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Much Ado About a DMCA Takedown Notice

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.

Background

Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

Photographer took a picture of downtown Houston, and then posted the photograph on his blog. He later discovered that several sites had used the photograph without his permission, and he proceeded to send them all DMCA takedown notices. Some of the sites took down the pictures, and others asked to be granted a license. Fourteen of the sites which received a DMCA notice from Photographer were owned by the same person, Blogger. These fourteen sites were all hosted by GoDaddy, whose policy is, upon receipt of a complaint, to remove or disable access to sites which are allegedly infringing copyright. Accordingly, access to all of Blogger's sites was disabled.

One of Blogger’s disabled sites was a blog she uses as a platform to express her support for a local candidate in a race for Sheriff. Another of these sites was a site designed to inform the public about a non-profit organization whose goal is to promote awareness for the education needs of special needs children (Nonprofit Organization). Blogger is Nonprofit Organization’s President.   read more »

Introducing Guest Blogger Marie-Andrée Weiss

I am excited to welcome Marie-Andrée Weiss as a guest blogger!

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law. Her article, "The use of social media site data by business organizations in their relationship with employees," was published in 2011 by the Journal of Internet Law. She graduated from the University of Strasbourg in France with a J.D. in business law, an LL.M. in criminal law, and an LL.M. in multimedia law. She also graduated from the Benjamin N. Cardozo School of Law in New York City with an LL.M. in Intellectual Property Law. Before becoming an attorney, she worked for several years in the fashion and cosmetics industry in New York City, as a buyer and a director of sales and marketing. She is the chair of an ABA subcommittee on European Union Data Protection Reform. Marie-Andrée also blogs at Information Security Privacy and the Law and on the ABA Secure Times blog.

Please join me in welcoming Marie-Andrée to the CMLP blogroll!

(Don't) Blame the Messenger: What to Do about National Security Leaks

Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House's terrorist "kill lists," the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.   read more »

Another Brick in the Great Firewall: Sina Weibo's 'Truth' Credits

Censorship in China is nothing new.  Heck, it's practically to be expected these days. Witness last week's censoring of the Shanghai stock exchange's 64.89 point drop on June 4.  See, that number is already on the Great Firewall of China's blacklist because it happens to coincide with the date of the Tiananmen Square massacre, 6/4/89.  That the drop happened to occur on June 4, the 23rd anniversary of the massacre, well, that's just one of life's rich little ironies.  And it caused havoc, as the censors felt compelled to crack down on any mention of the perfectly legitimate stock market results.  And any mention of the stock market, in fact.  It'd be funny if it weren't so sad.

Now, China's Twitter-like microblog Sina Weibo is threatening to up the censorship ante with a new policy that cracks down on "untrue" content, reports the International Business Times.  This new system comes in the guise of a new point system.  Upon creating a Sina Weibo account, users are given 80 points (or 100 points if they set up their account using their government-assigned ID number).  Subsequently, each "falsehood" that the user communicates to the larger community results in a point loss, with broader communication leading to greater losses.   read more »

Sixth Circuit's 'Dirty' Decision Sends a Chill

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed) on thedirty.com which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones originally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default $11 million verdict.    read more »

The IRS and User-Generated Content

As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations. Although there has recently been movement in the IRS, with a number of organizations obtaining their tax exemptions over the past several months, others continue to wait for decisions delayed two years or more.

One possible reason for these delays is an increase in the numbers of journalism organizations seeking to operate on a nonprofit basis, at the same time that the IRS is likely reviewing its existing precedential decisions relating to news and publishing ventures. As our guide to the IRS's decision-making process discusses, many of the key precedents that the IRS relies upon in these cases date back as far as the 1960s, 1970s, and 1980s. Given that not only the news business, but the very nature of communication, has changed dramatically in the last fifty years, it would be reasonable for the IRS to take another look at these decisions when faced with a new wave of online journalism projects.

That being said, we have recently learned of a somewhat disturbing development in this regard. At least one applicant for 501(c)(3) status has been questioned by the IRS relating to user-generated content posted to the applicant's site as follows:

Will you allow individuals to post content directly to your website? If so, will you hold the content in queue until you review it to determine whether it would constitute intervention in a political campaign?   read more »

The Right of Publicity and Free Speech: DMLP Joins Amicus Brief in Hart v. Electronic Arts

Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc., currently before the United States Court of Appeals for the Third Circuit. [FN] Hart is yet another case concerning the ever-uncomfortable balance between free speech and intellectual property, this time in the context of "right of publicity" laws.

This case involves the NCAA Football series developed by Electronic Arts ("EA"), which allows players to play for and manage real-world collegiate football teams. EA licenses the right to use the team and league names, but not the names or likenesses of individual players. In fact, according to Wikipedia, EA does not claim that the players in the game are based on their real-world counterparts. That said, users are quick to point out that the jersey numbers, personal stats, and player hometowns of the virtual players frequently align with the real athletes.

Ryan Hart, a former quarterback for Rutgers University, claims that he appears in the NCAA Football games from 2004-06 both as a virtual player (that is, there is a character in the game who shares Hart's team, position, basic player stats, and jersey number) and in the 2009 edition of the game in a brief video clip showing the real-world Hart throwing a pass, which appears when a player selects Rutgers as a favorite team. Hart objects to his appearance in the game without his permission as a violation of his right of publicity.   read more »

Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

(Before I get into it, note that I use "Britain" and "British" in this piece to as shorthand for England and Wales.  The Scots and Northern Irish have their own legislative bodies and will not be beholden to this bill.)

One Step Forward...

First, the good news: The bill does make noteworthy progress on the problem of libel tourism. 

If you are unfamiliar with the phenomenon, libel tourism is the practice of bringing libel lawsuits in Britain, where defamation laws are very plaintiff-friendly, even in situations where the case has limited connection to the jurisdiction. 

The poster child for libel tourism in London is Rachel Ehrenfeld, a US author who in one of her books laid out an argument accusing Saudi banker Khalid bin Mahfouz of financing terrorism.  The book in question was published and sold primarily in the US; a scant 23 copies were sold in Britain.  Nonetheless, bin Mahfouz sued for libel in London, winning a default judgment of $225,000 against Ehrenfeld.   read more »

DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law

Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). I wanted to share a little bit about the statute, and why we decided to take the unusual step of appearing at the trial court level to urge the court to void the statute.

Section 147, at a quick glance, may look like a traditional trademark regulation. The statute punishes whoever willfully "manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark." So far, highly unremarkable.

The statute deviates from mainstream trademark law, however, in its definition of "counterfeit mark," which includes "any unauthorized reproduction or copy of intellectual property." "Intellectual property," in turn, is defined as "any trademark, service mark, trade name, label, term, device, design or word" that is used by a person and is registered in a state trademark database or the USPTO Principal Register. Notably absent is the central test of trademark infringement: that the use is likely to cause confusion as to the origin or sponsorship of goods or services.   read more »

DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted. The ACLU (a leading voice on the First Amendment right to record in public, as reflected in its efforts in Glik v. Cunniffe and ACLU v. Alvarez) helped Sharp file suit against the Baltimore PD for violation of his First Amendment rights in Sharp v. Baltimore City Police Department, a civil rights action filed in the U.S. District Court for the District of Maryland.

In January 2012, the Department of Justice got involved in the case. Contrary to what might be expected, the DOJ was not supporting the police department – instead, it filed a "Statement of Interest" in support of Sharp's position in the case, stating:   read more »

Citizen Counter-Surveillance of the Police? There's an App For That.

Herbert George Ponting and telephoto apparatus, Antarctica, January 1912 Despite the welcome 7th Circuit decision in ACLU v. Alvarez on May 8 that directed a federal district court to enjoin the application of the Illinois eavesdropping statute to an ACLU police accountability program, citizens around the country remain vulnerable to arrest and harassment for recording audio and video of police in public spaces. Cases like Glik v. Cunniffe and Alvarez indicate that the tides are changing in favor of First Amendment protections of police oversight and, in Illinois, at least two county court judges have also found the Illinois eavesdropping statute unconstitutional.  Some, like the ACLU, have launched initiatives to publicly record audio and video of police conduct, and the Alvarez case was pursued by the ACLU specifically to allow ALCU staff to legally record police without fear of reprisal under the eavesdropping statute.  (Interestingly, this decision comes just as Chicago is bracing itself for violent protests during the NATO summit this weekend.)   read more »

The 'Mugshot Racket' II: A Commercial Purpose Exemption?

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. "I have since learned better," he said.

What bothered Donnelly wasn't the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. "I am all for having a completely open government," he said, "but something needs to make this online shaming device stop." Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many CMLP readers weighed in with their own take on what David Kravets described in Wired as a "racket." According to Kravets's article, self-described "reputation companies" are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.   read more »

How Should We Measure Damages for Defamation Over Social Media?

On April 24, 2012, a Texas jury awarded $13.78 million to a married couple in a case based upon an extended campaign of defamation on the website Topix.com - to be specific, more than 1,700 separate statements accusing the plaintiffs of a wide array of criminal activity and, shall we say, unusual sexual practices, among other misconduct. The husband was awarded $5.1 million from one defendant and $1.7 million each from two others. The wife was separately awarded $3.168 million from the first defendant (the less-than-round number reflecting in part the value of the wife's business, which she allegedly lost as a result of the defamation).

A brief review of the 733-page complaint is enough to make one's skin crawl, and if the allegations are to be believed – as clearly the jury did – the size of the verdict becomes more understandable from a gut perspective. That said, the core of a defamation action is injury to reputation; i.e., the impairment of the plaintiffs' good name in the view of their community or a respectable part thereof. The sheer size this verdict begs the question of whether the jury was actually attempting to compensate for reputational injury, or was simply trying to smack the defendants with as large a number as they could rationalize.

Even when not confronted with conduct as disturbing and provocative as that alleged by the plaintiffs in this case, juries face difficult questions when evaluating damage to reputation caused by false statements on social media. For example:   read more »

The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)   read more »

U.S. Marine Faces Uphill Battle in First Amendment Challenge

What happens when the First Amendment collides with military decorum and respect for chain of command?  

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead. 

Stein got drummed out of the Corps with an other-than-honorable discharge late last month, and his lawyer promised to pursue all his options in administrative proceedings and federal court.  But does Stein really have a case?

Well, he's already in trouble when it comes to one of the preeminent government-employer/free-speech cases, Pickering v. Board of Education.  In Pickering, a teacher was fired by his public school employer after he wrote a letter to the local newspaper complaining about the school board regarding a particular matter of public importance. The Supreme Court ruled the firing a violation of the teacher's First Amendment rights, saying that the teacher's speech rights outweighed the school's interests as an employer, given that the teacher's complaint had little to do with the fact of the teacher's employment.    read more »

Jenzabar v. Long Bow: Oral Argument Focuses on Initial Interest Confusion and Search Engine Results

This morning Jeff and I had the pleasure of watching the Massachusetts Appeals Court argument in Jenzabar, Inc. v. Long Bow Group, Inc.  As we mentioned once before on this blog, the CMLP filed an amicus brief in this case with the assistance of Harvard Law School's Cyberlaw Clinic. (And thanks again to HLS students Mike Hoven and Andrew Pearson for their help!)

The case concerns a documentary film company that released a film concerning the Tiananmen Square protests, called The Gate of Heavenly Peace. The film profiles many of the figures surrounding the protest, and is critical of a student protester named Ling Chai. Chai later moved to Boston and co-founded an educational software and service company named Jenzabar. The film company, Long Bow, created a website related to the film, which, among other things, criticized Chai on a webpage. Long Bow titled the page "Jenzabar," and included terms related to Jenzabar in the metadata.   read more »

Legal Guide Expanded to Include Arizona

We are pleased to announce the expansion of the CMLP Legal Guide to cover the state of Arizona! You may have noticed our Arizona section growing over the past several months.  Our legal guide now includes several sections on Arizona defamation law, intrusion law, open meetings and public records law, and more.

This new portion of the CMLP Legal Guide would not be possible without the help of Caitlin Vogus, who graciously offered her time and effort to help us.  Caitlin is a Harvard Law School graduate and a clerk on the Virginia Court of Appeals.  We are very appreciative of her help, and look forward to her continued assistance!

Please note that our Arizona section is still a work in progress, as we are still adding to it so as to parallel the coverage of our other state sections.  But we hope that you find the new sections useful now.  As always, if you have suggested updates or additions for our Legal Guide, please contact us.

(Image of vintage Arizona billboard used courtesy of flickr user Roadsidepictures under a CC BY-NC 2.0 license.)

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Is 'Liking' on Facebook Protected Speech?

Venkat Balasubramani and Eric Goldman, over on Eric's blog, have highlighted a rather interesting if fundamentally flawed decision from the Eastern District of Virginia. 

The case is Bland v. Roberts, and involves six plaintiffs who were civilian employees of the defendant, a sheriff in Hampton, Virginia.  Apparently the plaintiffs were in favor of someone new sitting in the sheriff's seat, and when the election came around, they expressed public support for the sheriff's opponent through a variety of means including "liking" the opponent's Facebook page.  Unfortunately for the employees, the sheriff won reelection, and soon after he fired the six of them.

What's interesting about the case, and what caught Venkat and Eric's eyes, is that in granting summary judgment for the defendant sheriff, the court ruled that "liking" something on Facebook is not constitutionally protected speech.  

Let me repeat that to drive the point home.  The court ruled that clicking Facebook's "Like" button – which thereby expresses one's opinion to at least one's friends if not the whole world – is, as Judge Raymond Jackson writes, "insufficient speech to merit constitutional protection."

I'm sure Judge Jackson is a wise man, but I think he whiffed on this one.     read more »

The Wasted Effort of Connecticut's Feeble Cop-Recording Bill

Connecticut, like most states these days it seems, has been having a problem with cops interfering with people photographing or filming them. Members of the Connecticut legislature are concerned about citizens being harassed for filming cops, and are working on passing a bill, No. 245, aka "An Act Concerning the Recording of Police Activity by the Public," to address the issue.  This is a good thing.

Unfortunately, the whole thing falls apart when you read the bill and discover it has almost no teeth.

To be fair to the bill's sponsors, their hearts are in the right place.   According to a press release from Sen. Majority Leader Martin M. Looney (D) of New Haven, the event that inspired the bill was the false arrest of Father James Manship, a New Haven pastor, after he recorded several East Haven cops who apparently were harassing Latino business owners.  The FBI subsequently arrested four East Haven cops on charges of false arrest and obstruction, among others. So the sponsors seem to have been trying to crack down on abusive cops – a commendable goal. 

But the bill rather neatly establishes the right of the public to film cops before punching that right full of so many holes as to be unable to hold any water. Consider the bill's section 1(b):   read more »

Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen. And really, the Court of Appeals' opinion (DMLP threat entry on the case here; .pdf of the opinion here) in Viacom v. YouTube is pretty decent on most of what I care about. But my focus today is on one particular spot in the opinion that turns out to be a bit squishy: the meaning of the statutory phrase "right and ability to control [infringing] activity." The parties presented two clear – albeit diametrically opposed – interpretations of the phrase, and the Second Circuit settled on... neither one. It's an unfortunate bit of fogginess in what could have been a seriously clarifying opinon. (After all, when the Second Circuit speaks on copyright, other courts tend to notice.)

A quick DMCA refresher, if you're rusty: The statute sets up a system to shield online service providers from copyright liability based on their users' activity. So in the YouTube case, the fight is over whether YouTube (and now its corporate daddy Google) can be held liable for infringing videos posted by users. If YouTube qualifies for the DMCA "safe harbor," it's in the clear. If not, there's pain on the horizon.   read more »

   
 
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