Welcome to the Citizen Media Law Brief, a monthly (formerly weekly) newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website. 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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The latest from the Citizen Media Law Project blog...
Marshall Hogan discusses what happens when unhappy interview subjects take matters into their own hands.
Logging In and Lashing Out: 'Crowdsourced retaliation' presents new challenges to journalists
CMLP fights for your right to get timely stock tips.
Citizen Media Law Project, EFF, and Public Citizen Advocate First Amendment Scrutiny in Hot News Cases
Eric Robinson gets his pundit on.
Eric Robinson and Reporter Ron Sylvester Discuss Social Media in the Courtroom on Lawyer2Laywer
Eric Robinson handicaps the FTC's proposals to save journalism.
FTC's Provocative Discussion Paper on Saving Print Media
Kimberley Isbell turns a skeptical eye on the New York Times' claims against the Pulse news reader.
Is the New York Times Really Claiming That All Paid RSS Readers Infringe its Copyright?
Marina Petrova asks what you're getting when you "buy" an e-book.
Who Took Your E-book?
Marshall Hogan looks at the latest lawsuit spawned from a Facebook group.
T&J Towing v. Kurtz: We've Got The Court Documents
CMLP takes issue with a recent Illinois ruling on anonymous speech.
Illinois Court Requires Newspaper Website To Identify Pseudonymous Commenter
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Recent threats added to the CMLP database...
Princeton v. RedState
Posted Jun. 18, 2010.
Hamptons Online v. Florio
Posted Jun. 16, 2010.
Major League Baseball v. Charter Communications Inc.
Posted Jun. 8, 2010.
Tiamo Resorts v. Mark & Cathy Sussman
Posted Jun. 7, 2010.
T&J Towing v. Kurtz
Posted Jun. 7, 2010.
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Other media law news and commentary...
Maryland prosecutors hold different interpretations of state’s wiretapping law
Photography is Not a Crime - Thur. 6/24/10
Court finds petitioners' rights don't trump open records law
RCFP.org - Thur. 6/24/10
Viacom's YouTube loss a victory for online speech, collaboration
Salon - Thur. 6/24/10
The battle lines are being drawn over fair use: Two POVs on the Barclays v. TheFlyOnTheWall.com case
Nieman Journalism Lab - Wed. 6/23/10
Will the Internet End -- Or Simply Transform -- Libel Law?
Findlaw - Mon. 6/21/10
Supreme Court of Canada rules access to information not a constitutional right
FOIA Advocate - Mon. 6/21/10
Inside the mind of the anonymous online poster
Boston Globe - Sun. 6/20/10
Gawker Media settles Alabama libel case
Copyrights & Campaigns - Mon. 6/14/10
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The full(er) Brief...
"For a long time, retaliating against a journalist meant grumbling to your friends or writing a phone number on a bathroom wall. Several recent news stories have cast new light on the practice, and suggest that people are increasingly taking their anger online and using social media tools to expedite their revenge. Perhaps the most infamous recent story involves electro-hop artist and activist MIA, New York Times Magazine's Lynn Hirschberg, and truffle fries. In an unflattering profile, Hirschberg characterized the artist as short on political sophistication and full of contradictions. . . . Angry about the article, MIA tweeted Hirschberg's personal phone number [and] further worked through her grievance by posting her own audio recording of the interview. . . . Jezebel's Anna North raises a real concern about the threat of online retaliation and its effect on citizen media: ‘If ‘crowdsourced revenge' grows, writers may simply stop criticizing those whose retaliation they fear, creating a new informational ruling class run by those with the fewest scruples. Journalism and blogging alike have plenty of problems (misquoting being one), but wholesale Internet intimidation is not the way to fix them.' Some states have passed-and federal lawmakers have considered (albeit very superficially)-cyber-bullying laws, which make it a crime to use electronic means to ‘coerce, intimidate, harass or cause other substantial emotional distress,' to quote the proposed federal version. However well-intended these laws may be, they are vague, difficult to enforce, and potentially restrain legitimate free speech to boot. . . ."
Marshall Hogan, Logging In and Lashing Out: 'Crowdsourced retaliation' presents new challenges to journalists
"The Citizen Media Law Project, EFF, and Public Citizen have jointly submitted an amicus curiae brief to the Second Circuit Court of Appeals, urging the court to apply First Amendment scrutiny to the "hot news misappropriation" doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc. The Harvard Law School Cyberlaw Clinic assisted the coalition in preparing the brief. We've been keenly interested in this case ever since Judge Cote issued her decision in March requiring Fly to delay its reporting on the stock recommendations of several Wall Street firms. The case promises to be an important development in the law of "hot news misappropriation," a controversial quasi-intellectual property doctrine that creates a temporary property right in time-sensitive facts. As we explain in the brief, the hot news doctrine raises serious First Amendment concerns because it plainly contemplates restricting the publication of truthful information on matters of public concern, regardless of how that information is obtained. . . ."
CMLP Staff, Citizen Media Law Project, EFF, and Public Citizen Advocate First Amendment Scrutiny in Hot News Cases
"CMLP contributor Eric P. Robinson and Wichita (Kansas) Eagle Staff Writer for Interactive News Ron Sylvester discuss Tweeting, blogging and use of other social media to report on courtroom proceedings in the latest Lawyer2Lawyer podcast. . . . With the wave of technology dominating the legal world, reporting from the courtroom has gone from scribbling notes on a pad of paper to live coverage through blogs, video and even tweets. They discuss procedure for getting permission from a Judge, cameras in the courtroom and how live reporting has affected traditional journalism in the courtroom. . . ."
Eric Robinson, Eric Robinson and Reporter Ron Sylvester Discuss Social Media in the Courtroom on Lawyer2Laywer
"The Federal Trade Commission-which last year created guidelines to impose ethical standards on bloggers-is now taking on the ambitious task of saving the print media in the Internet era. In preparation for the final in a series of hearings on the future of the news media, the Commission has released a staff report that makes some pretty bold proposals, including legal changes and even government subsidies for traditional media. . . . The proposals are a mix of the practical and the impossible. Some would be major changes in law and policies that apply to the media. Not all of them are feasible; some may even be unconstitutional. And many of them could have consequences, intended or unintended, for non-traditional journalism online, and in areas beyond the media industry. If the goal of the paper is provoke discussion, that is precisely what it has done: from condemnations that the agency is ‘protecting the old power structure of media' to warnings of the impending government takeover of the media. . . . [T]he FTC's June 15 hearing is sure to be a spirited discussion on the future of media, both online and off, and may provoke a larger discussions - beyond the usual media and Internet pundits - about the future of American media, and the role of the media in American democracy. Such a debate, however acrimonious, may be a good thing: and is, of course, what the First Amendment is all about."
Eric Robinson, FTC's Provocative Discussion Paper on Saving Print Media
"The Interwebs are up in arms, again. This time, the kerfuffle is over a DMCA notice, submitted by The New York Times Co., that caused the removal of the Pulse RSS reader from the Apple Apps Store. . . . So what's the issue with the app? Not surprisingly, the Times' DMCA notice is about as clear as mud. The relevant portion reads as follows: ‘The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.' . . . It's hard to know exactly what to make of this. The interpretation put forth by Gizmodo, Endgaget, TechDirt and Wired (which seems to be supported by this post on the Times' own Bits blog) is that any paid app that displays the Times' RSS feed is making ‘commercial' use of the feed, and thus exceeding the terms of the license. . . . Pulse likely has a decent fair use argument[, but] this analysis doesn't take into consideration the user's actions. Where, as here, the app comes preloaded with the Times' RSS feed, it makes sense to analyze it as if Pulse is the one engaging in the copying of the Times' content. But would the analysis differ if it was the consumer that used Pulse to subscribe to the Times' RSS feed? . . . While the fact that Pulse comes pre-populated with the Times' RSS feed (arguably) makes a difference to the legal analysis, it does little to change people's gut reaction. As many commentators have noted, the Internet is built around the concept of linking to and reusing content that appears elsewhere. . . ."
Kimberley Isbell, Is the New York Times Really Claiming That All Paid RSS Readers Infringe its Copyright?
"While the spread of e-readers is exciting news in places where access to books is limited and research libraries are poorly stocked, it also raises the specter of copyright infringement. Last year, Amazon resorted to deleting e-books by George Orwell from its customers' Kindles after realizing that it did not have a license for U.S. distribution. The incident raised questions about property rights over e-books customers had already bought, and the WSJ's Geoffrey Fowler argued that owning an e-book was like having a license to a piece of software since access came with fine-print terms of service and limitations on use imposed by DRM technologies. . . . For books printed on paper, the first-sale doctrine dictates that copyright owners control distribution of a work up until its first sale into the stream of commerce. Thus, once you buy a book at the local bookstore, you can lend it to a friend, resell it, or donate it to the library. In contrast, e-books, available on devices tethered to an online content provider, are ‘contingent: rented instead of owned, even if one pays up front for them.' . . . In other words, when you take your Kindle to your dorm room you may discover that your copy of Ender's Game has disappeared because Amazon's license to it expired. When you take your iPad to Japan, you may not be able to read your English-language content along with the manga and shukanshi if your e-book provider lacks Japanese distribution rights. You may also find that pages on Chechnya and Tiananmen Square have been ‘torn' out of your ebooks in Russia and China. . . ."
Marina Petrova, Who Took Your E-book?
"Last Monday, the New York Times ran an article about T&J Towing's lawsuit against a college student, Justin Kurtz, over a Facebook group page he started called ‘Kalamazoo Residents against T&J Towing.' Several other news outlets and blogs have picked up the story, in no small part due to its David-and-Goliath appeal. . . . [T]he towing company believes that Kurtz libeled it by ‘falsely and publicly claimed that Plaintiffs have towed vehicles where no violation has occurred and which claims are untrue.' Cmpt. ¶ 4. . . . T&J's complaint implies that Kurtz should be liable for the statements of others posting to his Facebook group, alleging that Kurtz ‘has absolutely no way of knowing whether or not all of the written submissions to his website have any truth or validity.' Id.¶ 7. This may be one of those rare instances where Section 230 protects a "user of an interactive computer service," as opposed to a ‘provider' of such a service (like Facebook itself). . . ."
Marshall Hogan, T&J Towing v. Kurtz: We've Got The Court Documents
"A mid-level appellate court in Illinois ruled on Tuesday that the publisher of a local newspaper must reveal the identity of a pseudonymous Internet commenter. In Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010), the court reversed a trial court order granting Ottawa Publishing's motion to dismiss a pre-litigation petition for discovery seeking the identity of a commenter to its mywebtimes.com website. CMLP and other media organizations filed an amicus curiae brief in support of the lower court's application of the of the Dendrite standard for determining when to order disclosure of an anonymous speaker's identity. The commenter, writing under the pseudonym ‘FabFive from Ottawa,' allegedly posted defamatory comments about Donald and Janet Maxon in response to two articles (here, here) on mywebtimes.com. . . . Writing for the majority, Justice Holdridge rejected the lower court's application of a standard based on Cahill and Dendrite, and concluded that the statements in question were actionable because they ‘can reasonably be interpreted as stating actual fact.' Slip op. at 17. The majority determined that application of a First Amendment test based on the Cahill/Dendrite line of cases was unnecessary in Illinois because Rule 224 gives trial courts ‘sufficient tools and discretion to protect any anonymous individual from any improper inquiry into his or her identity.' Slip op. at 9. . . . While Justice Holdridge emphasized the appropriateness of testing the legal sufficiency of the underlying legal claim, he rejected the argument of Ottawa Publishing and amici that additional safeguards are required to protect the right to engage in anonymous speech from unwarranted disclosure. . . ."
CMLP Staff, Illinois Court Requires Newspaper Website To Identify Pseudonymous Commenter
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