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...

Greetings from an unseasonably warm Cambridge, Massachusetts! The CMLP has had a very busy month. Jeff and Andy have just returned from a conference that we co-hosted with Charles Davis at the Missouri School of Journalism, entitled Planting the Seeds of Freedom: A Celebration of the First Amendment. The event was part of a series sponsored by the Liberty Tree Initiative, part of the 1 for All campaign to raise awareness of the First Amendment, founded by the American Society of Newspaper Editors. The event featured a series of discussions and panels regarding the First Amendment, including a history of First Amendment jurisprudence, a panel on photojournalism and videography, a demonstration of use of Google Hangouts for newsgathering, a series of small case studies on fair use and Creative Commons licensing in news media, and a mock argument on student speech issues. The CMLP would like to thank Charles Davis for the invitation, along with our sponsors the Randazza Legal Group, Mizzou Advantage, and, our gracious hosts, the Reynolds Journalism Institute. Far from being the only big event on our calendar, the CMLP also had a chance to participate in a day-long examination of Truthiness in Digital Media along with many other folks here at the Berkman Center, and Andy is off to California next month to participate in the Innovate/Activate conference on intellectual property and activism at U.C. Berkeley.

Back in Massachusetts, we are very excited to report some good news regarding our friends at OpenCourt, a project which we support and Jeff advises. OpenCourt has been increasing transparency in the Massachusetts court system by webcasting and archiving proceedings in Quincy District Court. Their ability to do so was challenged in two emergency petitions to the Supreme Judicial Court of Massachusetts, where the Commonwealth and a criminal defendant argued that judges should have the ability to prevent OpenCourt from releasing previously-authorized recordings of court proceedings. In keeping with a long line of media rights cases, the Supreme Judicial Court released an opinion which held that courts may not restrain individuals who lawfully record events in an open court from sharing their recordings. This is a great victory for OpenCourt, and for Harvard Law School's Cyberlaw Clinic, who served as co-counsel to the case.

The CMLP also heard good news in the Ron Paul 2012 Presidential Campaign Committee v. Does 1-10 case, about which we wrote in last month's brief and in which we filed an amicus brief and a follow-up memorandum along with Public Citizen, the Electronic Frontier Foundation, and the American Civil Liberties Union. We are happy to report that the judge in that case has upheld the right to anonymous speech online by rejecting the Ron Paul Campaign's application for expedited discovery. The CMLP wishes to thank and congratulate our co-amici!

Meanwhile, the Online Media Legal Network continues to see records levels of interest and participation, following some recent profiles in Poynter and Westlaw. We now have 250 attorneys helping us in a wide variety of legal matters, and demand continues to grow. 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.)

There is much more to come over the next month. We look forward to sharing our brand new guide to IRS decision-making regarding 501(c)(3) applications from journalism ventures within the next couple of weeks. (You can preview some of its key takeaways over at the Nieman Journalism Lab's blog.) We've also been updating our legal guide with new sections on right of publicity laws, starting with California and adding more soon. The summer will include more research and reporting, including an analysis of recent First Amendment litigation and a guide for those planning to report from the Democratic and Republican national conventions. As always, much more to come!

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

Arthur Bright recaps the Ron Paul Campaign Committee's recent lawsuit to unmask an anonymous YouTube commenter.
Ron Paul Campaign Gets a Lesson on Civil Liberties

Eric Robinson brings us the story of a juror who got out of jury duty by Facebook "friending" the defendant, and his subsequent jail sentence for contempt.
A U.S. First: Juror Gets Jail in Fallout Over His 'Friending' of Defendant

Andy Sellars runs the copyright and fair use analysis on the recent lawsuit between the Associated Press and Meltwater News.
Can AP's Copyright Claims Hold (Melt)water?

Justin Silverman explains why a public's right to know is paramount when concerning presidential legal memoranda.
The Danger of Secret Legal Memos and an Unchecked Executive

Lauren Campbell examines attempts to calculate the value of a Twitter account, in the context of a recent misappropriation case.
How Much is a Twitter Account Worth? (And Is It Enough to Keep You in Federal Court?)

John Sharkey highlights the consequences of a recent federal district court case addressing anonymity in court filings.
The Curious Case of the D.C. District's Anonymity Orders

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

Ron Paul 2012 v. Does 1-10
Updated March 15, 2012

R.S. v. Minnewaska Area School District No. 2149
Posted March 12, 2012

Ratingz, Inc. v. Adrian Philip Thomas, P.A.
Posted March 2, 2012

Liberty Media Holdings v. John Does
Posted February 21, 2012

Associated Press v. Meltwater News
Posted February 16, 2012

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Other media law news and commentary...

Internet Muddles Shield-Law Proposal
Fitchburg Sentinel & Enterprise - 3/11/12

Judge Blocks UC Davis Pepper-Spraying Report
L.A. Times - 3/7/12

Twitter Gives Boston Police, Prosecutors Data from One Subscriber in Criminal Inquiry
Boston.com MetroDesk - 3/1/12

Why wait? Six Ways that Congress Could Fix Copyright, Now
Ars Technica - 2/29/12

IRS Delays Make it Hard for Nonprofit News Sites to Build their Businesses
Poynter - 2/29/12

How to Chill the Independent Journalist
Columbia Journalism Review - 2/28/12

Key Techdirt SOPA/PIPA Post Censored By Bogus DMCA Takedown Notice
Techdirt - 2/27/12

Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus
Jonathan Turley - Fri. 2/24/12

Billionaire Romney Donor Uses Threats to Silence Critics
Salon.com - 2/17/12

Not a Free Speech Court
Erwin Chemerinsky - 2/16/12

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The full(er) Brief...

"A California federal magistrate denied the [Ron Paul Campaign's] effort to unmask 'NHLiberty4Paul,' the anonymous poster of a YouTube video that purported to be a pro-Paul advertisement but, according to the Paul campaign, was actually an effort to smear him. In a somewhat narrower ruling than free speech advocates would desire, [the magistrate] ruled that the Paul campaign had failed to establish a valid complaint under the Lanham Act, as it had been attempting, and thus was ineligible for the expedited discovery it sought to determine NHLiberty4Paul's identity. Your very own Digital Media Law Project . . . had a personal stake in this one, as we participated as an amicus along with The Public Citizen Litigation Group, the American Civil Liberties Union, and the Electronic Frontier Foundation. . . . On the whole, the ruling was good, but not great. NHLiberty4Paul was within his rights publishing his video, and even if it cast Paul in a negative light, the Paul campaign has no right to unmask the NHLiberty4Paul. But the judge's ruling is a missed opportunity to further strengthen the [Dendrite International v. Does] standard."
Arthur Bright, Ron Paul Campaign Gets a Lesson on Civil Liberties

"[A] Florida court has imposed a three-day jail sentence for criminal contempt on a juror who sent a friend request to the defendant in an auto negligence case. After the friend request was discovered and the juror was dismissed, the juror wrote on Facebook, 'Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha.' According to news reports, Circuit Judge Nancy Donnellan was particularly incensed by that post, as well as by the juror, Jacob Jock, showing up nine minutes late for this trial on the contempt charge. . . . During the trial, Jack said that the friend request was a mistake. After he was asked in court if knew any of the parties, he searched on Facebook to see if he was 'friends' with any of them. He found that the defendant was not his 'friend,' but that he and she did have mutual friends. He claimed that he tried to click on the 'mutual friends' link to see who they were, but mistakenly clicked the 'send friend request' button instead."
Eric Robinson A U.S. First: Juror Gets Jail in Fallout Over His 'Friending' of Defendant

"By now you might have heard about the lawsuit that the Associated Press filed against on-demand software company Meltwater News. AP has been critical of aggregators in the past, and decided to file suit against this specific party, alleging copyright infringement, removal of copyright management information, and (drumroll, please…) hot news misappropriation. Yes indeed, the tort made famous by the 1918 Supreme Court case INS v. AP – and about which we here just love to write – refuses to die. . . . I would love to address all of the issues raised by the complaint . . . but for the sake of keeping this post under 10,000 words I will focus on the claims of copyright infringement. . . . AP, in its complaint, alleges that its copyrights have been violated in three principal ways: direct copying and excerpting by Meltwater as part of its media monitoring service; Meltwater's "providing the means" for users to copy and to distribute whole articles via its website; and Meltwater's translation service. Below, I discuss each of these alleged forms of infringement, with a particular eye to fair use."
Andy Sellars, Can AP's Copyright Claims Hold (Melt) water?

"Shortly after the Obama Administration authorized the killing of U.S.-born cleric Anwar al-Awalki in early 2010, a debate erupted over the legality of assassinating American citizens abroad. Noticeably missing from the conversation, however, was the Department of Justice and its Office of Legal Counsel (OLC). Though multiple news sources reported the existence of secret legal memoranda that backed a "targeted killing" policy, the administration prevented the release of those memos. According to two lawsuits recently filed by The New York Times and American Civil Liberties Union to access those memoranda, the DOJ is denying requests for the documents using various Freedom of Information Act exemptions and delay tactics. Regardless of one's political stance on targeted killings, the legality of such a policy is at the very least debatable. Given that such constitutional cornerstones such as due process are at play, these lawsuits are particularly emblematic of the need for open government. But beyond the obvious arguments for transparency, these lawsuits also provoke questions about whose interest is protected by government attorneys, and how their legal analysis can – secretly, and perhaps erroneously – shape policy decisions by both current and future administrations."
Justin Silverman, The Danger of Secret Legal Memos and an Unchecked Executive

"PhoneDog, an 'interactive mobile news and reviews resource,' employed Noah Kravitz as a product reviewer, providing him with the Twitter account @PhoneDog_Noah, so he could promote PhoneDog’s services. After his employment ended, Kravitz allegedly changed the handle to @noahkravitz and continued to use the account as his own. PhoneDog alleged in its complaint that, in using the account originally given to him by PhoneDog, Kravitz intentionally obtained and misappropriated confidential trade secrets; that he intentionally and negligently interfered with PhoneDog’s prospective economic advantage; and that he unlawfully converted the account, even after PhoneDog requested he relinquish it. The case raises some interesting questions of substantive law. PhoneDog asserts that the details of its relationships with its users are confidential, forming the basis of the misappropriation of trade secrets claim. Insofar as PhoneDog’s users also follow its accounts on Twitter, though, the list of followers is publicly available information if the account is not private. Can a list of followers, then, be a trade secret? Additionally, in order to succeed on the interference with prospective economic advantage claim, PhoneDog must prove that the Twitter account is somehow profitable for it. However, it’s very difficult to know with certainty that social media efforts pay off. . . . Along similar lines, and in my opinion the most interesting aspect of this case, is determination of the amount of damages PhoneDog is seeking."
Lauren Campbell, How Much is a Twitter Account Worth? (And Is It Enough to Keep You in Federal Court?)

"Just before Christmas 2011, a federal magistrate . . . issued a... curious ruling. The case is Hard Drive v. Does 1-1,495, another one of these mass-joinder copyright-infringement cases. [H]ere's the basic sketch: The plaintiff . . . tries to sue 1,495 IP addresses allegedly linked to some BitTorrent activity. So, Hard Drive successfully moves for some expedited discovery, subpoenas the ISPs linked to the IP addresses in order to find out who they should sue, the ISPs notify (at least some of) the subscribers linked to those IPs, and (at least some of) the subscribers anonymously move to quash the subpoenas and keep their identities secret. So far, so good – that's how you'd expect it to work. Problem is, the D.C. District Court has a local rule disallowing anonymous filings. So, the judge comes up with a work-around: Put your names on your motions to quash, and we'll keep them under seal from the public and from Hard Drive (who gets copies of the motions with the identifying information redacted). Seems fair enough. The case gets passed to a magistrate for management. Then, the magistrate . . . issues an order telling all of the defendants that they can either (a) file their motions publicly (thus, revealing their identities and defeating the purpose of the motions), or (b) withdraw their motions (meaning their identities will be revealed). If that strikes you as a bit odd, you're not alone. . . . Today, I'm interested in one particular claim in the magistrate's order: 'Individuals who subscribe to the [I]nternet through ISPs simply have no expectation of privacy in their subscriber information.'"
John Sharkey, The Curious Case of the D.C. District's Anonymity Orders

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