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, 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...

Well, the summer is starting its long wind down, and an eerie quiet has fallen over the Berkman Center in the brief hiatus between the end of our intern program and the start of the new school year. The CMLP is already missing our three interns, who have returned to their studies -- but not before providing us with a ton of great work on our blog, threats database, and legal guide. And thanks to their efforts, we can proudly announce that our legal referral service, the Online Media Legal Network, now has member attorneys in all fifty states plus the District of Columbia! Tabitha, Natalie & Kristin: well done, and thanks again! And many thanks to all of the attorneys who have joined our network in our latest round of recruiting!

Sad though we are to see our interns go, the CMLP Staff has been keeping very busy. In cooperation with our friends at Free Press and the International News Safety Institute, Andy will be participating in two live web chats tonight (August 16) at 7 p.m. and next Thursday (August 23) at 8 p.m. on reporter coverage of the Republican and Democratic National Conventions. And next week, the CMLP will be launching Andy's in-depth legal guide to the conventions, with information specific to reporting in both Tampa and Charlotte.

Jeff, meanwhile, has recently returned from Chicago, where he was privileged to participate in a series of panels at the Association for Education in Journalism and Mass Communication (AEJMC) conference on the legal implications of journalism schools serving as news providers. These were fantastic sessions, and many kudos are due to Geanne Rosenberg, faculty associate at the Berkman Center and a professor at Baruch College and at City University of New York’s Graduate School of Journalism, for organizing this event!

On top of that, earlier this month the CMLP hosted a visit from Professor Mark Pearson of Bond University in Queensland, who came to the Berkman Center and kindly shared his insights on major issues in media and Internet law in Australia. We also continue to work with the OpenCourt project, a groundbreaking experiment in public access to the courts run by WBUR, Boston's NPR news station. OpenCourt provides all-day, live-streaming video of court proceedings at the Quincy District Court just south of Boston. We assisted Chris Bavitz of Harvard Law School's Cyberlaw Clinic in defending OpenCourt against efforts to delay streaming video of trials, and thanks to Chris's skillful courtroom performance obtained an order from a single justice of the Massachusetts Supreme Judicial Court allowing OpenCourt to proceed.

We also continue to expand our legal guide with new topics, including: recording police officers and public officials; dealing with falsity-based legal claims that often accompany defamation claims; right of publicity law in North Carolina, Ohio and Pennsylvania; forming journalism cooperatives in Texas and New York; and publication of private facts in Missouri. Our database of legal threats against online speech is also growing, as we rapidly approach a thousand entries covering state and federal lawsuits, demands, and other legal threats to digital publishers.

And throughout it all, the Online Media Legal Network keeps connecting more and more online journalism clients with attorneys. Did we mention that we're now in all fifty states? So, if you are a digital media publisher with a legal issue, please feel free to request legal assistance. And if you are an attorney with experience in media, corporate, nonprofit, or intellectual property law, we need you! Please apply to join the network.

We hope you enjoy the rest of the summer, and look forward to an exciting fall season!

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

Marie-Andrée Weiss explores the legal implications of repurposing photos found online for use in controversial political advertisements:
When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity

Natalie Nicol catches us up on the intersection of state law copyrights for sound recordings and federal protection against liability for infringement:
Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

Eric Robinson alerts us to an abrupt change of heart by an Illinois judge on shield law protection for news blogs:
On Reconsideration, Illinois Judge Holds Blog Is Protected By Shield Law

Kristin Bergman relates the strange tale of Rhode Island's attempt to ban false speech on the Internet:
Rhode Island Repeals Law Criminalizing False Speech Online

Tabitha Messick wonders why service of process via newspaper publication is acceptable, but electronic service is not:
Service of Process, 2.0

Mary-Rose Papandrea reports on a Congressional subcommittee meeting on national security leaks -- and guess what, they blame the press:
Hearing on National Security Leaks Features Much Media-Bashing, Little Progress

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

New York County v. Twitter, Inc. (subpoena)
Posted August 9, 2012

Backpage.com v. McKenna, et al.
Posted August 3, 2012

Filler, et al. v. Walker, et al.
Posted August 1, 2012

Beaverton Grace Bible Church v. Smith
Updated July 27, 2012

Nilan v. Valenti
Posted July 26, 2012

Moore v. Allen
Updated July 25, 2012

Suffolk County District Attorney's Office v. Twitter, Inc. (subpoena)
Posted July 24, 2012

Johns-Byrne Company v. TechnoBuffalo
Updated July 24, 2012

Charles Carreon v. Matthew Inman, et al.
Posted July 20, 2012

FunnyJunk, LLC vs. TheOatmeal.com
Posted July 20, 2012

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Other media law news and commentary...

Adam 'Ademo' Mueller, CopBlock.org Founder, Sentenced To 3 Months For Wiretapping After Reporting School Police Brutality
Huffington Post - 8/15/12

Massachusetts Courts Allow Citizen Journalists to Register to Live-Blog
PBS MediaShift Idea Lab - 8/15/12

Obliviate!
The Volokh Conspiracy - 8/10/12

What journalists need to know about animated GIFs - really
Poynter - 8/8/12

Facebook to court: Likes are protected by First Amendment
CNET - 8/7/12

"Cyber-security" legislation killed by Senate filibuster
Ars Technica - 8/2/12

By tweeting about a developing story, could you be inciting a riot?
Nieman Journalism Lab - 7/31/12

4th Circuit Limits the Reach of the Computer Fraud and Abuse Act - WEC Carolina Energy Solutions v. Miller
Technology & Marketing Law Blog - 7/28/12

Texas girls arrested, facing felony charges for making fake Facebook profile
Student Press Law Center - 7/26/12

DC police chief announces shockingly reasonable cell camera policy
Ars Technica - 7/24/12

Occupy Chicago Publication Prevails Over Intellectual Property Complaint By Tribune
CBS - 7/19/12

Booth Sweet Wins UDRP Decision for Blogger in Domain Name Dispute
BoothSweet.com - 7/18/12

ProPublica gets $1.9 million from Knight to expand its efforts in data journalism
Nieman Journalism Lab - 7/18/12

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The full(er) Brief...

"The Denver Post reported in late June that Public Advocate printed two political mailers using the same photograph of two men facing each other, holding hands and kissing, as foreground. One of the mailers has a background of snowy trees. Written across the image is this question: 'State Senator Jean White’s idea of "family values?"' ... The original photograph used in both mailers was taken by Kristina Hill in 2010. Ms. Hill took the picture (which originally contained the downtown New York skyline as background) to celebrate the engagement of Brian Edwards and Tom Privitere, who have since been married. ... Hill owns the copyright in the photograph. Under § 106 of the Copyright Act, she has the exclusive right to reproduce it, distribute it, and display copies of it publicly. ... However, when asked about the use of the wedding picture, the president of Public Advocate, Eugene Delgaudio, wrote in an email to The Denver Post that 'other groups make fair use of [Public Advocate] materials, … and we acknowledge a limited use of many of our materials, by other groups, under parody…' Mr. Delgaudio seems to suggest that the unauthorized use of Ms. Hill’s work was a parody protected as fair use. Does this argument have some meat on its bone?"
Marie-Andrée Weiss, When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity

"Some of the most commercially successful and popular music of all time – including the entire catalog of The Beatles – is subject to a degree of uncertainty under current copyright law in the United States due to an anomaly in the federal copyright framework with respect to older sound recordings. ... When Congress passed the Copyright Act of 1909, it did not extend federal statutory protection to audible musical works (i.e., a song as recorded by a particular artist). Despite falling outside of the Act's provisions, however, sound recordings remained eligible for copyright protection under state common law. ... Because these recordings are not protected under federal copyright law, commentators and courts are uncertain as to whether online hosts of such recordings are protected under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA)."
Natalie Nicol, Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

"On a motion for reconsideration, an Illinois trial judge who held in January that the technology news blog TechnoBuffalo.com was not protected by Illinois' reporter's shield law (75 Ill. Comp. Stat. §§ 5/8-901 - 8-909) has reversed himself, holding now that 'within the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.' ... This is not the only recent example of a judge reversing his or her own prior ruling on this issue..."
Eric Robinson, On Reconsideration, Illinois Judge Holds Blog Is Protected By Shield Law

"In my four years in Providence, I undoubtedly told some white lies online. Of those I can easily remember, I have sent a message on Facebook claiming I was sick to get out of a party I had no interest in going to, though I was perfectly healthy; emailed a show's director that I'd be late to rehearsal because of a study group conflict when in fact I had brunch plans with some friends; and entered my height in heels into a Google spreadsheet as 5'4" when I know that could only true in my dreams. Little did I know that under Rhode Island General Laws § 11-52-7(b) (on computer crime), I was committing a misdemeanor every time and could have been subject to a $500 fine and/or imprisoned for a year each time. Fortunately, as I return to the area for visits, I will no longer have to worry about what I type, as this law was repealed by the Rhode Island General Assembly this June..."
Kristin Bergman, Rhode Island Repeals Law Criminalizing False Speech Online

"In the case of Fortunato v. Chase Bank, the judge reasoned that in order to serve process by electronic alternative means, a party needs to show the court that the defendant would receive constructive notice by showing that he is familiar with the manner of service and uses it regularly or to an extent that he would receive the notice. For example, it would be relevant whether the defendant used [an] email address or social networking site within a certain period of time. ... But taking these concerns into account, one still has to wonder if there was a reason other than custom that the judge..., instead of allowing electronic service of process, ordered alternative service via general publication in newspapers in four cities. ... In this technological age, would newspaper publiation still [be] 'reasonably calculated to provide notice and an opportunity to respond'? Is it 'reasonable' to believe that a third-party credit card fraud defendant is reading her local newspaper? "
Tabitha Messick, Service of Process, 2.0

"On the morning of July 11, the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks. I have watched a video of the hearing so you won’t have to (you can thank me later). ... The most interesting part of the hearing from my perspective was the Republicans’ attacks on the media for publishing national security secrets. As I had mentioned in one of my earlier posts, almost all of the hostile reaction to the most recent round of high-profile leaks was initially directed at the leakers themselves and not the media entities that published those leaks. Well, no more. "
Mary-Rose Papandrea, Hearing on National Security Leaks Features Much Media-Bashing, Little Progress

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