Month of July 2010

Digital Media Law Brief

News and more from the Digital Media Law Project at Harvard's Berkman Center for Internet & Society.

Month of July 2010

Welcome to the Citizen Media Law Brief, a monthly 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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News from the Citizen Media Law Project...

The Citizen Media Law Project and the Center for Sustainable Journalism at Kennesaw State University are hosting a conference on September 25, 2010 entitled "Media Law in the Digital Age: The Rules Have Changed, Have You?" in Atlanta, Georgia. The program will bring together panels of legal practitioners, journalists, and academics to discuss the latest legal issues facing online media ventures. Topics will include: libel law, copyright law, newsgathering law, and advertising law, as well as the legal issues arising from news aggregation, managing online communities, and business law considerations for start-up online media organizations.

If you are a journalist, blogger, or a lawyer who works with media clients, the conference should be at the top of your schedule. This will be a fantastic opportunity to learn first-hand the latest legal developments and to get your questions answered by our panel of experts. Please visit http://csjconferences.org/medialaw/ to register.

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

Eric Robinson wades through the new FTC factsheet so you don't have to.
FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines

CMLP Staff note that a new ruling could threaten consumers getting their Yelp on.
Ninth Circuit Weighs In On Internet Anonymity, Consumer Griping At Risk 

Like a dog with a bone, Andrew Moshirnia keeps hammering away at the ACTA box.
Toxic Lunch: Digesting the Latest ACTA Leak

Andrew Moshirnia looks at the potential consequences of Massachusetts' most recent Captain Renault impression.
Won't Someone Think of the Children! Massachusetts' Unconstitutional Attempt to Break the Internet

Marina Petrova has bad news for anonymous commentors in North Carolina.
N.C. Judge Unmasks Pseudonymous Blog Commenters

Itai Maytal advises Hollywood and the media not to get their panties in a wad over the Crude case.
Court Battle for Filmmaker's Footage Spurs National Debate on Reporter's Privilege

Helen Fu looks at what happens when public information meets private platforms.
Public Engines to World: Look, But Don't Touch the Crime Data

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Recent threats added to the CMLP database...

Fitzgerald v. Maslona
Posted Jul. 12, 2010

Hester v. Does
Posted Jul. 9, 2010

Hester v. Home in Henderson
Posted Jul. 9, 2010

Confederate Motors, Inc. v. Gawker Media LLC
Posted Jul. 9, 2010

Public Engines, Inc. v. ReportSee, Inc. 
Posted Jul. 7, 2010

United States v. White (updated)
Posted Jul. 6, 2010

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Other media law news and commentary...

Wikileaks didn’t just happen. It exists because journalists have lost control over their information
First Amendment Coalition - Thur. 7/29/10

Va. activist can post officials' Social Security numbers on site, court rules
Washingtonpost.com - Thur. 7/29/10

The National Law Journal Files Appeal in First Amendment Fight
The Blog of Legal Times - Wed. 7/28/10

Jailbreaking Copyright’s Scope
Wendy’s Blog: Legal Tags - Wed. 7/28/10

Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
Technology & Marketing Law Blog - Tue. 7/27/10

Is 'go away' the best response to complaints about user-generated content?
Computerworld - Fri. 7/23/10

Newspaper Chain’s New Business Plan: Copyright Suits
Wired: Threat Level - Thur. 7/22/10

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The full(er) Brief...

"The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements. As I've explained in detail in prior posts, the Commission revised the guidelines last year . . . with a particular emphasis on endorsements by bloggers and other online citizen journalists who do not disclose that the products or services they review were provided to them for free or at a discount. . . . [I]t has taken only one public action under the revised rules: sending a letter in April to Ann Taylor Loft raising concerns about a promotion the clothing company ran for bloggers. . . . [T]he FTC asserts that ‘the financial arrangements between some bloggers and advertisers may be apparent to industry insiders, but not to everyone else who reads a blog. Under the law, an act or practice is deceptive if it misleads 'a significant minority' of consumers. So even if some readers are aware of these deals, many readers aren't. That's why disclosure is important' . . . . The Commission also denied that the revised guidelines hold online reviewers to a higher standard than reviewers for paper-and-ink publications. . . . Aside from the justifications for the rules, much of the FTC factsheet is devoted to answering questions related to specific situations and scenarios. The gist of these answers, like the examples provided in the guides themselves, is that ‘buzz marketing'- in which compensated ‘influencers' promote a brand through apparently noncommercial means -- must be disclosed. . . ." 
Eric Robinson, FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines

"The Ninth Circuit Court of Appeals issued a decision last Monday in In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010), a case that could be influential for future courts deciding whether to order the identification of anonymous or pseudonymous Internet speakers. In the course of a primarily procedural ruling, the appellate court suggested in dicta that an expansive category of ‘commercial speech' is entitled to reduced protection in anonymity cases. . . . While the Ninth Circuit is correct that the First Amendment generally extends less protection to commercial speech, its decision is troubling for a couple of reasons. First, the court's sense of what qualifies as commercial speech seems unduly broad. It is hard to draw a principled distinction between the derogatory statements here (e.g., ‘Quixtar currently suffers from systemic dishonesty') from some of the more extreme statements that might appear on a consumer review site or gripe site. Certainly, it would not be too difficult for a business plaintiff to characterize an outraged customer's commentary on Yelp, Consumeraffairs.com, or a free-standing gripe site as ‘related solely to the economic interests of the speaker and its audience' and going 'to the heart of [the plaintiff's] commercial practices and its business operations.' As Wendy Davis succinctly put it last week: ‘If criticizing another company's business operations is 'commercial speech,' then every post on a gripe site could be considered commercial.' . . ."
CMLP Staff, Ninth Circuit Weighs In On Internet Anonymity, Consumer Griping At Risk 

"The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago [and]. . . signals that there might be trouble in overreaching-undemocratic-drafting-paradise. It seems that there is serious disagreement over Article 2.2 (Injunctions): ‘The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.' The United States and Japan seem to be considering the inclusion of this clause, while Australia, Mexico, and others oppose it. The clause is troubling because it could serve as a backdoor method for introducing three strikes cutoffs for accused users. One of the great fears around ACTA is that the agreement will cause ISPs to block service to accused users. This is certainly the goal of representatives of the entertainment industry. . . . Article 2.2 suggests that injunctions may be served directly to ISP intermediaries, resulting in the cessation of internet access. That is, rather than serving and trying the accused pirate, the rights holders would target the risk adverse ISPs. Although it is likely that courts would not order a digital execution without hearing something from the accused, it is likely that ISPs would want to avoid the matter entirely by simply acceding to the right holder's demands. . . . Supporters of ACTA will claim that this doomsday interpretation is farfetched. I think that the track record of the entertainment industry and the clear push for a three strikes option counsel against that attack. However, I fully acknowledge that I tend to imagine the worst-case scenario when shadowy figures meet in smoke filled rooms and refuse calls for even the most basic transparency. . . ."
Andrew Moshirnia, Toxic Lunch: Digesting the Latest ACTA Leak

"It is a good thing to want to protect children from the vulgarity of the world. Accordingly, states have adopted prohibitions on exhibiting or selling harmful material to minors. These laws make sense, in that we usually don't want sex shops selling pornography to kids. But occasionally the legislature goes a bit insane and decides that, in order to fully protect the children, we need to criminalize or block off whole sections of the Internet. Massachusetts recently changed its ‘harmful to minors' law (Mass. Gen. Laws ch. 272, § 31) to include information hosted on the Internet. . . . The ACLU has already challenged the law. I predict that Massachusetts is about to get spanked on its inviting, taut little buns (in case the law remains in effect, I mean spanked in a non-sexual way - if you are a minor please do not turn me in). This definitional expansion was not a good idea for many, many reasons: First off, this approach threatens to criminalize huge swaths of the Internet because there is no easy way to ensure that one's risqué material is not viewed by minors. . . . The only way to be safe would be to make sure that your content was rated PG (and I don't know about you but I sometimes enjoy the occasional swear or comment on taut buns, see supra). This PG restriction of course would amount to censorship of constitutionally protected speech. . . .  [T]he Massachusetts legislature has [also] apparently misunderstood the scope of the Internet. Whereas the previous ‘harmful to minors' language contemplated sex shops with physical locations serving Massachusetts minors, the new law reaches the entire country. . . ."
Andrew Moshirnia, Won't Someone Think of the Children! Massachusetts' Unconstitutional Attempt to Break the Internet

"A North Carolina trial court recently ordered the editor of the local community blog Home in Henderson to turn over the names and addresses of six pseudonymous commenters who allegedly defamed former Vance County commissioner Thomas S. Hester, Jr. As the Reporters' Committee for Freedom of the Press noted, the court used a lower standard in determining whether to order disclosure than is common in cases of this kind. In a June 28 order, Superior Court Judge Howard E. Manning, Jr. determined that six of out of twenty anonymous comments about Hester were actionable and therefore concluded that Hester's interest in proceeding with the case overcame those commenters' qualified First Amendment right to speak anonymously. . . . One of the noteworthy aspects of this case is the blog editor's argument in his motion to quash that the identities of the commenters were protected by North Carolina's shield law, N.C. Gen. Stat. § 8‑53.11. Unfortunately, the court never directly addressed the issue in its decision and so didn't decide whether Home in Henderson's editor qualified as a journalist for purposes of the law. In recent years, courts in Montana, Oregon, and Illinois have considered whether news sites can invoke state shield laws to protect the identity of anonymous commenters. . . ."
Marina Petrova, N.C. Judge Unmasks Pseudonymous Blog Commenters

"A filmmaker's fight against an oil company seeking his raw documentary footage has spurred a national debate on the reporter's privilege, pitting media organizations and filmmakers against powerful corporations and criminal defense attorneys. At stake is the breadth of the protection given to unpublished newsgathering materials and, ultimately, the basic trust between journalists and their sources. On July 14, lawyers for filmmaker Joe Berlinger will go before the Second Circuit Court of Appeals in New York to appeal an order requiring Berlinger to turn over to the Chevron Corporation 600 hours of footage collected for his 2009 film, Crude: The Real Price of Oil (‘Crude'). Chevron sought disclosure of the footage in connection with an ongoing class action suit against it in an Ecuadorian court. . . . [T]he concerns of the media and the filmmaking community are warranted when it comes to the district court's treatment of non-confidential information. A wholesale affirmation of the district court ruling would signal a dramatic weakening of the privilege in the Second Circuit. It would essentially reduce the two-factor Gonzales standard into a single-factor ‘likely relevance' test, because a reporter's actual unpublished material could never be obtainable elsewhere. And this ‘likely relevance' test, as interpreted by the district court, would seem to allow litigants to acquire large swaths of unpublished material by merely showing the relevance of a small portion of it. As the media brief notes, this interpretation effectively ‘shifts the burden of alleged unfairness onto the [journalist] rendering this Circuit's requirement of a relevance showing meaningless.' Such an attenuation of the reporter's privilege would carry enormous costs for the press, and, by extension, the public seeking access to information. . . ."
Itai Maytal, Court Battle for Filmmaker's Footage Spurs National Debate on Reporter's Privilege

"Earlier this spring, Public Engines, Inc. sued ReportSee, Inc. in federal district court in Utah. The complaint alleges breach of contract because scraping violates the terms of service of the website and hot news misappropriation, among other claims. . . . The case is a little bizarre because from the outset, the facts aren't a great fit for a hot news misappropriation claim. While Utah hasn't had a hot news misappropriation case, Public Engines pled facts in the complaint that track the elements of the now-familiar test laid out in the influential case NBA v. Motorola in the Second Circuit, 105 F.3d 841 (2d Cir. 1997). . . .What makes this case really crazy interesting however is that the ‘news' at issue is government data. Public Engines contracts with police departments and law enforcement agencies in order to get crime information out to the public. Open government data initiatives generally promote the use of government data to improve reporting, transparency and accountability. Access to data feeds is the point of websites like Data.gov and similar websites for state and local jurisdictions. But those initiatives may be in tension with the fact that government agencies often pay third parties to collect, compile and maintain public records data in useful formats, and who may retain rights over the data. This isn't the first time a third-party data contractor has stepped in the way of a commercial use of data feeds . . . ."
Helen Fu, Public Engines to World: Look, But Don't Touch the Crime Data

Other posts this month on the blog...

Andrew Moshirnia, The Killing Joke: We Debate Broadband Access Definitions as Library Hours Plummet

Itai Maytal, Appeals Court to Filmmaker: Turn Over Your Footage to Chevron

Andrew Moshirnia, Louisiana Joins Unconstitutional Cyber-Bullying Statute Club

Eric Robinson, 7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror

Marshall Hogan, An Ounce of Prevention: Protecting Yourself Against Online Retaliation

Kimberley Isbell, We Love a Happy Ending

Marina Petrova, No Safe Harbor Offline

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Last updated on July 30th, 2010

   
 
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