Audio

Hear Ye, Hear Ye! Some Federal Courts Post Audio Recordings Online

While the propriety of video and photography equipment in federal courts is subject of ongoing debate and testing, a number of federal bankruptcy courts and three federal district courts make audio recordings of their proceedings available to the public for a nominal fee.

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Ninth Circuit Starts Live Streaming, As Federal Camera Test Continues

In early December, the Ninth Circuit Court of Appeals announced that it would provide live-streams and archived video of oral arguments on its web site, starting later in the month.

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Boston Police Charge Two Journalists With Felonies For Doing Their Jobs

This is a well-known story to DMLP readers, but it bears repeating today. On October 1, 2007, a lawyer named Simon Glik saw members of the Boston Police arresting a suspect on the Boston Common in a way that he thought was excessive, and began recording the police from several feet away. The police didn't notice him at first, but eventually approached him and asked him if his phone was recording audio along with the video.

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911, What's Your Emergency? Public Access to 911 Calls in California and Maine

PhoneAs California delays public access to prank celebrity 911 phone call records, a court in Maine has kicked things up a notch, pulling from one of over 500 exceptions to Maine's Freedom of Access Act (“FOAA”) to block public access to a 911 record in connection with an ongoing criminal trial.

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Personal Audio v. ACE Broadcasting Network

Date: 

01/07/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

ACE Broadcasting Network, LLC; Lotzi Digital, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Texas: Marshall Division

Case Number: 

2:13-cv-00014

Legal Counsel: 

John M. Jackson, David Folsom, Matthew C. Acosta (Jackson Walker LLP)

Publication Medium: 

Podcast

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

In 1996, James Logan applied for a patent for an "an audio program and message distribution system in which a host system organizes and transmits program segments to client subscriber locations." This patent-now held through Logan's company, Personal Audio-was issued in 2001, though the device described was never created. Logan applied for another patent, frequently referred to as the "podcast patent," in 2009. As issued in February 2012, this patent (No. 8,112,504) described a similar audio program and message distribution system, modified and described in more detail to better reflect contemporary podcasting.

In the U.S. District Court for the Eastern District of Texas on January 7, 2013, Personal Audio filed a complaint against ACE Broadcasting Network for infringement of its 2012 patent, No. 8,112,504. In the complaint, Personal Audio alleged that ACE Broadcasting infringed on the '504 patent by providing several podcasts, including "The Adam Carolla Show" podcast. Personal Audio argues that in these podcasts, ACE Broadcasting "uses servers, data storage and other Internet hardware and software in a manner that directly and literally infringes" the claim describing the apparatus for disseminating podcast episodes online. In the alternative, Personal Audio argued that even if ACE Broadcasting's podcasts were not literally infringing, patent infringment should still be found under the doctrine of equivalents.

Personal Audio amended its complaint on May 10, 2013 to "name the correct entities with respect to patent infringement." Personal Audio's substantive arguments remained the same, while the named defendants were amended to include those parties Personal Audio believed responsible for "The Adam Corolla Show": Lotzi Digital, Inc. and a partnership including ACE Broadcasting.

On July 10, 2013, Lotzi Digital filed its answer, asserting no infringement, literal or otherwise. Among its defenses, Lotzi Digital argued that the '504 patent is invalid under Patent Act sections 101 (subject matter), 102 (novelty), 103 (obviousness), and/or 112 (disclosure and enablement). Under these same theories, Lotzi Digital counterclaimed for a declaration that the '504 patent is invalid. 

In response to this suit, the Electronic Frontier Foundation has started a campaign to "save podcasting" and has partnered with Harvard's Cyberlaw Clinic to investigate the '504 patent, including research of prior art that may invalidate the patent.

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A Response to Sandy Hook: Privacy Trumps Transparency in New Connecticut Bill

At a time when citizens increasingly call for government transparency, the Connecticut legislature recently passed a bill to withhold graphic information depicting homicides from the public in response to records from last December's devastation at Sandy Hook Elementary School.

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Another Go-Round with Recording the Police in Massachusetts

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99.

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A Camera Records in Boca, Part Two

Today's post is a continuation of my analysis of the laws implicated by the recording of Mitt Romney's remarks at a fundraiser held at a private home in Boca Raton, Florida, on May 17, 2012. Part One identified these laws, including the Federal Wiretap Act, Florida's own wiretap law, and Florida's common law protection against "intrusion upon seclusion," and discussed the issue of consent under each law.

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Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

Some of the most commercially successful and popular music of all time – including the entire catalog of The Beatles – is subject to a degree of uncertainty under current copyright law in the United States due to an anomaly in the federal copyright framework with respect to older sound recordings.

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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.

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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.

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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.

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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.

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United States v. Megaupload Limited

Threat Type: 

Criminal Charge

Date: 

01/05/2012

Party Receiving Legal Threat: 

Megaupload Limited, Vestor Limited, Kim Dotcom, Finn Batato, Julius Bencko, Sven Echternach, Mathias Ortmann, Andrus Nomm, and Bram van der Kolk

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of Virginia

Legal Counsel: 

Ira Rothkin (counsel for defendant Megaupload Limited), Paul Davison Q.C. (counsel for defendant Dotcom), Guyon Foley, Barrister (counsel for defendant Dotcom)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 5, 2012, a grand jury convened in the United States District Court for the Eastern District of Virginia issued an indictment against Megaupload Limited, its affiliate Vestor Limited, and principals Kim Dotcom (a resident of New Zealand and Hong Kong, and a citizen of Finland and Germany), Finn Batato (a citizen of Germany), Julius Bencko (a citizen of Slovakia), Sven Echternach (a citizen of Germany), Mathias Ortmann (a citizen of Germany and a resident of Hong Kong), Adrus Nomm (a citizen of Estonia), and Bram van der Kolk (a citizen of the Netherlands and New Zealand).

The indictment alleges that the organization and its principals were engaged in a systematic conspiracy to commit and profit from copyright infringement, through operation of the megaupload.com domain name and its affiliates, including megavideo.com.  According to the indictment, before its seizure, Megaupload operated as a "cyberlocker" or file hosting service website, where users were able to upload content to Megaupload servers and receive a unique URL which identified where the file could be downloaded later. Megaupload did not charge users for the basic service, and offered a premium subscription that featured faster bandwidth and fewer limitations on accessing the content stored. The website also featured an "Uploader Rewards" program, which gave monetary compensation for users that uploaded especially popular files to the system. Specific allegations are made stating that the defendants directly copied material without permission, helped others commit copyright infringement, received a direct financial benefit from infringement, and induced others to commit copyright infringement.

The indictment lists five criminal counts, all related to the underlying allegation of criminal copyright infringement. In addition to criminal copyright infringement (17 U.S.C. §506 and 18 U.S.C. § 2319), the indictment alleges conspiracy to commit racketeering (18 U.S.C. § 1962) by being engaged in an enterprise to commit criminal copyright infringement, conspiracy to commit money laundering (18 U.S.C. § 1956) by transferring money that constituted the proceeds of criminal copyright infringement, and aiding and abetting criminal copyright infringement (18 U.S.C. § 2). The indictment alleges that Megaupload did not designate a copyright agent, as is required under the  "safe harbor" of the Digital Millennium Copyright Act (17 U.S.C. § 512), and that Megaupload would deliberately avoid taking down an allegedly infringing file based on a infringement notice, opting instead to only delete the link to the file on which the complaint was based.

According to the New Zealand Herald, Dotcom, Batato, van der Kolk, and Ortmann were arrested on January 19, 2012. On January 27, 2012, the Department of Justice filed a letter informing the defendants and the court that the DOJ had conducted a search of Megaupload service providers Carpathia Hosting, Inc. and Cogent Communications, Inc. in Virginia and the District of Columbia. The DOJ had copied the files from servers licensed to Megaupload, and informed the court that the hosting companies may begin deleting the contents of those servers beginning on February 2nd. On February 1, 2012, the Electronic Frontier Foundation filed a letter to the parties and the court on behalf of an undisclosed client, asking the court to preserve the material stored by Megaupload at the direction of the website's users, noting that many individuals had relied on the service for innocent, noninfringing storage of content. According to a Twitter post made by Megaupload Limited's attorney, the hosting services have agreed to temporarily preserve the servers until an agreement can be reached on how to preserve the material stored at the direction of innocent users.

The extradition process is currently underway for defendants arrested in New Zealand. According to BBC News, Mr. Dotcom was denied bail based on flight risk concerns.

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CMLP Notes: 

1/25 AFS began skeleto, filled out 2/6.

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Court Filings
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Oh Tenenbaum - First Circuit Rules That Consumers and Pirates Subject to High Sanctions Under Copyright Act

The draconian penalties for illegal downloaders under the U.S. Copyright Act were intended not just for commercial pirates, but for consumer-level infringers, the First Circuit ruled last week.

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Bay Area Rapid Transit v. Protesters

Threat Type: 

Police Activity

Date: 

08/11/2011

Party Receiving Legal Threat: 

No Justice No Bart, Anonymous, other protesters

Type of Party: 

Government

Type of Party: 

Organization

Publication Medium: 

Email
Forum
Social Network
Verbal

Status: 

Pending

Description: 

According to SF Weekly, on July 3, 2011, a homeless man named Charles Hill was shot to death by police officers for the San Francisco Bay Area Rapid Transit District ("BART"). Two and a half years earlier, BART police used lethal force against 22-year old Oscar Grant. Both cases have lead activist groups to stage protests against BART and its police force.

On July 11, 2011, protesters with No Justice, No BART  and other organizations staged a protest in the Civic Center Station, where Hill was shot. According to SF Gate, approximately 100 protesters attended and some blocked the doors of trains, leading BART to temporarily close the station.

According to a BART press release, BART and San Francisco police officers learned of a further protest planned for August 11, 2011 early in the week of August 8th. They believed that protesters were planning to coordinate protests at the station using cell phones, and in an attempt to disrupt that coordination shut down cellular service to specific stations in the BART system. According to Scientific American, BART did this by disabling power to the cell phone and wireless network base stations it owned in the underground system. According to CBS San Francisco, the August 11th protest never materialized.

According to Mashable, web activist group Anonymous responded to BART's closure of cellular service by shutting down the consumer-relations website mybart.org on August 14, 2011, leading to the website's indefinite suspension. Anonymous also organized further protests on August 15, 2011, leading to additional station closures, though no reported cell phone service disruption.

The Bay Citizen reports that the FCC is investigating BART's decision to disable cell phone service in the stations. On August 29, 2011, a group of public interest organizations led by Public Knowledge filed a petition for declaratory ruling to the FCC, arguing that BART's actions violated the Communications Act of 1934.

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First Circuit Hears Argument on Right to Record in Public

[NOTE: The First Circuit has issued its opinion in the Glik case -- see the CMLP's coverage here.]

This morning, I attended a hearing of the U.S. Court of Appeals for the First Circuit in the case of Glik v. Cunniffe, which raises important questions regarding the existence of a constitutional right to record the activity of police officers in public areas and the scope of Massachusetts' wiretapping law.  On October 1, 2007, plaintiff Simon Glik was arrested under the Massachusetts wiretap act, Mass. Gen. Laws c. 272, § 99, as well as for aiding the escape of a prisoner and disturbing the peace, after he used his cell phone to create an audiovisual recording of three police officers arresting a suspect on Boston Common.

Glik stated that he did not attempt to conceal his use of the cell phone, and thus did not make a “secret” audio recording as prohibited by the wiretap act.  He also claimed that he in no way interfered with the arrest and that he had a First Amendment right to record the activity of the police officers.  The Commonwealth of Massachusetts dismissed the aiding escape charge, and the Boston Municipal Court dismissed the remaining charges.

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