Video

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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Real or Fake, It's Protected by the First Amendment: Court Awards Fees in "Storage Wars" Case

StorageA California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment.

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McGibney v. Moore

Date: 

08/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Hunter Moore

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Clark County, Nevada

Case Number: 

A-12-667156-C

Verdict or Settlement Amount: 

$263,170.00

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Default Judgment

Description: 

The defendant, Hunter Moore, founded a now-defunct website at the URL IsAnyoneUp.com, which hosted sexually explicit user-submitted photos and videos. The plaintiff, James McGibney, owns a website called BullyVille, which works to counsel people who have been bullied by offering advice from professionals. McGibney bought the domain name for IsAnyoneUp.com from Moore on April 19, 2012. After the purchase, Moore referenced McGibney in tweets sent from his twitter handles @huntermoore and @is_anyone_up.

On August 20, 2012, McGibney filed a complaint against Moore in the District Court of Clark County, Nevada for defamation per se and false light. McGibney's complaint denied assertions made in Moore's tweets. McGibney claimed that Moore's tweets suggested that McGibney was a pedophile, a child abuser, and that McGibney possessed illegal content obtained from IsAnyoneUp.com. (Moore's full tweets can be viewed as exhibits to the complaint.)

On the defamation claim, the complaint alleged that Moore posted the statements intentionally, with the specific malicious intent to harm McGibney's reputation, and with actual malice, as Moore knew the statements were false at the time he tweeted them or else had reckless disregard for the truth. The complaint asserted damages relating to McGibney's business, as Moore's tweets referenced McGibney's connection to BullyVille.

On the false light claim, the complaint stated that Moore portrayed McGibney as a pedophile and child abuser on Moore's twitter account. The complaint said Moore's statements were categorically false, made with actual malice, and highly offensive to any reasonable person. It alleged that, by publishing the "false and harmful statements" to a Twitter following of over 160,000 people, Moore gave publicity to such statements.

The complaint requested: (1) more than $10,000 on the defamation claim for harm to McGibney's reputation; (2) more than $10,000 on the false light claim for resulting mental harm; (3) more than $10,000 for Moore's willful, deliberate, and malicious defamation of McGibney; (4) attorney's fees and related costs; and (5) any additional relief ordered by the Court.

On February 26, 2013, the plaintiff filed affidavits for Colleen Connolly-Ahern and Steven Rohr in support of an application for a default judgment against Moore. Connolly-Ahern, an Associate Professor of Advertising and Public Relations at the Pennsylvania State University, evaluated the McGibney's defamation claim against Moore. Her affidavit stated that because of Moore's "quasi-celebrity status" he will have a "larger-than-normal percentage" of followers who believe his statements about McGibney are truthful. Rohr, a founder and president of a Public Relations organization, confirmed the statements made in Connolly-Ahern's affidavit and added that with the existence of sites like www.archive.org, an Internet Archive, Moore's allegations may follow McGibney for years to come and damage his professional reputation. Rohr also stated that Moore's tweets caused real and tangible "lifetime reputational harm" to McGibney, which justified a judgment of $250,000.

The next day, on February 27, 2013, the plaintiff filed an affidavit of J. Malcolm DeVoy, one of the plaintiff's attorneys. DeVoy's affidavit included a copy of McGibney's redacted billings totaling $8,003.00.

On March 8, 2013, the court entered a default judgment against Moore for defamation and false light. The court held that Moore falsely accused McGibney of serious crimes and offenses that were defamatory per se. The court stated that Moore had been properly served with process and Moore had acknowledged the service on his tweets. The court referenced the affidavits of both Connolly-Ahern and Rohr and specifically addressed Rohr's mention of a $250,000 judgment, stating that the affidavits and Rohr's oral testimony were sufficient to support a judgment of $250,000 against Moore. Accordingly, the court ordered that Moore pay: (1) $250,000 in damages; (2) Interest accruing at 3.25%/month until the judgment is paid in full; (3) $1,588.50 for suit costs; and (4) $11,581.00 in attorney's fees.

On March 12, 2013, a notice of entry of default judgment was filed and on April 19, 2013, a writ of execution was issued to the Constable of Clark County, Nevada for $263,169.50 against Moore, commanding that the judgment be satisfied via Moore's Bank of America checking, savings, or other financial account.

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Peteski Productions, Inc. v. Gawker Media, Inc.

Date: 

05/06/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gawker Media, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Texas

Case Number: 

5:13-cv-46-MHS-CMC

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Peteski Productions is the copyright owner of the television show the Dr. Phil Show, and Gawker Media is the owner of the sports news website Deadspin.com. This dispute concerns coverage by both Deadspin.com and the Dr. Phil Show addressing the hoax pulled by Ronaiah Tuiasosopo on Notre Dame football quarterback Manti Te'o. The hoax in part involved Tuiasosopo speaking with Te'o by telephone and pretending to be a Stanford University student by the name of Lennay Kekua. 

The complaint alleges that Deadspin copied two episodes of the Dr. Phil Show wherein host Phil McGraw interviewed Tuiasosopo, asking him to explain the hoax. The interview extended over two aired episodes, with a "cliffhanger" at the end of the first episode suggesting that Tuiasosopo would perform the "Kekua" voice in the continuation of the interview in the second episode. According to the complaint, the interview was an "exclusive," and Tuisasosopo agreed not to appear in any other media between the time of the interview with McGraw and the airing of the interview on the Dr. Phil Show

Peteski alleges that Deadspin reported about the interview in three posts on January 30 and 31, 2013, with two posts before and one immediately after the first Dr. Phil Show episode; in the third post, Deadspin noted that the episode ended on a cliffhanger and encouraged readers to read Deadspin's blog the following day. According to the complaint, Deadspin then obtained a copy of the second Dr. Phil Show episode and posted an excerpt of the McGraw interview with Tuiasosopo (described as the "heart of Episode 2") on its website "not later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil Show aired to over 98% of its viewers." The complaint appears to be referencing this post by Deadspin. The complaint seeks statutory damages, attorneys' fees, and an injunction barring the video excerpt.

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Copyright in Tattoo Case: Escobedo v. THQ, Inc.

Excerpt from Escobedo v.

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Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

Fighting for the First Amendment can often mean confronting and defending vile, caustic, hurtful, and downright disgusting speech. But not all free speech cases address the words of the most hateful or offensive amongst us. Every once in a while you get a case concerning speech at its most fun and playful.

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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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Ballot Disclosure Laws: A First Amendment Anomaly

Today, the Digital Media Law Project is launching a new guide to photography and filming at this year’s presidential election, Documenting the Vote 2012. This resource provides a wide range of information for all fifty states plus the District of Columbia, regarding laws that restrict the use of cameras in and around polling places (as well as other journalistic activities).

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Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

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AFS created post and edits through 1/3/12

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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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Scott v. WorldStarHipHop, Inc.

Date: 

12/16/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

WorldStarHipHop, Inc., Berkeley College

Type of Party: 

Individual

Type of Party: 

Organization
School

Court Type: 

Federal

Court Name: 

Southern District of New York

Case Number: 

No. 1:10-cv-09538-PKC-RLE

Legal Counsel: 

Jennifer Stisa Granick, Scott Zarin (for Plaintiff WorldStarHipHop, Inc.); David Forbes Bayne, Joseph Louis Francoeur, Steven Mark Corder, Sr. (for Plaintiff Berkeley College)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On December 16, 2010, Robert Scott filed a pro se complaint in the Southern District of New York against Berkeley College and WorldStarHipHop, Inc. (hereafter "WorldStar"). Berkeley College is private college in New York; WorldStar, a Nevada corporation, operates and maintains a video website.

According to Scott's complaint, a fight broke out in a Berkeley College class between Scott's current and former girlfriend in November 2010. During the classroom altercation, Scott got involved and repeatedly hit one of the girls. A classmate (Mr. Seymour) recorded the fight on his cell phone and sent it to WorldStar's website where it was posted as "Disgraceful: College Fight In NYC Breaks Out Between A Guy, His Girl & Another Girl In Class! (Man Strong Arm's(sic) The Student. Hitting Her With Body Shots)."

Shortly thereafter in December 2010, the classmate assigned his copyright in the video recording to Scott. Scott then sent take-down notices under 17 U.S.C. § 512(c)(3) to WorldStar, claiming the website was displaying the video without his [now copyright-owner's] written consent. WorldStar did not take down the video; this suit followed.

In his complaint, Scott alleged copyright infringement under the Copyright Act of 1976 and the Digital Millennium Copyright Act. He sought a temporary and permanent injunction, and $28,000 in statutory damages.

On April 18, 2011, Berkeley filed a Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim. In the motion, Berkeley alleged that Scott did not own a valid copyright, and furthermore that Berkeley was unrelated to co-defendant WorldStar and that Scott failed to show how Berkeley College was responsible for uploading the video. Berkeley argued that it was not accountable for copyright infringement because a "member" of its college posted the video. Berkeley also asked the court to take judicial notice that Scott was involved in two related proceedings with them at the time, both involving a gender discrimination claim filed by Scott with the New York State Human Rights Division against Berkeley due to the disparate discipline that Scott and the two girls involved received as a result of the fight (Scott was expelled, but the girls were allowed to return to school).

Scott filed a much longer amended complaint on May 24, 2011, with five claims. In it, he included claims against Berkeley College for sex discrimination and retaliation for filing a sex discrimination complaint, both in violation of 20 U.S.C. § 1681. He also included a claim of negligent infliction of emotional distress against Berkeley College. The copyright infringement claim returned, along with allegations of right to privacy violations pursuant to New York's Civil Rights Law.

Scott alleged that Seymour assigned him the exclusive rights of the copyrighted video for $1 on December 3, 2010. The next day Scott registered the work with the United States Copyright Office (Registration No. PA 1-727-922). He then claimed he contacted WorldStar and Berkeley College and demanded that they both "cease and desist further infringement" of the video. He further alleged that WorldStar "disregarded the statutory requirement of the Digital Millennium Copyright Act" and continued to publish the work. With respect to Berkeley College, he claims that the school infringed his copyright when it submitted the video as evidence in defense of the gender discrimination claim, and  downloaded a copy of the video from WorldStar and distributed it through the school's blackboard network and to its law firm. Scott sought a temporary and permanent injunction, $30,000 in statutory damages and $400,000 damages against Berkeley College for the gender discrimination claims.

On June 29, 2011, Berkeley filed a Motion to Dismiss Scott's Amended Complaint claiming that Scott's new claims were "patently meritless under well establish[ed] law." Berkeley argued that Scott could not use his alleged copyright to suppress evidence of his own wrongdoing, and that itssubmission of the video into evidence was fair use. Berkeley also discussed the public policy issues of copyright laws being used to "shield primary evidence of wrongful conduct in a judicial or administrative proceeding," and alleged that Scott had bad motives in purchasing the copyright of the video.

Scott filed an Opposition to the Motion to Dismiss on July 29, 2011. Berkeley replied on August 12, 2011.

On October 25, 2011, a judge issued an order on Berkeley's Motion to Dismiss, dismissing the case against Berkeley in its entirety with prejudice. The court dismissed the federal claims of copyright infringement, gender discrimination, and retaliation for filing a complaint. In particular, the court held that Berkeley's use of the video in its legal defense was a fair use. The court then declined to exercise jurisdiction over the state claims of invasion of privacy and negligent infliction of emotional distress, in the absence of pending federal claims. Scott has appealed the decision.

In the midst of the above proceedings, WorldStar had not filed an answer or responded to the lawsuit. A default was entered against WorldStar on October 6, 2011. 

On November 19, 2011, WorldStar filed a Motion to Set Aside Default claiming that it did not willfully default and that it was not properly served by Scott. In the motion, WorldStar also argued affirmative defenses against Scott's claims. They argued that there was a nonexclusive license from Seymour when he first posted the video and that "any assignment was subject to the exisiting license."  (Note: This language is from the court's order on May 3, 2012, quoting WorldStar's arguments from this motion. The copy of WorldStar's memorandum of law available through PACER is incomplete.)

The court granted WorldStar's Motion to Set Aside Default on December 12, 2011.

WorldStar then filed a Motion to Dismiss Scott's Amended Complaint on January 13, 2012. WorldStar argued that they are protected from Scott's copyright infringement claim under the "Safe Harbor" provisions of the Digital Millennium Copyright Act (DMCA), and had no actual knowledge that the video was infringing. WorldStar argued that Scott's letter sent on December 4, 2010, could not be used as evidence of actual knowledge of infringement because it did not comply with the requirements of 17 U.S.C. § 512(3)(b)(i). WorldStar also argued that "plaintiff had non-copyright reasons for wanting to suppress the video, specifically the Berkeley College disciplinary actions." WorldStar also claimed that § 230 of the Communications Decency Act (CDA) protected it from Scott's state right of privacy claims.

On February 6, 2012, Scott filed an opposition to WorldStar's Motion to Dismiss. In it, Scott alleged that WorldStar was outside of the scope of the DMCA's safe harbor provisions and the scope of § 230 immunity because it was not "doing business as a internet service provider" at the time the video was posted, because it was then in default as a corporation in Nevada. In addition, Scott asserted that WorldStar did not have a designated agent to receive take down notifications or a place on its website with information on where to send take-down notices, and that it did not provide that information to the U.S. Copyright Office, as required by the DMCA.

WorldStar replied on February 23, 2012, claiming that its corporate parent company's default status is not relevant to the "internet service provider" definition of either the DMCA or the CDA. WorldStar further argued that the DMCA safe habor provisions only allow the copyright owner injunctive relief, and that this is moot because the video has "long since been removed." WorldStar also argued that Scott's amended complaint contained no allegations of a lack of a designated agent.

Scott filed a Motion for Summary Judgment pursuant to Rule 56(a) on March 1, 2012.

The district court judge issued an order on WorldStar's Motion to Dismiss on May 3, 2012. The court dismissed the right of privacy claim, but allowed the copyright infringement claim to proceed. The court held that Scott stated a plausible claim for copyright infringement because he alleged that he became a copyright owner on December 3, 2010, and that WorldStar kept a copy of his video on their website without his authorization after that time. The court further held that WorldStar's two affirmative defenses were insufficient. First, the court found there was no evidence that WorldStar's nonexclusive license was in writing, as required by 17 U.S.C. § 205 for  the alleged license to prevail over a later transfer of rights to Scott. Second, in regards to the DMCA "Safe Harbor" provisions, the court held that even though Scott did not comply with statutory requirements of sending take-down notices according to § 512(c), WorldStar waived any objection by failing to request that Scott resubmit the notice or otherwise to take reasonable steps to obtain proper notification.

The right of publicity claim was dismissed because plaintiff did not allege that WorldStar used the video for advertising purposes, and furthermore it was within the "newsworthiness" exception because it was a recording of actual events that took place in public and was a "matter of valid public interest."

The court denied plaintiff's motion for summary judgment without prejudice because his motion did not comply with court rules. 

On June 11, 2012, World Star filed an answer to Scott's Amended Complaint. The complaint raises several affirmative defenses, including lack of personal jurisdiction and Scott's lack of standing due to failure to register the work in question with the Copyright Office pursuant to 17 U.S.C. § 411.

Update: 

On June 12, 2012, Scott filed a motion to strike the affirmative defenses raised in World Star's answer, claiming that the affirmative defenses were either waived for failure to raise at the motion to dismiss stage and for World Star's failure to timely file the answer under Fed. R. Civ. P. 12(a)(4)(A). On October 28, 2012, World Star filed an opposition to the motion to strike, acknowledging the untimeliness of the answer but arguing that the delay was not prejudicial to Scott. On November 14, the court denied Scott's motion to strike as to all affirmative defenses except lack of personal jurisdiction, finding that defense precluded by Fed. R. Civ. P. 12(h).

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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 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.

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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.

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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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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.

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Suffolk County Police Department v. Datz

Date: 

07/29/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Philip Datz

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of New York

Legal Counsel: 

Robert Balin, Samuel Bayard, and Alison Schary, Davis Wright Tremaine LLP; Corey Stoughton, New York Civil Liberties Union; Mickey Osterreicher, National Press Photographers Association (Of Counsel)

Publication Medium: 

Broadcast

Relevant Documents: 

Status: 

Pending

Description: 

According to CBS, on July 29, 2011, Philip Datz ("Datz") was in Bohemia, New York filming police activity following a car chase as a videographer for the Stringer News Service. During the course of his filming, Suffolk County Police Sergeant Michael Milton ("Milton") approached and ordered him to leave. Datz moved approximately a block from where he was initially located and continued to film the police activity. Milton approached Datz a second time, arrested him, and seized his camera and videotape. (Datz's recording of the encounter can be viewed here.)

Datz was charged with obstructing governmental administration, N.Y. Penal Law § 195.05. The charge was later dismissed.

On April 11, 2012, Datz filed a lawsuit in the United States District Court in the Eastern District of New York against Milton and Suffolk County, alleging that the police violated Datz's rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, Article I, Sections 8 and 12 of the New York State Constitution, as well as the Privacy Protection Act (42 U.S.C. § 2000aa). The complaint also contains claims of false arrest, assault, and battery. According to the complaint, Suffolk County Police seized the videotape from his camera as evidence and held it until one hour after his release that evening.

The complaint also makes several allegations  in support for its demand for injunctive relief against Suffolk County barring the county from obstructing journalists and members of the public who are recording police activity in public places. These allegations include several other incidents where Suffolk County police and firemen ordered Datz to stop filming police activity from public property, and some instances the police deliberately expanded crime scene perimeters to keep the press from filming crime scenes. 

Sergeant Michael Milton answered the complaint on May 2, 2012.

The case is currently in discovery. As of February 2014, dispositive motions are due March 24, 2014.

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