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 »
Posted January 9th, 2008 by David Ardia
Posted January 8th, 2008 by Sam Bayard
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.
Posted January 7th, 2008 by David Ardia
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.)
Posted January 4th, 2008 by David Ardia
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 »
Posted January 3rd, 2008 by David Ardia
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 »
Posted January 2nd, 2008 by Sam Bayard
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.
Bush Signs FOIA Reform Bill; New Definition of News Media Will Benefit Bloggers and Non-Traditional JournalistsPosted January 1st, 2008 by David Ardia
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 »
Posted December 23rd, 2007 by Sam Bayard
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.
Posted December 21st, 2007 by Wendy Seltzer
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.)
Posted December 20th, 2007 by David Ardia
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:
Posted December 20th, 2007 by Sam Bayard
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 »
Posted December 19th, 2007 by David Ardia
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:
Posted December 18th, 2007 by Sam Bayard
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 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:
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