Welcome to the Citizen Media Law Brief, a weekly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website. You are receiving this email because you have expressed interest in the CMLP or registered on our site, www.citmedialaw.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.citmedialaw.org/newsletter/subscriptions.

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The latest from the Citizen Media Law Project blog...

David Ardia describes his participation in a conference focused on making sense of the new news ecology.
Journalism that Matters at the Poynter Institute

Marc Randazza discusses the incentives and risks surrounding legal protection for "hot news."
Hot News Case - The Dialogue Continues

David Ardia reports on a mayor in Florida who took the First Amendment to heart.
Officials in Deltona, Florida Seek to Use Taxpayer Money to Fund Libel Lawsuits

Sam Bayard comments on the settlement of Jones Day's trademark linking lawsuit.
Thoughts on the Jones Day-BlockShoppper Settlement

Michael Lindenberger reports on recent developments in the effort to enact a federal shield law.
Federal Shield Bills Offer Rival Takes On Who's A Journalist; Bloggers Could Be Left Unprotected 

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Recent threats added to the CMLP database...

Harding v. Green
Posted Feb. 26, 2009

Nomvuyo Mzamane v. Huffington Post
Posted Feb. 26, 2009

Nicolazzo v. Yoingco
Posted Feb. 24, 2009

Ballard v. Wagner
Posted Feb. 23, 2009

Doty v. Molnar (Subpoena to The Billings Gazette)
Posted Feb. 23, 2009

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Other citizen media law news...

Lawsuit Cracks Open Online Anonymity
ABC News - Fri. 02/27/09

Iranian blogs also at threat on Bluehost
my heart's in Accra - Wed. 02/25/09

Truth No Defense in Libel Action?
The Volokh Conspiracy - Wed. 02/25/09

Bloggers can be nailed for views
The Times of India - Tues. 02/24/09

Yelp's CEO: No, we're not the Mafia
CNET - Tues. 02/24/09

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The full(er) Brief...

"Next week, I'll be participating in and speaking at Journalism that Matters: Adapting Journalism to the New News Ecology, a conference organized by the Poynter Institute and Media Giraffe Project. It's the latest in a series of Journalism that Matters gatherings that bring together reporters, editors, publishers, and new media innovators in loosely structured un-conference formats focused on fostering deep conversations about the future of journalism. . . . The conference will be in St. Petersburg, Florida (can you say spring training!) and runs from March 1-4, 2009.  I'll be discussing various topics related to citizen media and the law throughout the week.  On Monday at 1:00pm, I'll also be leading a live online chat entitled Legal Issues Facing Journalists in the Digital Age.  Feel free to join the chat and lob me softball questions. . . ." 
David Ardia, Journalism that Matters at the Poynter Institute

"The purpose of copyright is to 'promote progress.'  We achieve this promotion by giving authors a limited monopoly over their works so that they may profit from them. This is what is known as 'the incentive theory.'  If we give authors the incentive to create works, they will create more of them, thus adding ideas and expression to the marketplace.  On the other hand, we don't give copyright protection to mere facts. It makes sense, because the facts rightfully belong to all of us.  Expanding copyright protection to mere facts would lead to the marketplace of ideas looking like a downtown after the Mega-lo-Mart opens up in the suburbs.  Nevertheless, we do all benefit from news organizations hard work in bringing us the facts.  If anyone can just free ride off of the Associated Press' work, then eventually they are going to stop providing them to us.  After all, the AP is a business, and as much public service as they provide, they are not a charity. . . .  I am certainly uncomfortable with any suggestion that the news can belong to any single author. On the other hand, I would hate for the marketplace for hot news and investigative reporting to close down due to an inability to profit from it. . . ."
Marc Randazza, Hot News Case - The Dialogue Continues

"Reacting to online criticism of its elected officials, the city of Deltona, Florida has authorized city employees to file libel lawsuits at taxpayers' expense. On February 16, City commissioners voted 4-3 to pass this resolution: 'After discussion, the Commission voted 4 to 3 (Commissioner Denizac, Commissioner McFall-Conte, and Commissioner Zischkau voted against the motion) for the City to provide reimbursement and expenditures of legal fees to protect both proactively and reactively the City as a government including its employees and its Mayor and those members who wish to be represented in the this motion, Commissioner Treusch, Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed and that a report of fees expended be made available to the public so they may see the extent of damage that has been caused.'  Note that the resolution authorizes taxpayer funded litigation to address 'slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed.' (emphasis added).  Unsubstantiated claims?!  So if I opine that the Mayor is a megalomaniac hell-bent on stifling criticism and I don't substantiate that claim, he can file a lawsuit against me and force city residents to foot the bill?  It appears so. (It appears that I was wrong about his being a megalomaniac; see my update below.) . . ."
David Ardia, Officials in Deltona, Florida Seek to Use Taxpayer Money to Fund Libel Lawsuits

"Over at the Consumer Law & Policy Blog, Paul Alan Levy of Public Citizen has an excellent post on the recent settlement of Jones Day's trademark lawsuit against real estate news site BlockShopper.com.  In the lawsuit, Jones Day alleged that BlockShopper infringed and/or diluted its trademark by using the name "Jones Day" to identify two of its associates who purchased homes in Chicago and by using anchor text in hyperlinks from each associate's name back to their lawyer bios on Jones Day's own website (here, here).  According to Jones Day, this created a likelihood of consumer confusion about whether it was the sponsor of or affiliated with the BlockShopper web site.  I've said it before and I'll say it again -- this is a terrible argument. As one blogger puts it, BlockShopper did "nothing more than follow standard Web linking procedure that practically every website on earth follows," and no reasonable consumer with any experience with the Internet could possibly be confused by this practice.  I am not alone in this view.  In an early post, Levy characterized the lawsuit as a 'new entry in the contest for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like,"' and no shortage of lawyers and academics agreed in this assessment (e.g., Goldman and Randazza).  Of course, Judge Darrah of the federal district court in Illinois didn't see it this way, and his refusal to dismiss the case on BlockShopper's motion to dismiss set the stage for the settlement. . . .  I hope that Paul is right that, faced with provocation on a massive scale, Jones Day would have to accept the ultimate weakness of its trademark claim and stop its bullying.  But, Judge Darrah's ruling upholding Jones Day's complaint on BlockShopper's motion to dismiss worries me.  Is it an aberration or just a possible take on poorly developed law?  Like Robert Ambrogi, who queries whether the law is as clear as Levy would like it to be, I fear that trademark law itself may be lagging behind the pervasive technological and cultural practice of the day.  That said, one of the beauties of a common law legal system is that it can adapt."
Sam Bayard, Thoughts on the Jones Day-BlockShoppper Settlement

"The question of what makes a journalist is due for yet another round of debate, now that Congress is weighing two competing versions of a federal shield law for reporters.  Last Friday, the Senate introduced its own version of the Free Flow of Information Act, a follow-up to the House's action two days before.  Both versions would provide new -- if limited -- protection against subpoenas for journalists, and both version contain a range of exceptions.  Both bills were introduced in 2007 as well, with the House version passing overwhelmingly despite a veto threat.  The Senate bill was passed easily out of committee only to die without a vote of the full chamber as the session ran out of time.  (For details on the previous bills, see previous CMLP posts here, here, here, and here.)  Again, the 2009 bills differ in a key respect, namely in how they define journalists. . . .  A federal statute establishing a qualified journalists' privilege would bring much-needed clarity and uniformity to this area of law, and it would also represent a historic step forward in vindicating the public's right to know.  It'll be a shame, though, if a shield law passes with the House language that effectively shuts out most bloggers and other independent journalists.  It will be journalism history, but with an asterisk."
Michael Lindenberger, Federal Shield Bills Offer Rival Takes On Who's A Journalist; Bloggers Could Be Left Unprotected