Senate Judiciary Committee Endorses Federal Shield Bill

The United States Senate Judiciary Committee voted today to endorse a bill that would give journalists a qualified privilege from having to testify in court about their confidential sources and to disclose their news gathering materials. In a 15-2 vote, the committee sent the legislation, S. 2035, to the full Senate, where it is expected to face stiff opposition from Republican senators and the Bush administration. Presiding over the committee session, Chairman Patrick Leahy (D-Vt.) remarked:

The time for needless delay of this legislation has passed. We simply have no idea how many newsworthy stories have gone unwritten and unreported out of fear that a reporter would be forced to reveal a source, or face jail time.

A similar bill in the House of Representatives, H.R. 2102, has been awaiting floor action since August 1. House Speaker Nancy Pelosi said in a speech earlier today that she would bring the bill up for a vote by the end of the year. "This is fundamental to our democracy and fundamental to the security of our country," Pelosi told a meeting of the Associated Press Managing Editors.

The current Senate bill, which contains exemptions for eyewitness accounts of criminal conduct and terrorist and national security information, would extend its protections to persons "engaged in journalism," which section 8(5) of the bill defines as follows:   read more »

Judge Bars Prosecution for Use of Deceased Soldiers' Names and Likenesses

Judge Neil Wake of the United States District Court for the District of Arizona issued an interesting opinion last week dealing with the uneasy tension between publicity rights and the First Amendment. The case, Frazier v. Boomsa, 2007 WL 2808559, addresses an Arizona law that makes it a misdemeanor to "knowingly use the name, portrait or picture of a deceased soldier for the purpose of advertising the sale of any goods,wares or merchandise or for the solicitation of patronage for any business" without the consent of the soldier or a family member. Arizona Revised Statutes section 13-3726. A companion provision creates a civil cause of action for using the name or likeness of any US soldier for advertising the sale of goods, soliciting patronage for a business, or "receiving consideration for the sale of any goods." Section 12-761. Both provisions have exceptions for "noncommercial purposes, including any news, public affairs or sports broadcast or account."

The Arizona legislature enacted these statutes in response to the activities of Dan Frazier, an Arizona resident and peace activist who runs a website called On his site, Frazier sells t-shirts, buttons, and other paraphernalia expressing his political views on a variety of topics. Among the items sold by Frazier are three t-shirts that contain antiwar messages printed over a background consisting of the names of 3,461 US soldiers who died in Iraq from March 20, 2003 to October 23, 2006. Elsewhere on the site, Frazier posted an "Open Letter to Families of the Fallen," in which he explains his decision to sell the t-shirts as connected to his personal views on the war. Frazier also uses his website to promote his political views in ways unrelated to the sale of merchandise by posting photographs documenting a local antiwar movement and commentaries by Frazier and others who share his political views.   read more »

Report Describes High Cost of Copyright Confusion for Media Literacy

The Center for Social Media at American University has just released a study entitled The Cost of Copyright Confusion for Media Literacy. The report, which is based on interviews with dozens of teachers and educators, concludes that:

The fundamental goals of media literacy education—to cultivate critical thinking about media and its role in culture and society and to strengthen creative communication skills—are compromised by unnecessary copyright restrictions and lack of understanding about copyright law . . . . This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment. Educational exemptions sit within a far broader landscape of fair use. However, educators today have no shared understanding of what constitutes acceptable fair use practices.

A pdf version of the entire report can be found here.

Not Every Cease-And-Desist Letter is a DMCA Takedown Notice

Today, the Chilling Effects Clearinghouse posted a cease-and-desist letter from MediaDefender to complaining that MediaDefender's leaked emails had been posted to the site. The operator of the site, which subsequently moved to (but not because of the letter), also posted the letter and his reply. His reply quite effectively points out that he and his server are in Norway and thus "it appears that your legal grounds for throwing letters at me claiming this-or-that is shaky enough that you might want to relocate."

This exchange reminded me of an article in Ars Technica a few weeks back discussing the reactions of peer-to-peer site operators to similar letters from MediaDefender. I meant to post on this article at the time, but forgot about it until today. The gist of the story is that some peer-to-peer site operators received cease-and-desist letters from MediaDefender and responded with blistering comments ridiculing the MediaDefender lawyers for their impoverished understanding of U.S. copyright law. For example:

[isoHunt's] formal response to SMR&H is filled with caustic wit and considerable legal expertise. "If Mr. Gerber is truly as experienced in IP law as his bio claims he is," asks the isoHunt administrator in his response, "why is it that he is incapable of composing a DMCA takedown notice as per USC Title 17 Section 512?" The isoHunt administrator explains that Gerber failed to adequately specify the allegedly infringing content as required by law. The administrator also helpfully provides a link to a valid sample complaint so that SMR&H will be less likely to send the improper information in their second attempt. The following is an excerpt of the isoHunt administrator's response:

"This e-mail serves as a counter notification under USC Title 17 Section 512(c)(3)(A)(iii) that you have failed to properly identifying links to content that allegedly infringes your copyright/trademark/rights (or, in this case, has something to do with really embarrassing trade secrets *and* employee social security numbers) AND you have failed to address your e-mail to the appropriate agent, namely, so I invite you and your clients to take a long walk off a short pier, since you and/or your clients might actually manage to NOT get something that simple wrong."

In closing, the isoHunt administrator says that the he will comply with the request if it is properly submitted. "Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it," he concedes, "just as soon as we're done laughing at you."   read more »

When Oligopolists Interfere with Free Speech


NY Times: Verizon Reverses Itself on Abortion Rights Messages.

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

But the company reversed course this morning, saying it had made a mistake.

“The decision to not allow text messaging on an important, though sensitive, public policy issue was incorrect, and we have fixed the process that led to this isolated incident,” Jeffrey Nelson, a company spokesman, said in a statement.

If this doesn't sound the alarm in a serious way, free speech in America is in clear and present danger. We communicate increasingly via digital networks of various kinds, and Verizon's position that it can decide what kinds of speech get through is beyond scary: It's downright dangerous.

Verizon is now claiming that its policy is designed to prevent unwanted messages -- when this was nothing of the sort. People had to sign up. The deception is transparent.

There are just a few major telecom carriers left. We cannot allow them to decide what we can talk about on these networks.

Has Common Sense Flown the Coop: Copyright doesn't protect book prices

The Harvard Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

A terrific clinical student at the Berkman Center helped us to write an op-ed on the limits of copyright, which the Crimson ran today:

We’re not sure what “intellectual property” right the Coop has in mind, but it’s none that we recognize. Nor is it one that promotes the progress of science and useful arts, as copyright is intended to do. While intellectual property may have become the fashionable threat of late, even in the wake of the Recording Industry Association of America’s mass litigation campaign the catch-phrase—and the law—has its limits.

Since the Coop’s managers don’t seem to have read the law books on their shelves, we’d like to offer them a little Copyright 101.

Copyright law protects original works of authorship—the texts and images in those books on the shelves—but not facts or ideas. So while copyright law might prohibit students from dropping by with scanners, it doesn’t stop them from noting what books are on the shelf and how much they cost. does students a real service by helping them to compare prices efficiently. Harvard should support them in their information-sharing efforts, rather than endorsing the Coop’s attempts to cut off access to uncopyrightable facts.

Libel Threat Brings Down Blogs in UK

Robin Hamman noted yesterday that a number of UK bloggers had their blogs taken down by their ISP following threats of legal action by Uzbek billionaire Alisher Usmanov. According to Hamman:

The bloggers, who were unlikely to have previously heard of or mentioned Mr. Usmanov, were unwittingly caught up in a dispute between Mr. Usmanov and blogger Craig Murray, a former British Ambassador to Uzbekistan. . . . In response, Hundreds of UK bloggers have now rallied round and added buttons showing their support for free speech rights.

Hamman followed up with an interview on the BBC discussing the controversy and the need for legal protection for hosting providers. Unlike the United States, where section 230 of the Communications Decency Act provides immunity to hosting providers -- and other interactive computer services -- for tort claims arising from content provided by third-parties, UK law holds the hosting provider responsible for the statements of users. As a result, you get takedowns like this.

Texas Judge Orders Discovery of Anonymous Blogger's Identity

A recent case from Texas highlights the difficulty of identifying the correct legal standard for determining when a court should order disclosure of the identity of an anonymous person engaging in speech on the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contains claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty.

The case revolves around a blog called "The-Paris-site," which focuses on Essent's Paris Regional Medical Center (the "Hospital") in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" (no relation to the law professor) and "fac_p". He posted critical remarks about the Hospital on the blog, including statements that, according to Essent, assert or imply that the Hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the Hospital of having a high incidences of bacterial infections and of post-surgical complications.   read more »

Update onWordPress in Turkey

Christopher Levinson posted a useful update on the WordPress block in Turkey, including a copy of a letter he received from Turkish embassy officials in Australia.  Apparently, the original Turkish court order in August specified that the ban would remain in place until Mr. Oktar's defamation suit is finished.  Nevertheless, the letter states that "those bloggers who have directly been affected by the ban placed on 'WordPress' can apply to Turkish courts in order to revoke the decision of 17 August 2007."  Anyone fancy a trip to Istanbul?  It's a beautiful city.  

CNET Offers Suggestions on How to Avoid Being Sued Over Your Site

CNET collaborated with Fred von Lohmann of the Electronic Frontier Foundation to come up with the helpful list 9 Fun Ways Web 2.o Startups Can Commit Legal Suicide. It includes some important pointers about managing users' private data, a reminder to startups to designate a copyright agent for DMCA takedown notices, and a word of caution for websites about expanding into print:

Thanks to Section 230 of the Communications Decency Act, you're protected from libel suits filed against you if your users write disparaging comments about other people or services on your site. That's how ZocDoc, a new Yelp-like service for finding doctors, can exist without being sued into the ground. But if you print out your user reviews, this no longer applies. So be careful if your customers or users ask for it.

We will be addressing many of the issues covered in the CNET piece in our forthcoming Legal Guide, and in the future we hope to take on cases involving some of these novel legal issues.

Volkswagen Subpoenas YouTube for Identity of User Who Posted Nazi-Themed Video

In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.

It is not clear whether YouTube has already complied with the subpoena, but YouTube's policy, as taken from parent company Google's privacy policy, is to "comply with valid legal process, such as search warrants, court orders or subpoenas seeking personal information" and it has historically turned over this type of information without much of a fight. However, as Wired News reports, YouTube generally notifies users when it receives civil subpoenas seeking their identity, so perhaps we will see the anonymous user intervene as a "John Doe" to quash the subpoena.

What is alarming about this case is that Volkswagen appears to have used the controversial "administrative subpoena" provision of the Digital Millenium Copyright Act (DMCA) to force YouTube to reveal the identity of its user. Under this provision of the DMCA, a copyright owner can request from the clerk of any U.S. district court that a subpoena be issued to a "service provider" for identification of an alleged infringer. See 17 U.S.C. 512(h)(1). If the copyright owner supplies the necessary paperwork and signed avowals, the clerk must "expeditiously issue" the subpoena.   read more »

Creationist-Atheist Brouhaha Over DMCA Takedown Notices

Ars Technica reports that Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind (who is currently in prison for violations of federal tax law), recently sent a raft of questionable DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars.

Among those users whose videos were taken down was the Rational Response Squad (RRS), a group of atheists dedicated to "fighting to free humanity from the mind disorder known as theism." Apparently, the videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization. When its videos were removed, RRS unleashed a firestorm of criticism, threatening to sue CSE for abusing the DMCA's notice-and-takedown provisions and even contacting the prosecuting attorney in Hovind's tax case to inform her of CSE's conduct. Others have joined in the mix (here, here, and here). It appears that YouTube canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it.   read more »

Article Proposes Takedown Procedure for Online "Cyberbullying"

Pocket Part, the Yale Law Journal's online companion, recently published an article proposing a take-down procedure for content it describes as "cyberbullying" -- essentially, online speech believed to be defamatory or harassing. The procedure would operate similarly to the DMCA takedown procedure (because that has worked so well), as ISPs would remove the content at issue after receiving a notice of its allegedly cyberbullying nature. In cases where ISPs were so warned, this proposal would strip the providers of their CDA 230 immunity from liability relating to third party content. As has been the case under the DMCA, this likely would lead providers to exercise caution by taking material down without question -- erasing valuable speech from the public dialogue.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Ethics and Copyright Liability for Reprinting Content

Reprinting content from other information sources is one of the trickiest areas of communications law -- especially for bloggers and other publishers on the Internet, where the legal framework has yet to be established. InfoMean blog has a useful set of pointers to help publishers avoid infringement lawsuits when reprinting information.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

CMLP Seeking Interns

The CMLP is looking to hire law students (and lawyers) to work as paid interns for the 2007-08 academic year. Interns will perform legal research and draft sections of the CMLP’s legal guide and will analyze recent lawsuits and other legal threats involving online speech for our legal threats database. Interns will be required to work onsite at our offices at Harvard Law School's Berkman Center for Internet & Society in Cambridge, Massachusetts one day per week, but otherwise will be permitted to work remotely.

If you are interested in working on cutting edge legal issues relating to the intersection of law and journalism on the Internet, please apply. You can find more information on the position and where to apply here. (For information about other opportunities at the Berkman Center, come to their Open House on September 24th.)

On a related note, if you are a college student -- and a blogger -- you should consider applying for the Daniel Kovach Scholarship Foundation's college blogger scholarship. Applications for the scholarship, which pays $10,000, are due October 6, 2007. Details can be found at the Foundation's website.   read more »


YouTube Reverses Course on User's Video: Reposts It

Chris Knight, who's been unfairly treated by media giant Viacom, now says: YouTube has restored my clip.


Pennsylvania Considering Strengthening Open Records Law

The Pennsylvania House and Senate are considering new legislation designed to strengthen the state's Open Records Law. This is welcome news, as Pennsylvania's current law is one of the most antiquated -- and public-unfriendly -- laws in the country. (It's an indication of Pennsylvania's disregard for public access that I had to link to the Pennsylvania Newspaper Association's website for the current version of the law because the state's legislative website does not include laws enacted prior to 1975, and the Pennsylvania law came about in 1957.)

There are currently three Open Records reform bills pending in the Pennsylvania House and Senate: HB 443, introduced by Rep. Tim Mahoney; SB 1, introduced by Sen. Dominic Pileggi; and SB 765, introduced by Sen. Jim Ferlo.

The Evening Bulletin, which does a good job comparing the three versions, is sanguine that a reform bill will pass this session:

A major obstacle standing between proposed reform and passage is the reformers themselves. They all appear to agree on the need for more access to public records, but they don't all agree on how it should be accomplished. It is more difficult to find and acquire public records in Pennsylvania than just about anywhere else in the country.Legislators, terrorized by the threat of being cast and perceived in an election year as against reform, appear ready to vote for open records reform.

To help recalcitrant legislators do the right thing, the Pennsylvania Newspaper Association and are sponsoring a public "PA Open Records Challenge." Let's hope they succeed in pushing through a reform bill. It's long overdue.   read more »

More Paranoia About Photography in Public Places SU student questions VA security actions. A Syracuse University graduate student taking photographs outside the VA Medical Center says she was questioned and ordered to delete several images by hospital security officers Thursday afternoon. Mariam Jukaku, 24, of Michigan, said the officers also photocopied her university ID and driver's license and asked if she was a U.S. citizen. She wonders if her appearance played a part in how the incident was handled.

Let's be clear: The security officers had no authority to order this woman to do anything of the kind. And if this incident occurred as described (there's no reason to doubt it), it's entirely probable that appearances were part of the reason.

These kinds of paranoid acts by officials do nothing to increase security -- nothing. They only provide a demontration of what others have called "security theater" -- the pretense of protection that does more harm than good.

Riz Khan of Al-Jazeera English Interviews Egyptian Blogger Wael Abbas

This interview of Wael Abbas sheds some light on the legal and political climate for bloggers in Egypt. While Wael has not been detained by the Egyptian security forces for his blogging, the government has put him under surveillance and harassed him and his family, both electronically and otherwise. He says that one of his biggest fears is "somebody filing a lawsuit against [him], accusing [him] of defaming Egypt or spreading false rumors -- the usual stuff that is used against journalists in Egypt."

The interview also gives a sense of how important the burgeoning Egyptian blogger community has become in terms of breaking stories on police brutality, torture, mass sexual harassment, and fraudulent election practices. (Thanks to Hossam Al-Hamalawy for the tip.)


DMCA Truth Can Be Stranger than Science Fiction

Author Denise McCune posts a great account of the workings and failings of the DMCA's notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory's own novels, which he's CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That's why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with "information reasonably sufficient to permit the service provider to locate the material," and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn't obliged to respond to deficient notices, but if a notice contains all the right formal elements -- even if it's factually wrong about copyright ownership or copying -- the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f). I share McCune's hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:   read more »

I hope the SFWA's lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I'm also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further -- and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted -- whether that control is a more traditional "nobody gets to use this, period" or a Creative Commons-style authorization of transformative work.

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