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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 »

Is It a Prior Restraint for Police to Delete Video of Their Conduct?

A pedicab driver was arrested in D.C. recently for pretending to record police arresting one of his passengers. He wasn’t actually filming anything – apparently he wasn’t even sure how to operate his new camera.

One would think that with all the attention this issue has received lately, we’d have seen a decrease in incidents of police arresting those filming their actions. But police officers continue to arrest journalists and other citizens for lawfully recording incidents of police activity. It happened to CMLP friend Carlos Miller (for the third time) while he was covering an Occupy Miami evacuation in February. And, as Carlos reported, to a San Diego videographer in January. And to others in Boston, Austin, and Memphis. And many other places.   read more »

Privacy v. Public Access in the Emerald City

For the past few years here in Seattle, a fascinating debate has been brewing about the balance between government transparency and citizens' privacy, particularly at the intersection of the state Public Records Act and the state Privacy Act.

The current controversy involves a lawsuit for declaratory relief filed in January by the City of Seattle against local attorney James Egan, after he submitted a public records request for 36 Seattle Police Department dash-cam videos (see the complaint here).  Egan requested the videos from the SPD under the Washington Public Records Act in relation to his representation of clients with misconduct claims against the police. (Egan has publicly posted prior videos that he received from the SPD under earlier Public Records Act.  The 36 videos at issue in the new request don’t necessarily relate to police interactions with Egan’s clients, but rather to the officers involved in the earlier incidents.)   read more »

Introducing Guest Blogger Bryce Newell

I am excited to welcome Bryce Newell as a guest blogger!

Bryce Newell is currently a Ph.D. student at the University of Washington's Information School and a Graduate Fellow of the Comparative Law & Society Studies (CLASS) Center. He is also a graduate of the University of California, Davis School of Law and is a member of the California State Bar (inactive). Bryce is engaged in conducting both doctrinal and socio-legal research that investigates the role of intellectual property, privacy, and information technology law and policy in society, both domestically and globally. Years as a photographer, videographer, and filmmaker have instilled in him a soft spot for photographer rights and an interest in citizen journalism. Prior to obtaining his J.D., Bryce worked in television, film, and video production as a producer, cinematographer, editor, and motion graphics artist. He is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border. In his spare time, he enjoys the occasional round of disc golf or a game of Ultimate Frisbee.

Please join me in welcoming Bryce to the CMLP blogroll!

Louis Vuitton v. Hyundai: Deconstruction of a Bad Trademark Decision

From the ever-growing file of trademark cases that are bad for free speech, Eric Goldman and Techdirt bring us an interesting case concerning a recent Hyundai ad. The ad is a series of brief vignettes conveying luxurious items in non-luxury settings: a yacht parked next to a small suburban ranch house, cops in a squad car snacking on caviar, chandeliers for streetlights, lobsters and roast pigs in what looks like an office breakroom, and – most importantly for our purposes – a group of people playing basketball with a ball that appears to have what Louis Vuitton calls its "Toile Monogram" pattern on it. Baroque music plays throughout, and a sonorous voice asks the audience, "What if we made luxury available to everyone? Would it still be called luxury? Or maybe we'd need a word for it. Oh, here's one: 'Hyundai.' The all new Hyundai Sonata."

Get it? The ad asks us to ponder whether luxury is defined by its exclusivity to an upper caste, or whether we can all experience the creature comforts of "luxury" regardless of social strata, when a vendor makes high-quality goods at a convenient price point. (Also, buy our car.)   read more »

Judge Explains His Decision on Blogger to the Chicken Littles

Federal Judge Marco A. Hernandez got a lot of attention and cyberchatter late last year when he held that blogger Crystal Cox was not protected by Oregon's reporters' shield law, leading to a $2.5 million defamation verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011).

A lot of the online commentary focused on Judge Hernandez's statements that, as a blogger, Cox did not fit into any of the categories of journalists specified in Oregon's reporters' shield law, Ore. Rev. Stat. 44.520(1). He also declined to apply precedents holding that plaintiffs in libel lawsuits against media entities must show that the defendant(s) acted with at least negligence, writing that:   read more »

Are Retweets Endorsements?: Disclaimers and Social Media

“RTs do not = endorsements.”

We’ve all seen it on Twitter bios, usually bios belonging to members of the media.

These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough.  Last fall, the Associated Press introduced an updated social media policy for its reporters and editors.  As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

Members of the media might want to be careful, however, that statements like “No comment” or “without comment” before tweets do not take on meanings of their own. Often, retweeting something “without comment” can indicate an unwillingness to comment due to an either enthusiastic support for or disapproval of the content of the original tweet.   read more »

A New Guide for Non-Profit Journalism

As you might have seen from our home page, the Digital Media Law Project [FN] today released our Guide to the Internal Revenue Service Decision-Making Process under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations. The Guide is intended to demystify the standards applied by the IRS in determining whether a journalism-oriented non-profit is entitled to a federal tax exemption.

Many new journalism ventures consider forming as non-profit corporations. This should come as no surprise in the current market, where making a profit in the news business remains a dubious proposition even for mainstream outlets. As of December 2011, the number of clients who had contacted our legal referral service, the Online Media Legal Network, for help forming non-profit organizations was about twice the number looking to form traditional for-profit businesses.   read more »

Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

What IL Courts will need to decide SLAPP casesSo this case slipped by me when it first came down in January, but it raises my ire enough to come back to a bit late. It's Sandholm v. Kuecker, the Illinois Supreme Court's attempt to make sense of the state's anti-SLAPP statute, and it's an impressively terrible piece of work. In it, the Court introduced what amounts to a mind-reader approach: If the plaintiff has a pure heart and really believes he's been wronged, then the anti-SLAPP law won't stand in the way.

The facts in Sandholm are pretty basic. A bunch of parents were dissatisfied with the local high school basketball coach/athletic director, so they spent a couple of months mounting a campaign to get him fired. Once the dust settled, the embattled coach brought this defamation case.

It gets interesting for my purposes because the defendant-parents brought Illinois' anti-SLAPP law into play. The Illinois statute, 735 Ill. Comp. Stat. 110/15, in the universe of all anti-SLAPP laws, is already on the narrower side, limited to some kind of broadly-defined government-participation speech. According to the statute, speech/petition/etc. activities are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."   read more »

Will the Fifth Time be the Charm for Britain's IP Policy Reviews?

The All-Party Intellectual Property Group (APIP) in the United Kingdom recently announced that it is taking on an arduous task: “conduct[ing] an inquiry into the role of government in protecting and promoting intellectual property.”

The APIP is soliciting thoughts on the UK’s current IP policy by asking organizations to respond to six topical, but broad questions, like "What should the objective of IP policy be?" and "What changes to the machinery of government do you believe would deliver better IP policy outcomes?"  Most importantly for our purposes, it also addresses the issue of digital media: “There have been numerous attempts to update the IP framework in the light of changes brought about by the digital environment. How successful have these been and what lessons can be learnt form these for policy developments?"

The end goal of the APIP’s inquiry appears to focus less on what the UK's IP policy is and more on how it is shaped - where and how the government creates and refines the administration of IP in Britain.  The APIP’s chair, MP John Whittingdale, notes in the announcement that “[t]here have been numerous reviews of IP policy in the last ten years but little examination has taken place of how Government itself promotes and develops the protection of Intellectual Property Rights.”

But reviewing IP policy has become something of a habit in Britain.  In fact, the UK Parliament has published four government-commissioned reports on IP policy within six years, which are strikingly repetitive in their recommended policy changes.   read more »

Mexico Takes a Big Step Forward in Protecting Professional and Citizen Journalists

Thanks to its ongoing war against the drug cartels, Mexico is one of the most dangerous places in the world for a journalist to work. 

Reporters are routinely threatened, attacked, and killed if they report on crime.  Local law enforcement is often in the cartels' pockets, leaving journalists with little protection.  Over the past three years, Mexico has climbed to number 8 on the Committee to Protect Journalists' 2011 "Impunity Index," which tallies the unsolved murders of journalists around the world.  And that's to say nothing of those who are murdered after commenting on crime via social media – an alarming trend in recent years.  Is it any surprise that the local press often ignores crime reporting entirely, for fear of reprisal from the cartels?

Thus, last week saw some excellent news: The Mexican Senate on Tuesday approved a constitutional amendment that would federalize criminal attacks on journalists.  McClatchy reports that under the amendment, journalists would no longer be at the mercy of quite possibly corrupt local cops, but could instead turn to the federal authorities, who have a much better reputation re: corruption, for law enforcement.     read more »

Righthaven is no more! It has ceased to be! It's expired and gone to meet its maker!

If there is a polar opposite to organizations like ours, it is the intellectual property troll.  And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model.  If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

So it is with no small amount of glee I pass along the news that Righthaven appears to have finally run down the curtain and joined the choir invisible.

On Tuesday, Judge Phillip Pro of the U.S. District Court for the District of Nevada signed an order transferring all of Righthaven's intellectual property – some 278 copyright registrations – to a court-appointed receiver, who will auction them off to pay the fees that Righthaven owes its creditors, including defendants who defeated Righthaven in court.  Righthaven owes $186,680 in debts, reports the Las Vegas Sun, but it claims it has no cash to repay them.   read more »

CMLP ANNOUNCEMENT: Mass. SJC Rejects Prior Restraints and Supports Right to Stream and Archive Court Proceedings Online

The following is cross-posted with permission from our good friends at the Cyberlaw Clinic at Harvard Law School. The original post can be found here

In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel. Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.   read more »

Ron Paul Campaign Gets a Lesson on Civil Liberties

Ron Paul's presidential campaign has been having a rough go of it: He has yet to win a Republican state primary or caucus.  But now his campaign's also-ran streak extends into the courtroom too, in a victory for the right to anonymous free speech.

A California federal magistrate denied the Paul campaign's effort to unmask "NHLiberty4Paul," the anonymous poster of a YouTube video that purported to be a pro-Paul advertisement but, according to the Paul campaign, was actually an effort to smear him.  In a somewhat narrower ruling than free speech advocates would desire, Chief Magistrate Judge Maria-Elena James of the U.S. District Court for the Northern District of California ruled that the Paul campaign had failed to establish a valid complaint under the Lanham Act, as it had been attempting, and thus was ineligible for the expedited discovery it sought to determine NHLiberty4Paul's identity.

Your very own Digital Media Law Project (we'll be switching the website over from our CMLP branding in the coming months) had a personal stake in this one, as we participated as an amicus along with The Public Citizen Litigation Group, the American Civil Liberties Union, and the Electronic Frontier Foundation.     read more »

No, Sandra Fluke Does NOT Have a Valid Defamation Claim Against Rush Limbaugh

A Note from the Staff of the CMLP: This post contains a candid discussion of First Amendment issues, including the use of terms that some readers might find offensive. We do not censor such terms in a blog contributor's post when relevant to the topic discussed, because we believe that an analysis of the constitutional right to use certain language requires the freedom to discuss that language plainly and openly. This same principle generally applies to reader comments in response to a post (although comments remain subject to our Website Terms of Use, and we reserve the right to remove or edit comments at our sole discretion). Please read at your own risk. 

Why we have a First Amendment; show your love for It

When I hear Rush Limbaugh's voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.   read more »

Fashion Faux Pas: Louis Vuitton Clashes With UPenn

So, have you heard about the little legal scuffle between Louis Vuitton and the UPenn Law School?

The Penn Intellectual Property Group (PIPG), a student organization at UPenn Law, decided to put together a symposium on fashion and IP law, including discussion of the Innovative Design Protection and Piracy Prohibition Act (IDPPPA) that's currently wending its way through Congress.  To promote the event, PIPG put together fliers with a parody of Louis Vuitton's signature pattern that inserted copyright and trademark logos into the pattern: the sort of cheeky tweaking that's common at graduate schools in any field.

Louis Vuitton, however, apparently lacks both a sense of humor and a sense of context.  LV's "director of civil enforcement, North America" responded to the fliers with a cease-and-desist letter accusing PIPG of misappropriation and dilution of LV trademarks and demanding PIPG cease use of the fliers immediately.

I know that LV has a litigious history (see this post by Law of Fashion's Charles Colman for a summary of some of the more egregious episodes), but oy vey.   read more »

A U.S. First: Juror Gets Jail in Fallout Over His 'Friending' of Defendant

At a recent presentation during which I reviewed a number of cases and court rule changes regarding juror use of social media and the Internet during trial, an audience member asked me why American courts appeared to be so lax in the face of such juror misbehavior, such as the Texas case in which a juror who sent a "friend" request to the defendant in a personal injury case was sentenced to two days of community service.

Court systems in other nations have not been as lenient. For example, British courts have sentenced one juror to six months in jail for doing online research in a criminal case and sharing what she found with fellow jurors, and another juror to eight months for exchanging messages on Facebook with a drug defendant.

Now a Florida court has imposed a three-day jail sentence for criminal contempt on a juror who sent a friend request to the defendant in an auto negligence case. After the friend request was discovered and the juror was dismissed, the juror wrote on Facebook, "Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha."   read more »

Can AP's Copyright Claims Hold (Melt)water?

By now you might have heard about the lawsuit that the Associated Press filed against on-demand software company Meltwater News. AP has been critical of aggregators in the past, and decided to file suit against this specific party, alleging copyright infringement, removal of copyright management information, and (drumroll, please…) hot news misappropriation. Yes indeed, the tort made famous by the 1918 Supreme Court case INS v. AP – and about which we here just love to write – refuses to die.   read more »

Intentional Grounding II: Can Public Colleges Monitor Athletes' Tweets?

On Feb. 3, The New York Times' college sports blog "The Quad" reported about the flip side of my prior post on colleges limiting athletes' social media messages and postings: A bill currently pending in the Maryland state legislature would bar colleges from requiring athletes to allow school officials to monitor the athletes' social media activities. (Another bill (House version, Senate version) would place the same restriction on employers.)

While I previously wrote about the problems with public colleges placing limitations on athletes' messages, postings, and tweets, I actually have some sympathy for university administrators trying to comply with arcane and sometimes outright ridiculous NCAA regulations regarding "student-athletes" by monitoring social media.

But the legal question is whether colleges and universities – in particular, public colleges and universities funded by the government – can do such monitoring consistent with the First Amendment.   read more »

The Danger of Secret Legal Memos and an Unchecked Executive

Shortly after the Obama Administration authorized the killing of U.S.-born cleric Anwar al-Awalki in early 2010, a debate erupted over the legality of assassinating American citizens abroad. Noticeably missing from the conversation, however, was the Department of Justice and its Office of Legal Counsel (OLC). Though multiple news sources reported the existence of secret legal memoranda that backed a "targeted killing" policy, the administration prevented the release of those memos.   read more »

   
 
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