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Court of Appeals Affirms that Single Publication Rule Applies to Internet

In a case of first impression in Texas, the U.S. Court of Appeals for the Fifth Circuit held that the "single publication rule," which states that the statute of limitations period for libel begins to run when a defamatory statement is first published, applies to publications on the Internet.

Some background on the case: on July 29, 2003, the Dallas Morning News published -- in print and on its website -- an allegedly defamatory article by financial writer Scott Burns about an accelerated mortgage program offered by Nationwide Bi-Weekly Administration, a company that provides mortgage payment services for borrowers. The article, among other things, accused Nationwide of engaging in deceptive business practices.

Nationwide filed a complaint in Ohio state court, near where it is based, on July 28, 2004, asserting claims for defamation, tortious interference with prospective business relations, and business disparagement against the Dallas Morning News, its owner Belo Corp., and Burns. Nationwide did not, however, serve the complaint on any of the defendants until June 2005. (Shortly thereafter, the defendants successfully removed the case to federal court in Ohio, whereupon the court transferred venue to the Northern District of Texas.)
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Ban 'Hate Speech' at Your Own Peril

Glenn Greenwald accurately explains the grotesque result of laws that seek to curb that amorphous problem of “hate speech” — a concept that turns free speech on its head. And unlike many of his colleagues on the political left, Greenwald explains why he’s defending people whose speech frequently deserves contempt:

People like Mark Steyn and Ezra Levant are some of the most pernicious commentators around. But equally pernicious, at least, are those who advocate laws that would proscribe and punish political expression, and those who exploit those laws to try use the power of the State to impose penalties on those expressing “offensive” or “insulting” or “wrong” political ideas. The mere existence of the “investigation,” interrogation, and proceeding itself is a grotesque affront to every basic liberty.

How many times can we say this? If you care about your own free speech rights, you must defend the rights of people whose speech makes your blood boil.

(Cross-posted from the Center for Citizen Media Blog.)

Chinese Citizen Journalist Beaten to Death by City Officials

This is terrible news. CNN and TechCrunch reported Friday that city officials in central China beat a man to death for attempting to record a protest on his mobile phone. Apparently, there was some sort of confrontation between villagers in the central Chinese province of Hubei and local municipal "inspectors" over the dumping of waste near the villagers' homes. When Wei Wenhua, a 41-year-old construction company executive, tried to film the altercation with his camera phone, a group of more than 50 of the inspectors attacked him, beating him for five minutes, according to China's Xinhua news agency. Government investigators later recovered Wei's mobile phone, but the video had been deleted.

It is not entirely clear whether Wei's filming was a spontaneous act of citizen journalism by a complete amateur, or whether he was a blogger trying to cover the story. The headlines on CNN and TechCrunch both refer to Wei as a blogger, but neither article gives any details on his blogging activity, and the CNN articles says that he "happened on [the] confrontation."

Reporters Without Borders issued a statement about the incident:   read more »

Reconstructing the Journalists' Privilege

Eric Freedman, a law professor at Hofstra University School of Law, has an article entitled "Reconstructing Journalists' Privilege" coming out in the Cardozo Law Review. The article is part of a symposium issue that includes pieces by an impressive list of scholars, including Anthony Lewis, Max Frankel, Victor Kovner, Joel Gora, and Rodney Smolla.

The abstract of Freedman's article is very intriguing:   read more »

Grand Jury Issues Subpoena to MySpace in Megan Meier Suicide Case

The Los Angeles Times reported yesterday that a federal grand jury in Los Angeles has begun issuing subpoenas in the Megan Meier case, the Missouri teenager who committed suicide after a "boy" she met on MySpace abruptly turned on her and ended their relationship. According to the Los Angeles Times, the boy was allegedly Lori Drew, a neighbor who had pretended to be 16-year-old "Josh Evans" to gain Megan's trust. (You can read more about the case in a post I wrote in November.)

According to anonymous sources who spoke to the Times:   read more »

Kansas Court Issues Search Warrant to Lawrence Journal-World Seeking Identity of Anonymous User

Last month, an investigator at Kansas University delivered a search warrant to the Lawrence Journal-World, a highly regarded newspaper in Lawrence, Kansas, demanding access to their computer servers in order to get information about the identity of a user who had posted comments on the paper's website, LJWorld.com. The warrant, which appears to violate the federal Privacy Protection Act, raises serious concerns about governmental overreaching and highlights the need for adequate procedural protections for anonymous online speech.   read more »

Australian Foreign Minister "Condemns" YouTube Video

Here is a weird one from the New York Times Lede blog: An anonymous person posted a video on YouTube that accuses the Australian government of opposing Japan’s whaling practices because of its "prejudice and racism against the Japanese." In response, Foreign Minister of Australia Stephen Smith issued an audio statement condemning the video and re-affirming the Australian government's view that Japanese whaling should cease. In his statement, Smith repeatedly draws attention to the anonymous character of the video and, according to Agence France-Presse, he even commented to reporters: "It's anonymous, so that tells you something before we even start."

I suppose this doesn't qualify as a legal threat, which is a good thing. When faced with critical speech, it's refreshing to see a government use more speech to address the situation, rather than censorship. This is encouraging, especially coming from a government that recently issued an Internet policy statement that raises some serious free speech concerns.

British Blogger Threatened with Arrest for Inciting Racial Hatred

Glenn Reynolds over at Instapundit.com reports that a British blogger was recently threatened with arrest for inciting racial hatred. The blogger, who runs a controversial Christian blog and goes by the pseudonym Lionheart, stated on his blog that British police are threatening to arrest him for "stirring up racial hatred by displaying written material" contrary to sections 18(1) and 27(3) of the Public Order Act 1986.

Reynolds recommends that if you're interested in supporting free speech rights -- and you should be if you are reading this blog -- you can contact the British Embassy to let them know that people shouldn't be arrested merely for writing things that the powers-that-be find distasteful.

(Note: Glenn Reynolds is on the CMLP's Board of Advisors.)

Thank You and Farewell to Three Key Members of the CMLP Team

As 2007 drew to a close, the Citizen Media Law Project lost three valuable members of its team: Colin Rhinesmith, David Russcol, and Pat McKiernan.

Colin Rhinesmith was the Digital Media Producer for both the CMLP and the Berkman Center for Internet & Society. He produced our Citizen Media Law Podcast and was previously a producer for MediaBerkman. Colin worked tirelessly -- and patiently -- each week to get our podcast up. Earlier this week, Colin started his new job as Community Media Coordinator for Cambridge Community Television. We are hopeful that we'll find someone to fill Colin's shoes, but that will be exceedingly difficult (as a result, our next podcast may be delayed for several weeks).

David Russcol was a resident fellow at the Berkman Center and an integral part of the CMLP team. After graduating from Harvard Law School in June 2007, David used his strong intellectual property background to assist the CMLP with the creation of our Legal Threats Database and upcoming Legal Guide. Starting later this month, David will begin a clerkship with the Honorable Mark Wolf, Chief Judge of the United States District Court for the District of Massachusetts.   read more »

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Report Examines Use of Copyrighted Material in Online Videos, Finds Free Speech Rights Threatened

A new study conducted by the Center for Social Media at American University has found that many online videos use copyrighted material in ways that are likely to be fair use under copyright law, yet these uses are currently threatened by anti-piracy measures online.

The report, "Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video," identifies nine kinds of uses of copyrighted material, ranging from incidental (a video maker's family sings "Happy Birthday") to parody (a Christian takeoff on the song "Baby Got Back") to pastiche and collage (finger-dancing to "Harder, Better, Faster, Stronger"), that are eligible for fair use consideration.

The study, a valuable follow up to the Center for Social Media's previous foray into this area entitled a "Documentary Filmmakers’ Statement of Best Practices in Fair Use," examines thousands of videos on 75 online platforms, including YouTube.com, Revver.com, and Current.com. The report's authors, Pat Aufderheide and Peter Jaszi, found that the creators of these videos "aren't necessarily stealing" when they use the copyrighted content of others; rather, the are creating "a new commentary on popular culture, and creating a new piece of popular culture."   read more »

Saudi Blogger Detained

The mainstream press (here, here) reports that the Saudi Arabian authorities have detained Fouad Ahmad Al-Farhan, a popular Saudi blogger whose blog has been a platform for criticism of government corruption and advocacy for political reform. Al-Farhan was arrested on December 10, but apparently it took a while for the story to break -- it was picked up last week by bloggers in Egypt, Tunisia, Morocco, and Bahrain. A statement from the Saudi Ministry of the Interior posted on Al-Farhan's blog states that Al-Farhan was detained "to investigate (with him) the violation of regulations not related to state security." Since his arrest, friends have continued posting entries on the blog and put up "Free Fouad" banners in Arabic and English. Also posted on the site is a letter that Al-Farhan put up days before his arrest (typos in the original):

I was told that there is an official order from a high-ranking official in the Ministry of the Interior to investigate me. They will pick me up anytime in the next 2 weeks.

The issue that caused all of this is because I wrote about the political prisoners here in Saudi Arabia and they think I’m running a online campaign promoting their issue. All what I did is wrote some pieces and put side banners and asked other bloggers to do the same.
he asked me to comply with him and sign an apology. I’m not sure if I’m ready to do that. An apology for what? Apologizing because I said the government is liar when they accused those guys to be supporting terrorism?
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Bush Signs FOIA Reform Bill; New Definition of News Media Will Benefit Bloggers and Non-Traditional Journalists

In one of his last executive actions of the year, President Bush signed into law the "OPEN Government Act of 2007" on December 31, 2007. The Senate unanimously passed the reform bill earlier in December, and it passed the House of Representatives by voice vote on December 18. The Associated Press is reporting that Bush signed the bill without comment.

As I explained in a blog post two weeks ago, the legislation substantially reforms the Freedom of Information Act and expands the definition of who is a "representative of the news media" under FOIA. 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."   read more »

New Jersey Superior Court Quashes Subpoena to Unmask "daTruthSquad"

According to EFF, a New Jersey Superior Court judge quashed a subpoena seeking the identity of anonymous blogger "daTruth Squad" on Friday. The blogger had criticized a malpractice lawsuit filed by the Township of Manalapan, New Jersey against a former city attorney. Then, as part of the same malpractice lawsuit, the Township issued a subpoena to Google (owner of the blog's hosting service) seeking information relating to daTruth Squad's identity. EFF represented the blogger and filed a motion to quash the subpoena on November 28, 2007, arguing among other things that First Amendment protection for anonymous speech barred disclosure of daTruth Squad's identity under the circumstances.

This clearly was a winning argument given that the blogger's criticism had nothing to do with the merits of the underlying malpractice lawsuit, and the Township had not even filed a defamation action (which itself would have been a dubious move). The New Jersey court apparently granted the motion, but it is not clear whether it issued a written decision. We'll keep an eye out for it -- it could be another victory for anonymous speech along the lines of Cahill, Dendrite, and Mobilisa.

Here Comes Another Takedown

Earlier this month, comedy group The Richter Scales released a funny music video, "Here Comes Another Bubble." The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel's "We Didn't Start the Fire," lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week's top-rated video.

Then, it was removed from YouTube, "due to a copyright claim by a third party."

Photographer Lane Hartwell says she objected to use of her photograph of Valleywag's Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the "third party" sender of the complaint.)

Now, the video is back, in a revised version that omits Hartwell's photograph.   read more »

Congress Passes FOIA Reform Bill, Expands Definition of "News Media"

Earlier this week, Congress passed a bill that substantially reforms the Freedom of Information Act and expands the definition of who is a "representative of the news media" under the Act. The bill, entitled the "Openness Promotes Effectiveness in our National Government Act" or, more succinctly, the "OPEN Government Act of 2007," passed unanimously in the Senate last week and cleared the House of Representatives by voice vote on Tuesday.

One of the most striking changes in the bill 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." The bill accomplishes this by adding the following language to FOIA:

[T]he term 'a representative of the news media' means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term 'news’ means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.   read more »

Think Secret to Cease Operations as Part of Settlement With Apple

TechCrunch is reporting that Apple and Think Secret have settled their longstanding trade secrets dispute. Here's the kicker: under the terms of the agreement, Think Secret will cease operations. Think Secret issued a statement:

Apple and Think Secret have settled their lawsuit, reaching an agreement that results in a positive solution for both sides. As part of the confidential settlement, no sources were revealed and Think Secret will no longer be published. Nick Ciarelli, Think Secret's publisher, said "I'm pleased to have reached this amicable settlement, and will now be able to move forward with my college studies and broader journalistic pursuits."

The case arose out of Think Secret's publication of a report about a number of new Apple products days before MacWorld 2005. Appled sued the blog's operator Nick Ciarelli (aka Nick DePlume) and his company DePlume Organization, LLC for misappropriation of trade secrets in California state court and sought discovery of the identity of Think Secret's confidential sources. Apple's claim was unusual because Ciarelli was not an Apple employee and was not bound by any confidentiality agreement. Apple argued that Ciarelli should nevertheless be held liable because he encouraged leaks of confidential information through an anonymous email system and a voice-mail tip line.   read more »

Judge Dismisses Class Action Lawsuit Against Lawyer Rating Site Avvo.com

Yesterday, a federal judge in Washington dismissed a class action lawsuit filed by two prominent lawyers in Seattle against Avvo Inc., the operator of Avvo.com, a website that profiles and rates lawyers and allows users to submit reviews of lawyers they have worked with. Plaintiffs also sued Mark Britton, Avvo's CEO, and 25 anonymous "John Doe" users of the site. By filing a class action lawsuit, the two lawyers are disputing not only their own rankings on the site, which they claim are unreasonably low, but are also challenging the accuracy and validity of the mathematical algorithm used by Avvo to rate and compare attorneys.

In dismissing the complaint without leave to amend, Judge Lasnik wrote that the ratings on the site are protected statements of opinion, commenting that "defendants' rating is not only defensible, it is virtually impossible to prove wrong." While evidencing clear skepticism about lawyer ratings generally, the judge also took the plaintiffs to task for bringing the lawsuit:

[P]laintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action   read more »

Eagle Broadband v. Mould: Another Internet Defamation Suit Dismissed as SLAPP

It's been a busy month or so for the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). In late October, a California trial court granted Perez Hilton's motion to strike in Ronson v. Lavandeira. More recently, another court granted the anti-SLAPP motion of Richard Silverstein and Joel Beinin in the poltically charged case, Neuwirth v. Silverstein. Adding to this list, last Friday, in Eagle Broadband v. Mould, 2007 WL 4358515 (Cal. Ct. App. Dec. 14, 2007), a California appellate court upheld the trial court's grant of Thomas Mould's motion to strike pursuant to the anti-SLAPP statute and reversed the trial court's denial of Richard Williams's similar motion. The appellate court also affirmed the trial court's award of approximately $65,000 in attorney's fees to Mould pursuant to the statute.   read more »

Court Rejects Bid to Use DMCA to Bypass First Amendment Protection for Anonymous Speech

This weekend I came accross a recent case, In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.COM, LLC, 2007 WL 4335441 (D. Idaho Dec. 7, 2007). The decision came down earlier this month, but I hadn't read anything about it until now, which is surpising because it is a veritable smörgåsbord of some of our favorite topics -- anonymity, the Digital Millennium Copyright Act (DMCA), and lawyers threatening to sue for copyright infringement of their cease-and-desist letters. The case provides a clear example of a party attempting to use the controversial "administrative subpoena" provision of the DMCA (found at 17 U.S.C § 512(h)) to circumvent the safeguards imposed by courts before ordering disclosure of the identity of an anonymous poster in defamation cases. Fortunately, the federal district court in Idaho rejected this gambit, although overall its decision leaves something to be desired. Here's the background:   read more »

Primer on Immunity -- and Liability -- for Third-Party Content Under Section 230 of Communications Decency Act

As a lead up to the launch of the Citizen Media Law Project's Legal Guide in January, we'll be putting up longer, substantive blog posts on various subjects covered in the guide. This first post in the series stems from a talk I gave at the Legal Risk Management in the Web 2.0 World conference in Washington, DC. As the token academic, I had the task of providing a general overview of the liability that publishers might face if they allow users to comment on or submit content to their sites. I've adapted this post from that talk.


I'll provide some brief background on section 230 of the Communications Decency Act ("CDA 230") and highlight the types of claims and online activities it covers as well as the types of activities that might fall outside CDA 230's immunity provisions.

Publisher and Distributor Liability

Before I discuss the ins and outs of CDA 230, however, I want to highlight the difference between publisher and distributor liability. Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.   read more »

   
 
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