Brief for February 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...

The Citizen Media Law Project has had a busy month on all fronts! In January, the CMLP filed an amicus brief (under our new name, the Digital Media Law Project - more on that coming soon) with the support of our colleagues at Harvard Law's Cyberlaw Clinic in the Massachusetts Appeals Court. As our press release notes, in the brief - filed in the case Jenzabar, Inc. v. Long Bow, Inc. - CMLP expressed concerns about use of trademark law in cases that center around communicative, critical speech about a trademark's owner or affiliates, as the free-speech balancing tests employed in trademark law do not adequately protect such critical speech. The CMLP wishes to send a big thank you to HLS students Alan Ezekiel, Michael Hoven, and Andrew Pearson for their impressive work on the brief.

The CMLP also joined Public Citizen, the Electronic Frontier Foundation, and the American Civil Liberties Union in an amicus brief filed in the United States District Court for the Northern District of California, in the case Ron Paul 2012 Presidential Campaign Committee v. Does 1-10. The case concerns an attempt by Ron Paul's campaign committee to reveal the identity of an anonymous YouTube user that posted an offensive campaign ad in the context of a lawsuit for defamation and trademark infringement. The brief urges the court to apply the "Dendrite test" for disclosure of identities, in order to safeguard the YouTube user's First Amendment right to speak anonymously.

Outside of the courthouse, the CMLP has been very active on a wide variety of projects. Jeff has been in the air constantly, taking the work of the CMLP on the road to classrooms and workshops in Florida, New York, and even Brussels, at a conference on access to foreign law in civil matters, convened by the European Commission and Hague Committee on International Civil and Commercial Litigation. Andy took a trip down to Connecticut to speak with the Connecticut Society of Professional Journalists about citizen reporting, and is now at work on a primer on the legal issues surrounding independent news coverage at the political party conventions. Arthur has been ramping up the content on our website, with lots of new material in our threats database and legal guide. His curation of material for the blog is also highlighted in all of the excerpts below!

And on top of everything else, our Online Media Legal Network has had some of its busiest times ever over the past month. As of today almost 180 clients have entered the network, and over 360 matters have been assigned to our network of about 240 attorneys. As always, 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. (And if you are an online journalist or digital media creator with a legal issue, you can request assistance here.)

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

Jeff Hermes walks through a bill in the Massachusetts Senate that awkwardly attempts to restrain reporting on child witnesses.
Won't Somebody Please Think of the Children?: A Few Modest Thoughts on Mass. Senate Bill No. 785

Arthur Bright debunks the hype around Twitter's new policy on geo-located content filtering.
Why Twitter's New Censorship Tool Isn't As Bad As It Seems

Eric Robinson turns up a case that is far more troubling for online journalism than that one case in Oregon.
Bloggers and Shield Laws II: Now, You Can Worry

Andy Sellars highlights the irony in having the Supreme Court Police arrest a person for words on his jacket.
In Case You Missed It the First Time, Supreme Court Police Reenact Cohen v. California

Victoria Ekstrand shows us the latest attempt at a rights clearinghouse for the news.
NewsRight: Rest Easy, We Won't be Righthaven 2.0

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

Ascentive v. Opinion Corp.
Posted February 9, 2012

Obsidian Finance Group v. Cox
Updated February 7, 2012

Ron Paul 2012 v. Does 1-10
Updated February 7, 2012

United States v. Megaupload Limited
Posted February 6, 2012

Johns-Byrne Company v. TechnoBuffalo
Posted February 1, 2012

Hard Drive Productions v. Does
Posted February 1, 2012

Jenzabar, Inc. v. Long Bow Group, Inc.
Updated January 24, 2012

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Other media law news and commentary...

"Hi Bill Keller. The New York Times Just Stole our Column. Should we Sue?"
The Boston Phoenix Blog - 2/8/12

Miami-Dade Police Spokeswoman Arrests Photojournalist
Poynter - 2/6/12

"She's a Spy!": Reporter Banned from Nevada Caucus
L.A. Times - 2/4/12

R.I. officials Want New Law Against Online Impostors
Providence Journal - 2/3/12

Journalists Reluctant Stars in 2012 Ads
Politico - 2/2/12

Super Bowl Super Bust: US Seizes 307 Websites; Grabs $4.8M in Fake NFL Merchandise
Network World - 2/2/12

Illinois to Allow Courtroom Cameras on ‘Experimental Basis’
Chicago Sun-Times - Fri. 12/16/11

Sixth Circuit Extends Hazelwood to Colleges, Universities
Student Press Law Center - 1/27/12

Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here
Tech President - 1/25/12

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The full(er) Brief...

"On February 7, 2012, the Joint Committee on the Judiciary of the Massachusetts Legislature will hold a hearing on Massachusetts Senate Bill No. 785, entitled 'An Act relative to the protection of child witnesses.' The bill would, among other proscriptions, make it a crime punishable by up to one year's imprisonment plus a fine for certain people to: (i) disclose or release documents, which divulge the name or any other information, concerning a child or the information in them that concerns a child except to persons who, by reason of their participation in the proceeding, have reason to know such information; or (ii) disclose or release a picture of the child, except to persons who, by reason of their participation in the proceeding, have reason to possess such a picture. . . . The categories of people affected by the bill are (1) all employees of the government connected with the case, including outside consultants hired by the government, (2) employees of the court, (3) the defendant, the defendant's employees, and the defendant's counsel, (4) jury members, (5) attendees at the trial, and (6) 'members of the media, who come across such documents or information regardless of the source of such documents or information.' As with much proposed legislation designed to protect minors, S.B. 785 seems more like a political tactic designed to show that its supporters care about our children rather than a functional piece of legislation that actually has a chance surviving the first constitutional challenge that comes along. To borrow a turn of phrase from Lawrence Lessig, the bill 'practically impale[s] itself on the First Amendment.' The U.S. Supreme Court has a long history of striking down court orders prohibiting the disclosure of newsworthy information about minors and legislative bans on publication of material about judicial proceedings. . . . But even if S.B. 785's intended effect were constitutional, the bill is so wildly overbroad that it would unconstitutionally criminalize a wide range of additional speech."
Jeff Hermes, Won't Somebody Please Think of the Children?: A Few Modest Thoughts on Mass. Senate Bill No. 785

"My first response [to Twitter's new censorship policy] was much like that of the masses: alarm. But when you consider the ubiquity of censorship laws outside the U.S., Twitter's position is much more understandable. After all, it's not just authoritarian countries in the Middle East and Asia that censor. While the First Amendment keeps the U.S. (mostly) censorship- free, laws against speech are quite common abroad, even in Western nations. As former Berkperson and current EFFer Jillian York writes on her blog: 'Twitter has two options in the event of a request: Fail to comply, and risk being blocked by the government in question, or comply (read: censor). And if they have "boots on the ground”, so to speak, in the country in question? No choice.' It seems unlikely that Twitter will be opening a Cairo office or a Beijing office any time soon. But London, Paris, or Berlin? In fact, Twitter's already in London, Paris would be a reasonable step, and a Berlin office is in the works. And thus those foreign offices give their host nations leverage, should they request tweets be censored. And Twitter already does censor tweets, as the EFF's Eva Galperin points out, and this new country-specific censoring in fact allows them to censor less."
Arthur Bright, Why Twitter's New Censorship Tool Isn't As Bad As It Seems

"A few weeks ago, I wrote that bloggers should not be too concerned about a decision by a federal judge in Oregon that blogger Crystal Cox is not protected by Oregon's reporters' shield law in a defamation suit. But a new decision in Illinois reaching the same conclusion about another blogger is more problematic. . . . The new Illinois decision more directly involved application of the state's reporters' shield law to an online news source: in this case,, which consists of frequent blog posts on (excuse the pun) bits of technology news. The question was whether the site falls under Illinois' reporter's shield law, 75 Ill. Comp. Stat. §§ 5/8-901 - 8-909, which provides that 'No court may compel any person to disclose the source of any information obtained by a reporter except as provided in [the other provisions of the shield law].' . . . [The term 'reporter' is defined as] 'any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis' [and 'news medium' is defined as, among other things,] 'any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation.' . . . [The court] held that 'TechnoBuffalo’s reliance on the Illinois reporter’s privilege is misplaced,' because the site did not qualify as a 'news medium' under the statute."
Eric Robinson, Bloggers and Shield Laws II: Now, You Can Worry

"If you're like me, you would argue that [the arrest of Occupy protester Scott Fitzgerald for wearing an 'Occupy Everything' jacket at the Supreme Court] is nothing more than a modernization of the facts of Cohen [v. California], and the court should hold the two as indistinguishable. By giving the ultimatum 'take the jacket off or leave,' the police are clearly targeting Fitzgerald for the words he is conveying. He cannot be punished for his speech, and any content-neutral rationale for silencing the speech clearly fails for the same reason they failed under Cohen<. . . . The police do attempt to evade obvious unconstitutionality (and exposure to a claim for deprivation of civil rights) by claiming Mr. Fitzgerald is breaking a content- neutral law regulating the decorum of the court. . . . But rather than fighting about whether a jacket is a 'device' or a 'sign' or whether Congress had the right to preserve decorum in the corridor any more than they did the sidewalk, let's not lose sight of the big picture here. Here, in the halls of the very building that brought us Cohen, [United States v.] Grace, and every other major case which has safeguarded our liberties from the intrusion of government, we have absurd government intrusion, based on hypothetical harms, against a legitimate display of pure speech."
Andy Sellars, In Case You Missed It the First Time, Supreme Court Police Reenact Cohen v. California

"Looking to make their brand 'a little more memorable,' the News Licensing Group is now NewsRight – and is billing itself as an 'easy rights clearinghouse for the best news reporting and original journalism on the Web.' Earlier this month, the group announced that 29 major news and information companies have signed on as initial investors in the startup, a new independent digital-rights and content licensing venture led by former ABC News President David Westin. . . . For those skeptics who see NewsRight as some simple outgrowth of the Associated Press’ highly criticized News Registry project – or as some new form of Righthaven – Westin says that view largely underestimates the months of effort and planning to bring NewsRight to investors and to customers. And, he says, its underestimates their overall philosophy. . . . In the short term, NewsRight is working to sign up subscription aggregators by providing them not only 'clean content' with rights clearance, but also detailed analytics about how such content is being consumed. . . . Westin said that NewsRight will later approach general online aggregators, including Google, about content and clearance."
Victoria Ekstrand, NewsRight: Rest Easy, We Won't be Righthaven 2.0

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