Welcome to the Citizen Media Law Brief, a monthly (formerly 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 Abrams cheers for the innocent infringer defense in copyright.
East Coast Enlightenment - Protect the Innocent
Eric Robinson will defend to the death Tunnel Rat's right to be an ignorant bigot.
Hate Mongers and Tunnel Rats are Entitled to Free Speech, Too
Sam Bayard reports on the latest case of political overreaching. Hello, Streisand Effect!
Bordentown Mayor James Lynch Seeks to Shut Down BordenTownMayorReallySucks.com
Eric Robinson has good news for those of you desperate for yet more weight loss tips from Kevin Trudeau.
Seventh Circuit Vacates Contempt for E-Mail Barrage
Eric Robinson announces the latest CMLP effort to keep you informed.
New Legal Guide Section on Foreign Risks
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Recent threats added to the CMLP database...
Yaldo v. Doe
Posted May 28, 2010
Corbett v. Twitter
Posted May 20, 2010
Harris v. Google
Posted May 19, 2010
Generex v. TheStreet.com
Posted May 18, 2010
Theriot v. Does
Posted May 12, 2010
Milo v. Martin
Posted May 11, 2010
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Other citizen media law news...
Facebook’s privacy tweak, old and new media’s links, and the AP’s new challenger
Nieman Journalism Lab - Fri. 5/28/10
Does A Public Official's Blog Violate the Open Meeting Law?
Media Law - Wed. 5/26/10
Police continue to use wiretapping laws to crack down on people recording them
Photography is Not a Crime - Tue. 5/25/10
The Battle for the Internet
The Volokh Conspiracy - Fri. 5/14/10
Reporters Committee releases summary of Kagan's media law background
RCFP - Thur. 5/13/10
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The full(er) Brief...
"In 1988, Congress amended the copyright law to make placing a notice of copyright on sound recordings optional; however, it also added an exception which eliminated the innocent infringer defense[] if 'a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access.' [T]he Fifth Circuit and the Seventh Circuit[] have interpreted 'to which a defendant . . . had access' to mean that if any recording anywhere contains a copyright notice, then the innocent infringement defense is not available. . . . In the recent Second Circuit case, a music production company agreed to resell physical copies of two of the plaintiffs' albums, each containing ten songs. The production company, in turn, contracted with a music wholesaler, Orchard, to distribute the albums 'by any and all means and media (whether now known or existing in the future), including ... via the Internet.' Orchard initially sold only physical copies of the album, but later made individual songs on the albums available for purchase over the Internet, believing such distribution was allowed by the agreement. The plaintiffs sued both Orchard and the production company for copyright infringement, asserting that they had only authorized physical distribution, and sought statutory penalties for each song. The court held that although Orchard had infringed the plaintiffs' copyright by distributing the albums electronically without their permission, that infringement was innocent. . . . This case is encouraging because the court concluded that someone who sincerely but erroneously believes he or she has permission to make a copy of a sound recording should not face the harshest penalties of the copyright statute. Because the appellate court did not directly address the availability of the innocent infringer defense, the matter is not completely settled. . . ."
David Abrams, East Coast Enlightenment - Protect the Innocent
"It's often said that bad cases make bad law. In the case of a decision issued by a New Jersey state court back in December, a bad case has also made for bad law commentary. . . . In a broad order issued days before the Christmas holiday, a New Jersey court issued the takedown of three websites critical of the H-1B visa program, which allows skilled foreigners to work in the U.S. The order was issued in connection with a defamation case in which Apex Technology Group, Inc. sued the anonymous posters of comments on the Endh1b.com blog (now offline), accusing Apex of not paying the workers it placed and other improprieties. . . . [The] Electronic Frontier Foundation senior staff attorney Kurt Opsahl wrote a blog post critizing the court's order, calling it 'deeply dangerous and wrong.' . . . Vivek Wadhwa . . . responded to Opsahl's post in TechCrunch[,] . . . criticiz[ing] Opsahl for disregarding what Wadhwa said was the virulant racism and xenophobia on the . . . sites. . . . [F]irst-year Harvard law student Harry Zhou weighed in[,] . . . eventually conclud[ing] that the Apex order is proper because of the one-sided nature of the sites. . . . It . . . is extremely disturbing that the blog posts endorse restricting speech on a important political issue: H-1B visa policies in particular, and American immigration policy in general. . . . As a practical matter, the culture of the Internet effectively negates any such effort at restricting content: when a federal court in California ordered the shutdown of the entire Wikileaks website in response to a claim by a Cayman Islands bank, the material just appeared elsewhere on the web. . . . As a legal matter, the U.S. Supreme Court has held that even narrowly tailored prior restraints on speech are constitutionally suspect. . . ."
Eric Robinson, Hate Mongers and Tunnel Rats are Entitled to Free Speech, Too
"From the Trentonian comes a wild story about the mayor of a New Jersey town pushing through a resolution 'demanding the immediate termination of a 'malicious' website called BordentownMayorReallySucks.com and the identity of its creators.' James E. Lynch Jr., Mayor of Bordentown, New Jersey, convinced the City Commission to pass the resolution by a 2-1 vote last night. . . . Remarkably, the Mayor's beef seems to be that the gripe site 'creates the impression it's the city mayor's website.' To be fair, the site was originally called 'Bordentownmayor.com' before being renamed to make its critical bent more obvious, and it does contain some odd headings like 'Bordentown City Phone Directory,' which might confuse a moron in a hurry. But Mayor Lynch also is clearly ticked off about critical content appearing on the site. . . . There's so much wrong with Mayor Lynch's resolution that I can't quite get my head around it. Even if the gripe site has published false and defamatory statements about the mayor or his family, shutting down the entire site would not only be ham-handed, it would be blatantly unconstitutional. The situation reminds me of an old Supreme Court case, Near v. Minnesota, 283 U.S. 697 (1931). . . . The Minnesota law in question provided for the abatement, as a public nuisance, of a 'malicious, scandalous and defamatory newspaper, magazine, or other periodical.' The Court characterized the state procedure as the essence of censorship'. . . . Like the procedure in Near, this is an (attempted) unconstitutional prior restraint on speech. . . ."
Sam Bayard, Bordentown Mayor James Lynch Seeks to Shut Down BordenTownMayorReallySucks.com
"The Seventh Circuit Court of Appeals has vacated the summary contempt citation and sentence imposed by U.S. District Judge Robert Gettleman after his court e-mail account was inundated with messages after infomercial pitchman Kevin Trudeau urged his supporters to e-mail the judge. FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010). . . . The Court noted that the goal of such a summary procedure, in which the judge simply declares someone in contempt and imposes a penalty, is to quickly resolve the disruption and proceed with the court's business. The record in this case is devoid of any suggestion that Trudeau's summary punishment was necessary to restore the court's ability to resume its duties. . . . The contempt citation by Judge Gettleman was issued under the authority of Fed. R. Civ. Pro. 42(b), which allows a judge to 'summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies.' The judge found the 'presence' condition satisfied in this case because he could read the e-mails on the court's computers (including the computer in the courtroom) and his PDA which he carried with him so that he was 'always in communication' with the court. . . ."
Eric Robinson, Seventh Circuit Vacates Contempt for E-Mail Barrage
"While the ability to make content available worldwide is a great virtue of the Internet, it has the potential to create a legal minefield for citizen journalists, who could face a civil or criminal legal action over online content in any country where the content is available. A new section of the Legal Guide on 'Dealing with Foreign Legal Threats' explains the possible legal risks that bloggers and other creators of online content could face outside the United States, and gives some tips and resources for responding to these threats. . . ."
Eric Robinson, New Legal Guide Section on Foreign Risks
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