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.

Federal Election Commission Hands Daily Kos a Victory

Following up on our previous posting about blog campaign advocacy, the Federal Election Commission announced yesterday that it has rejected conservative blogger John Bambenek's complaint alleging that the liberal website Daily Kos operates as a "political committee." The Commission's news release suggests that it will not treat online media sources differently from traditional media sources, and that it will not lightly find that a blog's "major purpose" is to influence elections:

In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act. . . . Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that "costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station . . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media,, or Markos Moulitsas Zuniga violated federal campaign finance law.

This decision provides some reassurance that bloggers do not run afoul of federal election laws simply by strongly and consistently advocating a particular political viewpoint.   read more »

A&P Sues Two College Kids Over (Hilarious) "Produce Paradise" Video

It's a musical week in the blogosphere. 

Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page).  Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise."  Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website,, along with some blog commentary.  You've got to hear and see this one to believe it:

A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages.  The complaint, filed Friday, August 24,  includes counts for defamation, business and product disparagement, and federal trademark infringement and dilution.  It alleges that "Produce Paradise" depicts the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."   read more »

Punishing Corporate Copyright Abusers

Chris Knight says, "Viacom hits me with copyright infringement for posting on YouTube a video that Viacom made by infringing on my own copyright!

Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it's VH1 show Web Junk 2.0... which VH1 produced -- without permission -- from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!

This looks, if the facts are as Knight represents, like the standard, arrogant big-media goof in the copyright war -- issuing takedown notices that have been poorly researched. It seems reasonable to assume that Viacom will recognize this and back down, especially now that the case is going to get wide publicity. Then again, the entertainment industry is not exactly known for listening to reason.

And when the weight of big corporations is thrown against the little guy, the rule seems to be guilty until proved innocent. And the cost of proving innocence is high. This imbalance cries out for more effective countermeasures to abuse.

There are penalties in copyright law for using takedown notices frivolously (again, this may not be that specific situation). Perhaps this is the kind of case the EFF (Electronic Frontier Foundation) might want to take up. The organization took Diebold, a maker of defective voting machines, to court several years ago for knowingly misrepresenting copyright infringement, and won a judgement against the company.

Slightly off-topic: Does Knight's use of Star Wars imagery in his video have any trademark implications?   read more »


Legal Blogger Threatened by Big Law Firm Over Posting of Ridiculously Bad Song

David Lat runs a legal tabloid blog called Above the Law, which provides "news and gossip about the profession's most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments." No stranger to notoriety in the past, he's recently become the center of attention in a humorous episode involving a leaked "celebratory anthem" created by the law firm, Nixon Peabody, when the firm made Fortune magazine's 2007 list of the best companies to work for. The song is embarrassingly bad -- As Frank Pasquale of Concurring Opinions puts it, "think 'Up With People' meets Sheena Easton meets B of A's version of U2's One." Lat himself writes:   read more »

On the musical merits, the song itself is just as horrific as the idea of a law firm theme song. Yes, we miss the eighties, but not this much. The lyrics include such gems as "Everyone's a winner at Nixon Peabody" (the chorus) and "It's all about the team, it's all about respect, it all revolves around integri-tee yeah." . . . Check it out for yourself below. But we're warning you: even though the Nixon Peabody anthem is dreadful, it's as catchy as HPV. If that "everyone's a winner" chorus gets stuck in your head for the rest of today, don't blame us.
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