Brief for April 2012

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, as well as upcoming events and other announcements. You are receiving this email because you have expressed interest in the CMLP or registered on our site, 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

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News from the Citizen Media Law Project...

This month the Citizen Media Law Project was delighted to announce the release of our Guide to the Internal Revenue Service Decision-Making Process under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations. The Guide, which you can browse here or download here, is the result of a months-long study of IRS determinations, rules, and regulations as they apply to journalism and publishing ventures. As Jeff puts it in his blog post announcing the release of the report, "The Guide is intended to demystify the standards applied by the IRS in determining whether a journalism-oriented non-profit is entitled to a federal tax exemption."

The Guide is the result of a variety of different elements of the CMLP working in tandem. Our friends and affiliates at the Investigative News Network first alerted us to the significant delays journalism applicants have seen with respect to their 501(c)(3) applications. Through our Online Media Legal Network, we began to see several clients expressing similar concerns, and began to appreciate the gravity of the issue as we noticed that our journalism startup clients were expressing a preference for non-profit models over for-profit models by a 2:1 margin. We modeled the online version of the Guide on our existing Legal Guide, and were delighted to have the Berkman Center accept the Guide as part of the Berkman Publication Series.

A big congrats to Jeff for researching and drafting the Guide, and thanks to the whole CMLP staff, Marion Fremont-Smith at the Hauser Center for Nonprofit Organizations, David Ardia at UNC School of Law and the Berkman Center, Marcus Owens at Caplin & Drysdale, Eric Newton at the Knight Foundation, and Lori McGlinchey at the Open Society Foundations for their assistance in the development of the Guide. By the way, be sure to check out Jeff's interview with Dan Rather on Dan Rather Reports, discussing IRS treatment of journalism applicants. (Other good mentions of our Guide include the Nieman Journalism Lab, Free Press, the Knight Foundation, and Nonprofit Quarterly.)

Outside of the IRS world, the CMLP has been quite busy on its other ventures. Our Legal Guide includes new sections on right of publicity law in Massachusetts and New York. We are continuing our research on independent journalism around the Democratic and Republication national conventions and our study on patterns in First Amendment litigation over the past 15 years. And the Online Media Legal Network continues to see records levels of interest and participation, with over 250 attorneys helping with over 380 matters. We will need more attorneys to match our growing demand, so if you are an attorney with experience in media law, intellectual property, nonprofit law, or business issues for start-up ventures, please consider applying to join the OMLN.

As always, much more to come, so stay tuned!

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

Andy Sellars digs into the details of a recent trademark dilution case, and finds some troubling things.
Louis Vuitton v. Hyundai: Deconstruction of a Bad Trademark Decision

Eric Robinson reviews the latest from Obsidian Finance v. Cox, and decides that the sky (still) isn't falling.
Judge Explains His Decision on Blogger to the Chicken Littles

Andy Mirsky looks at whether and when "retweets" can be considered endorsements, and what it means for Twitter users.
Are Retweets Endorsements?: Disclaimers and Social Media

Jeff Hermes tells the story behind the CMLP's recent guide to IRS decisions regarding journalists.
A New Guide for Non-Profit Journalism

John Sharkey explains the problem with making anti-SLAPP an intent-based analysis.
Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

Lauren Campbell wonders why the UK is planning another comprehensive study on IP policy, when they've already done four.
Will the Fifth Time be the Charm for Britain's IP Policy Reviews?

Arthur Bright gives us a beacon of light for journalists in Mexico.
Mexico Takes a Big Step Forward in Protecting Professional and Citizen Journalists

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Threats recently added to the CMLP database or updated...

Kessler International v. Citizen Media Law Project
Posted April 13, 2012

Suffolk County Police Department v. Datz
Posted April 13, 2012

Viacom v. YouTube
Updated April 11, 2012

Guadagnini Violin Shop v. TruthTeller1790
Posted March 26, 2012

White, et al. v. West Publishing Corporation, et al.
Posted March 26, 2012

M.A. v. Village Voice Media, LLC
Posted March 23, 2012

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Other media law news and commentary...

Big Internet Companies Back CISPA
Open Net Initiative - 4/13/12

News Videographer Files Suit Against Suffolk County PD Over Video Arrest
Photography is Not a Crime - 4/11/12

This Internet Provider Pledges to Put your Privacy First. Always.
CNET - 4/11/12

CIR Announces (and Knight Funds) a Curated YouTube Channel for Investigative Video Reporting
Nieman Journalism Lab - 4/11/12

Circuit Sides with Anti-Bush Protesters Moved by Secret Service - 4/9/12

Jay Rosen's Three-Layer Journalism Cake
MIT Center for Civic Media - 4/5/12

Arizona Internet Censorship Bill So Ridiculous, Even The MPAA And RIAA Are Against It
Techdirt - 4/3/12

The Iconic Photos of Trayvon Martin & George Zimmerman & Why You May Not See the Others
Poynter - Fri. 3/30/12

Student Expelled From Indiana High School For Tweeting Profanity
Slashdot - 3/29/12

Elsevier Unleashes the Hounds on @FakeElsevier Twitter Account for Trademark Violation
Nuerobonkers - 3/27/12

Boston Settles Suit Over Recording Of Police Officers
WBUR - 3/27/12

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The full(er) Brief...

"From the ever-growing file of trademark cases that are bad for free speech, Eric Goldman and Techdirt bring us an interesting case concerning a recent Hyundai ad. The ad is a series of brief vignettes conveying luxurious items in non-luxury settings: a yacht parked next to a small suburban ranch house, cops in a squad car snacking on caviar, chandeliers for streetlights, lobsters and roast pigs in what looks like an office breakroom, and – most importantly for our purposes – a group of people playing basketball with a ball that appears to have what Louis Vuitton calls its "Toile Monogram" pattern on it. . . . As this blog noted as recently as last month, Louis Vuitton is notoriously aggressive in trademark enforcement. This was no exception. The company brought suit in the United States District Court for the Southern District of New York, alleging a variety of trademark violations. . . . Looking at this in a vacuum, the case for Hyundai seems pretty easy: The use of the Toile Monogram was nominative fair use – Hyundai sure looks like it is referring to Louis Vuitton to me. Louis Vuitton is a brand associated with luxury, so putting the brand on a basketball was achieving the same ends as putting the yacht next to the ranch house: it juxtaposed symbols of luxury with symbols of everyday life. So it may surprise you to learn that Southern District granted Louis Vuitton's motion for summary judgment, even in the face of this broad exclusion for expressive uses. How did this happen?quot;
Andy Sellars, Louis Vuitton v. Hyundai: Deconstruction of a Bad Trademark Decision

"Federal Judge Marco A. Hernandez got a lot of attention and cyberchatter late last year when he held that blogger Crystal Cox was not protected by Oregon's reporters' shield law, leading to a $2.5 million defamation verdict against her. . . . A lot of the online commentary focused on Judge Hernandez's statements that, as a blogger, Cox did not fit into any of the categories of journalists specified in Oregon's reporters' shield law . . . . He also declined to apply precedents holding that plaintiffs in libel lawsuits against media entities must show that the defendant(s) acted with at least negligence . . . . These statements led to a lot of commentary – and criticism – online. But, as I pointed out, the sky was not falling: that was not the primary reason why Judge Hernandez held that the shield law did not apply. Instead, he reached this conclusion because Cox tried to use the shield law to refuse to reveal her source, while at the same time trying to argue that since she had a source (who she would not identify), the libel lawsuit should be dismissed. This is specifically prohibited by Oregon's shield law statute. . . . That nuance was lost in most of the online posts decrying the decision. Now, Judge Hernandez has issued a new opinion, denying Cox's motion for a new trial. But the ruling also addressed some of the more extreme posts in reaction to his decision, which described it as an attack on all bloggers."
Eric Robinson, Judge Explains His Decision on Blogger to the Chicken Littles

"'RTs do not = endorsements.' We’ve all seen it on Twitter bios, usually bios belonging to members of the media. These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. . . . But for some, those disclaimers are not enough. Last fall, the Associated Press introduced an updated social media policy for its reporters and editors. As recently reported in Yahoo! News, the AP memo advised reporters and editors that 'Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.' The guidelines note, '[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.' Members of the media might want to be careful, however, that statements like 'No comment' or 'without comment' before tweets do not take on meanings of their own. Often, retweeting something 'without comment' can indicate an unwillingness to comment due to an either enthusiastic support for or disapproval of the content of the original tweet."
Andy Mirsky, Are Retweets Endorsements?: Disclaimers and Social Media

"[I]t was disturbing when a trend began to emerge last year in how the IRS was responding to applications from journalism- related non-profits for a federal tax exemption. Many non-profits count on receiving tax exempt status under Section 501(c)(3) of the Internal Revenue Code, not only to avoid federal taxes but to enable them to receive tax deductible donations from foundations and individual donors. But a growing number of journalism non-profits found themselves waiting for a year, eighteen months, or even two years or more for an IRS determination on their applications -- all the while struggling to stay afloat with little to no funding. . . . Our further discussions with journalism applicants in the process indicated that the IRS was setting these applications aside for special consideration. The exact reason for this special treatment remains unknown; although it is not unheard of for the IRS to strive for consistency in handling a series of similar applications by bundling the applications for coordinated treatment, the length of the delays in this instance is unusual. It did become clear to us, however, that there is substantial confusion over the standards that the IRS applies in determining whether a news non-profit is tax exempt."
Jeff Hermes, A New Guide for Non-Profit Journalism

"So this case slipped by me when it first came down in January, but it raises my ire enough to come back to a bit late. It's Sandholm v. Kuecker, the Illinois Supreme Court's attempt to make sense of the state's anti-SLAPP statute, and it's an impressively terrible piece of work. In it, the Court introduced what amounts to a mind-reader approach: If the plaintiff has a pure heart and really believes he's been wronged, then the anti-SLAPP law won't stand in the way. . . . The most obvious question is, how are courts supposed to… know this? Which plaintiffs are twirling a waxed mustache, thinking of dastardly ways to suppress speech, and which plaintiffs feel genuinely wronged? We don't live in a world where SLAPPing villains are so easy to spot. Spending time analyzing the plaintiff's intent takes the focus off of the important anti-SLAPP concern: protecting valuable speech from chilling effects, wherever those effects come from. A sincerely offended plaintiff bringing a SLAPP is no less a threat than a nefarious one. And a malicious plaintiff can still have a valid defamation claim. That's why the first step of the good anti-SLAPP statutes asks whether the defendant's speech/conduct is the sort of thing we want to protect."
John Sharkey, Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

"The All-Party Intellectual Property Group (APIP) in the United Kingdom recently announced that it is taking on an arduous task: 'conduct[ing] an inquiry into the role of government in protecting and promoting intellectual property.' The APIP is soliciting thoughts on the UK’s current IP policy by asking organizations to respond to six topical, but broad questions, like 'What should the objective of IP policy be?' and 'What changes to the machinery of government do you believe would deliver better IP policy outcomes?' . . . The end goal of the APIP’s inquiry appears to focus less on what the UK's IP policy is and more on how it is shaped - where and how the government creates and refines the administration of IP in Britain. The APIP’s chair, MP John Whittingdale, notes in the announcement that '[t]here have been numerous reviews of IP policy in the last ten years but little examination has taken place of how Government itself promotes and develops the protection of Intellectual Property Rights.' But reviewing IP policy has become something of a habit in Britain. In fact, the UK Parliament has published four government- commissioned reports on IP policy within six years, which are strikingly repetitive in their recommended policy changes."
Lauren Campbell, Will the Fifth Time be the Charm for Britain's IP Policy Reviews?

"Thanks to its ongoing war against the drug cartels, Mexico is one of the most dangerous places in the world for a journalist to work. Reporters are routinely threatened, attacked, and killed if they report on crime. Local law enforcement is often in the cartels' pockets, leaving journalists with little protection. Over the past three years, Mexico has climbed to number 8 on the Committee to Protect Journalists' 2011 'Impunity Index,' which tallies the unsolved murders of journalists around the world. And that's to say nothing of those who are murdered after commenting on crime via social media – an alarming trend in recent years. Is it any surprise that the local press often ignores crime reporting entirely, for fear of reprisal from the cartels? Thus, last week saw some excellent news: The Mexican Senate on Tuesday approved a constitutional amendment that would federalize criminal attacks on journalists. McClatchy reports that under the amendment, journalists would no longer be at the mercy of quite possibly corrupt local cops, but could instead turn to the federal authorities, who have a much better reputation re: corruption, for law enforcement."
Arthur Bright, Mexico Takes a Big Step Forward in Protecting Professional and Citizen Journalists

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