Week of August 14, 2009 [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...
Sam Bayard takes on another burning controversy.
Yes We Cannabis: Another Obama Photo Sparks Fair Use Controversy [2]
Andrew Moshirnia discusses the brave new world of advertising.
The New Intellectual Arms Trade: Amazon and B&N as Literary God-Emperors [3]
Lee Baker offers yet more evidence that Facebook and MySpace are the new 1984 telescreens.
“Crass and Uncouth” MySpace Posting not Grounds for Expulsion [4]
Kimberley Isbell has some advice for lawyers in search of a new practice area.
The Internet is Keeping Employment Lawyers Busy [5]
Sam Bayard reminds you to Facebook responsibly.
Employers Are Freaking Out About Twitter and Facebook, Study Shows [6]
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Recent threats added to the CMLP database...
Glass v. Doe d/b/a pogowasright.org
[7]Posted Aug. 14, 2009
Salon Professional Academy v. Blacconiere [8]
Posted Aug. 12, 2009
Sedgwick Claims Management Services v. Delsman [9]
Posted Aug. 11, 2009
National Portrait Gallery v. Coetzee [10]
Posted Aug. 11, 2009
Pearl Public School District v. Jackson [11]
Posted Aug. 11, 2009
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Other citizen media law news...
Firefox Plug-In Frees Court Records, Threatens Judiciary Profits
Wired/Threat Level [12] - Fri. 08/14/09
Court sets new standard for unmasking speakers
Reporters Committee for Freedom of the Press [13] - Fri. 08/14/09
Movie Monsters, The Grateful Dead . . . And Fair Use Even In Commercial Use
Techdirt [14] - Fri. 08/14/09
Conviction for sending intimidating MySpace message overturned
Internet Cases [15] - Wed. 08/12/09
Why blocking news aggregators is stupid and won't work
contentious.com [16] - Wed. 08/12/09
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The full(er) Brief...
"Is it fair use to recast an iconic photograph of President Obama to send a political message? You've got to hand it to the National Organization for the Reform of Marijuana Laws (NORML) for adding a humorous dimension to this now-familiar question. . . . The Washington Post reported earlier this month that photographer Lisa Jack is peeved over NORML's use of her photograph of Obama, taken in 1980 when he was a freshman at Occidental College, where Jack was also a student. The photo and others in the same series were published in Time Magazine's 2008 Person of the Year issue and are currently on exhibit at the M+B Gallery in Los Angeles. According to the Washington Post story, NORML acknowledges copying Jack's photo for use in its annual conference poster and says its artist Sonia Sanchez made few alterations to the photo itself: '"With very little adulteration, she placed what appears to be a cannabis cigarette" in the president's hand, [NORML's executive director] said. But she made few other changes: Obama "almost made the photograph for us."' But the poster is hardly a verbatim reproduction of Jack's photo. Shaded green, the photo now finds itself in a swirl of psychedelic graphics, bubble lettering, and Rasta colors -- reminiscent of a 1960s concert poster - and it is paired with a new political slogan that itself riffs on iconic Obama-ness -- 'Yes We Cannabis.' When asked about potential copyright liability, NORML's executive director told the Post 'our lawyers thought it was adulterated enough to comply with the fair use laws.' Clumsily put, but probably not entirely off base. As with Shepard Fairey's 'Hope' image, a court's fair use analysis would likely hinge on the 'transformative' character of NORML's poster. . . ."
Sam Bayard, Yes We Cannabis: Another Obama Photo Sparks Fair Use Controversy [2]
"When we were kids, we couldn't wait for the future to hurry up and get here. Flying cars, pills for food, conveyor belts, the works. What we didn't understand was that the future would arrive in pieces: the everywhere computer (iPhone), the million channel TV (YouTube), the all-knowing answer machine (Wikipedia), and the hive mind (Twitter). These wonders didn't arrive in a big box marked 'Future,' but appeared one at a time. Sometimes the future is so discreet, you don't realize you are living in it. Well then, let me play spoiler and tell you that the future of reading has already arrived. It's been here for two years, you just didn't know it. And this future isn't exactly a happy one. In this future, your pages of Silent Spring are framed by advertisements for Bug Spray. In this future, the cover of Infinite Jest asks you to make this the true Year of the Whopper. In this future, Peter Pan can disappear from your shelf, digitally banished to Never Never Land. And in this future, you can sit down with a copy of 1984 and be fairly sure Big Brother is watching you. Oh, you didn't know we reached a literary end-of-days where a corporate entity can place ads in classics, kill the public domain, and forcibly adopt orphan works? Well let me fill you in. Two years ago, Amazon quietly applied for a patent for 'on-demand generating e-book content with advertising.' Which we all know is corporate crypto-speak for 'smuggling ads into your books.' You see, Amazon wants you to be able to read rare or out-of-print books. And to let you do just that, Amazon needs to make money. . . ."
Andrew Moshirnia, The New Intellectual Arms Trade: Amazon and B&N as Literary God-Emperors [3]
"Once again, the powers that be are all in a tizzy because of content on a social network. Joining the ranks of city officials, private employers, and high school administrators in sanctioning speech online is the dean of a nursing school. As in the Houston's Restaurant case, however, her non-proportional response has been corrected by a court of law. In this case, the 'perpetrator' of the heinous crime of voicing a controversial opinion was University of Louisville nursing student Nina Yoder. As a requirement of her childbearing course, she shadowed a patient/mother through the birthing process. She then committed her almost-fatal mistake -- she wrote about the experience on her MySpace page. In a post the court described as 'vulgar,' 'distasteful,' and 'objectively offensive,' Yoder rather frankly expressed her views about clinicals ('a waste of my time'), pregnant women ('beautiful[?] No. Hell - no.'), babies ('Creep[s] . . . . [D]emons sent to us from hell to torture us for the whole eternity'), and having kids ('like being ripped apart by rabid monkeys'). She discussed her patient's difficult eight-hour labor and, in what the court describes as 'a departing message that is positive -- life-affirming, even -- if perversely so,' she ended the post by calling women 'FREAKING STUPID' since the experience made her 'want another baby!!' Although the MySpace page has since been made private, Judge Simpson, in his order, quoted the post in its entirety for your reading pleasure. After learning of the blog post, the Associate Dean of the School of Nursing (SON) called Yoder into her office, had her frisked (apparently, Yoder's blog also mentioned her support of Second Amendment rights), and told her she was being dismissed from the school because her post violated the nursing Honor Code and childbearing course Confidentiality Agreement. . . ."
Lee Baker, “Crass and Uncouth” MySpace Posting not Grounds for Expulsion [4]
"The recent economic downturn has been hard on lawyers. Inhouse legal departments are downsizing. Firms are conducting layoffs and cancelling summer programs. Even law schools are getting in on the act, encouraging incoming 1Ls to defer admission for a year (or more). There has been no shortage of advice to help lawyers navigate these treacherous career waters. Everyone seems to have an opinion. The August issue of the Journal of the American Bar Association weighs in, identifying seven practice areas that remain busy despite the overall legal slowdown. So, as a public service to you, our dear readers, I'm going to channel my inner Mr. McGuire and say just two words: Employment Law. Yesterday Sam told you all about how social media is striking fear into the hearts of corporate executives everywhere. And, of course, employment lawyers are standing by to help them craft new 'social media policies' (employee blog policies are so 2007). But the good times don't stop there. In fact, the Internet is a virtual 'Full Employment for Employment Lawyers' machine. . . ."
Kimberley Isbell, The Internet is Keeping Employment Lawyers Busy [5]
"There has been no shortage of anecdotal evidence suggesting that using social media like Facebook or Twitter can sometimes jeopardize your job. Back in March, a Philadelphia Eagles employee lost his job when he posted a Facebook status update lamenting free agent Brian Dawkins' signing with the Denver Broncos. Around the same time, a Twitter user jeopardized a job offer at Cisco by tweeting "Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." This summer, the D.C. Department of Employment Services fired a contractor who was working with city youth after he posted updates on Twitter calling the Anacostia neighborhood a "ghetto" and suggesting that he was slacking on the job. A New York civil servant resigned in July after posting apparently racist comments to Facebook about President Obama and the Henry Louis Gates arrest. . . . Now comes some empirical data to back up our intuition that employee use of social media, blogs, and video-sharing sites gives employers the howling fantods. In its annual study, Internet security firm Proofpoint Inc. reports that 45% of the companies surveyed (220 companies with more than 1000 employees) are 'highly concerned' about the risk of information leakage via posts to social networking sites like Facebook and LinkedIn, 10% have disciplined employees for violating social networking policies in the past year, and 8% have terminated an employee for a violation. . . ."
Sam Bayard, Employers Are Freaking Out About Twitter and Facebook, Study Shows [6]
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