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 »

Holding Government Accountable One Click at a Time

“Laws are like sausages. You should never watch them being made.” This adage, generally attributed to Otto von Bismarck, rings true to anyone who has had the opportunity to watch Congress make public policy. Just tune into C-SPAN sometime for a taste.

Across the pond in England, a website, (TWFY), aims to change this by offering a new service that allows users to watch archived BBC coverage of parliamentary debates and tag the video.

The tagging solves a big problem: there is currently no way to search the video to find the speaker or topic you are interested in. TWFY is crowdsourcing the work, allowing visitors to mark the moment in the video when a speaker begins by pressing a big red button. They call this activity "time-stamping" and provide incentives to compete with others by displaying the names of the top time-stampers and giving away promotional hoodies to the top time-stampers. The time-stamping synchronizes the video with the transcript and makes the video much more useful by allowing users to search the video according to their interests.   read more »

RI Bill Will Strengthen Citizens' FOI Rights

After passing state bill H7422 last week, Rhode Island is set to join the growing list of states – including Tennessee, Pennsylvania, Nevada, and Oregon – that have strengthened their freedom of information laws in the past year. The bill, which contains several reforms of the state's open records practices, awaits only Governor Don Carcieri's signature before it will come into law.

From a citizen media perspective, the bill's most useful upgrade of Rhode Island's existing FOI law is that it will bar agencies from requiring that requestors provide personally identifiable information or specific reasons for their request. If passed, these provisions will help prevent agencies from denying open records requests based upon the characteristics of the individual requestor. For instance, it would be more difficult for an agency to refuse an open records request from a citizen speaker who has been known to criticize the state government.

The bill offers several other reforms, including:   read more »

WIA Releases Report on Arrests of Bloggers, Does It Overcount?

According to a new report by the World Information Access (“WIA”) Project, 64 independent bloggers have been arrested since 2003, suggesting governments around the world are growing more aware of blogs and more likely to act to silence bloggers.

In the report, WIA researchers write that they used Google and LexisNexis to find arrests of bloggers who were unaffiliated with news organizations.  The researchers found that the number of reported arrests appeared to increase over the years, with just five arrests during 2003, but totaling 36 in 2007.  Arrests were most frequent in China (11), Egypt (13), and Iran (8), and overall Asia and the Middle East accounted for the lion’s share of WIA’s data.  But western nations were not blameless – researchers recorded a blogger arrest in each of Britain, Canada, and France, and three arrests in the U.S. as well (Josh Wolf, Jack McClellan, and Daniel Aljughaifi).  On the whole, WIA reports that the arrested bloggers tended to be males between the ages of 21 and 45, and the durations of their arrests ranged from a few hours to eight years.

The researchers observe that blogger arrests seem to increase during “times of political uncertainty,” noting for example that most of Egypt’s arrests took place during its 2007 elections.  The researchers predict that 2008 will likely see a further increase in the arrests of bloggers, as China, Iran, and Pakistan all have elections this year.   read more »

Judge Sanctions Lawyer for Issuing Subpoena to Blogger Kathleen Seidel

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs Lisa and Seth Sykes sought to link exposure to mercury to their son's autism. (For more on her statements about the lawsuit, see my previous post: Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation.)   read more »

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