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...
Spring is quickly turning into summer, and the CMLP has had to say goodbye and good luck to our crack CMLP spring interns, Lauren Cambell (who graduates from BC Law this Friday) and John Sharkey (who is spending his 2L-to-3L summer at Cahill Gordon). Both have been with the CMLP for a very long time, made several great contributions to our legal guide, threats database, and blog, and helped us grow the Online Media Legal Network into a truly nationwide network. Thanks again to Lauren and Sharkey for all of their hard work, and best of luck in your post-CMLP legal careers!
On the caselaw side, the CMLP is delighted to report on another strong decision in favor of the constitutional right to record police activity, this time in the Seventh Circuit, in ACLU v. Alvarez. As Jeff notes in his blog post recapping the case, the CMLP joined an amicus brief filed by the Reporters Committee for Freedom of the Press in favor of this result. The CMLP also sought leave to file an amicus brief this week in Boston Municipal Court, in the criminal case Commonwealth v. Busa, which concerns the Massachusetts anti-counterfeiting statute and its potential application to protected constitutional expression. Both amicus briefs were prepared with the support of our friends over at the HLS Cyberlaw Clinic.
As Arthur notes on our blog, we have also seen some excellent development on the CMLP website this month, with the addition of guest blogger Bryce Newell and an expansion of our legal guide to cover the State of Arizona. Welcome, Bryce, and a big thank you to Caitlin Vogus for her help in researching issues in Arizona! Over at the OMLN, we are fast approaching another milestone: nearly 400 matters for online journalism clients have been assigned out to our network of over 250 media law, IP, and business attorneys. We are always looking for more qualified attorneys to join the network, so if you are an attorney that wants to help us provide legal assistance to digital media clients, please apply to join our network.
The summer looks to be a busy one for the CMLP. Jeff and Andy will be joining several Berkman Center colleagues at the USENIX Workshop on Hot Topics in Cyberlaw in June. Nearly contemporaneously, Jeff will be presenting over at the Investigative Reporters & Editors annual conference. Continuing our research and response to emergining issues, this summer will also see a focus on two large research projects: first, a special guide on anticipated issues facing independent journalists at the Democratic and Republican national conventions, and second, a quantitative analysis of modern First Amendment litigation. With all of this, plus our continuing work on our ongoing initiatives, we can't wait to have our summer interns join us!
Much more to come on all of this and more, so stay tuned.
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The latest from the Citizen Media Law Project blog...
DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases
Bryce Newell gives the full analysis of a new mobile application suite designed to help citizens record the police.
Citizen Counter-Surveillance of the Police?
There's an App For That.
Justin Silverman revisits the mugshot website racket, and explores whether a change in freedom of information law is needed.
The 'Mugshot Racket' II: A Commercial Purpose
Exemption?
Andy Sellars puts on his courtroom reporter hat and recaps the oral argument in Jenzabar v. Long Bow.
Jenzabar v. Long Bow: Oral Argument Focuses on Initial Interest Confusion and Search Engine Results
Arthur Bright rejects the idea of de minimis speech, in the context of Facebook "likes."
Is 'Liking' on Facebook Protected Speech?
John Sharkey looks at the future of vicarious liability under the DMCA after the Viacom v. YouTube decision.
Viacom v. YouTube: The
Second Circuit Punts on 'Right and Ability to Control'
Lauren Campbell takes the prior restraint doctrine into the 21st century, and into our cell phone cameras.
Is It a Prior Restraint for Police to
Delete Video of Their Conduct?
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Threats recently added to the CMLP database or updated...
Jones v. Dirty World, LLC
Updated May 11, 2012
Jenzabar, Inc. v. Long Bow Group, Inc.
Updated May 3, 2012
Lesher v. Does
Updated April 27, 2012
Brown v. Doe
Posted April 25, 2012
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Other media law news and commentary...
Photojournalists Arrested, Injured, Covering Chicago NATO Protests
National Press Photographers Association
- 5/21/12
Foes Urge Court Not to Give Righthaven a Break
Vegas Inc. -
5/18/12
Church Sues Woman for $500K After Negative Google Review
Crooks &
Liars - 5/15/12
The Dangerous Meme That Won't Go Away: Using Copyright Assignments to Suppress Unwanted Content
Technology & Marketing Law Blog -
5/14/12
Delays by IRS Chill News Startups
Current.org - 5/14/12
U.S. Judge's Facebook Ruling Gets Thumbs Down From Legal Scholars
Radio Free Europe -
5/11/12
WikiLeaks Truck Owner Arrested For Photographing Cops; Image Deleted
Photography is Not a
Crime - 4/26/12
Limbaugh Copies Michael Savage's Bogus Copyright Theory, Sends DMCA Takedown to Silence Critics
Electronic
Frontier Foundation - 4/24/12
Olympics' Security Guards "Trained to Deter People from Taking Photographs"
British Journal of Photography - 4/23/12
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The full(er) Brief...
"In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at
the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the
phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted. . . .
In January 2012, the Department of Justice got involved in the case. Contrary to what might be expected, the DOJ was not
supporting the police department – instead, it filed a 'Statement of Interest' in support of Sharp's position in the case . . . .
The Statement of Interest reads like an amicus curiae brief . . . ; it contains strong arguments that there is a First Amendment
right to record the police, that Baltimore police officers violated Sharp's First, Fourth, and Fourteenth Amendment rights when
they deleted his footage, and that the Baltimore PD's attempt to prevent future violations of citizens' rights through revised
policies and training protocols was insufficient. Then, on May 14, 2012, the DOJ took further action in the Sharp case, this time
sending an open letter . . . to the parties in advance of a settlement conference scheduled by the court. . . . Critically, the
DOJ's letter extends beyond the Sharp case. Although phrased as a critique of Baltimore's existing policies, the letter sets
forth the DOJ's view on a national standard for all police departments[.] The consequences of the DOJ's decision to become
involved in the Sharp case should not be underestimated."
Jeff Hermes, DOJ's
Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases
"Cases like Glik v. Cunniffe and [ACLU v.] Alvarez indicate that the tides are changing in favor of First Amendment
protections of police oversight . . . . Some, like the ACLU, have launched initiatives to publicly record audio and video of
police conduct, and the Alvarez case was pursued by the ACLU specifically to allow ALCU staff to legally record police without
fear of reprisal under the eavesdropping statute. . . . Along these lines, many individuals have been using a suite of cell phone
apps developed by open government activist Rich Jones to record audio and video of encounters with law enforcement officers.
Jones launched the OpenWatch.net project in January 2011, which now boasts three smartphone apps designed to secretly record
citizen encounters with police officers. Jones has also produced a version of his software for the ACLU of New Jersey to support
their police accountability programs. In a recent interview with Jones, he told me that he launched the project to supply
technology 'to provide documentary evidence of uses and abuses of power… [as] part of a new wave of document-based journalism.'
'If we're going to lose all of our privacy,' Jones says, 'then we're damn well going to get some transparency.'"
Bryce Newell, Citizen Counter-Surveillance of
the Police? There's an App For That.
"Since I wrote about the prevalence of mugshot websites last October, many CMLP readers weighed in with their own take on
what David Kravets described in Wired as a 'racket.' According to Kravets's article, self-described 'reputation companies' are
part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them
further embarrassment. [Tim] Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He
immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records
exemption for those who would be using the records for 'commercial purposes.' Donnelly, a Fort Worth, Texas, resident, is
currently lobbying his representatives to enact such a clause in his home state's FOI law. Presumably, such an exemption would
prevent companies from exploiting public record laws while allowing news organizations to continue with their business. At first
blush, such an exemption seems conceptually absurd. Public records are considered such because the information they provide is of
value to the community and necessary to maintain an informed citizenry. . . . Despite these immediate concerns, however, what
Donnelly proposed is already being practiced."
Justin Silverman, The 'Mugshot Racket' II: A
Commercial Purpose Exemption?
"This morning Jeff and I had the pleasure of watching the Massachusetts Appeals Court argument in Jenzabar, Inc. v. Long Bow
Group, Inc. As we mentioned once before on this blog, the CMLP filed an amicus brief in this case with the assistance of Harvard
Law School's Cyberlaw Clinic. . . . At oral argument, Justice Jancie Berry sat as the chief of the very active panel, along with
Justices James Milkey and Mary Sullivan. Joshua M. Dalton from Bingham McCutchen argued on behalf of Jenzabar, and Paul Alan Levy
of Public Citizen argued for Long Bow. Jenzabar sharply focused its oral argument regarding infringement on the Google search
results for the term "Jenzabar" as reflected in a screen capture submitted in Jenzabar's brief. . . . According to Jenzabar, it
is that rank, title, and description that are the basis of liability; Jenzabar alleged that Long Bow engaged in 'metatag
stuffing' to achieve its rank and that its use of 'Jenzabar,' standing alone, for the title was confusing. Notably, Jenzabar's
counsel conceded that it would have been fine if Long Bow had titled its page 'Jenzabar lies' or 'Jenzabar sucks' instead. If
Long Bow is allowed to use 'Jenzabar,' Jenzabar argued, using 'Jenzabar Official' would also be okay, and then search engines
would quickly become a lawless domain fraught with confusion."
Andy Sellars, Jenzabar v. Long Bow: Oral Argument Focuses on Initial Interest Confusion and Search Engine Results
"Venkat Balasubramani and Eric Goldman . . . have highlighted a rather interesting if fundamentally flawed decision from the
Eastern District of Virginia. The case is Bland v. Roberts, and involves six plaintiffs who were civilian employees of the
defendant, a sheriff in Hampton, Virginia. Apparently the plaintiffs were in favor of someone new sitting in the sheriff's seat,
and when the election came around, they expressed public support for the sheriff's opponent through . . . 'liking' the opponent's
Facebook page. Unfortunately for the employees, the sheriff won reelection, and soon after he fired the six of them. What's
interesting about the case, and what caught Venkat and Eric's eyes, is that in granting summary judgment for the defendant
sheriff, the court ruled that 'liking' something on Facebook is not constitutionally protected speech. Let me repeat that to
drive the point home. The court ruled that clicking Facebook's 'Like' button – which thereby expresses one's opinion to at least
one's friends if not the whole world – is, as Judge Raymond Jackson writes, 'insufficient speech to merit constitutional
protection.' . . . I suspect that Judge Jackson is getting lost in the formalities of the act of 'liking,' rather than the
substance thereof[.] . . . I suspect that he'd be much more willing to [provide constitutional protections] if, instead of
'liking,' the plaintiff typed 'I like the sheriff's opponent' on the Facebook page – it involves more steps, more time, and is
thus more reliable as a formal expression of the plaintiff's 'like' of the sheriff's opponent. But looking at formalities is the
wrong way to think about 'liking.'"
Arthur Bright, Is 'Liking' on Facebook Protected Speech?
"[R]eally, the Court of Appeals' opinion . . . in Viacom v. YouTube is pretty decent on most of what I care about. But my
focus today is on one particular spot in the opinion that turns out to be a bit squishy: the meaning of the statutory phrase
'right and ability to control [infringing] activity.' The parties presented two clear – albeit diametrically opposed –
interpretations of the phrase, and the Second Circuit settled on... neither one. It's an unfortunate bit of fogginess in what
could have been a seriously clarifying opinon. (After all, when the Second Circuit speaks on copyright, other courts tend to
notice.) . . . What does it mean for a website like YouTube to have 'the right and ability to control'? YouTube's lawyers had an
answer: To have the ability to control an infringing video, we need to know exactly where it is. (So, something like a URL for
the infringing video.) The idea here is that if YouTube doesn't know a particular video is sitting on its server, it can't be
expected to take it down. And Viacom, of course, offered the reverse: YouTube can delete any video whenever it wants, so it has
the 'right and ability to control,' period. But the Second Circuit didn't take to either suggestion. . . . If [DMCA safe harbor
removal] doesn't require actual knowledge of the infringing activity, but does require something more than the bare technical
ability to take down user-posted content, then what is that 'something more'? Here, the Court of Appeals fudges, and that's what
makes me a bit nervous. It's not that what they say is bad; it's just vague enough that we can't really know how lower courts
will handle it."
John Sharkey, Viacom v.
YouTube: The Second Circuit Punts on 'Right and Ability to Control'
"One would think that with all the attention this issue has received lately, we’d have seen a decrease in incidents of
police arresting those filming their actions. But police officers continue to arrest journalists and other citizens for lawfully
recording incidents of police activity. It’s not like the right to record the police is a big secret anymore. The Obama
Administration has stated that Baltimore city police officers infringed on an individual’s (non-journalist) First, Fourth, and
Fourteenth Amendment rights when they seized his cell phone and deleted its contents . . . . And the people who have had run-ins
with the police are beginning to fight back. . . . Most of the lawsuits that have arisen out of these incidents are based on 42
U.S.C. § 1983, which grants individuals the right to relief when actors, acting pursuant to state authority, violate the person’s
constitutional rights. . . . What the courts and the administration haven’t addressed is whether a police offer who deletes video
commits a separate violation of the First Amendment by imposing a prior restraint on distribution of the video. I would argue
that deleting content from a recording device does indeed constitute a prior restraint on speech."
Lauren Campbell, Is It a Prior
Restraint for Police to Delete Video of Their Conduct?
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