Video

Sherrod v. Breitbart

Date: 

02/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Andrew Breitbart, Larry O'Connor, John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

000157 11

Legal Counsel: 

Baker & Hostetler LLP (for Defendant O'Connor); Katten Muchin Rosenman LLP (for Defendant Breitbart)

Publication Medium: 

Blog
Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand, arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) and under the D.C. Anti-SLAPP Act. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply in further support of her motion to remand. On June 3, the defendants filed replies in support of both motions to dismiss.

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Newport Television, LLC v. Free Press

Date: 

07/01/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

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Announcing OpenCourt

It is a fundamental principle of the United States legal system that courts should be open to the public.  This principle is widely regarded as more aspirational than factual, because of numerous practical barriers to courtroom access -- not the least of which is that most of us do not have the time or ability to travel to the court to witness proceedings in person.  While the news media report on judicial proceedings,

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Marshals v. ahowardmatz.com

Date: 

07/09/2010

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Author of the site.

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Jusge A. Howard Matz

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Disposition: 

Material Removed

Description: 

The nature of the threat is a secret, known only to judge A. Howard Matz and Agent Smith.The complaint was on July 9, 2010. The site was removed on or about October 7, 2010.

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No Safe Harbor Offline

Last week YouTube won a landmark victory against Viacom in NY federal court. YouTube successfully argued that it was protected from Viacom's copyright infringement claims by the "safe harbor" provision of the Digital Millennium Copyright Act (DMCA).

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Michael Mann v No Cap and Trade, Minnesotans for Global Warming

Date: 

03/08/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

No Cap and Trade; Minnesotans for Global Warming

Type of Party: 

Individual

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Pending

Description: 

The following is a user-submitted description:

Michael Mann, one of the central figures in the recent climate-data scandal, is best known for his "hockey stick graph," which was the key visual aid in explaining how the world is warming at an alarming rate and in connecting the rise to the increase in use of carbon fuels in this century. . . The parody video, titled "Hide the Decline," had more than 500,000 viewers on YouTube and received national attention when Rush Limbaugh played it on his radio show. It features a cat with a guitar, a talking tree, and a dancing figure sporting the image of Professor Mann. It's the use of his image that Mann is complaining about, arguing that the video supports "efforts to sell various products and merchandise." In his letter Mann threatened legal action, claiming the spoof video "illegally used his image and defamed him."

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Will Italy's Conviction of Google Execs Stick?

I've no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court's conviction last week of three Google executives for invasion of privacy of an Italian teenager. 

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Dane v. Gawker

Date: 

09/23/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gawker Media, LLC; Gawker News, LLC; Gawker Sales, LLC; Mark Ebner

Type of Party: 

Individual

Type of Party: 

Individual
Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

CV09-06912 GW(SHx)

Legal Counsel: 

Alonzo Wickers IV, Karen A. Henry, Davis Wright Tremaine LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On September 23, 2009, Grey's Anatomy star Eric Dane and his wife Rebecca Gayheart filed a complaint for copyright infringement against Mark Ebner and various Gawker Media entities in the federal district court for the Central District of California.

According to the Complaint, in 2008 Plaintiffs made a home video recording of the two of them with a third party, Kari Ann Peniche, that depicted "intimate moments and conversations among" the threesome, and further depicted the plaintiffs "partially and sometimes fully disrobed."   (Compl. ¶ 10)  The Complaint further alleges that defendant Mark Ebner obtained a copy of the video in 2009 and gave it to Gawker, which then posted clips of the video on the Defamer and Fleshbot websites beginning on August 17, 2009.  (Compl. ¶ ¶ 12-14)  On August 19, 2009, Plaintiffs registered their copyright in the video with the U.S. Copyright Office.

On October 30, 2009, the Defendants filed a motion to strike portions of the Plaintiffs' Complaint, on the grounds that Plaintiffs were not entitled to seek statutory damages or attorneys' fees because the alleged infringement commenced prior to registration of the video with the Copyright Office.  The Court granted Defendants' motion in part on December 14, 2009.  On December 23, 2009, Defendants filed their Answer to the Complaint asserting various affirmative defenses, including fair use and that distribution of the video is protected under the First Amendment.

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Priority: 

1-High

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Subject Area: 

The Free Citizen as a Nuisance

"I'm willing to admit that the policeman has a difficult job, a very hard job. But it's the essence of our society that the policeman's job should be hard. He's there to protect, protect the free citizen, not to chase criminals, that's an incidental part of his job. The free citizen is always more of a nuisance to the policeman than the criminal. He knows what to do about the criminal." - Orson Welles

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Massachusetts v. Peyton

Date: 

12/01/2007

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Emily Petyon

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Legal Counsel: 

American Civil Liberties Union

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In December 2007, Massachusetts authorities charged documentary filmmaker and citizen journalist Emily Peyton with violating Massachusetts wiretapping law after she videoptaped police arresting an antiwar protester in Greenfield, Massachusetts. The ACLU represented Ms. Peyton, and the charges against her were dropped because her recording had not been secretive.

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Supreme Court Blocks Video Streaming of Prop 8 Trial

YouTube Court This afternoon, the Supreme Court put the final kibosh on video streaming of the Prop 8 trial to five federal courthouses around the nation.  The Court stayed U.S. District Judge Vaughn Walker's order permitting the broadcast.  The stay will remain in force for the foreseeable future, putting an end to the controversy for practical purposes.

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Will This Revolution Be YouTubed?

YouTube CourtThere are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and § 422.  These two laws don't address same-sex marriage, discrimination, or even access to courts, as you may have expected.  Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person. 

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U.S. Chamber of Commerce v. Yes Men

Date: 

10/26/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jacques Servin aka Andy Bichlbaum; Igor Vamos aka Mike Bonanno; Support and Commitment, Inc.; David Sievers; Morgan Goodwin; John and Jane Does 1-20

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia

Case Number: 

1:09-cv-02014-RWR

Legal Counsel: 

Robert Corn-Revere, Lisa B. Zycherman, Bruce E. H. Johnson, Ambika Doran, Thomas R. Burke - Davis Wright Tremaine, LLP; Matthew Zimmerman, Corynne McSherry - EFF

Publication Medium: 

Verbal
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, the U.S. Chamber of Commerce sued a group of political activists including members of the Yes Men and the Action Factory for trademark infringement and other claims in federal district court in the District of Columbia.

The dispute arose when the Yes Men issued a fake press release and held a fake press conference at the National Press Club in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation. After the fake press conference began, a real representative of the Chamber of Commerce interrupted and revealed that the Chamber had not in fact reversed its position.  As part of the hoax, the Yes Men published a parody website designed to look like the Chamber's, which featured a fake statement by CEO Thomas J. Donahue about the supposed change of policy.

The Chamber first sent a DMCA takedown notice to the Yes Men's upstream service provider demanding that the parody website be taken down.  According to EFF, this resulted in the temporary shutdown of not only the spoof site but of hundreds of other sites hosted by May First/People Link.  The Yes Men retained EFF as counsel, and EFF responded to the Chamber on their behalf, disputing the validity of the copyright claim, requesting that the Chamber withdraw its letter, and threatening a DMCA action for knowing, material misrepresentation of a copyright claim under 17 U.S.C. § 512(f).  Despite the takedown notice, the parody site remained available for a time, but now no longer appears to be online.

The Chamber then filed its lawsuit in federal court, abandoning the copyright claim but asserting trademark infringement, trademark dilution, cybersquatting, false advertising and other claims.  On January 5, 2010, the Yes Men and Action Factory defendants filed a motion to dismiss the complaint and a motion to stay discovery. The motion to dismiss argues that the Chamber's lawsuit is designed to punish core political speech, rather than to vindicate any actual trademark harm, and should therefore be dismissed.

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Priority: 

1-High

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The MPAA Lottery: Town of Coshocton Draws the Black Spot

“’It isn’t fair, it isn’t right,' Mrs. Hutchinson screamed, and then they were upon her.”
- The Lottery, Shirley Jackson

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Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Rei

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It's Election Time Again: CMLP Announces Updated Guide to Newsgathering at the Polls

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections.  In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legal

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For Once, Illinois Federal Judge Lets 'Em Roll: And Gets Bulldozed

UPDATE:  Federal District Judge Joe Billy McDade has issued a letter apologizing for allowing cameras into his courtroom to cover a Sept. 15 hearing on a consent decree settling a school discrimination case.

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I Can Clearly See You’re Nuts: ACORN’s Insane Civil Suit

I'm pretty sure I can struggle my way out. First I'll just reach in and pull my legs out, now I'll pull my arms out with my face. – Homer J. Simpson, The Simpsons, Bart Gets An Elephant, 1F15

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ACORN v. O'Keefe

Date: 

09/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

James O'Keefe; Hannah Giles; Breitbart.com LLC

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Circuit Court for Baltimore City

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The Association of Community Organizations for Reform Now (ACORN) sued James O'Keefe, Hannah Giles, and Breitbart.com LLC for allegedly violating Maryland surveillance and wiretapping law by making and disseminating a hidden-camera video of ACORN employees Shera Williams and Tonja Thompson giving tax advice to O'Keefe and Giles, who were posing as a pimp and prostitute.  The video, which appeared on BigGovernment.com and YouTube, has led to considerable public controversy.

According to the Washington Post:

"The video and audio footage was taken without the knowledge of Williams and/or Thompson and in violation of Maryland's Courts and Judicial Proceedings Code §§ 10-402(a) and 10-410, which requires two party consent to all electronic surveillance. Violation of the law is a felony, and entitles parties whose rights were violated to sue," ACORN said in a statement announcing the suit.

ACORN filed suit in Circuit Court for Baltimore City.  It seeks damages and a preliminary and permanent injunction against further dissemination fo the video. 

Update:

03/11/10 - Ben Sheffner reports that the court has dismissed the case after ACORN failed to serve the complaint on the defendants within Maryland's 120-day limit.

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