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Citizen Media Law Podcast #6: Copyright and Fair Use in Savage v. Council on American-Islamic Relations

This week, Colin Rhinesmith speaks with Sam Bayard about copyright and fair use issues involved in a recent lawsuit against the Council on American-Islamic Relations.

Download the MP3 (time: 9:40)

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

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.

Essent v. Doe: Anonymous Blogger Wins on Appeal

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 »

Best Buy Apologizes for Cease-and-Desist Blooper

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.

Massachusetts Wiretapping Law Strikes Again

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 »

Democrats Accepting Applications from Bloggers to Cover 2008 Convention

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:

While the 2004 Democratic National Convention in Boston was the first to credential bloggers, the DNCC aims to significantly expand access for the blogger community in 2008. In line with the DNCC’s goal to engage more people in the 2008 Convention experience than ever before as well as Democratic National Committee Chairman Howard Dean’s 50-State Strategy, the DNCC will both expand the size of the credentialed blogger pool and also offer for the first time a state blogger credentialing program in 2008.

Goodale on CDA 230 and Anonymous Speech Online

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 »

Stanford's Fair Use Project to Represent RDR Books in Harry Potter Lexicon Lawsuit

The Fair Use Project of Stanford Law Schools 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 »

'DontDateHim' Lawyer Todd Hollis Back in Court With Second Lawsuit Against Dating Advice Site

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 »

Town of Manalapan, New Jersey, Versus Free Speech

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.

Savage v. Council on American-Islamic Relations: A Breathtaking Misunderstanding of Copyright Law

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 »

Neuwirth v. Silverstein: Court Grants Anti-SLAPP Motion in Politically Charged Online Dispute

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 »

iBrattleboro Founders Move to Dismiss Libel Lawsuit Under Section 230 of Communications Decency Act

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:

iBrattleboro.com fits the definition of an interactive computer service as contemplated by the CDA because it provides or enables computer access by multiple users to a computer server and access to the Internet. See 47 U.S.C. § 230(f)(2). . . .   read more »

Citizen Media Law Podcast #5: Libel Suit Against iBrattleboro.com; Important Decision on Anonymity

This week, David Ardia talks about a recent lawsuit against iBrattleboro.com and Colin Rhinesmith speaks with Sam Bayard about an important decision on anonymity.

Download the MP3 (time: 8:20)

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.

YouTube Suspends Account of Prominent Egyptian Blogger and Anti-Torture Activist

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." 

"They closed it (the account) and they sent me an e-mail saying that it will be suspended because there were lots of complaints about the content, especially the content of torture," Abbas told Reuters in a telephone interview. Abbas, who won an international journalism award for his work this year, said that of the images he had posted to YouTube, 12 or 13 depicted violence in Egyptian police stations.

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 »

Mobilisa v. Doe: Another Big Win for Anonymous Speech Online

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 »

Libel Lawsuit Filed Against iBrattleboro Founders Grotke & LePage

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.

According to the Brattleboro Reformer, which reported on the lawsuit yesterday:
  read more »

Missouri Town Makes Online Harassment a Crime After Megan Meier's Suicide

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.)

When it looked like local and federal prosecutors could not find a way to charge anyone for Meier's death, city officials stepped in and made online harassment a crime. As the Associated Press reports:
  read more »

CNET on Libel and User-Generated Content

Before the Thanksgiving holiday, Steve Tobak at CNET published a useful post -- "Bloggers beware: You're liable to commit libel." In it, he gives a straightforward and largely accurate account of the elements of a defamation claim and some good general advice:

First, people usually ask the wrong question: "Can a blogger be sued for defamation?" The sad truth is that almost anybody can sue you for almost anything these days. So, don't ask that question; it's dumb. What you want to know is your responsibility under the law, and therefore, how best to protect yourself from successful litigation.

Well put. But I have to disagree with his assessment of the risks involved in hosting user comments:

Then there's the question of who's responsible for comments on a blog. Whoever publishes the Web site is responsible for content on the site. That includes comments. However, many bloggers have independent agreements to indemnify the site that publishes their blog. That may or may not include comments.

Plaintiffs can certainly sue everybody in the chain and see what sticks, though they will likely go after those with the deepest pockets. You can avoid the entire question by turning comments off.   read more »

New School of Orlando v. McSween: Florida School Sues Blogging Parent for Defamation

On October 26, 2007, the New School of Orlando sued Sonjia McSween, the parent of a former student, in Florida state court, asserting claims of libel, slander, and tortious interference with business relations.

According to the New School's complaint, McSween started a blog called "Say NO to New School of Orlando" (no longer active) after withdrawing her daughter from the school during her first grade year. On the blog, McSween criticized the school's treatment of students and described her family's negative experience with the school. Attached to the complaint are copies of the relevant pages from McSween's blog. Some of the statements described as defamatory in the New School's complaint include:   read more »

A Nation of Infringers?

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?

   
 
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