Week of September 11, 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...

Arthur Bright and Sam Bayard poke the Glenn Beck bear.
Will Glenn Beck Sue a Defamatory Website in 2009? [2]

Lee Baker recounts the modern-day fairytale of the digital Narcissus and the Adult FriendFinder ads.
Beverly Stayart Supports Seals, Not Cialis: Section 230, Search Engines, and Vanity Queries [3]

Andrew Morshirnia predicts a wave of retributive fratricide if file-sharing bans reach our shores.
Cybernetic Cain: In the Eyes of the Internet Law, You Are Your Brother’s Keeper [4]

Marc Randazza is shocked, SHOCKED!, that the ostrich-in-the-sand defense didn't work out.
"But We're Just An Innocent Web Host" Ain't Gonna Cut It [5]

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Recent threats added to the CMLP database...

Ottinger v. Tiekert [6]
Posted Sept. 9, 2009

Kinay v. TCI Journal [7]
Posted Sept. 9, 2009

Sturm v. eBay [8]
Posted Sept. 9, 2009

Department of Homeland Security v. Does [9]
Posted Sept. 9, 2009

United States v. Does [10]
Posted Sept. 9, 2009

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Other citizen media law news...

MonaVie Hits Blogger Over 'Trademarks' in MetaData
The Consumerist [11] - Fri. 09/11/09

Amir Khan and Frank Warren launch legal bid to force Facebook to remove 'racist' content
Telegraph.co.uk [12] - Thurs. 09/10/09

Blogger files to dismiss latest lawsuit
The Daily Times [13] - Thurs. 09/10/09

Hawaii law shields independent reporter, state court rules
First Amendment Center [14]  - Tues. 09/08/09

Anonymity Online Under Attack: China and Australia
Techdirt [15] - Tues. 09/08/09

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The full(er) Brief...

"Even though Glenn Beck has a prime spot on cable television to offer up his beliefs, it's sometimes quite hard to understand what his beliefs actually are. For example, as Jon Stewart has pointed out, he believes we have the best healthcare in the world, except when he says it's a nightmare. Or as Politico underscored, he believes that President Obama is a racist, but he doesn't believe that Obama doesn't like white people. But if there's one thing Beck believes, it's that he didn't rape and murder a young girl in 1990. And he's siccing his lawyers on a website that asks him - with tongue firmly placed in its virtual cheek - to deny it. Of course, no one really believes that Beck raped and murdered a young girl in 1990. It's just an Internet meme that came into being on Fark.com recently, imitating Beck's habit of 'making a totally bogus rumor into 'news' by stating it, and wondering why there hasn't been a denial,' as Mike Masnick puts it. (If you're wondering, the premise of the rape and murder charge actually comes from a Gilbert Gottfried bit during a roast of Bob Saget. Go figure.) According to Mediaite, the Farkers took the meme and plastered it all over the web, including for good measure a variation of Googlebombing, so that Google would suggest "Glenn Beck murder" and other similar searches as alternatives to searches for 'Glenn Beck.' (Google appears to have since corrected this, however.) So far, it's all just typical, completely uncontrollable Internet chatter. But one anonymous fellow took it a step farther, and set up glennbeckrapedandmurderedayounggirlin1990.com. And that's when Glenn Beck's lawyers got involved, claiming that the website is defamatory and demanding that it be shut down and its webmaster's identity be revealed. . . ."
Arthur Bright and Sam Bayard, Will Glenn Beck Sue a Defamatory Website in 2009? [2]

"Search engines have become the new deep pockets in this age of cyber-litigation. Despite the fact that they do not control the content of the sites they index in any way, people still routinely seek to hold them liable for unsavory or objectionable things that appear in search results. One might have thought that passage of Section 230 of the Communications Decency Act ('Section 230') back in 1996 would have curtailed such suits, but alas, this has not been the case. The latest attempt to hold search engines responsible for others' speech comes courtesy of Beverly Stayart. Yes, the one and only Bev Stayart (according to her complaint, she is the only one on the Internet using that name), genealogist and animal activist extraordinaire (we at CMLP had never heard of her either). Apparently she decided to input her name as a search term at yahoo.com and altavista.com and was bombarded with spam sites purporting to sell Cialis (and other drugs to treat erectile dysfunction) or containing explicit banner ads for adultfriendfinder.com. These sites contained her name either in their 'spamdexing' text or their nonsensical URLs (e.g. jewellery-makin-doorway.orge.pl/bev-stayart.html). Appalled that the presence of such sites might sully her wholesome image, she sued Yahoo! and Overture (provider of altavista.com; the companies are now merged) for false endorsement under the Lanham Act and violation of privacy. This case is a no-brainer, whether analyzed under trademark doctrine or Section 230. The federal district court, in a rather unclear opinion critiqued elsewhere, agreed and dismissed the case. But Yahoo! still had to retain counsel and expend time and money on defending the suit, even if only to the motion to dismiss stage. . . ."
Lee Baker, Beverly Stayart Supports Seals, Not Cialis: Section 230, Search Engines, and Vanity Queries [3]

"Let's review the two basics of modern criminal law:  1. The law punishes you for your individual crimes, not the crimes of your ethnic, religious, or kin group.  If your father kills someone, you don't follow him to jail. (Usually.)  2. The law does not take away your freedom or valuable property without giving you some sort of reasonable pre-deprivation hearing.  (Think a trial, see Mathews v. Eldridge, 424 U.S. 319 (1976)).  I'm sorry to bore you with these mundane/obvious details, but it seems that various governments have forgotten these simple rules when it comes to crafting cyberlaw.  You might recall the Internet-banning HADOPI law that made the rounds in France before being defeated by the Socialists.  That law sought to block users from the Internet if they had been accused (not convicted) of illegal file sharing.  The Conseil Constitutionnel struck it down, holding that Internet access was a fundamental right.  At the time I noted that the French refusal was a set back for the film and music lobbies because the French plan was to serve as a working prototype for draconian copyright policies the world over.  Well it seems that the idea of summary IP execution has made its way across the channel.  England, land of refined manners and strange smiles, is the new proving ground for Internet prohibition.  According to a report from the office of Business Innovation and Skills and the Guardian, accused users would receive letters warning them of detected file sharing.  If the sharing continued, the users' Internet access would be cut. . . ."
Andrew Morshirnia, Cybernetic Cain: In the Eyes of the Internet Law, You Are Your Brother’s Keeper [4]

"Akanoc Solutions Inc., Managed Solutions Group Inc., and Steven Chen, the owner of the two companies learned the hard way that being a web host doesn't make you automatically free from liability for copyright and trademark infringement committed by your customers. The ISPs involved hosted websites that sold knock-off Louis Vuitton goods, and they were made aware of that fact. A jury found that they knew, or should have known, that their customers were using their services for this purpose, and tagged the web hosting company for a $32 million verdict. Chen's lawyers argued that he and his companies were protected from being assessed damages under the DMCA, which generally does protect online service providers from these kinds of suits. However, given that Chen's companies both provided the infrastructure for the infringement scheme and that they were made well aware of the activity, but turned a blind eye to it, they lost their immunity. . . ."
Marc Randazza, "But We're Just An Innocent Web Host" Ain't Gonna Cut It [5]

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