Video

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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

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Subject Area: 

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.

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Content Type: 

Subject Area: 

Liberty Media Holdings v. John Does

Date: 

05/06/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Rapisarda, Jeremy Marron, Tim Zoller, Philip Pirello, Theodore Warner, Mark Packard, Tim Granger, Tha Chanh, Anant Pavidapha, Kyle Boran, Larry Son, Shannon Lyons, John Doe 2, John Doe 10, John Doe 15, John Does 39-51

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Massachusetts

Case Number: 

11-cv-10802

Legal Counsel: 

Perry, Krumsiek & Jack LLP (for Defendant Doe 10); Booth Sweet LLP (for Defendant Doe 2); Pepper Hamilton LLP (for Defendant Pirello); Dan N. Tran (for Defendant Son); Coughlin Betke LLP (for Defendant Granger); Peter Irvine (for Defendant Menard)

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

Liberty Media Holdings, an adult film company, filed suit on May 6, 2011, against approximately 50 Massachusetts residents for copyright infringement of material allegedly shared over a BitTorrent file transfer protocol. The complaint claims that defendants, through the use of a BitTorrent protocol, were allowed to join a "swarm" of hosts and could consequently download and upload content from each other. The complaint details the the process by which this happens, alleging that the practice ends in each defendant (each member of the "swarm") simultaneously stealing and redistributing Liberty Media's copyrighted material.

Liberty Media asserted two separate copyright infringement claims against defendants: first, that defendants wilfully and intentionally used the BitTorrent protocol to make unauthorized copies of a Liberty Media motion picture and distribute them to others, in violation of 17 U.S.C. § 501; and second, that defendants are responsible for contributory copyright infringement, because they each knew multiple people were involved in the illegal distribution, and because the infringement by other BitTorrent users would not have occured but for each defendant's participation in the infringement. Liberty Media is seeking an injunction preventing defendants from further infringement, as well as $150,000 per defendant in statutory damages plus costs and attorney's fees.

According to the complaint, Liberty Media identified each defendant by his or her IP address. Liberty Media consequently filed an emergency ex parte motion for early discovery, requesting that the court direct the defendants' Internet service providers (ISPs) to disclose each individual's identity. In its memorandum in support of its motion, Liberty Media claimed that it had adequately asserted a prima facie case for copyright infringement, that the discovery request was reasonably specific, and that the defendants' identities were central to Liberty Media's case. On May 10, 2011, the court granted Liberty Media's motion, allowing Liberty Media to issue subpoenas on the ISPs.

In response to the court order, three separate defendants filed motion to quash the subpoenas. The motions to quash generally put forth similar legal arguments. The motions by Defendant Doe 2 and Defendant Doe 15 claimed the subpoena should be quashed because the records were located over 100 miles away. Doe 2 and an unidentified Doe claimed that Liberty Media did not provide sufficient information about the nature of the alleged file sharing, including amount of data shared or duration, and therefore failed to make a prima facie case for copyright infringement. The unidentified Doe also alleged improper joinder due to the risk of creating an unfair process and claimed that Liberty Media was attempting to reveal defendants' identities in order to coerce pretrial settlements.

Liberty Media opposed the motions, arguing that the court should not consider completely anonymous motions to quash. It also supported joinder of all defendants, citing previous John Doe file trading cases that have found joinder "not only proper, but ... the best and most efficient way to administer such lawsuits." Liberty Media finally claimed that the court should not consider arguments on the merits until defendants are named. The court denied each motion to quash on July 22, 2011, and stated that the defendants would not be permitted to proceed further using pseudonyms.

Between June 2011 and January 2012, Liberty Media voluntarily dismissed 23 defendants with prejudice. None of the notices provided a reason for the dismissal.

On January 23, 2012, after the voluntary dismissals, Liberty Media filed an amended complaint against the remaining defendants. The amended complaint alleged the same counts of copyright infringement as the complaint, and added claims of civil conspiracy and negligence. Liberty Media claimed that the conspiracy involved a scheme to traffic infringing content, and asserted that defendants knew the BitTorrent client would provide access to infringing content, and that each defendant intended to access the content for the purpose of reproducing and exchanging it in violation of copyright laws. Finally, Liberty Media claimed that if the defendants themselves did not use its copyrighted work, then defendants failed to adequately secure their networks, allowing others to access the Internet through their accounts. Therefore, Liberty Media argued, defendants should be held liable for negligence in "breach of the ordinary care that reasonable persons exercise in using an Internet access account." 

CMLP Notes: 

Created by LC, 2/17/12

Content Type: 

Threat Source: 

Google News

Subject Area: 

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We're Live, So Could Someone Please Wake Justice Ginsberg?

A bit of good news for those of us keen on open government: The Senate Judiciary Committee today voted 11 to 7 to allow television cameras into the Supreme Court.

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United States v. Megaupload Limited

Date: 

01/05/2012

Threat Type: 

Criminal Charge

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.

Jurisdiction: 

CMLP Notes: 

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

Content Type: 

Threat Source: 

Court Filings
RSS

Subject Area: 

Hard Drive Productions v. Does

Date: 

09/27/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Does 1-1,495

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Columbia

Case Number: 

1:11-cv-01741-JDB-JMF

Legal Counsel: 

Lewis Brisbois Bisgaard & Smith, LLP (John J. Michels , Jr.); Dunner Law, PLLC (Adam W. Sikich); Kelly Law Firm, LLC (Aaron M. Kelly)

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

On September 27, 2011, adult-film company Hard Drive Productions filed a lawsuit in federal court against 1,495 anonymous defendants. The complaint alleged that the defendants were all involved in transferring one of Hard Drive's copyrighted films through the file-sharing protocol BitTorrent. Hard Drive alleged one count of copyright infringement, and included a list of the IP addresses allegedly involved in the BitTorrent transfers.

Hard Drive then moved for expedited discovery, in order to subpoena the relevant Internet Service Providers for the identities of the parties linked to the IP addresses. The district court granted Hard Drive's motion and allowed the company to subpoena the ISPs.

Over the following month, the district court received three anonymous motions to quash or modify the subpoenas. On November 2 District Court Judge Bates denied the anonymous motions on the basis of local court rules requiring filings to contain full identifying information. Judge Bates further stated that the anonymous defendants could re-file their motions under their true names, and those motions (and their identities) would be kept under seal from both the plaintiff and the general public, even if the motions eventually failed. Judge Bates also stayed the subpoenas because the anonymous motions raised "substantial issues."

On November 10, Judge Bates issued an order clarifying the procedure by which the defendants' filings would be placed under seal from the plaintiff.

On November 16, Judge Bates referred the case to Magistrate Judge Facciola. On November 28, the Magistrate Judge issued to counsel a notice of the case's assignment.

On November 22 and 23, the court received a pair of motions under seal, accompanied by publicly accessible notices of those filings. One of these notices mentioned that the sealed motion included arguments regarding personal jurisdiction, Rule 45(c)(3)(A), and misjoinder, along with a motion for a protective order. According to one of the notices, the defendants provided Hard Drive with copies of the motions, redacted to remove all personally identifying information.

On November 30, one of the anonymous defendants was dismissed from the case.

On December 2, four defendants, using their real names, filed motions to quash and/or to dismiss. It is unclear whether any of these identified defendants had previously filed anonymously. The four motions, three of which were filed pro se, made slightly different arguments: one claimed to have been away from home when the alleged copyright infringement took place; one made an argument based on the availability of the sought-after information; one argued that the infringement must have happened on the defendant's unsecured WiFi network; the last motion described the allegedly-abusive series of lawsuits filed by the plaintiff, and argued that joinder of all 1,495 defendants was improper.

On December 13, notice of another sealed motion to quash was filed.

On December 21, the Magistrate Judge Facciola refused to docket any anonymously filed motions to quash. He divided the moving defendants into four categories: 1. Those using their real names; 2. Those remaining totally anonymous; 3. Those using only their IP addresses; and 4. Those filing under seal pursuant to Judge Bates's order. The motions filed by defendants using their real names were docketed. Motions filed by defendants who either remained totally anonymous or used only their IP address as identification were rejected, and those defendants were given a February 1 deadline to re-file under their real names. Finally, motions filed under Judge Bates's order (sealing the motions from the plaintiffs) were also rejected. Magistrate Judge Facciola gave these defendants two choices: they could withdraw their motions to quash, thus remaining anonymous "at this point"; or, they could choose to have their motions filed on the public docket, where the "plaintiff and anyone else who accesses the public docket will [be able to] know who they are." These defendants were given until February 1 to decide which option to choose.

Magistrate Judge Facciola acknowledged that these defendants had "justifiably" relied on Judge Bates's order permitting the motions to be sealed from the plaintiffs. The Magistrate Judge "concluded, however, that no one will be permitted to proceed any further in this case without identifying himself or herself," and stated that "I will not consider any motion unless it is publically filed." In support of this conclusion, Magistrate Judge Facciola stated that "[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information." He cited three cases in support of his conclusion: U.S. v. Christie, 624 F.3d 558, 573 (3rd Cir. 2010); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); and Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010).

On January 5, 2012, Hard Drive filed a set of responses to the four defendants who had previously filed motions under their real names. The content of the responses varied depending on the defendant, but all four contained the same standing argument: that only the ISPs, as the parties to which the subpoenas were directed, had standing to challenge the subpoenas. Hard Drive argued that if a party is neither the target of the subpoena, nor possess the sought-after documents, that party lacks standing to challenge the subpoena. Hard Drive noted that all four defendants may be eligible for an exception under Fed. R. Civ. P. 45(c)(3)(A)(iii), which, according to Hard Drive, applies if a party "claims a personal right or privilege" in the information sought by the subpoena. According to Hard Drive, however, each of the four defendants had failed to claim this personal right.

On January 20, Hard Drive dismissed nine more anonymous defendants.

Jurisdiction: 

CMLP Notes: 

1-27-2012: Sharkey finished with entry

Content Type: 

Subject Area: 

Ron Paul 2012 v. Does 1-10

Date: 

01/13/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

CV-12-00240

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On January 13, 2012, Ron Paul's presidential campaign organization sued anonymous YouTube users in federal court over a video posted on YouTube by user "NHLiberty4Paul" on January 4, 2012. The video is critical of then-Republican presidential candidate Jon Hunstman, focusing on Huntsman's ambassadorship to China. It concludes by suggesting that viewers vote for Ron Paul instead.

The complaint alleges that the video was created by parties opposed to Paul's presidential campaign, and was "deliberately calculated" to harm Paul's reputation by attaching his name to a "malicious" and "offensive" video. It further states that the video is "a classic case of dirty politics," and that Paul's campaign has absorbed "scathingly negative" media attention from news outlets that believed the video originated from the Paul campaign. The complaint alleges two counts of infringement of the Paul campaign's unregistered trademark in the name "Ron Paul" under 15 U.S.C. 1125(a), and a count of defamation. The campaign seeks monetary damages, the removal of the video, and injunctions against future use of the "Ron Paul" mark.

On January 18, the Paul campaign applied for expedited discovery to identify the YouTube users who posted the video. The application argues that the case cannot proceed until the defendants are identified, thus warranting expedited discovery on this point. The campaign seeks documents both from YouTube and from Twitter, where an account also called "NHLiberty4Paul" exists. Paul's campaign manager, Jesse Benton, also filed a declaration (scroll down) stating that the Paul campaign did not produce the Huntsman video.

UPDATE:

On January 25, a magistrate judge denied without prejudice the campaign's motion for expedited discovery. The magistrate applied the test from Columbia v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), which requires plaintiffs to (1) identify the anonymous persons with some specificity; (2) describe all other attempts the plaintiff has made to find the anonymous persons; (3) show that the lawsuit could survive a motion to dismiss; and (4) show a "reasonable likelihood" that the anonymous persons could be identified through discovery. Since the Paul campaign's motion did not address these factors, the magistrate denied it but invited the campaign to refile with the appropriate information. 

On January 27, Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project filed a motion for leave to file an amicus brief in the case, urging the court to clarify the order of January 25th and impose the standard first articulated in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001). This standard requires (1) plaintiffs to provide reasonable notice to potential defendants and an opportunity for defendants to defend their anonymity before issuance of a subpoena; (2) plaintiffs to allege with specificity the speech that has allegedly violated the plaintiff's rights; (3) the court to ensure that the claim states a cause of action upon which relief can be granted as to each statement and against each defendant; (4)  plaintiffs to produce evidence supporting each element of its claims; and (5) the court to weigh the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

On February 1, 2012, the court granted the motion to file an amicus brief, and instructed the Paul campaign to address the arguments raised by the amici if they decide to refile a motion for expedited discovery.

On February 12, 2012, the Ron Paul Campaign filed a revised application for expedited discovery. The court invited the amici Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project to file a memorandum addressing the revised application. The amici filed a memorandum on February 22, 2012. On February 29, 2012 the Ron Paul campaign committee filed a reply brief.

On March 8, 2012, the court again denied the campaign's motion for expedited discovery.  The judge declined to determine which test, Seescandy.com or Dendrite, applied in the case, and instead looked to the common factor in both tests: whether the plaintiff had "filed a valid complaint so the Court can be assured that the alleged claims will withstand a motion to dismiss."  The court ruled that the Paul campaign had not, writing that its arguments failed to connect the YouTube video to a commercial venture as required by the Lanham Act.  As such, its trademark claims failed to overcome the first hurdle in both tests, and no further decision as to which test applied was needed. 

Having decided that the federal causes of action failed to state a claim, the court declined to grant expedited discovery on the basis of the remaining state-law defamation claim.  The court also noted that if the Lanham Act claims were dismissed, "issues develop" over the court's ability to exercise supplemental jurisdiction over the state law claims.

Jurisdiction: 

CMLP Notes: 

1/20/12: Sharkey created

1/23/12: JH editing

2/7/12: AS edits

3/8/12: AB edits

3/15/12: AS added some interlocutory docket entries

Content Type: 

Threat Source: 

RSS

Subject Area: 

United States v. Puerto 80 Projects, S.L.U.

Date: 

01/31/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Puerto 80 is a solely-owned limited liability company based in Arteixo, Spain. The company operates a website entitled Roja Directa, which provides a chronological listing of sporting events with links to websites that are streaming live broadcasts of those events over the Internet. The website also operates a series of message boards and a small blog.

On January 31, 2011, an agent with the United States Department of Homeland Security, Immigration and Customs Enforcement division, filed an affidavit for a warrant to seize several domain names, including rojadirecta.org and rojadirecta.com. Using a recently-modified civil forfeiture law passed in 2008, the agent alleged that these domain names were property used for the commission of criminal copyright infringement, and thus subject to seizure. According to the United States, Roja Directa linked to websites streaming sporting events, the copyrights of which are owned by the NFL, NBA, NHL, and WWE. These organizations did not license the webcasts. This seizure was part of a larger IP enforcement campaign called Operation in Our Sites, which began in June of 2010 and continues today.

A federal magistrate judge issued a warrant for the seizure of the domain names. This order applied specifically to the URLs only, and not the servers which contain the Roja Directa website. The warrant ordered the domain name registries for the ".com" and ".org" top level domains, as well as Puerto 80's registrar for "rojadirecta.com" and "rojadirecta.org," to transfer ownership of the domain name to the United States, who then displayed a page informing the public that the domain name had been seized.

According to Puerto 80, the company attempted to negotiate with the United States for the return of the domain names, but reached no agreement. On June 13, 2011, Puerto 80 filed a petition for release of its seized property pursuant to 18 U.S.C.§ 983(f) in the United States District Court for the Southern District of New York. Puerto 80 argued that linking to other websites does not constitute criminal copyright infringement, there is no risk that evidence will be unavailable should the government decide to initiate a forfeiture proceeding, and the restriction of the expressive content of the website before an adjudication of whether the content was infringing was a prior restraint of speech. The United States filed a memorandum in opposition, arguing that the actions of Puerto 80 constituted criminal copyright infringement, to release the domain name would allow continuation of that infringement, and the domain name seizure was not a prior restraint because Roja Directa was able to move the websites to new domains housed outside of the United States.

On August 4, 2011 the district court denied Puerto 80's petition for release.The court did not find the hardship necessary for a § 983(f) dismissal, and suggested that the First Amendment arguments were best left to a motion to dismiss against the forfeiture complaint. Puerto 80 filed an appeal to the United States Court of Appeals for the Second Circuit on August 18, 2011, and shortly thereafter filed a motion for expedited appeal, which the Second Circuit granted.

Puerto 80 filed its opening brief to the Second Circuit on September 16, 2011. The United States filed a response brief on November 15, 2011. The court also accepted an amicus curiae brief from the Electronic Frontier Foundation, filed on November 22, 2011.

Puerto 80's reply brief to the government's response is due on December 6, 2011, with argument before the Second Circuit slated for the week of December 19th.

Jurisdiction: 

Content Type: 

Subject Area: 

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

Jurisdiction: 

Content Type: 

Subject Area: 

Tarek Mehanna and the Freedom for the Thought That We Hate

Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.

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Content Type: 

Subject Area: 

France Continues to Confuse Censorship with Civility

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

Jurisdiction: 

Content Type: 

Subject Area: 

Justin Bieber v. FreeBieber.org

Date: 

10/25/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Fight for the Future, FreeBieber.org

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Corynne McSherry, Electronic Frontier Foundation

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Fight for the Future is an advocacy organization focusing on free speech and consumer rights issues related to intellectual property and technology. The organization is opposed to Senate Bill S.978, introduced in May 2011, which alters the criminal penalties for copyright infringement and extends criminal liability for public performances of works in certain circumstances.

Fight for the Future believes that extending liability for public performances of copyrighted works would extend criminal liability to many amateur musicians, who frequently post unauthorized "covers" of works on websites such as YouTube. Noting that musician and teen celebrity Justin Bieber gained his initial fame from unauthorized covers of R&B songs on YouTube, the organization created a website called FreeBieber.org. The website contains several depictions of Bieber in prison uniform and behind bars, suggesting that he could be arrested if S.978 becomes law. The website encourages visitors to write to Congress opposing the bill, and to create videos expressing their opposition using a superimposed overlay of prison bars and a digital wig in the shape of Bieber's iconic haircut, provided by the website.

On October 25, 2011, counsel for Justin Bieber sent a cease-and-desist letter to FreeBieber.org, claiming that the website infringed Bieber's trademark rights by falsely suggesting his endorsement of Fight for the Future's campaign, and violated his rights of privacy and publicity.

Fight for the Future's attorney responded, claiming that any use of Bieber's name or image was nominative fair use under trademark law and protected by the First Amendment. The attorney also rejected claims of privacy and publicity, noting that Bieber is an extremely public figure and any claim under right of publicity would be trumped by the First  Amendment.

As of October 31, 2011, the website is still active.  S.978 has been reported out of committee and has been placed on the legislative calendar.

Jurisdiction: 

Content Type: 

Subject Area: 

Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.

Jurisdiction: 

Content Type: 

Subject Area: 

Federal Courts' Camera Experiment Rolls On

After a slow start, the latest experiment of video cameras in federal courtrooms, announced last October, appears to be finally starting to roll.

Jurisdiction: 

Content Type: 

Subject Area: 

Milwaukee Police Dept. v. Clint Fillinger

Date: 

09/21/2011

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Clint Fillinger

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Broadcast

Status: 

Pending

Description: 

On September 21, 2011, Clint Fillinger, a photojournalist, was arrested for resisting and obstructing an officer after police confronted Fillinger while he was attempting to film at the scene of a house firm in Milwaukee, Wisconsin.  Fillinger, a 68-year-old journalist with 45 years of experience, was filming from outside the area that officers had cordoned off with police tape, where several members of the public had also gathered.

Fillinger's raw video of the incident was published by his employer, Fox6 Now. The raw video shows two officers approaching Fillinger and demanding that he step back.  The video appears to show Fillinger complying as he stated that he had a right to be there as a member of the public.  The officers tell him that he must move for his own safety.  Fillinger ultimately falls to the ground, dropping his camera, though the video does not show the cause. The Reporters Committee for Freedom of the Press reports that Fillinger was the only person asked to move away from the scene.

Milwaukee Police Chief Ed Flynn told Fox6 the next day that he felt Fillinger was to blame, saying, "If the cameraman had simply complied with the instructions to back off from a working fire, none of this hullabaloo would be taking place."  Fox6 posted the raw video of Flynn's statement on its website.

Several news associations – including the National Press Photographers Association’s Advocacy Committee, the Radio Television Digital News Association, and the Wisconsin News Photographers Association – have sent letters to Flynn demanding the charges be dropped and the officers involved be investigated and face disciplinary charges if necessary.

Jurisdiction: 

Content Type: 

Subject Area: 

Al Jazeera's Laudable Embrace of Creative Commons

Last week the Online News Association's annual conference came to Boston.  Naturally, many prominent news organizations showed up, tchotchkes in tow, to woo attendees – including Reuters, MSNBC, NPR, and CNN among many others.

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Subject Area: 

The War on Terror, 'Material Support,' and the First Amendment

The U.S. Department of State maintains a list of organizations it believes engage in terrorist activity, and under federal law it is illegal to provide material support to them.

Jurisdiction: 

Content Type: 

Subject Area: 

Bay Area Rapid Transit v. Protesters

Date: 

08/11/2011

Threat Type: 

Police Activity

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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A Victory for Recording in Public!

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news -- I urge you to read Justin's posts as well. 

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