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John Tehranian, a law professor at the University of Utah, has an article coming out in the Utah Law Review in which he concludes that the dichotomy between copyright law and social norms "is so profound that on any given day even the most law-abiding American engages in thousands of actions that likely constitute copyright infringement."

How substantial is this infringement, you ask? Well, Tehranian calculates that the average American is liable for $12.45 million in copyright damages each day.

These calculations reveal just how expansive and pervasive copyright has become. As a result, the gap between what copyright law allows and what social norms permit is so great that "we are, technically speaking, a nation of infringers."

Tehranian's illustration of the problem highlights the ludicrousness of the current statutory damages framework under copyright law, the importance of fair use as a defense to infringement, and the pressing need for copyright reform.

Nate Anderson at Ars Technica comments on Tehranian's article and asks the right (rhetorical) questions:

What better way could there be to create a nation of constant lawbreakers than to instill in that nation a contempt for its own laws? And what better way to instill contempt than to hand out rights so broad that most Americans simply find them absurd?

Florida Governor Charlie Crist recently announced two new open government initiatives that will go a long way in improving public access to government documents and meetings in Florida.

The first initiative seeks to improve Internet access to state agency information by requiring agencies to create links from their individual homepages to a website that directs users on how to make public records requests or learn more about Florida’s open government laws. These new websites will also include organization charts, open government contacts, budget information, contracts with vendors and providers, legislative budget requests and legislative priorities. A list of state agency open government websites can be found here.

The second initiative involves a bill of rights for all Floridians trying to access public records. The list of rights was compiled by the Commission on Open Government, established by Crist on June 19, 2007.  Crist issued the bill of rights on November 15, 2007, through Executive Order 07-242, which requires all state agencies to adopt their own open government bills of rights to protect citizens’ access to public records.

Here is the complete text of Executive Order 07-242:

STATE OF FLORIDA
OFFICE OF THE GOVERNOR
EXECUTIVE ORDER NUMBER 07-242   read more »

Public.Resource.Org and Fastcase, Inc. announced this week that they will make 1.8 million pages of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754, available in a free public archive. The entire archive will be in the public domain and usable by anyone for any purpose.

Lawyers have long anticipated -- and hoped for -- such a case archive because court decisions and statutes are not copyrightable. West Publishing and its primary competitor, LexisNexis, do not own the copyrights to the decisions they publish; they own the copyrights only to the content that they add to the published opinions. This is a relatively thin layer of copyrightable material, and a competitor could copy and distribute cases found in West's reporters, so long as the syllabi, head notes, and "key numbers" were redacted, and so long as the reproductions did not duplicate the West reporters' original selection and arrangement of cases. See, e.g., Matthew Bender & Co. v. West Publishing, 158 F.3d 674 (2d Cir. 1998).

According to the announcement:

“The U.S. judiciary has allowed their entire work product to be locked up behind a cash register,” said Carl Malamud, CEO of Public.Resource.Org. “Law is the operating system of our society and today's agreement means anybody can read the source for a substantial amount of case law that was previously unavailable.”   read more »

This week, David Ardia talks about the lawsuit against AutoAdmit and Colin Rhinesmith speaks with Sam Bayard about a recent decision involving the celebrity blogger Perez Hilton.

Download the MP3 (time: 6:20)

We'll be back in two weeks with episode #5. In the meantime, stayed tuned at citmedialaw.org.

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.

As anyone who follows the celebrity rags already knows, a California judge dealt a mortal blow to Samantha Ronson's libel suit againt litigation-magnet Mario Lavandeira (aka Perez Hilton) two weeks ago. Sadly, we've missed the scoop on this one, but I do have a copy of the transcript of the court's November 1st ruling. Surely the gossip hounds among you won't mind if I delve into the details a little.

To avoid alienating those who haven't been monitoring the case, I'll give a brief summary of the facts. According to Ronson's complaint, the online magazine "Celebrity Babylon" published statements in late May 2007 accusing Ronson of of planting drugs in Lindsey Lohan's car and "setting up" Lohan for press photographers in exchange for money. On June 1, Lavandeira allegedly republished these statements on his blog, adding that Ronson had been "toxic" for Lohan. Additionally, on June 13, 2007, Lavandeira allegedly published a posting under the headline "Blame Samantha!," which stated: "Was Lindsay Lohan betrayed by her lezbot DJ pal Samantha Ronson? Australia's NW magazine seems to think so. And we wouldn't disagree!" In June, Ronson sued Lavandeira, the Sunset Photo and News agency, which operates Celebrity Babylon, and Jill Ishkanian, its editor-in-chief. The complaint asserted a claim for libel and asked for $20 million in damages. (Ronson settled with Ishkanian for an undisclosed sum in October.)   read more »

Following up on my earlier post about the $10.9 million jury verdict against Fred Phelps and the Westboro Baptist Church, I wanted to point our readers in the direction of some excellent commentary on the topic by Eugene Volokh at the Volokh Conspiracy. In a series of posts collected in a single thread, Volokh argues that the intentional infliction of emotional distress and intrusion torts, which are the claims that the jury found liability on, are unconstitutionally overbroad and vague when applied to speech. (More precisely, he argues that these torts, as applied to speech, are unconstitutional unless narrowed by courts to cover only constitutionally unprotected speech like "fighting words," incitement to imminent lawless action, or statements of fact made with the requisite degree of fault, which did not happen in the Phelps case.)

Intrusion is a tort that we've paid particular attention to because of its implication in the newsgathering process. Volokh captures well the constitutional infirmity looming in application of the intrusion tort to Westboro's picketing activities:   read more »

Last week, the California First Amendment Coalition published an assessment of several open government reform bills in California's 2007 legislative session. The report shows that while there were some victories, several important reform proposals failed in the legislature or died on the Governor's desk. I wrote about one such proposal several weeks ago, S.B. 964, which would have added some teeth to California's open records law and closed a significant loophole in the state's open meetings law, that Governor Arnold Schwarzenegger refused to sign.

The California First Amendment Coalition reports:

The full assessment can be found here.

(NOTE: The executive director of the California First Amendment Coalition, Peter Scheer, is on the board of advisors for the Citizen Media Law Project.)

This week, David Ardia talks about threats to the Internet in Pakistan and Colin Rhinesmith speaks with Sam Bayard about a recent entry in our new legal threats database.

Download the MP3 (time: 7:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.

Yesterday, lawyers for two female Yale Law School students, captioned as Does I & II, filed an amended complaint dropping Anthony Ciolli as a defendant from the lawsuit they filed against a host of pseudonymous users of the popular law school admissions forum, AutoAdmit. The suit, which has engendered a great deal of publicity (see, e.g., The Washington Post and Wall Street Journal Law Blog), charges that users of the site made defamatory, vulgar, sexually explicit, and threatening comments about the Yale students on AutoAdmit's forum.

Ciolli, the former chief education director of the site, was almost certainly immune from liability under section 230 of the Communications Decency Act, so it is no surprise that he has been dropped from the suit.

You can read about the details of the lawsuit -- and download the pleadings -- by accessing our legal threat entry, Doe v. Ciolli.

UPDATE: I had incorrectly identified Anthony Ciolli as an administrator of the AutoAdmit site; his correct title was chief education director and administrator of AutoAdmit Studies.  I've corrected the title and body of the this post to reflect this information.

Two new websites recently launched that give the public unprecedented access to government documents acquired through the federal Freedom of Information Act (FOIA) and other public disclosure, or "sunshine," laws: GovernmentDocs.org and GovernmentAttic.org.

GovernmentDocs, a joint project of Citizens for Responsibility and Ethics in Washington, Project on Government Oversight, Public Citizen, Electronic Frontier Foundation, and Sunlight Foundation, allows the public to "to browse, search, and review hundreds of thousands of pages" of documents collected by these non-profit groups.

According to the site,

citizen reviewers can engage in the government accountability process like never before. Registered users can review and comment on documents, adding their insights and expertise to the work of the national nonprofit organizations which are partnering on this project. This new information then becomes instantly searchable. The text of each document is searchable, as well, thanks to a powerful Optical Character Recognition (OCR) functionality.

At GovernmentAttic, which doesn't have quite the pedigree of GovernmentDocs, their motto is "rummaging in the government's attic." The site is simple and streamlined:   read more »

Waning pop genius Prince has initiated a campaign to force fan websites dedicated to his work to stop "all use of photographs, images, lyrics, album covers, and anything linked to [his] likeness." (The quote is from the Prince Fans United press release, discussed below.) According to reports (here, here, and here), Prince's lawyers have sent cease-and-desist letters and at least one DMCA takedown notice to the three largest Prince fansites, Prince.org, Princefams.com, and Housequake.com, demanding that they remove the above materials and requesting that the sites provide them with "substantive details of the means by which you propose to compensate our clients [Paisley Park Enterprises, NPG Records and Anschutz Entertainment Group (AEG)] for damages."

Apparently, the letters went so far as to request removal of photographs taken by fans of their Prince tattoos and their automobiles carrying Prince-inspired license plates. As of yet, we've been unable to get a copy of one of the cease-and-desist letters, but it looks like Prince's lawyers are asserting a mix of copyright and publicity rights in his name and likeness in order to justify their demands.   read more »

We've finally finished building the interface for our Legal Threats Database, and I am excited to announce its public launch. If you would like to read our news release, you can find it here.

The database, which is funded by the John S. and James L. Knight Foundation, contains legal threats from 35 states and 9 countries, and it is growing daily. These threats range from copyright infringement lawsuits filed against bloggers to cease and desist letters claiming defamation sent to MySpace users.

Users of the interactive database can input new threat entries, comment on existing threats, and search the database in a number of ways, including by location, legal claim, publication medium, and content type. We've already been receiving a lot of interest in the database and expect that it will be useful to a wide range of people. As Sam Bayard noted yesterday, the database already contains a fascinating array of lawsuits, as well as more informal threats like cease-and-desist letters and emails.

We can't create this database alone, however, so we need your help to keep the information accurate and up to date. If you've been threatened with legal action as a result of your online activities or know of someone who has, please let us know by using our contact form or by entering the information directly into the database through our easy to use threat entry form.

The database is the product of a tremendous amount of work by CMLP staff and students, especially Sam Bayard, Jillian Button, Daniel Ostrach, David Russcol, Matt Sanchez, Daniel Ungar, and Stefani Wittenauer. Our website designer, Chris Wells from Redfin Solutions, has worked tirelessly on getting all of the functionality operating properly. A big public thank you to everyone who helped!   read more »

Tomorrow we officially launch our Legal Threats Database, a catalog of the growing number of lawsuits, cease-and-desist letters, and other legal challenges faced by those engaging in online speech. As many of our readers are no doubt aware, the individual threat entries have been available for some time, but starting tomorrow users will be able to view the entire database and search the entries using a number of fields, including location, legal claim, publication medium, and content type.

The database already contains a fascinating array of lawsuits, as well as more informal threats like cease-and-desist letters and emails. Its several-hundred entries are growing daily. One of the most exciting aspects of the database is the ability it gives our users to input new threat entries, whether based on their own experiences or their knowledge of legal threats faced by friends or colleagues. One of our users, blogger Tabatha Marshall of Washington State, created a new threat entry this weekend. We followed up with her, obtained additional information, and edited the entry for publication. In this post, I'll excerpt for you the "Description" portion of the resulting database entry, Internet Solutions v. Marshall:

On November 1, 2007, Internet Solutions, a company that runs a number of employment recruiting and Internet advertising businesses, including VeriResume, sued blogger Tabatha Marshall in federal court in Florida.   read more »

Reports are emerging from Pakistan that President Pervez Musharraf has shutdown independent news media within Pakistan and limited access to the Internet. Musharraf appears to be using, at least in part, Pakistan's press licensing laws to effectuate this clampdown.

Pakistan has a well developed set of laws governing its print, broadcast, and electronic media. Not surprisingly, Musharraf is using these laws to lend an air of legitimacy to his actions. According to the Hindustan Times:

Musharraf promulgated two separate ordinances imposing curbs on the print and the electronic media. Under the ordinances that amend the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, and the Pakistan Electronic Media Regulatory Authority, 2002, the print and electronic media have been barred from printing and broadcasting "anything which defames or brings into ridicule the head of state, or members of the armed forces, or executive, legislative or judicial organ of the state."

The extent of Musharraf's curtailment of Internet access is unclear, however, with conflicting reports circulating today. The Associated Press reported that:

Authorities have blacked out TV networks and threatened broadcasters with jail time, but so far have spared the Internet and most newspapers.   read more »

Talking Points Memo: Right-Wing Bloggers Launch Campaign -- With MoveOn! -- Against Fox News Over Debate Footage. A coalition of right-wing bloggers and MoveOn that helped force several networks to allow public use of their political debate footage last spring has just launched a similar campaign against Fox News.

Good for all of them. Fox News' position is untenable from almost any point of reference.

On Wednesday, a federal jury in Maryland handed down a $10.9 million verdict against the Westboro Baptist Church, a fundamentalist Christian church in Kansas that publishes a website at www.godhatesfags.com, on which it disseminates its rabidly anti-homosexual views. Among other things, the church advocates the view that God kills U.S. soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality and for the presence of gays in the U.S. military. Westboro Baptist has gained notoriety in recent years for staging protests at the funerals of U.S. soldiers in order to draw attention to its message.

Albert Snyder, a Pennsylvania man whose son was killed in Iraq, sued Westboro Baptist, its pastor Fred W. Phelps, Sr., and members of his congregation after they picketed the funeral of Snyder's son, Matthew, holding up signs with slogans like "God hates you," "Thank God for dead soldiers," and "You're going to hell."

Around the time of the funeral, the church also posted an essay on its website entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder." In the essay, statements indicated that Snyder and his wife “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”   read more »

This week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.

Download the MP3 (time: 9:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.

    read more »

Yesterday, the Electronic Frontier Foundation and a group of public interest groups dedicated to protecting free speech, including the Center for Social Media at American University and the Berkman Center for Internet & Society, published a report entitled "Fair Use Principles for User Generated Video Content" that sets out six guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who remix copyrighted material.

According to the press release accompanying the report:

Hossein Derakhshan, an Iranian-born blogger based in Toronto, reported yesterday that he had been sued for defamation in a Canadian court. Derakhshan is a prominent figure in the history of the Iranian blogosphere. In 2001, he developed the technological solution that enabled Iranian bloggers to blog in Persian and published a widely-used set of instructions on "How to make a blog in Persian" using Blogger.com's free service. (For more information on Derakhshan and the Iranian blogosphere, see Wikipedia's entry on "Iranian blogs" and Meron Rapoport's article, "King of the Iranian Bloggers," on Haaretz.com.)   read more »

The OpenNet Initiative is reporting that four opposition news sites in Kazakhstan have been recently blocked, including www.kub.kz, www.zonakz.net, www.geo.kz, and www.inkar.info. The oil-rich Central Asian country has been facing increasing criticism for cracking down on independent and opposition media.

According to the OpenNet Initiative:

You can follow the unfolding situation in Kazakhstan on the OpenNet Initiative's blog.

(Note: the Citizen Media Law Project and the OpenNet Initiative are both projects of the Berkman Center for Internet & Society.)