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 »
Posted December 18th, 2007 by Sam Bayard
Posted December 17th, 2007 by Sam Bayard
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 ActPosted December 16th, 2007 by David Ardia
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 »
Citizen Media Law Podcast #6: Copyright and Fair Use in Savage v. Council on American-Islamic RelationsPosted December 14th, 2007 by Citizen Media L...
Download the MP3 (time: 9:40)
This is our last podcast for 2007. We'll be back in January with episode #7. In the meantime, stay tuned on our blog at citmedialaw.org. To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.
Posted December 13th, 2007 by Sam Bayard
The anonymous blogger who runs "The-Paris-site" will remain anonymous, at least for now. Yesterday, a Texas appellate court ordered the trial court to vacate its previous order compelling the blogger's ISP to reveal his name and address to Essent Healthcare, Inc. (For background on the case, see our database entry, Essent v. Doe, and my previous post.)
It's been a strong couple of months for anonymous speech online. First, Orthomom, then Mobilisa, and now this case. The proverbial tide really does appear to be turning in favor of imposing a rigorous standard prior to ordering disclosure of an anonymous poster's identity. In this case, the Texas court acknowledged that the right to speak anonymously online is protected by the First Amendment and that mere allegations of wrongdoing are insufficient to overcome this right. The court endorsed the "summary judgment" standard set forth in Doe v. Cahill and followed in Best Western Int'l v. Doe: read more »
Posted December 12th, 2007 by Wendy Seltzer
Yesterday, Best Buy sent a cease-and-desist letter to Scott Beale of Laughing Squid for reporting on an "Improv Everywhere" prank and their sales of T-shirts mocking the Best Buy logo. Best Buy claimed the post infringed its trademarks and copyrights by "promoting" sales of a T-shirt that mocked the Best Buy logo. Laughing Squid promptly posted the C&D, where it was picked up by BoingBoing and Slashdot. But Best Buy seems to have learned from the hubub, and sent its apologies a day later:
We appreciate your clarification of the nature of your posting. We do object to sales of T-shirts or other products bearing a logo which violates our trademarks or copyrights or other misuse of our logo in commercial ventures. However, we do not object to fair and accurate reporting of facts, and respect the First Amendment rights of Laughing Squid and other bloggers to provide articles or commentary on current events. Now that we have a better understanding of your website, we regret sending you the demand letter.It's good to see a company recognize the distinction between reporting and trademark infringement and drop its threats. We have to say, though, the T-shirts give "trade dress" claims a whole new meaning.
Posted December 12th, 2007 by Sam Bayard
Boston Now reports that Peter Lowney, a political activist from Newton, Massachusetts, was convicted last week of violating the Massachusetts wiretapping statute (Mass. Gen. Laws ch. 272, § 99) and sentenced to six months probation and fined $500. The criminal case arose out of Lowney's concealed videotaping of a Boston University police sergeant during a political protest in 2006. Apparently Lowney was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the Brighton District Court ordered Lowney to remove the footage from the Internet.
The Massachusetts wiretapping statute criminalizes "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication through the use of an "intercepting device" without the permission of all parties to the communication. The statute provides that a person who "willfully commits an interception" may be punished with a fine of up to $10,000, imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. Most states and the federal wiretapping law permit secret recording of a conversatino if one party to the conversation consents. read more »
Posted December 11th, 2007 by David Ardia
CyberJournalist.net is reporting that the Democratic National Convention Committee (DNCC) is accepting applications from bloggers interested in being part of the credentialed blogger pool at the 2008 Democratic National Convention in Denver, Colorado:
Posted December 10th, 2007 by Sam Bayard
James Goodale, the former vice chairman of the New York Times, published an article on Friday in the New York Law Journal (registration required) on CDA 230 and the highly publicized Doe v. Ciolli case. 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." Goodale, a distinguished media lawyer, is not alone in his concern that Congress and the courts have "gone too far" in the direction of protecting website operators at the expense of individuals whose reputations may have been damaged. The argument depends, to a large extent, on the claim that CDA 230 somehow leaves injured plaintiffs with no remedy or recourse for the harm done to them. (See, for instance, Ron Coleman's post on December 7.) read more »
Posted December 7th, 2007 by Sam Bayard
The Fair Use Project of Stanford Law School’s Center for Internet and Society announced Tuesday that it is joining as co-counsel to defend RDR Books in the copyright infringement lawsuit filed in federal court in New York by Warner Brothers and J.K. Rowling in October 2007. The lawsuit revolves around RDR's efforts to publish The Harry Potter Lexicon, an unofficial
reference guide to the Harry Potter series of books and movies. From the press release:
The 400-page Harry Potter Lexicon is a print counterpart to the fan-created website, The Harry Potter Lexicon [www.hp-lexicon.org]—commonly known as the HPL—that is widely considered to be the most authoritative reference to all things Harry Potter. The site includes information on the series’ characters, places, animals, magic spells, and potions along with atlases, timelines, and analyses of magical theory. Created in 2000 by librarian Steve Vander Ark and myriad contributors, the site has an estimated 25 million annual visitors and is maintained by Vander Ark and a team of volunteer fans. Among the site’s supporters is J.K. Rowling, who bestowed the HPL with a Fan Site Award in 2004 and wrote on her website: “This is such a great site that I have been known to sneak into an Internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing).”
RDR argues that it has the right to publish the Lexicon under the fair use doctrine, which is a defense to copyright infringement that permits the use of a copyrighted work without the copyright owner's permission for limited and "transformative" uses that do not damage the market for the original work. read more »
Posted December 7th, 2007 by David Ardia
Pittsburgh lawyer Todd Hollis is back in court with a second lawsuit against the dating advice site Don'tDateHimGirl.com, whose users accused him of infidelity and infecting women with herpes. Hollis had previously filed a defamation lawsuit in Pennsylvania state court against the owner of the site back in June 2006. The Florida-based web site and its owner Tasha Joseph were able to have that case dismissed for lack of personal jurisdiction.
Acting as his own lawyer, Hollis filed a new complaint in federal court in Miami last week, alleging defamation, intentional infliction of emotional distress, and false light invasion of privacy. Hollis told the Pittsburgh Post-Gazette that
he reluctantly sued again in Miami because Ms. Cunningham refused to remove the numerous lies that her Web site has published about him. "I never wanted to file a lawsuit. I wanted my name cleared," he said yesterday.
Tasha Cunningham, formerly known as Tasha Joseph, launched DontDateHimGirl.com two years ago. The site allows anonymous users to post information and photos of men, often accusing them of infidelity and bad behavior. Cunningham told the Post-Gazette that she would not answer questions about herself or the lawsuit, but gave the paper a written statement: read more »
Posted December 5th, 2007 by Dan Gillmor
Follow the links from Electronic Frontier Foundation page on the bizarre Manalapan v. Moskovitz lawsuit to see a local government running wild against free speech. The town is suing to get the identity of -- and all kinds of other information about -- a critical anonymous blogger.
Anonymous speech should generally be taken less seriously than speech where the speaker stands behind his own words, and I think this is such a case. But anonymous speech is part of a long and vital tradition in America, and this is also such an example.
Someone should show these officials the Bill of Rights. Kudos to the EFF for pursuing this case.
Posted December 5th, 2007 by Sam Bayard
Conservative talk show host Michael Savage sued the Council on American-Islamic Relations (CAIR) in federal district court in California on Monday for copyright infringement. Savage posted a copy of the complaint on his website. He claims that CAIR violated his copyrights in the October 29, 2007 program of the "Michael Savage Show" by excerpting a four-plus minute portion of the show and posting it on CAIR's website. The excerpt was (and remains) attached as an audio file to an article on the website, entitled "National Radio Host Goes On Anti-Muslim Tirade." I don't want to go into details about the Savage excerpt, but I have listened to it, and one can only describe it as extremely hateful material aimed at Muslims, the Quran, and the Islamic faith in general. I encourage readers to visit CAIR's website and listen to the clip for themselves -- there is no adequate way of describing Savage's venom, his vulgarity, and his gross misunderstanding of Muslim culture and Islamic law. read more »
Posted December 3rd, 2007 by Sam Bayard
Last week, a California state court dismissed Rachel Neuwirth's libel claim against Washington-state blogger Richard Silverstein and university professor Joel Beinin pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). This is a tremendous victory for Silverstein and Beinin, and a great decision in terms of maintaining some breathing space for political debate and academic freedom. For better or worse, the kind of hyperbole and insult-slinging that features in this case goes on in academic and policy circles, especially when it comes to Middle East-related topics like Zionism, terrorism, torture, and neo-conservative "democracy" initiatives. (For other examples in our legal threats database, see Khalaji v. Derakhshan and CAIR v. Whitehead.) While calling someone a "Kahanist swine" might not be a model of reasoned debate, it's important that the courts erect some kind of obstacles to turning every heated dispute or case of hurt feelings into a libel claim. read more »
Posted December 3rd, 2007 by David Ardia
Last week, I blogged about a lawsuit filed by Effie Mayhew against Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, in which Mayhew claims that Grotke and LePage bear liability for a comment a user posted on the iBrattleboro site. Today, Grotke and LePage filed their anticipated motion for jugdment on the pleadings, arguing that they are immune from liability under section 230 of the Communications Decency Act ("CDA 230").
As I mentioned in my previous post, Grotke and LePage are almost certainly shielded from liability under CDA 230. After reading their motion and re-reading Mayhew's complaint, it is clear that the court should dismiss the claims against them. Of course, the case would continue against David Dunn, who is the author of the allegedly defamatory comment, as he does not have a basis for immunity under CDA 230.
According to Grotke and LePage's motion, this case meets all of the requirements for immunity under CDA 230:
Posted November 30th, 2007 by Citizen Media L...
Download the MP3 (time: 8:20)
Posted November 29th, 2007 by Sam Bayard
I've blogged before about Wael Abbas, an Egyptian blogger and political activist who has gained renown by, among other things, posting videos on YouTube revealing brutal scenes of torture from inside Egypt's police stations. According to Reuters Africa, YouTube has recently suspended Abbas's account due to complaints about the content of his postings:
Wael Abbas said close to 100 images he had sent to YouTube were no longer accessible, including clips depicting purported police brutality, voting irregularities and anti-government demonstrations. YouTube, owned by search engine giant Google Inc., did not respond to a written request for comment. A message on Abbas's YouTube user page, http://youtube.com/user/waelabbas, read: "This account is suspended."
Elijah Zarwan, a human rights activist and blogger living in Egypt (and a personal friend), told Reuters that he found it unlikely that YouTube had come under official Egyptian pressure, and was more likely reacting to the graphic nature of the videos. read more »
Posted November 28th, 2007 by Sam Bayard
An Arizona appellate court handed down an important decision yesterday in Mobilisa, Inc. v. Doe, 1 CA-CV 06-521 (Ariz. Ct. App. Nov. 27, 2007), a case involving the thorny legal question of what standard should govern requests for discovery of the identity of an anonymous Internet speaker whose speech allegedly violated a plaintiff's rights.
This question requires courts to balance the anonymous speaker's First Amendment right to engage in anonymous speech against the plaintiff's right to pursue a valid cause of action against a speaker who has engaged in constitutionally unprotected speech or conduct, such as libel, misleading commercial speech, threats, "fighting words," or copyright infringement. In this case, the court held that, in order to strike the appropriate balance, the requesting party must show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request; (2) the requesting party's cause of action could survive a motion for summary judgment on elements not dependent on the speaker's identity; and (3) a balance of the parties' competing interests favors disclosure. read more »
Posted November 28th, 2007 by David Ardia
Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed citizen journalism site based in Brattleboro, Vermont, were sued on November 16 for libel based on a comment submitted by one of the site's users. The lawsuit, brought by Effie Mayhew, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site.
Posted November 27th, 2007 by David Ardia
City officials in Dardenne Prairie, Missouri unanimously passed a measure on November 21 making online harassment a crime, punishable by up to a $500 fine and 90 days in jail. The city's six-member Board of Aldermen passed the ordinance in response to 13-year-old Megan Meier's suicide.
Meier committed suicide after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, a neighbor who had pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter, according to the Los Angeles Times. (In an interesting side note, the local media refused to identify the neighbor who was allegedly involved, so several blogs such as RottenNeighbor.com and hitsusa.com did some investigating and identified Drew and posted the Drews' home address, phone numbers, e-mail addresses and photographs.)
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