Week of July 18, 2008 [1]

Welcome to the Citizen Media Law Brief, a 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...

Jason Crow points to an innovative blog operating agreement.
Attention Entrepreneurial Bloggers: A Model Blog Operating Agreement for an LLC [2]

Matt Sanchez looks at the use of a criminal subpoena to unmask anonymous posters.
Bronx D.A. Withdraws Subpoena Seeking Identity of Anonymous Room Eight Posters [3]

Arthur Bright examines the limits of Oregon's shield law.
Citizen Journalist Invokes Oregon Shield Law to Fight Subpoena [4]

David Ardia comments on the federal Free Speech Protection Act of 2008.
Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech [5]

Wendy Seltzer discussses trademark law in the sale of Tiffany branded items on eBay.
eBay Shines in Tiffany Trademark Fight [6]

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Recent threats added to the CMLP database...

Levitt v. New York City Police Department [7]
Posted July 18th, 2008

Programmes Internationaux D'Echanges v. Grijalva [8]
Posted July 18th, 2008

New York v. Tsabar [9]
Posted July 17th, 2008

Oregon v. Lewis [10]
Posted July 16th, 2008

Kruska v. Perverted Justice Foundation [11]
Posted July 16th, 2008

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Other citizen media law news...

Rhode Island AG targets mayor's office for withholding records
The Reporters Committee for Freedom of the Press [12] - Thurs. 7/17/08

Will non-profit foundations save political journalism?
Capitol Weekly [13] - Thurs. 7/17/08

Michigan Supreme Court Rules in FOIA Cases
WDIV Detroit [14] - Wed. 7/16/08

Expunged? What Happens When A Blogger Decides To Remove Posts?
Concurring Opinions [15] - Tue. 7/15/08

Dismissal of Suit Over Anthrax Stories Upheld
Washington Post [16] - Tue. 7/15/08

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The full(er) Brief...

"This week, Professor Hoffman at Concurring Opinions posted a potentially useful model blog operating agreement for an LLC, drafted by Professor Dave Johnson of the Institute for Information Law and Policy at New York Law School. This model agreement is especially interesting because Professor Johnson tailored it to an Internet-based, peer-production business model, instead of the traditional/hierarchical/top-down/brick-and-mortar model.  What's more, he contemplates its use in connection with a new Vermont corporate law statute, signed into law on June 6, 2008, which enables electronic filing of formation documents, eliminates requirements for in-person meetings and physical headquarters, and allows for agreements among members to be embodied in electronic form. As Johnson explains in his fascinating paper, Virtual Companies, '[b]ecause limited liability company law is flexible, deferring in most cases to the terms of an operating agreement, these enabling provisions of Vermont law can be used to set up a new kind of legal entity. . . .'"
Jason Crow, Attention Entrepreneurial Bloggers: A Model Blog Operating Agreement for an LLC [2]

"Earlier this month, the District Attorney for Bronx County, New York, withdrew a subpoena seeking the identities of anonymous posters on political blog Room Eight. The posters had criticized local politicians and Bronx Republican Party officials in blog posts and comments. District Attorney Robert T. Johnson also freed Room Eight operators Gur Tsabar and Ben Smith from the subpoena's demand that they not reveal the subpoena's existence to anyone - including the anonymous posters. . . . While the D.A.'s withdrawal of the subpoena and non-disclosure demand is great news for the anonymous posters, it is disappointing that the court didn't have a chance to issue a decision on Room Eight's motion to quash the subpoena. This would have been a great opportunity to establish precedent on a couple of important First Amendment issues of concern to citizen media. . . . In any case, this situation provides another example of how attempts to impose legal consequences upon speakers can bring far more attention to their speech than the speech ever could have achieved on its own. . . ."
Matt Sanchez, Bronx D.A. Withdraws Subpoena Seeking Identity of Anonymous Room Eight Posters [3]

"Does Oregon's reporter shield law apply to an independent journalist who publishes online?  That question looks set to be answered, thanks to the refusal of Tim Lewis to comply with a grand jury subpoena for his video of a May 30, 2008, demonstration in Eugene, Oregon, where police tasered an 18-year-old protester. . . . [I]t would seem that the court should rule for Lewis and quash the subpoena.  Were I the judge, my only concern at this point would be that ruling this way might overexpand the shield law.  Certainly, it should protect the materials of newsgatherers, but should it protect any kind of video at all that is posted to YouTube?  If a college student, in the midst of making yet another Mentos-and-soda YouTube video, should happen to record a crime occuring, is it reasonable for the shield law to prevent law enforcement officials from subpoenaing her evidence? . . ."
Arthur Bright, Citizen Journalist Invokes Oregon Shield Law to Fight Subpoena [4]

"Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions. 'Libel terrorism' (a term I am not a big fan of) describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States. . . . In a similar effort at the federal level, Senators Arlen Specter and Joseph Lieberman have introduced the Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. . . ."
David Ardia, Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech [5]

"In Tiffany v. eBay, decided today, the Southern District of New York gives helpful bounds to secondary liability for trademark infringement, saying eBay is not liable for its use of the term 'Tiffany' nor for its sellers' sales of counterfeit goods. Judge Sullivan's careful analysis leaves the path clear for online marketplaces to flourish, putting enforcement burdens, where they belong, on trademark claimants. . . . [T]he ruling suggests that trademark law continues to function effectively in the Internet era. While trademark holders might like greater control, and (some) sellers might like greater leeway, trademarks serve as indications of origin even without enlisting intermediaries in the fight. Yet further reason why ACTA's proposed 'update' to anti-counterfeiting trade law should not put liability on Internet intermediaries."
Wendy Seltzer, eBay Shines in Tiffany Trademark Fight [6]