Brief for January 2013 [1]

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 [2].

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News from the Citizen Media Law Project...

It is hard to believe, but the first month of 2013 is already behind us. The CMLP hit the ground running in 2013, working very closely with the Cyberlaw Clinic on an amicus brief discussing important emerging issues regarding defamation opinion doctrine and crowdsourced journalism. Much more on that very soon. Jeff also made a special appearance on the final panel of the Americas regional round of the Price Media Law Moot Court Competitition [3], alongside Judges Sack and Leval of the United States Court of Appeals for the Second Circuit, American University professor Juan Mendez, and Johns Hopkins professor Ruth Wedgwood.

This spring Jeff and Andy are also taking the reins of the Berkman Center's Internet & Society: Technology and Politics of Control [4], a Harvard Extension School Class that's been taught by folks in and around the Berkman Center as far back as 1997. The class is an exploration of all aspects of Internet governance and control, looking at both frameworks for studying regulation and substantive topics over which regulation. If you're interested in following along, most of the reading material for the class can be found here [5].

And throughout it all, the Online Media Legal Network [6] continues to provide legal assistance to a wide array of online media clients. Things are busy as always at the OMLN, so if you are an attorney with experience in media law, intellectual property, corporate law, or nonprofit law, please consider joining the network [7] and helping us out.

Much more to follow as always. Stay tuned!

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

Justin Silverman discusses proposals to limit public records around guns.
The Journal News Fallout: Limiting the First Amendment to Protect the Second [8]

Andy Sellars does a long, deep examination of the Computer Fraud and Abuse Act and its application to the prosecution of Aaron Swartz.
The Impact of "Aaron's Law" on Aaron Swartz's Case [9]

Eric Robinson looks at whether Twitter can be liable as a medium for in-school sexual assault.
Negligence Claims Against Twitter Won't Last [10]

Marie-Andrée Weiss goes over the French law on third-party liability for hate speech online.
RT the Hate: France and Twitter Censorship, Part Two [11]

Jeff Hermes analyzes a right of publicity claim against "mugshot racket" sites.
Are Rights of Publicity the Fatal Flaw of the Mugshot Racket? [12]

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

Saltsman v. Goddard [13]
Updated Jan. 31, 2013

Rakofsky v. The Internet [14]
Updated Jan. 17, 2013

AF Holdings LLC v. Doe [15]
Updated Jan 17, 2013

Jenzabar, Inc. v. Long Bow Group, Inc. [16]
Updated Jan. 11, 2013

Garcia v. Nakoula [17]
Updated Jan. 3, 2013

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Other media law news and commentary...

Legal piracy? Antigua Gets OK to Start Selling Copies of US Hit Movies, Songs
Christian Science Monitor [18] - 2/1/13

In BitTorrent Case, CBS argues for CNET’s Editorial Independence
Poynter [19] - 1/29/13

No First Amendment Violation in E-Mail Impersonation Case
Volokh Conspiracy [20] - 1/29/13

The Power Library of Congress Has on Cell Phones
Marketplace [21] - 1/28/13

Blog Flamewar Winds Up in Federal Court
Universal Hub [22] - 1/26/13

Mistrial in Cheerleader's Lawsuit
ESPN [23] - 1/25/13

Facebook’s Graph Search and the End of Privacy by Obscurity
GigaOM [24] - 1/23/13

Subpoena Seeks Names of People who Wrote Online
Hawaii Tribune-Herald [25] - 1/22/13

Did Family's Recording of Rialto Teacher Violate State Law?
San Bernardino County Sun [26] - 1/19/13

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The full(er) Brief...

"The Journal News in Lower Hudson, New York, published an interactive map of all residents in its community who possessed a firearms permit. The data — initially including the names and addresses of permit holders — had been obtained through the state’s Freedom of Information Law and could have been accessed by anyone upon request. Still, the decision to publish the data in its aggregate appeared to many as an unacceptable and needless invasion of the privacy of gun owners, and sparked a fierce debate over the ethics of such disclosure. . . . Many states already exempt gun registry information from their respective FOI laws, considering such disclosure to be an unwarranted invasion of privacy. . . .  Still, there are states that do keep such records public and as a result of The Journal News flap are now reconsidering their decision to do so."
Justin Silverman, The Journal News Fallout: Limiting the First Amendment to Protect the Second [8]

"There is some disagreement over how much 'Aaron's Law' (as it is being called) would have helped Aaron [Swartz] himself. Orin Kerr states in part two of his comprehensive analysis of Swartz's case that Aaron's Law would not have changed the outcome. EFF's Marcia Hofmann seems to agree. Lawrence Lessig, on the other hand, suggests that this would have made a very large difference, perhaps removing the felony counts entirely. Jennifer Granick doesn't expressly come out either way, but calls it a good first step. Given all this, it seems appropriate to take some time to go over the Swartz prosecution and Aaron's Law in more detail, and explore exactly how the case would have turned out, and how the proposed law could have changed the outcome of the case."
Andy Sellars, The Impact of "Aaron's Law" on Aaron Swartz's Case [9]

"A Tulsa, Oklahoma girl and her mother are suing Booker T. Washington High School and Twitter, alleging that another member of the daughter's basketball team held the daughter while another teammate took pictures of her in her underwear, and sent the photos as tweets. The lawsuit says that several other children at the school received and re-tweeted the photos, leading to harassment of the victim. The suit, which also names the teammates and their parents as defendants, seeks damages of at least $75,000. . . . Against Twitter the claims are negligence, intentional infliction of emotional distress and invasion of privacy. The suit claims that Twitter owed the victim and her mother 'a duty ... to use reasonable care in the administration of its website so as to prevent the publication of photographs of minors while undressing, particularly when said photographs are posted on Defendant's website by multiple users over the course of several weeks.' The claims against the other defendants may be viable, but the claims against Twitter will almost certainly be dismissed under section 230 of the federal Communications Decency Act . . . ."
Eric Robinson, Negligence Claims Against Twitter Won't Last [10]

"Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ('a good jew'). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ('if my son is gay') or the xenophobic #SimaFilleRamèneUnNoir ('if my daughter brings a Black man home'). As with #unbonjuif, the 'game' consisted of adding messages to these hashhags to create a 'joke.' This time the hashtags prompted a response from the government. Najat Belkacem- Vallaud, France’s Minister of Women's Rights[.] Belkacem-Vallaud's comments garnered international attention and prompted prominent responses, both in support and against her remarks. While such a regime of state-controlled censorship is unthinkable here in the United States, it serves as an additional data point in the control of hate speech in France. What follows is an analysis of the applicable French law. "
Marie-Andrée Weiss, RT the Hate: France and Twitter Censorship, Part Two [11]

"I have little sympathy for the so-called 'mugshot racket,' but using the right of publicity as a method of attack has some issues. Ordinarily, the right of publicity is invoked to prevent the exploitation of an individual's persona without permission through use of a name or photograph for promotional purposes. For example, the right prevents the unauthorized use of a celebrity's likeness in advertising to falsely suggest the endorsement of a product. In that sense, the right of publicity reflects the positive value that can accrue to an individual's identity through the individual's efforts, and gives the individual the ability to control how that value is used. . . . It is not enough to state a violation of the right of publicity that someone's photograph was made the subject of a commercial transaction. Rather, a violation occurs when the name or likeness is used to suggest an endorsement or other association between a person and a product or service."
Jeff Hermes, Are Rights of Publicity the Fatal Flaw of the Mugshot Racket? [12]

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