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...

What a month this has been! The CMLP saw November start with record-setting traffic and attention following the release of our 2012 guide to documenting the vote, an extension of our earlier 2008 project. The guide provides an overview of the law as it applies to those that plan to record and report from in and around polling places. Our discussion of laws that prohibit the display of a voter's own ballot caught the attention of a wide variety of news outlets and led to extensive discussion all over the web about the phenomenon. (Jeff's own analysis of the constitutionality of such provisions can be found here.) Much of the reporting online led right back to us, and our state-by-state guide on the issue. Big kudos to the whole CMLP team, and especially our crack intern Jillian Stonecipher, for pulling it together.

This project showed us how important the general legal resources we provide can be to those facing online publication questions. In that spirit,we are delighted to report that we have now completed adding Arizona to our legal guide, and have moved right next door with a start on sections addressing state-specific issues in Nevada. We have also expanded our right of publicity coverage to include Virginia. A big thanks to Caitlin Vogus, the Randazza Legal Group, and another big thanks to Jillian for each contributing to these sections.

We also managed to get out of the office a bit!  On the more serious side, Jeff led a panel at the recent Harvard Law School Entertainment Law Symposium discussing issues of international censorship of entertainment content. And just for fun, the CMLP hosted the always improbable Marc Abrahams for a spirited event exploring of the odd side of science and research (video available here) -- thanks to all those in and around the Berkman community who participated!

And while all of this is going on, we are still continuing to provide direct legal referrals to a wide array of online media clients through our Online Media Legal Network. The end of the year has historically been a busy time for us, so we could always use additional help from experienced attorneys. If you aren't already, please consider joining the network, and if you are, email us and let us know if you can help us with new clients!

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

Andrew Mirsky looks at copyrightability in the context of online apartment listings.
Copyright of “Public Facts”: Craigslist v. PadMapper

Jeff Hermes shows what political fact-checking can learn from defamation litigation.
The Thankless Task of the Political Fact-Checker

Andy Sellars looks at the humorous and peculiar First Amendment case between a park ranger and a guy dressed as Bigfoot.
Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

Tabitha Messick, former CMLP intern, describes what it was like to be a summer intern here at the Berkman Center.
A UNC Student’s Summer Experience in Media Law

Eric Robinson goes over the amicus briefs filed in Obsidian Finance v. Cox, the now-famous online speech and journalism case.
Amici Line Up In Appeal of "Blogger Not a Journalist" Ruling

Marie-Andrée Weiss looks at a growing conflict between Twitter and anti-discrimination groups in France.
Twitter, France, and Group Libel

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Threats recently added or updated in the CMLP Threats Database...

Obsidian Finance Group v. Cox
Updated Nov. 29, 2012

AF Holdings LLC v. Doe
Created Nov. 28, 2012

Garcia v. Nakoula
Updated Nov. 28, 2012

Comins v. VanVoorhis
Updated Nov. 27, 2012

Directory Assistants, Inc. v. SuperMedia, LLC
Created Nov. 16, 2012

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Other media law news and commentary...

Should the UN Govern the Internet?
Canadian Broadcasting Corp. - 11/29/12

Judge Issues Injunction Against Blogger Who Criticized Miami Heat Owner
MediaPost - 11/28/12

Federal Officials Take Down 132 Websites in 'Cyber Monday' Crackdown
The Hill - 11/26/12

Confidential Police Docs Found in Macy's Parade Confetti Spark Investigation
WPIX - 11/23/12

Twitter suspends ‘NYT On It’ account after New York Times complains
Poynter - 11/20/12

The Price of Public Information in Abington, Mass.
New England First Amendment Center - 11/14/12

Washington Sets Limit on Amount of Tweets from Credentialed Media
CBS Sports - 11/13/12

Faulkner’s Short Phrases Are Not Copyrightable. But Don’t Quote Me on That.
Disruptive Competition Project - 11/12/12

Not Guilty
Photography is Not a Crime - 11/08/12

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The full(er) Brief...

"This past July, Craigslist filed a lawsuit in the US District Court, Northern District of California, alleging that apartment-hunting site PadMapper and its data exchange partner, 3Taps, unlawfully repurpose Craigslist postings and therefore undermine 'the integrity of local Craigslist communities, ultimately harming both Craigslist and its users.' While the complaint parallels Craigslist’s 'common good' business model, 3Taps CEO Greg Kidd sees it differently. 'We believe Craigslist is acting like a copyright troll,' Kidd recently told AllThingsD. Kidd’s company provides PadMapper an API for data about Craigslist postings that 3Taps gathers via means it claims are not subject to Craigslist’s Terms of Use and that likewise do not violate Craigslist’s copyrights. This isn’t the first time Craigslist has claimed such violations, including several now-shuttered earlier services built on top of Craigslist’s platform. In July 2010, Newmark took to Q&A site Quora to defend his company’s actions in a case similar to Padmapper’s, saying he did not take issue with sites that do not affect Craigslist’s servers. 'Actually, we take issue with only services which consume a lot of bandwidth, it’s that simple,' Newmark wrote."
Andrew Mirsky, Copyright of “Public Facts”: Craigslist v. PadMapper

"One overarching theme of the 2012 election season was a struggle with truth. Both campaigns were accused of serial falsehoods, and continuing to spread incorrect information after the truth was reported. The utility of fact-checking in the election was also questioned . . . . As a lawyer who has defended more than a few defamation cases, all of this led me to consider the difficulties faced by those who attempt to analyze the truth of even seemingly simple statements. It sometimes surprises those not familiar with media law that courts in libel cases are not generally tasked with deciding issues of ultimate truth. Rather, judges and juries are responsible for determining whether a defendant's statements are probably true or false, to a degree of probability that allows imposition of penalties in a manner consistent with society's level of comfort. [ . . . ] And all of this presumes that a statement is capable of being shown to be true or false through the presentation of evidence. The legal analysis of a particular allegedly defamatory statement is not a simple dichotomy of right and wrong; rather, it quickly devolves into distinctions between fact and opinion, material and immaterial errors, predictions about the future and declarations about the present, and implications and explicit statements. In many cases, courts do not even reach the tricky question of whether a statement is true or false, finding that even if a statement might be false the defendant lacks culpable fault for its publication."
Jeff Hermes, The Thankless Task of the Political Fact-Checker

"Fighting for the First Amendment can often mean confronting and defending vile, caustic, hurtful, and downright disgusting speech. But not all free speech cases address the words of the most hateful or offensive amongst us. Every once in a while you get a case concerning speech at its most fun and playful. In that spirit, and in light of tomorrow's holiday, I'd like to share an update from a case in New Hampshire that Marc Randazza first blogged about here last October. The case concerns Jonathan Doyle, who decided to dress up as Bigfoot one day in September 2009 and walk around Mount Monadnock State Park to see how people would react (as you do). He filmed some of the interactions he had with passing hikers, and even convinced two park employees to write a note confirming a 'bigfoot' sighting on Mount Monadnock. Doyle decided to return a week or so later, this time announcing his trip in advance through a press release in the Keene Sentinel. Doyle brought along some of his friends, including a friend dressed up as 'Boda the Blue Yoda' (your guess is as good as mine) and a child dressed up as "the Pirate Ambassador." The trio of disparate characters hiked up the mountain and did some more filming, to the delight and amusement of the participants and scattered spectators. And then the government stepped in."
Andy Sellars, Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

"Each week, DMLP had a meeting and delegated many different tasks and deadlines to interns. I was always busy and working on many different projects simultaneously! But the work was stimulating, interesting and challenging. For example, I researched, drafted and edited new sections of DMLP’s state-by-state legal guide, including defamation and right of publicity issues. I was also honored to be able to conduct legal research for the Guide to Reporting at the 2012 RNC & DNC. I researched issues relating to the 4th Amendment and cell phone and camera searches, and the public forum doctrine. I also assisted in the expansion of the Online Media Legal Network (OMLN). I was delegated with finding lawyers in South Carolina where OMLN still lacked legal representation. I researched and reached out to lawyers in South Carolina, and am happy to report OMLN now has legal representation there. One of my favorite projects to work on was the legal threats database. There I researched, drafted and edited recent threats to online speech, including recent lawsuits like the 'Facebook likes' case. I read through pleadings, briefs and motions and wrote an objective account of the potential threats."
Tabitha Messick, A UNC Student’s Summer Experience in Media Law

"Both the Reporters Committee for Freedom of the Press [ . . . ] and Scotusblog.com, a site that covers U.S. Supreme Court cases in intimate detail, have filed amicus briefs in the case, concerned that the courts not define 'media' and 'journalist' in such a way that bloggers are not categorically denied coverage by state reporters' shield laws. As I wrote at the time, a federal judge's decision holding that blogger Crystal Cox was not protected by Oregon's reporters' shield law in a defamation suit against her -- which led to a $2.5 million verdict against her -- was not as dire a threat to bloggers as it was portrayed at the time. The judge -- District Judge Marco A. Hernandez -- did not deny Cox the protection of the shield law primarily because she is a blogger, but because, the court said, she was attempting to claim that there was a confidential source for the information sought by the court 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 – which she refused to identify – as evidence in her defense. This is known as using the reporter’s privilege as both a 'sword and shield,' and is specifically prohibited by Oregon's shield law statute. See Ore. Rev. Stat. 44.530(3). Cox disputes this."
Eric Robinson, Amici Line Up In Appeal of "Blogger Not a Journalist" Ruling

"On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ('agoodjew' and 'agoodmuslim,' respectively), some Twitter users were posting derogatory comments about Jews and Muslims, some allegedly meant to be 'jokes.' The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users. But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court."
Marie-Andrée Weiss, Twitter, France, and Group Libel

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