you know, the folks you meet at conferences) to build what we now call a "team blog." The website aims at building a web community of video producers and community TV stations looking to share broadcast quality video. At first, we did it for the love, hacking together code, creating buzz for the service -- there were no real legal or business issues to complicate matters. However, when interest in the website grew, and organizations and government bodies started to show interest in using the service, problems grew like dandelions in a unkempt field. We had copyright issues concerning the video content, profit-sharing issues based on who contributed most to the code development, governance and decision-making issues, and trouble entering into contracts on behalf of the group. We needed to formalize our relationship, but didn't know where to begin. Should we be a non-profit, LLC, or a corporation?   read more »

Bronx D.A. Withdraws Subpoena Seeking Identity of Anonymous Room Eight Posters

Earlier this month, the District Attorney for Bronx County, New York, withdrew a subpoena seeking the identities of anonymous posters on political blog Room Eight. The posters had criticized local politicians and Bronx Republican Party officials in blog posts and comments. District Attorney Robert T. Johnson also freed Room Eight operators Gur Tsabar and Ben Smith from the subpoena's demand that they not reveal the subpoena's existence to anyone - including the anonymous posters. (See our Legal Threats Database entry regarding the subpoena for more background.)

While the D.A.'s withdrawal of the subpoena and non-disclosure demand is great news for the anonymous posters, it is disappointing that the court didn't have a chance to issue a decision on Room Eight's motion to quash the subpoena. This would have been a great opportunity to establish precedent on a couple of important First Amendment issues of concern to citizen media.   read more »

Citizen Journalist Invokes Oregon Shield Law to Fight Subpoena

Does Oregon's reporter shield law apply to an independent journalist who publishes online?  That question looks set to be answered, thanks to the refusal of Tim Lewis to comply with a grand jury subpoena for his video of a May 30, 2008, demonstration in Eugene, Oregon, where police tasered an 18-year-old protester.

While covering the anti-pesticide protest for his YouTube channel Picture Eugene, Lewis filmed part of the police's arrest of Ian Van Ornum, a protester from the University of Oregon.  According to The Register-Guard, a Eugene newspaper:

Lewis said he tried to begin recording when uniformed officers first approached Van Ornum. But he didn’t realize that he had previously protected the tape in his camera from being recorded over.

Lewis said he wasn’t able to slip in a new tape until after a Eugene officer used a Taser stun gun to subdue Van Ornum. Scenes of the teen laying on the ground while handcuffed are included in footage Lewis posted online on YouTube.   read more »

Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions. "Libel terrorism" (a term I am not a big fan of) describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States.    read more »

eBay Shines in Tiffany Trademark Fight

In Tiffany v. eBay, decided today, the Southern District of New York gives helpful bounds to secondary liability for trademark infringement, saying eBay is not liable for its use of the term "Tiffany" nor for its sellers' sales of counterfeit goods. Judge Sullivan's careful analysis leaves the path clear for online marketplaces to flourish, putting enforcement burdens, where they belong, on trademark claimants.

First, the court finds eBay's advertisement, through "Tiffany"-keyed adwords on Google and Yahoo! searches, to be "nominative fair use." Some eBay sellers are offering genuine Tiffany merchandise, as trademark law recognizes is legitimate, and eBay has the right to use the brand name to identify them, rather than "absurd circumlocutions ... [such as] 'silver jewelry from a prestigious New York company where Audrey Hepburn once liked to breakfast.'" Even if search keywords are "use in commerce," therefore, the court finds them non-infringing.

Second, the court holds eBay not liable for the infringements of its users, under either direct or secondary liability theories. Instead, its contributory liability test looks much like the notice-and-takedown regime that the DMCA sets up for copyright: only specific knowledge of infringement can trigger liability, a "showing that a defendant knew or had reason to know of specific instances of actual infringement"; not the "generalized" knowledge of counterfeiting Tiffany would like to attribute to eBay. The court does not impose any prior monitoring obligation, implying only that a defendant must take appropriate steps after being notified of claimed infringement. (The court helpfully notes several times that Tiffany's "Notices of Claimed Infringement" are just claims, not proof, and that some listings have even been reinstated after incorrect claims.)  read more »

Paparazzi Need Better Manners, Not More Laws

In Malibu City, an ocean-side enclave of Los Angeles, local government officials are considering regulations that aim to protect the privacy and safety interests of both celebrities hounded by the paparazzi and local residents, after local surfers went to fisticuffs with photographers trying to capture Matthew McConaughey surfing at Malibu's Little Dume Beach.

According to the Malibu Times, some Malibu City Council members are considering a range of possibilities including buffer zones around certain areas, requiring all "celebrity photographers" to file for a permit, and taxing revenues generated from the photos. Malibu Councilman Jefferson Wagner supports the idea of a licensing requirement for paparazzi because of what he considers the commercial nature of the photographs. Earlier this year, Los Angeles City Councilman Dennis Zine proposed creating a "personal safety zone" that would require paparazzi to stay several feet away from the celebrities they photograph.

At first blush, the proposed regulations seem like a well-reasoned response to a problem that has plagued the area for some time. With the demand for candid images of celebrities at an all-time high in part due to highly popular entertainment blogs like Perez Hilton, who is sued frequently over his use of celebrity pics (see CMLP’s summaries here, here, and here), finding a way to wrangle the unruly photographers is a topic that isn't likely to go away.   read more »

Iran Moves One Step Closer to Ratifying Death Penalty for Blogging

Online free speech has never been well received by the Iranian government, but now Tehran is just one step away from making blogging on certain topics into a capital crime. 

Under a new bill approved by Iran's parliament, those convicted of "establishing weblogs and sites promoting corruption, prostitution and apostasy" will now be eligible to receive the death penalty. The International Freedom of Expression eXchange (“IFEX”), a free speech watchdog, writes that the bill passed on first reading by a vote of 180 to 29, with 10 abstentions. Under Iranian law, the Council of Guardians must now examine the bill to determine if it complies with Sharia and the Iranian constitution. If approved within ten days by a majority of the council, the bill will become law.

Agence France-Presse reported last week that the bill lists several crimes which are already punishable by death in Iran, including rape, armed robbery, and apostasy, in addition to the new criminalization of blogging.

Those convicted of these crimes "should be punished as 'mohareb' (enemy of God) and 'corrupt on the earth'," the text says.

Under Iranian law the standard punishments for these two crimes are "hanging, amputation of the right hand and then the left foot as well as exile".

Agence France-Presse added that the bill says the sentences for such crimes "cannot be commuted, suspended or changed".   read more »

New York Legislature Passes Open Records and Open Meetings Reforms

The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year. Among other changes, the bills would increase electronic access to government records, prevent agencies from denying voluminous records requests, and make it easier for citizens who successfully challenge an open meetings violation to win awards of legal costs and attorneys' fees. The bills await consideration by Governor David A. Paterson before becoming law.

S962, perhaps the most interesting update to the state's open records law, requires an agency to produce a record in the medium requested by the person seeking information, so long as the agency can "reasonably" provide the record in the requested medium or hire an outside service to do it. This reform will make it possible to request more records in electronic -- rather than paper -- format, making it easier for citizens to use electronic means of searching, organizing, and analyzing information.   read more »

Watchdog Group Counters Attorney General’s View of Improved FOIA Picture

A recent report by the U.S. Attorney General paints a mixed but generally positive picture of progress by the federal executive agencies in improving their responsiveness to Freedom of Information Act requests. Hard on its heels comes a study by the Coalition of Journalists for Open Government that points to scant progress by the agencies and instead suggests that they squandered a chance to reduce their backlog during a period of fewer requests.

The Freedom of Information Act (FOIA) was meant to make government more transparent and more accountable by creating the means for persons to obtain federal government records. Under an Executive Order of December 14, 2005, all of the Executive Branch agencies undertook a dedicated effort to improve their compliance with FOIA. The Executive Order mandates that each agency make a plan "to eliminate or reduce the agency's FOIA backlog, including . . . changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA." The Executive Order called for the plans to include concrete milestones and timetables that the Attorney General can use in monitoring agency improvements. The Attorney General assessed agency progress in a series of annual reports to the President, the last of which was due June 1, 2008.   read more »

Center for Social Media Launches Its Code of Best Practices in Fair Use for Online Video

Today, the Center for Social Media at American University released its Code of Best Practices in Fair Use for Online Video, a publication meant to help online video creators, service providers, and copyright holders to interpret the copyright doctrine of fair use. The Code (full-text pdf) provides a guide to "current acceptable practices, drawing on the actual activities of creators" and backed by a panel of legal and media scholars, including Berkman fellow Lewis Hyde, Anthony Falzone from Stanford's Center for Internet and Society, Henry Jenkins from M.I.T., and Pamela Samuelson from U.C. Berkeley. Pat Aufderheide and Peter Jaszi of American University coordinated the project.

The Code, which takes an optimistic view on fair use ("Fair use is flexible. It is not uncertain or unreliable."), identifies six common situations that online video makers may face:   read more »

Privacy Falls into YouTube's Data Tar Pit

As a big lawsuit grinds forward, its parties engage in discovery, a wide-ranging search for information "reasonably calculated to lead to the discovery of admissible evidence." (FRCP Rule 26(b)) And so Viacom has calculated that scouring YouTube's data dumps would help provide evidence in Viacom's copyright lawsuit.

According to a discovery order released Wednesday, Viacom asked for discovery of YouTube source code and of logs of YouTube video viewership; Google refused both. The dispute came before Judge Stanton, in the Southern District of New York, who ordered the video viewing records -- but not the source code -- disclosed.

The order shows the difficulty we have protecting personally sensitive information. The court could easily see the economic value of Google's secret source code for search and video ID, and so it refused to compel disclosure of that "vital asset," the "product of over a thousand person-years of work."

But the user privacy concerns proved harder to evaluate. Viacom asked for "all data from the Logging database concerning each time a YouTube video has been viewd on the YouTube website or through embedding on a third-party website," including users' viewed videos, login IDs, and IP addresses. Google contended it should not be forced to release these records because of users' privacy concerns, which the court rejected.   read more »

NY Law Would Allow Citizens to Record and Broadcast Government Meetings

A bill pending in the New York Legislature would allow the public to photograph, videotape, and audio record public meetings in New York, providing better access to government deliberations and information. It would impose two minor conditions: the photographing or recording activity must not be disruptive, and the public body holding the meeting can regulate where equipment and personnel are located in the room. The bill is an amendment to section 103 of the New York Open Meetings Law, which gives the public a right of access to the meetings of a large number of government bodies at the state and local level. 

Judicial decisions in New York have already indicated that the public may use unobtrusive recording devices in public meetings and have influenced Missouri and North Dakota to provide the same recording right. In Mitchell v. Board of Education of Garden City Union Free School District, 113 A.D.2d 924 (N.Y. App. Div. 1985), the court reasoned that allowing the public to use recording devices at public meetings may provide a better way to document what transpires at the meetings than merely using pen and paper. The court expressed that

[a] contemporaneous recording of a public meeting is undoubtedly a more reliable, accurate and efficient means of memorializing what is said at the proceeding. Once the information and comments are conveyed to the public, it should be of no consequence that they may subsequently be repeated, by means of replay, to those who were unable to attend.   read more »

Miami Judge Drops Hammer on Photojournalist Who Took Cops' Picture

“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog.  Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street.  As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months probation the prosecutor had been seeking.

Miller was arrested on February 20, 2007, after he saw the police questioning a man "in a gravel construction area between the road and the sidewalk," according to a post Miller made a few days later on Democratic Underground, a liberal online forum.  (The post does not indicate how the construction affected traffic along the street.)  When Miller, who was also standing in the gravel area, started to photograph the police, they told Miller to move along.  Miller said he refused, arguing that it was a public street, and continued to shoot photos of the police.  The police then escorted him across the street and, according to Miller, forcibly arrested him.   read more »

Citing CDA 230, Court Dismisses Defamation Suit Against Wikimedia Foundation

News reports (here, here) indicate that New Jersey Superior Court Judge Jamie S. Perri dismissed Barbara Bauer's defamation lawsuit against the Wikimedia Foundation yesterday. In what appears to have been an oral ruling from the bench, the court relied on section 230 of the Communications Decency Act (CDA 230), which protects providers and users of interactive computer services from state-law tort liability for publishing the statements of third parties, to dismiss Bauer's claims. (For more on CDA 230, see our Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act).   read more »

Global Voices Summit 2008

Last week, Global Voices held a summit in Budapest, Hungary for its members and the wider community of bloggers, activists, technologists, journalists and others from around the world. Called the Global Voices Citizen Media Summit 2008, the two day event focused on the topic of "Citizen Media & Citizenhood."

As David Sasaki notes, the summit was held to address questions such as:   read more »

Judge Says Former Congressman Can Get Names of Anonymous Posters from, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley, reported on Friday that a Westchester County judge has ruled that it must turn over the names of three pseudonymous posters to former House Representative Richard Ottinger and his wife, June Ottinger. According to the report, Ottinger and his wife subpoenaed The Journal News asking for identifying information for posters to the site's Mamaroneck community forum going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." The posters allegedly made statements accusing the Ottingers of unsavory conduct in the course of a neighborhood dispute over their construction of a house in the Village of Mamaroneck, NY. 

The Journal News moved to quash the subpoena,  but the court ruled that the newspaper had to turn over the requested information.  Although the details are still sketchy, the court appears to have applied the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). We are trying to get the underlying court documents, and we'll update this post and our database entry, Ottinger v. The Journal News, when we have more information.    read more »

Lawyer Attempts End Run Around CDA 230, Finds a Stronger Defense Than He Expected

Following on the heels of a Virginia lawyer being sanctioned for improperly using a subpoena to silence a critic, we hear about a lawyer in California who is threatening to use a meritless lawsuit to force Julia Forte, who runs a forum for consumer complaints about telemarketers, to remove user-submitted comments that are critical of his client.

Paul Alan Levy at the Public Citizen Litigation Group, which represents Forte, has the story:

In a recent series of demands, a purveyor of “nutraceuticals” called threatened to sue Julia Forte over consumer criticisms appearing on her web site, a forum for identification and discussion of telemarketers based on their phone numbers.  (The specific dispute is summarized here)  My Nutrition Store’s expressed concern was that the comments about it show up in Google searches.   read more »

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