Week of March 26, 2010

Digital Media Law Brief

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

Week of March 26, 2010

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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News from the Citizen Media Law Project...

On Friday April 9, 2010, the CMLP and Berkman Center's Cyberlaw Clinic are hosting a conference at Harvard Law School to celebrate the launch of the Online Media Legal Network (OMLN).  Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” the program will bring together panels of academics, legal practitioners, and journalists. Topics include:

  • Saving Journalism from Itself? Hot News, Copyright Fair Use and News Aggregation
  • Building and Managing Online Communities — Anonymity, Defamation and Privacy, Oh My!
  • The Future of Journalism: Law and Ethics in a Changing Media Ecosystem

Early registration ends on March 31, but we have a limited number of free and reduced-fee registrations for academics, students, and public interest attorneys.  For more information or to register, please go to the conference website: http://www.omln.org/conference.

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

Sam Bayard calls attention to an important editorial by two HLS professors.
Goldsmith and Lessig: ACTA Raises "Serious Constitutional Questions"

Sam Bayard does some digging into a recent Brazilian legal decision.
Brazil Fines Google Over Dirty Jokes on Orkut; Brazilian Lawyers Weigh In

Justin Silverman frets that Perez Hilton may be the proverbial canary in the pornography coalmine.
Calling Out Former Porn Stars? Beware of '2257 Regs'

Sam Bayard worries that a New York judge may have taken a flyswatter to news aggregation business models.
Barclays v. TheFlyOnTheWall.com: Hot News Doctrine Alive and Kicking; Will News Aggregators Be Next?

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Recent threats added to the CMLP database...

Xcentric Ventures LLC v. Bird
Posted Mar. 25, 2010

Righthaven LLC v. MoneyReign, Inc.
Posted Mar. 24, 2010

Righthaven LLC v. NORML
Posted Mar. 24, 2010

Kehoe v. Craigslist
Posted Mar. 23, 2010

Thompson v. Shawty The Comedian
Posted Mar. 23, 2010

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Other citizen media law news...

Cleveland Newspaper Unmasks Anonymous Commenter
Newsroom Law Blog - Fri. 03/26/10

U. of Chicago Student Questions University's Reaction to Facebook Post
The Chronicle of Higher Education - Thurs. 03/25/10

China issues media rules for stories on Google
CNET News - Thurs. 03/25/10

Attributor Helps Media Companies Crack Down on Web Scofflaws
MediaShift - Wed. 03/24/10

Proposed Ban on Reporting Minors' Names Appears Dead
Media Law - Mon. 03/22/10

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The full(er) Brief...

"Harvard Law School professors Jack Goldsmith and Lawrence Lessig published an opinion piece today in the Washington Post, in which they lay out the serious constitutional concerns surrounding the Obama administration's plan to adopt ACTA as a 'sole executive agreement' that requires only the president's approval. It's well worth a read. Goldsmith and Lessig point out that, while the limits of the sole executive agreement power has never been clarified by the Supreme Court, '[h]istorical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century).'  And, of course, the president lacks independent constitutional authority over intellectual property and communications policy, these being matters the Constitution gives primary authority over to Congress. . . . As Mike Masnick at Techdirt points out, Goldsmith and Lessig are elaborating and sharpening some of the arguments raised by our very own Andrew Moshirnia back in February.  We're very happy to see them intervene in this critically important debate."
Sam Bayard, Goldsmith and Lessig: ACTA Raises "Serious Constitutional Questions"

"Press accounts report that, on Tuesday, a Brazilian court fined Google for failing to block Orkut [a social networking site] containing dirty jokes that ‘offended' two teenagers. . . . I wanted to get a better understanding of the case and the Brazilian laws involved, so I sent out an inquiry through Berkman Fellow Carolina Rossini, who kindly connected me with a number of very smart and helpful Brazilian lawyers. . . . Ivar Hartmann, an LL.M. in Constitutional Law and a cyberlaw researcher in Brazil, told me that the district attorney's office for the state of Rondônia in northern Brazil filed the case against Google. . . . The district attorney's office sought ‘collective moral damages' and asked Google to 'take down the two Orkut communities, identify the creators of such communities'. . . and obtained an order to 'prevent the future creation of new communities with similar content'. . . . Hartmann says that the judge who wrote the opinion is a respected jurist in Brazil, and that while his decision is debatable, he ‘would probably not be seen as irresponsible or lacking in good sense,' at least given the 'general lack of good understanding, by all judges, of how cyberspace freedom of expression works (or should work).' . . .  Marcel Leonardi, a Brazilian attorney and law professor . . . confirms that Brazilian law does not provide any immunity or safe harbor for ISPs or online service providers regarding third-party content. He says that discussion on the topic is afoot because of a number of court decisions like this recent one, and that there are two different trains of thought on the issue. . . ."
Sam Bayard,  Brazil Fines Google Over Dirty Jokes on Orkut; Brazilian Lawyers Weigh In

"Celebrity blogger Perez Hilton made a career for himself by taking shots at the Hollywood elite and celebs du jour. . . . Hilton also publicly expos[es] secret porn pasts as well. . . . Chuy Bravo, the sidekick of Chelsea Handler on her late-night talk show, 'Chelsea Lately,' became the victim of such an outing when Hilton identified him as 'an official porn star.' As evidence, Hilton posted the explicit cover to the movie 'Chuy Then And Lately' and a video featuring what appears to be the little man readying for a role as a lifeguard in the clip, 'Momo Gets Midget Dick.' The video is now attracting attention not because of Bravo's prior pastime, but because it appears Hilton posted it in violation of federal pornography regulations. [Child Protection and Obscenity Enforcement Act of 1988, 18 U.S.C. § 2257] and DOJ regulations issued under it . . . are meant to prevent child pornography. They require all porn producers to verify the age of their performers, keep records on those performers, and attach a compliance statement to all material or websites featuring those performers stating where the records can be found. Unlike the copyright and defamation laws Hilton has faced in the past, failure to abide by these regulations can warrant jail time. . . . Section 2257 applies to not only 'primary producer' of pornography, but also 'secondary producers' who republish that porn or feature it on websites. . . . That leaves anyone inserting so much as a single image of sexually explicit conduct on a webpage vulnerable to prosecution. See § 2257(h)(2)(A)(iii). . . . Further stoking First Amendment concerns is the U.S. Department of Justice's insistence that this means of preventing child pornography outweighs any incidental burden on protected speech. . . ."
Justin Silverman, Calling Out Former Porn Stars? Beware of '2257 Regs'

"In Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar. 18, 2010), Judge Denise Cote of the United States District Court for the Southern District of New York issued a permanent injunction requiring the Internet-based financial news site FlyOnTheWall.com 'Fly') to delay its reporting of the stock recommendations of research analysts from three prominent Wall Street firms. . . . The injunction is based on Judge Cote's finding, after a bench trial, that Fly engaged in hot news misappropriation, ‘free-riding activity that is directly competitive with the Firms' production of time-sensitive information, thereby substantially threatening their incentive to continue in the business. . .' The $75,000 question is what the Barclays case means for other online news aggregators, as well as social media more generally. Will the major newspapers be able to use this case to revive a robust hot news misappropriation doctrine that will kill the news aggregators and lock down facts on the Internet?. . . [T]here are moments when reading the opinion where one feels like Judge Cote might as well be talking about news aggregators or bloggers free riding on ‘original reporting' instead of equity research. The court's concept of free riding (element iii of the NBA test) certainly sounds like it would apply to news aggregation or acts of curation more generally. . . . In any event, on the all-important fifth element (killing the golden goose), the Barclays case is easily distinguishable because the firms made a good (if not bullet-proof) case that production of high-quality equity research implicates a special need for time-sensitive exclusivity so that firm clients can feel they uniquely benefit from the recommendations and so that these clients can place trades with the firms based on them. Most regular news doesn't share this rivalrous character, and it may be extremely difficult for newspapers to show that news aggregation or blog commentary ultimately hurts their bottom lines. . . ." 
Sam Bayard, Barclays v. TheFlyOnTheWall.com: Hot News Doctrine Alive and Kicking; Will News Aggregators Be Next?

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Last updated on March 26th, 2010

   
 
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