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...
June has been a month of great activity for the CMLP. We are delighted to announce the arrival of our crack team of summer interns, Kristin Bergman (who comes to us from William & Mary Law), Tabitha Messick (hailing from UNC Law), and Natalie Nicol (joining from U.C. Hastings College of the Law). All three have been hard at work for the past three weeks, helping us develop a series of blog posts, threat entries, and updates to our legal guide. Expect to see a lot more from them over the next couple of months!
The CMLP is also happy to announce that our own staff attorney, Andy Sellars, has been named the Corydon B. Dunham First Amendment Fellow at the Berkman Center, in recognition of his work with this project on free speech matters. Congrats, Andy!
Summer has also meant conference season, and the CMLP has been hard at work at a mix of events. Last week Jeff and Andy hosted a panel on civil rights and emerging technologies at the USENIX Workshop on Hot Topics in Cyberlaw, put together by our good friends at the HLS Cyberlaw Clinic. (And special thanks to Mike Ananny, Ryan Budish, Hanni Fakhoury, and Wendy Seltzer for joining in on the discussion!) Just two days later, Jeff lead a discussion of IRS 501(c)(3) decision-making for journalism applicants at the Investigative Reporters & Editors annual conference. And three days after that Jeff and Andy had the pleasure of attending the MIT-Knight Civic Media Conference, where we met scores of fascinating people working on innovative projects to help improve the news ecosystem. These three events serve as a nice representation of the range of groups that inform and inspire the work of the CMLP, and we look forward to working with all of them going forward.
On the legal front, the CMLP is pleased to report that we received a narrow win in Commonwealth v. Busa, a case from the Boston Municipal Court in which we filed an amicus brief supporting the defendant's motion to dismiss, challenging the validity of Massachusetts's anti-counterfeiting law. (The BMC granted the motion, but without addressing the underlying question of the statute's validity.) The CMLP also joined an amicus brief with the Organization for Transformative Works, the International Documentary Association, and ten law professors in Hart v. Electronic Arts, a fascinating case concerning rights of publicity and free speech in the context of video games.
Throughout all of this, the CMLP is hitting new milestones with all of our activities. We welcomed a new guest blogger, Marie-Andrée Weiss, and updated our legal guide with sections on forming a cooperative corporation, Texas right of publicity law, and Missouri defamation law. Our Online Media Legal Network (which, by the way, always is looking for new members), now exceeds 260 members, and has helped digital media clients with over 400 legal matters.
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...
Much Ado About a DMCA Takedown Notice
Mary-Rose Papandrea looks at the shift of First Amendment arguments in cases of government leaks.
(Don't) Blame the Messenger: What
to Do about National Security Leaks
Arthur Bright criticizes Sina Weibo's gamification of truth in social media.
Another Brick in the Great Firewall:
Sina Weibo's 'Truth' Credits
Eric Robinson details the chilling effect of the Sixth Circuit's decision to allow a Section 230 case to proceed.
Sixth Circuit's 'Dirty' Decision Sends a Chill
Jeff Hermes notes a disturbing voyage by the IRS into questioning user-generated content of nonprofit applicants.
The IRS and User-Generated Content
Andy Sellars explains how Massachusetts violates free speech and copyright in its remarkably broad anti-counterfeiting
regulation.
DMLP files Amicus
Brief Against Massachusetts's 'Anti-Counterfeiting' Law
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Threats recently added to the CMLP database or updated...
Associated Press v. Meltwater News
Updated June 22, 2012
Ratingz, Inc. v. Adrian Philip Thomas, P.A.
Updated June 21, 2012
Doninger v. Niehoff
Updated June 18, 2012
Blue Mountain School District v. J.S.
Updated June 11, 2012
Hermitage School District v. Layshock
Posted June 6, 2012
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Other media law news and commentary...
J-schools Convene to Address Information Gaps
PBS
MediaShift - 6/22/12
Manhattan Judge has Better Sense of Humor than Louis Vuitton
Thomson Reuters News & Insight - 6/18/12
For Crown or Country
Al Jazeera English -
6/15/12
Those Olympian Games
Likelihood of Confusion - 6/15/12
Would You Buy a .boston Domain from The Boston Globe?
Nieman Journalism
Lab - 6/13/12
Appeals Court Will Re-Evaluate Big Copyright Issues in Light of Viacom-YouTube Ruling
The Hollywood Reporter -
6/8/12
Can A Judge Order Individuals to Consent to Facebook Disclosing Their Status Updates?
The Volokh Conspiracy - 6/1/12
Cameras in the Courtroom
Mass. Lawyers
Journal - 6/12
Proposed New York Law Would Ban Anonymous Posts
BYTE News - 5/24/12
Transparency for Copyright Removals in Search
Google Blog -
5/24/12
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The full(er) Brief...
"Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. . . . Photographer
took a picture of downtown Houston, and then posted the photograph on his blog. He later discovered that several sites had used
the photograph without his permission, and he proceeded to send them all DMCA takedown notices. . . . Fourteen of the sites . . . were owned by the same person, Blogger. These fourteen sites were all hosted by GoDaddy, [who disabled] access to all of Blogger's sites . . . . One of Blogger’s disabled sites was a blog she uses as a platform to
express her support for a local candidate in a race for Sheriff. Another of these sites was a site designed to inform the public
about a non-profit organization whose goal is to promote awareness for the education needs of special needs children . . . . According to Photographer, Blogger contacted him after her sites were taken down. . . , complaining
about the issue, and asking him to reconsider his complaint . . . .
Photographer then sent an email to GoDaddy asking for Blogger’s sites to be put back up, which was done. Blogger allegedly
contacted Photographer again after the sites were restored. She contended that she had lost thousands of dollars in billable
hours as a result of the . . . site being taken down. She also claimed that, by taking down her political blog,
Photographer had compromised the election, and she threatened to sue Photographer for sending the DMCA notice. . . . The purpose
of this post is . . . to address some of the legal issues raised by both Photographer and Blogger."
Marie-Andrée Weiss, Much Ado About a DMCA Takedown
Notice.
"Lately I have been following the discussion about the most recent series of national security leaks, including those that
detailed the White House's terrorist "kill lists," the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks
against Iran. Outrage about leaks is hardly new. Neither are leaks. . . . What is new is that the outrage this time around seems
to be directed at the leakers and not at the media outlets that published the leaked information. . . . Perhaps critics'
suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader
has made them forget to take their usual shots at the "liberal media" that disseminated them to the public. But given that leaks
often appear politically motivated, this answer is not all that satisfying. . . . The lack of attacks on the news media in this
go-around is certainly not because they have a clear right to publish whatever information they can get their hands on. It isn't
clear at all what rights government outsiders have to publish sensitive national security information. . . . It could be that the
government thinks that it can draw a meaningful line between the mainstream media and entities like WikiLeaks, or at least the
government regards WikiLeaks as particularly dangerous. . . . I am not suggesting that the government should prosecute the media
for publishing the most recent round of leaks (in fact, I think that would be a very bad idea). It is just interesting to note
how much the focus has turned away from the media to focus solely on the leakers. And now that the focus is so squarely on the
leakers, one of my projects this summer is to consider whether the First Amendment provides them with any protection."
Mary-Rose Papandrea, (Don't)
Blame the Messenger: What to Do about National Security Leaks
"China's Twitter-like microblog Sina Weibo is threatening to up the censorship ante with a new policy that cracks down on
'untrue' content, reports the International Business Times. This new system comes in the guise of a new point system. Upon
creating a Sina Weibo account, users are given 80 points (or 100 points if they set up their account using their government-
assigned ID number). Subsequently, each 'falsehood' that the user communicates to the larger community results in a point loss,
with broader communication leading to greater losses. . . . Voice of America adds that users can also gain points by staying in
compliance with government censorship policies. The timing of the new Sina Weibo policy is not particularly surprising, as China
has been rocked by several scandals recently, details of which have spread so quickly online as to remain outside the
government's ability to control. . . . Sina Weibo's new 'truth credit' policy is meant to staunch the flow of such
scandalmongering . . . . [B]ut the real danger of this new policy comes from the effect it will have on the reporting of more
mundane, though no less important news that the government would just assume not be examined."
Arthur Bright, Another Brick in the
Great Firewall: Sina Weibo's 'Truth' Credits
"Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, . . . sued [thedirty.com] over postings . . . which accused her of having a sexual disease and claimed that she 'has slept with every . . . Cincinnati Bengal football player.' . . . [T]he site responded to the lawsuit by invoking section 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides that operators of "interactive computer services," including web sites, cannot be held liable for material contributed (posted) by someone other than the site operator. . . . But the federal judge considering Jones' suit against the site declined to dismiss the case, rejecting thedirty.com's jurisdictional and section 230 arguments. He later denied thedirty.com's motion for summary judgment on the basis of section 230, finding that the thedirty.com site actively encouraged tortious conduct by users. . . . The Sixth Circuit Court of Appeals dismissed the web site's appeal of the summary judgment ruling, allowing the trial judge's decision to stand. The appeals court's dismissal was based on its finding that the trial court's decision was not a final, appealable order. . . . But the Sixth Circuit's ruling is contrary to other courts' decisions stating that, in a First Amendment context, the mere threat of prolonged litigation can have a 'chilling effect.'"
Eric Robinson, Sixth Circuit's 'Dirty' Decision
Sends a Chill
"As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations. . . . As our guide to the IRS's decision-making process discusses, many of the key precedents that the IRS relies upon in these cases date back as far as the 1960s, 1970s, and 1980s. Given that not only the news business, but the very nature of communication, has changed dramatically in the last fifty years, it would be reasonable for the IRS to take another look at these decisions when faced with a new wave of online journalism projects. That being said, we have recently learned of a somewhat disturbing development in this regard. At least one applicant for 501(c)(3) status has been questioned by the IRS relating to user-generated content posted to the applicant's site as follows: 'Will you allow individuals to post content directly to your website? If so, will you hold the content in queue until you review it to determine whether it would constitute intervention in a political campaign?' Now, the IRS's concern about political campaigns is not all that surprising: Section 501(c)(3) and the applicable Treasury Department regulations expressly ban organizations qualifying for a tax exemption under that section from supporting or opposing political candidates. What is of more concern is the suggestion that the IRS might require a journalism nonprofit to review user-generated content for political material, and hold the nonprofit responsible for any such content that is posted."
Jeff Hermes, The IRS and User-Generated Content
"Earlier this week the CMLP . . . sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147. . . . Section 147, at a quick glance, may look like a traditional trademark regulation. The statute punishes whoever willfully manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark." . . . The statute deviates from mainstream trademark law . . . in its definition of 'counterfeit mark,' which includes 'any unauthorized reproduction or copy of intellectual property.' 'Intellectual property,' in turn, is defined as 'any trademark, service mark, trade name, label, term, device, design or word' that is used by a person and is registered in a state trademark database or the USPTO Principal Register. Notably absent is the central test of trademark infringement: that the use is likely to cause confusion as to the origin or sponsorship of goods or services. Without that, we have the criminalization of any manufacture, use, display, distribution, or sale of any item or service bearing a word, image, design, or other trademark that another person registered to identify goods or services, without such person's permission. . . . As we argue in our brief, this blanket criminalization is unconstitutionally overbroad under the First Amendment, because it criminalizes a wide array of constitutionally protected speech."
Andy Sellars, DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law
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