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Federal Case Law Archive Now Online and Free

Public.Resource.Org and Creative Commons announced that they've released the first batch of case material in their free case law archive. Yesterday's release encompases over 1.8 million volumes of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754.

As we've noted in the past, lawyers have long anticipated -- and hoped for -- such a case archive because court decisions and statutes are not copyrightable. In light of this, the files are all marked with the new Creative Commons CCØ label, indicating that the contents are works of the United States Government and are free of copyright or other restrictions for their dissemination and reuse.

Equally impressive, all of the files were converted to the XHTML standard and make extensive use of CSS style sheets to allow developers to build new search engines and user interfaces to access the trove of materials. According to the press release:   read more »

Highlights from the Legal Guide: Getting Your Words and Other Content Out to the World

This is the second in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we took up was choosing a business form for your online publishing activities. In this post we discuss the various issues, both legal and practical, that arise when you select a platform for your online speech.

So you've decided that you want to publish online. There is a wide range of platforms you can use to get your words, video, and other content out to the world.

Of course, the easiest way for you to get online is to simply go to a website that allows user comments or forum posts and add your two cents to the mix. If you want a more permanent home -- and one you can control to some degree yourself -- you will want to consider whether to join a service such as Blogger, TypePad, Livejournal, or even MySpace (yes, we know it's a social networking site), that will host and manage your content for you or whether you want to create your own, independent website. Each option has its advantages and disadvantages. Here are some of the things you might want to think about in deciding which platform -- or platforms -- you will use:   read more »

Judge Reduces Verdict in Snyder v. Phelps, Westboro Baptist Church Still on the Hook for $5 Million

Earlier this week, a federal District Court judge in Maryland more than halved a $10.9 million jury verdict against the Westboro Baptist Church, a fundamentalist Christian church in Kansas, and three of its leading members. Among other things, the church publishes a website at "www.godhatesfags.com" and advocates the view that God kills U.S. soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality. 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."   read more »

Krinsky v. Doe 6: New Decision from California Provides Strong Protection for Anonymous Speech

A California appellate court issued a new anonymity decision yesterday in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008). (For background on the facts of the case, see the CMLP database entry, Krinsky v. Doe 6.) In line with the recent trend towards increased protection for anonymous speech online, the California court came out with a test that puts a significant evidentiary burden on a plaintiff before allowing disclosure of an anonymous Internet speaker's identity.

The court explicitly rejected the lenient "good faith" standard applied in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." Interestingly, however, the court also declined to follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."   read more »

Bush Refuses to Fund New FOIA Ombudsman, Takes the Heart Out of Open Government Reform Law

Well, that was quick. Mere weeks after signing the "OPEN Government Act of 2007" on December 31, 2007, which significantly reformed the Freedom of Information Act (FOIA), President Bush is now attempting to cut out the heart of the OPEN Government Act by refusing to fund the newly created FOIA ombudsman's office.

According to The Washington Post,

in his budget request this week, Bush proposed shifting a newly created ombudsman's position from the National Archives and Records Administration to the Department of Justice. Because the ombudsman would be the chief monitor of compliance with the new law, that move is akin to killing the critical function, some members of Congress and watchdog groups say.

As I noted when President Bush signed the Act, the legislation substantially reforms FOIA and expands the definition of who is a "representative of the news media." This change would significantly benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to "representatives of the news media."

Other important reforms include:   read more »

Highlights from the Legal Guide: Choosing a Business Form

This is the first in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we'll take up is choosing a business form for online publishing activities. There is increasing awareness that, especially if you publish content in collaboration with others, it may not be smart to simply leave the relationship "natural" or informal. But this realization raises other questions: What are my options? What are the benefits of legal formality? Will it be expensive to obtain these benefits? Will I have to sacrifice control?

Below is an excerpt from the legal guide giving a brief introduction to some of the most commonly adopted business structures and pointing out some of their most salient advantages and disadvantages. This page in the guide is just a jumping-off point for in-depth discussions on each of the business forms that you can find in the guide. In the end, the choice between business forms is a personal one. Our hope is that the legal guide will help you understand the issues and make a better-informed decision.   read more »

Goodale TV on CDA 230 and AutoAdmit

Sam Bayard blogged previously about James Goodale's article on CDA 230 and the highly publicized AutoAdmit case. In the article, Goodale argues that CDA 230, the federal law that shields providers of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, should be amended to impose liability in cases where a website operator "knowingly causes defamation by refusing to take down libelous posts."

On Sunday, on his show "Digital Age," Goodale moderated a discussion between Michael Fertik, the CEO of ReputationDefender.com, and Beth Simone Noveck, a professor at New York Law School, about CDA 230, anonymity, and the AutoAdmit case.

You can also watch it on Google Video.

(Note: James Goodale is on the board of advisors for the CMLP.)

Citizen Media Law Project Launches Legal Guide

Today we are launching the first sections of the Citizen Media Law Project's Legal Guide. The guide is intended for use by citizen media creators with or without formal legal training, as well as others with an interest in these issues, and addresses the legal issues that you may encounter as you gather information and publish your work online.

The legal guide, which is funded by the John S. and James L. Knight Foundation, covers the 15 most populous U.S. states and the District of Columbia and will focus on the wide range of legal issues online publishers are likely to face, including risks associated with publication, such as defamation and privacy torts; intellectual property; access to government information; newsgathering; and general legal issues involved in setting up a business.

For today's launch we are starting where we think you would likely start, with sections on

  • Forming a Business and Getting Online, which covers the practical issues to consider in deciding how to carry on your online publishing activities, including forming a for-profit and nonprofit business entity, choosing an online platform, and dealing with critical legal issues relating to the mechanics of online publishing.

  • Dealing with Online Legal Risks, which covers managing your site and reducing your legal risks, finding insurance, finding legal help, and responding to the different kinds of legal threats you may face as a result of your online publishing activities.

You can search the legal guide, browse by state, or simply navigate through it like a book. Because of its enormous scope, we can't create this legal guide alone. We need your help to keep the information accurate and up to date. If you see something we've missed or gotten wrong, please let us know by using our contact form.

Throughout the spring, we will roll out a new section (or two) each month. If you would like to stay abreast of new material in the legal guide, please sign up for our weekly newsletter, the Citizen Media Law Brief.

The legal guide is the product of a tremendous amount of work by CMLP staff and students, especially Sam Bayard and Tuna Chatterjee. We also received some great feedback -- and timely editing -- from a team of top lawyers at Skadden, Arps, Slate, Meagher & Flom LLP, including Richard Hindman, Jane Harper, Kai Kramer, David Pawlik, and Eric Sensenbrenner. Our website designer, Chris Wells from Redfin Solutions, worked tirelessly on getting all of the functionality operating properly.  A big public thank you to everyone who helped!

Update: You can read the press release here.    read more »

Savage v. CAIR: The Council on American-Islamic Relations Asks Court to Dismiss Michael Savage's Lawsuit

I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith. To put it mildly, I disagree with Savage's position in the lawsuit -- it is a blatant attempt to misuse copyright law in order to squelch criticism.

Great news! The Electronic Frontier Foundation and Davis Wright Tremaine LLP are representing CAIR, and they have filed an answer and moved for "judgment on the pleadings," asking the court to dismiss the lawsuit because it is "simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims . . . Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from the EFF). The brief arguing in favor of dismissal is excellent. Its introductory argument on the copyright claim is worth reproducing here:   read more »

CUNY Journalism School Launches Website to Help Citizen Journalists Avoid Legal Risk

In a project headed by Associate Professor Geanne Rosenberg, CUNY's Graduate School of Journalism has launched a new website -- Top 10 Rules for Limiting Legal Risk. The project, which is carried out in collaboration with the John S. and James L. Knight Foundation and the Knight Citizen News Network, aims to provide training to citizen journalists on the legal rights and responsibilities that go along with newsgathering and online publication. From the press release:

"We are pleased to provide this resource to citizen journalists," said Stephen Shepard, dean of the journalism school. "The law in this area is rapidly developing, and citizen journalists don’t have the resources of a legal department to draw upon. Many of the rules are based on the same principles of fairness and caution that we teach to professional journalists at the school," Shepard added.

"This vital module with advice that could help keep bloggers out of jail is a great new addition to the Knight Citizen News Network, which already is the best one-stop-shop site for citizen journalism training," said Gary Kebbel, journalism program officer at Knight Foundation.

Basically, it's right up our alley AND its got some nifty videos in the teaching modules featuring David Ardia, the CMLP's co-founder and director, and yours truly. Self-aggrandizement aside, the website looks great and its ten rules are organized around practical strategies rather than legal doctrine, which makes it user-friendly.

Some of  these rules include:   read more »

Slandering Sandwiches and User Submitted Content

Our very own Sam Bayard popped up today in a New York Times article about the Subway v. Quiznos lawsuit, humorously named: "Can a Sandwich be Slandered?" The article does a good job highlighting the complicated issues involved in the case (and implicated by company sponsored competitions for "homemade commercials" generally).

The case itself is quite fascinating. In late 2006, Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Subway sued Quiznos in federal court in Connecticut, and it subsequently amended its complaint to include a claim against iFilm. Only one count of the complaint related to the Ad Challenge, and that count alleged false and misleading advertising in violation of the Lanham Act.

As the New York Times reports:

The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest?   read more »

Plaintiffs Seek Information to Unmask Pseudonymous Defendants in AutoAdmit Case

Last Thursday, the plaintiffs in the AutoAdmit case filed a motion for expedited discovery, seeking permission to serve subpoenas on a number of ISPs, universities, and websites demanding information about the identities of the the pseudonymous posters named in the lawsuit. (For background on this case and links to the court documents, see the CMLP database entry, Doe v. Ciolli.) The plaintiffs believe that these ISPs, institutions, and websites either assigned IP addresses to some of the defendants, were used by some defendants to send email, or have relevant IP addresses because some defendants visited their sites shortly before posting on AutoAdmit threads.

Before filing the motion, the plaintiffs informally contacted AutoAdmit and its administrators, several ISPs, hosting providers, and others, requesting that they voluntarily turn over identifying information about the pseudonymous posters. All of the recipients refused, and now the plaintiffs want the court's help to make them comply. Unfortunately for the plaintiffs, it looks like many of the recipients do not have the information that they're looking for anyway. Many indicated that they do not compile logs of the information sought or had already disposed of those logs before being contacted by the plaintiffs.   read more »

Students Shown Drinking on Facebook Banned From School Activities

School officials at Eden Prairie High School outside of Minneapolis punished 13 students after discovering photographs of them drinking on Facebook.com. As punishment, the students were banned from their sports teams or other extracurricular activities.

According to the Minneapolis Star Tribune:

Some parents are reportedly considering legal action because they view the school's action as too harsh. But legal experts say the area is muddy, because the mushrooming popularity of social networking sites is so new, challenges have yet to work their way up through the courts.

In the words of one student, the idea of school administrators nosing around social networking websites might be "creepy," but it is not necessarily unconstitutional. In this case, the school punished students for underage drinking, not their expression, and the athletes who were punished had signed a pledge not to drink as a condition of playing in the Minnesota State High School League. In addition, it is unlikely that the school violated the students' privacy rights by looking at pictures available to the public on the Internet.

It would be much more problematic if public schools tried to ban their students from using social networking sites altogether. Such a policy is not as unlikely as it may seem. Last spring, the University of Minnesota at Duluth announced a new policy barring all of its student athletes from participating in social networking websites such as MySpace.com and Facebook.com on the theory that the content of such websites placed the student-athletes and the school in a negative light.

If a university is banning its student-athletes from using social networking sites, a similar policy on the high school level is just around the corner.

As ridiculous as such a policy might sound, it is arguably constitutional under current case law. Several lower courts have held that students do not have a constitutional right to participate in extracurricular activities, and in 2002, the Supreme Court rejected a Fourth Amendment challenge to a public school rule requiring all students who participated in extracurricular activities to submit to random drug testing. See Pottawatomie County v. Earls, 536 U.S. 822 (2002). Based on these cases, it would be no small leap for a court to conclude that it would be constitutional for a public school to condition its students' participation in extracurricular activities on the forfeiture of their First Amendment rights.

This is not to say that such a policy should be constitutional, or that it would be a good idea. Banning students entirely from social networking sites in order to crack down on underage drinking and drug use would not prevent students from engaging in the unlawful activities and instead would simply cut them off from an essential forum for communication. And practically speaking, such a policy would be next to impossible to enforce.
  read more »

Court Awards Perez Hilton Nearly $85,000 in Attorneys Fees in Ronsen Suit

I previously blogged at length about Mario Lavandeira's victory under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16) in the libel lawsuit brought against him by celebrity DJ and Lindsey Lohan pal Samantha Ronsen. Now, my RSS feeds are clogged with reports that the California court has awarded Lavendeira nearly $85,000 in attorneys fees under the anti-SLAPP statute. I guess that's what happens when you mess with a blogger with some resources! Kudos to Bryan Freedman, Lavandeira's attorney, for defending this case so successfully.

Primer on Copyright Liability and Fair Use

As a lead up to the launch of the Citizen Media Law Project's Legal Guide later this month, we are putting up longer, substantive blog posts on various subjects covered in the guide. This post is the second in our series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act. In this post we discuss copyright and fair use in the context of citizen media.

I. COPYRIGHT PROTECTION AND FAIR USE

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Citizen media creators who use the works of others need to be careful that they do not open themselves to copyright liability when doing so.

Fortunately, there are several circumstances in which the work of others may be used without liability. Bare facts and ideas, government documents, and items in the public domain are not subject to copyright, and some materials may be published under a Creative Commons license or other license that permits reuse. In addition, the doctrine of fair use provides that copyrighted materials may be used without the consent of the original owner in certain situations, such as when using excerpts for criticism or news reporting.
  read more »

Mashups, DVD Ripping, and Fair Use

Chris Soghoian at CNET Blogs published an interesting post yesterday -- Did Slate violate copyright law? It talks about a hilarious mashup video that Slate posted a few days ago called Hillary's Inner Tracy Flick, which juxtaposes images from the 1999 film Election and current footage of presidential hopeful Hillary Clinton. The mashup plays on the earnestness and ambition shared by Hillary and Reese Witherspoon's character in the movie -- Tracy Flick, a hyper-driven high school student seeking election as class president.

The clip is made up completely of preexisting footage, but it manages to pull off something novel, funny, and politically poignant. As Cynthia Brumfeld writes on IP Democracy:

Nothing in this video is 'original' although the video itself is without a doubt a work of originality and creativity. It also brilliantly makes a political point.

Brumfeld's post is worth reading in its entirety; it uses the Slate mashup to contrast the differing views on fair use held by ubiquitous Columbia law professor Tim Wu and NBC counsel Rick Cotton, as found in the excellent online debate on remixing and fair use published in the New York Bits Blog last week (another must read). I believe, and Wu and Brumfeld would agree, that the Slate mashup is a fair use because it is clearly transformative and it adds value to the original rather than substituting for it.   read more »

Fernando Rodrigues Discusses Access to Public Information in Brazil

Today at the Berkman Center, Fernando Rodrigues, a journalist from Brazil who is currently a Nieman Fellow at Harvard, spoke about "Journalism and Public Information in Brazil." In 2002, Rodrigues launched "Políticos do Brasil," a website that contains approximately 25,000 records of Brazilian politicians showing electoral information and personal data – including the list of personal assets of each politician who ran for office in the past three general elections in Brazil. On one day in 2006 the site drew 1,000,000 viewers. The site is free to the public and has been the source for many news stories for media outlets all over Brazil.

Rodrigues focused much of his talk on the importance of public access to government information, a subject that is relevant to traditional and non-traditional journalists all over the world.

You can view a recording of Rodrigues' talk at MediaBerkman and a transcript of the talk is available here.

(Note: I am a fellow at the Berkman Center and the CMLP is hosted there.)

Comparative Analysis of Copyright Fair Use in Canada, United Kingdom, and United States

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.
The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.   read more »

Gawker Defies Demand from Church of Scientology to Remove Creepy Tom Cruise Video

Earlier this week, a promotional/inspirational video for the Church of Scientology featuring Tom Cruise began circulating online. The video is bizarre -- against the background of what sounds like the Mission Impossible theme, Cruise extols the virtues of Scientology and urges viewers to embrace its ethics and worldview. Among many, many other things, he drops gems like "We are the authorities on getting people off drugs. We are the authorities on the mind. We are the authorities on improving conditions" and "We are the way to happiness. We can bring peace and unite cultures."

Some might say that the clip has only gossip value, but others assert that it reveals something about Cruise's position within the controversial organization (which to some may still have only gossip value). Nevetheless, it has caused some complicated legal maneuvering this week. From Gawker:   read more »

New Hampshire to Stop Issuing ID Cards to Journalists

The Associated Press is reporting that New Hampshire will no longer issue identification cards to journalists. According to a report in Seacoastonline:

The man who handled the chore — Jim Van Dongen of the state Department of Safety — says the decision is based on the proliferation of online and specialty news outlets and technology that allows just about anyone to call himself a journalist. Van Dongen says that put him and his bosses in the uncomfortable position of issuing cards to all comers or having to decide who is a legitimate journalist.

This change is largely symbolic, however, as event organizers usually issue their own credentials to journalists and don't rely on the state to determine who should get a press pass.

UPDATE: Scott Gant has written an excellent article on the Huffington Post about the difficulty of deciding who should get press credentials: A Broad View of Journalism

   
 
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