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...

Happy 2012 from the Citizen Media Law Project! The year is not even two weeks old, and already the staff at the CMLP have been hard at work with a series of projects exploring emerging issues in media law. The CMLP has begun several intensive studies which will carry on through the spring, including an examination of IRS decision-making in affording journalism organizations 501(c)(3) status, an analysis of the types of parties that bring major First Amendment cases to court today, and a comprehensive legal primer for independent journalists covering the events surrounding the Republican and Democratic national conventions. On top of this, the CMLP is planning an event with the Missouri School of Journalism to be held in March (details to follow) and drafting an amicus brief in Massachusetts state court with Harvard's Cyberlaw Clinic on an important trademark and free speech case.

As if all that wasn't enough, our Online Media Legal Network continues on as strong as ever. At the end of 2011 we crossed another milestone by referring our 350th legal matter, and have already added to that in 2012. If you weren't able to attend the CMLP's presentation about the OMLN at the Berkman Center for Internet & Society in December and wanted to check in on its progress, you can watch a recording of that presentation here. We always are looking for more help, so if you are an attorney with experience in media law, intellectual property, 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.)

By the way, if you are a student looking to explore emerging issues in cyberspace, the Berkman Center is now accepting applications for its summer intern program. Law students interested in working with the CMLP specifically should check out our summer intern page here.

As Jeff and Andy pointed out in this recap for PBS MediaShift (along with CMLP friend and blog-contributor Rob Arcamona), 2011 was quite an exciting year to be involved in media law in online spaces. It looks like 2012 is off to a similar start, and the CMLP is eager to be involved in its development! Stay tuned for much more.

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

John Sharkey examines the public/private figure distinction of First Amendment doctrine through the modern lens of Facebook.
Everybody's Public to Somebody?: Social Media and the Public/Private Divide

Arthur Bright takes a look at the latest from copyright troll Righthaven, and notes that the already-sinking ship is sinking a whole lot faster.
Want to be the New Righthaven.com? Just Three Shopping Days Left!

Jeff Hermes discusses a bizarre legal re-education program on the First Amendment, offered by the City of Los Angeles.
Bold Experiment in Los Angeles Pushes the Boundaries of Irony

Justin Silverman chronicles the long history of gubernatorial candidates saying one thing and doing another when it comes to FOI.
Strong FOI Laws Expose More Than Just A Governor’s Diet

Eric Robinson writes up that big blogger case in Oregon, and shows what the case does (and does not) mean for the future of journalism.
No, the Sky is Not Falling: Explaining that Decision in Oregon

Andrew Mirsky looks into "gamification" of citizen journalism as a means of encouraging quality news reporting.
How Citizen Journalism Can Vet Quality Through Lessons from Gaming

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

Jones v. Dirty World, LLC
Posted January 13, 2012

Giordano v. Romeo
Updated January 12, 2012

Obsidian Finance Group v. Cox
Updated January 6, 2012

Fraley v. Facebook
Posted January 4, 2012

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Other media law news and commentary...

Obama Administration Says Constitution Protects Cell Phone Recordings
Ars Technica - Thurs. 1/12/12

New Jersey Transit System Labels Photography "Suspicious"
Reporters Committee for Freedom of the Press - Wed. 1/11/12

Boston PD Admits Arrest for Cell Phone Recording was a Mistake
Ars Technica - Wed. 1/11/12

Online News Association Comes Out Against SOPA/PIPA
TechDirt - Fri. 1/6/12

Austin Man Facing Felony After Photographing Cops Making Arrest
Photography is Not a Crime - Thurs. 1/5/12

Using a Music Video to Censor Rival Firms
Suffolk Media Law - Mon. 12/19/11

Judge Dismisses Twitter Stalking Case on Free-Speech Grounds
Hillicon Valley - Fri. 12/16/11

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The full(er) Brief...

"First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are 'public' (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are 'private' (less societally important, so less protected). It's always been a line difficult to enforce in practice . . . but it at least makes a certain conceptual sense. But (at the risk of turning this into a hackneyed 'social media changes everything!' post), social media (maybe) changes (at least some) things. . . . I'm thinking of Fraley v. Facebook, one of the pending class-actions against our favorite blue friend. . . . The lawsuit surrounds Facebook's introduction of a 'Sponsored Stories' ad system, through which Liking companies on Facebook can appear as advertisements to your friends. . . . The plaintiffs are alleging a violation of California's commercial misappropriation statute . . . . Facebook, as you'd expect, has plenty of defenses lined up, but the one I'm interested in here is the 'newsworthiness' defense. . . . Facebook raised two arguments as to why the newsworthiness exemption applied to the Sponsored Stories . . . : 1) that Facebook users 'are "public figures" to their friends,' and 2) that any 'expressions of consumer opinion' are newsworthy in and of themselves. Roll that phrase over in your head for a second: 'public figures to your friends.' Even granting the ambiguity ('Facebook friends' vs. 'actual friends'), the oxymoron-ish-ness of being public to my select group of friends is enough to send me spiraling into an existential crisis. If something is only public to some people, and not to others, what does 'public' even mean any more?"
John Sharkey, Everybody's Public to Somebody?: Social Media and the Public/Private Divide

"When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn . . . . Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its trolling business. It's certainly been eventful since then. After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by [Marc] Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net. . . . In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: righthaven.com itself. And it's being auctioned right now! Yes, the domain name of the country's self-described 'pre-eminent copyright enforcer' can be yours! (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.) But hurry, the bidding closes on Jan. 6, just a few days away!"
Arthur Bright, Want to be the New Righthaven.com? Just Three Shopping Days Left!

"In a dramatic, last-minute effort to win the prize for 'Most Obnoxious Law Enforcement Tactic of the Year,' the Los Angeles City Attorney’s Office has announced that many arrested Occupy L.A. protesters will, as an alternative to fines or jail, be given the opportunity to attend 'free speech' school to learn what rights they don’t have. Let’s reflect for a moment on this one, shall we? The City of Los Angeles wants to teach people about the First Amendment. I needed to check that they were actually talking about the First Amendment to the United States Constitution, because they have occasionally seemed to lack familiarity with that document. This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a 'Suspicious Activity Report' about any photographer who takes pictures 'with no apparent esthetic value.' Yes, art cops."
Jeff Hermes, Bold Experiment in Los Angeles Pushes the Boundaries of Irony

"In a July letter to Maine’s right-to-know advisory committee, [Maine Governor Paul] LePage expressed concern over a prying public interested in matters beyond government business and political foes making 'incredibly broad requests' merely to overwork his staff. The committee responded earlier this month by approving a plan to exempt all the governor’s 'working papers' from the state’s Freedom of Access Act. As critics of the proposal lament, it’s not clear what documents are considered 'working papers' or how the exemption addresses the governor’s initial concerns over grocery receipts. Still, the proposal makes Maine the latest of several states to have recently considered narrowing their respective FOI laws. . . . 12 states this year proposed a total of 39 bills that, if made law, would at least partially narrow their FOI statutes. Some of these bills died before passage, though many remain active and are just a governor's signature away from becoming law. . . . Unfortunately, for many state officials, transparency is just an election day pitch."
Justin Silverman, Strong FOI Laws Expose More Than Just A Governor’s Diet

"There's been a lot of buzz online . . . about a decision by a federal judge in Oregon last week that held that blogger Crystal Cox is not protected by Oregon's reporters shield law, thereby leading to a $2.5 million verdict against her. . . . But most of the buzz and criticism is based on an erroneous reading of the decision. . . . [Judge Marco A. Hernandez] did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected. . . . [Cox] was attempting to claim that there was a confidential source and, at the same time, use the existence of that source as evidence that she did not act with negligence in making the blog post at issue. In other words, she was attempting to use the existence of the source – whom she refused to identify – as evidence in her defense. This is known as using the reporter’s privilege as both a 'sword and shield.' This has been rejected by courts in many states, and Oregon's shield law statute specifically prohibits it. . . . While Cox’s status as a blogger was not (primarily, at least) the basis for the court holding that was not protected by the shield law in this case, there’s another part of the decision in which the judge does say that a blogger is not 'media' – and that part is problematic."
Eric Robinson, No, the Sky is Not Falling: Explaining that Decision in Oregon

"Unlike traditional newsroom journalists, 'citizen journalists' have no formal way to ensure that everyone maintains similar quality standards. . . . By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice. Nonetheless, 'trustiness' in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation. . . . If a structural problem for 'citizen journalism' is an inability to generate consistency in quality – 'editorial standards' – why not remedy that problem with some of the same technology that makes citizen journalism possible in the first place? That is the approach of a number of projects discussed in a recent Columbia Journalism Review article, including Citizenside, Digital Journal, and NowPublic. These sites use concepts from online gaming, including point tallies, rankings, and accompanying cash and non-cash rewards. Borrowing these techniques from online gaming may prove advantageous to reward those who produce quality content."
Andrew Mirsky,How Citizen Journalism Can Vet Quality Through Lessons from Gaming

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