Week of October 23, 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 reports that the current count stands at Creative Lawyering: 0, Section 230: 998.
Yet Another Plaintiff Faceplant, Thanks to Section 230 [2]
Sam Bayard offers yet more evidence that anonymity on the Internet isn't all it's cracked up to be.
Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger [3]
David Ardia revises the count to Creative Lawyering: 0, Section 230: 999.
Finkel v. Facebook: Court Rejects Defamation Claim Against Facebook Premised on "Ownership" of User Content [4]
Kimberley Isbell is already missing Mexico.
Combine One Part New Media, Two Parts Social Networking, Three Parts Activism, and Stir [5]
Andrew Moshirnia reports that the MPAA is jumping on the Zombie bandwagon, just in time for Halloween.
NEEEEEDDDD BRAAAAINNS: MPAA Resurrects Plan to Take the R Out of DVRs [6]
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Recent threats added to the CMLP database...
Miami Herald v. Bill Cooke d.b.a. Random Pixels [7]
Posted Oct. 23, 2009
Dolan v. Cityfile [8]
Posted Oct. 21, 2009
Advanced Armament Corp. v. Garner [9]
Posted Oct. 21, 2009
Lauth Group, Inc. v. Grasso [10]
Posted Oct. 21, 2009
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Other citizen media law news...
Ex-Yale Students Settle Internet Defamation Lawsuit
Hartford Courant [11] - Thurs. 10/22/09
Yes on One Ad Rankles NPR
The Maine Public Broadcasting Network [12] - Wed. 10/21/09
Craigslist Isn't Liable for Erotic Services Ads--Dart v. Craigslist
Technology & Marketing Law Blog [13] - Wed. 10/21/09
Is There "Hope" for Shepard Fairey?
Slate [14] - Wed. 10/21/09
Twitter and a Newspaper Untie a Gag Order
The New York Times [15] - Sun. 10/18/09
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The full(er) Brief...
"I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act ('Section 230'). Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material. And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings. Seriously, there are loads of these cases, and they almost always fail - why do plaintiffs keep bringing them? The latest plaintiff to plow face-first into the Section 230 wall is Thomas Dart, Sheriff of Cook County, Illinois. Dart sued personal ad site craigslist in March 2009, accusing the website of facilitating prostitution through its 'erotic services' section. Ars Technica writes that the lawsuit, along with pressure from other law enforcement officials around the country, prompted craigslist in May to change the objectionable section's name to 'adult services,' increase fees, and institute more extensive moderation. But the Sheriff's Department did not drop its case after the change, claiming that the difference between 'erotic' and 'adult' was purely cosmetic, and that craigslist was still promoting prostitution. Labels aside, this is still a claim attempting to hold craigslist liable for publishing the statements of its users: precisely the sort of thing that Section 230 bars. And that's just why Judge John Grady tossed the Sheriff's case. . ."
Arthur Bright, Yet Another Plaintiff Faceplant, Thanks to Section 230 [2]
"A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity. . . . What's especially interesting about this case is that it provides a window onto how trial courts can apply the Dendrite standard and how plaintiffs can satisfy it. The court held a hearing in August 2009, in which the Swartzes presented live testimony for the judge. John Doe filed a sworn affidavit with the court, but otherwise presented no proof. (A video of the hearing is available in two parts here and here, but unfortunately the sound quality is not great.) In his decision, Judge Brothers pointed out exactly what evidence persuaded him. . . ."
Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger [3]
"Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. . . . Putting aside the factual accuracy of the plaintiff's 'ownership' theory, copyright ownership would seem to be irrelevant to the analysis under Section 230 which requires only that the content at issue be 'provided by another information content provider.' 42 U.S.C. § 230(c)(1). While no court has (prior to Finkel) addressed this specific question, there are plenty of cases saying that the provider of an interactive computer service doesn't lose Section 230 immunity even if it pays someone to create content (as long as the person is an independent contractor, not employee). . . . "
David Ardia, Finkel v. Facebook: Court Rejects Defamation Claim Against Facebook Premised on "Ownership" of User Content [4]
"A lot of ink and pixels have been spilled on predictions about how technology and social media will change the world. But the new technologies still have their skeptics (with some even going so far as to compare Twitter to the Macarena). Last week in Mexico City, the Alliance of Youth Movements convened a group of international activists, government officials, academics, journalists, and representatives of new media companies for three days of discussions seeking to prove the skeptics wrong.The Second Annual Alliance of Youth Movements Summit sought 'to explore ways to advance grassroots movements seeking positive social change through 21st century technology and tools.' . . . Attendees heard panel discussions on a variety of topics, as well as case studies on the use of new media to advocate for social change. Natalia Morari of ThinkMoldova spoke on Moldova's Twitterrevolution, where demonstrators deployed social networking sites like Facebook, Twitter, and Live Journal to protest the election results in the former Soviet-republic. Jack Dorsey of Twitter, Steve Grove of YouTube, Kristen Morrisey of Google, and James Eberhard of MobileAccord spoke on a panel titled 'Using Social Networks to Effect Change' . . . . "
Kimberley Isbell, Combine One Part New Media, Two Parts Social Networking, Three Parts Activism, and Stir [5]
"Between sparkling vampires and slobbering zombies, the Undead have found new life at the box office these days. So it makes sense that the MPAA, inspired by the success of the long deceased, has decided to resurrect the odorous, oft-defeated idea of 'selectable output control.' We can only hope and pray that the FCC will shoot this idiotic (but dangerous) idea in the head, and grant consumers a brief respite (before the inevitable sequel). . . . The Movie Industry has never been fond of video recorders. The studios tried to strangle the VCR in the crib, claiming that the initialed monster would lead to widespread pirating and people watching movies GASP at home. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). . . . The MPAA hasn't thought this through. The MPAA doesn't need the help of a government actor at all. It could easily address its piracy concerns by simply rolling that risk into the cost of television licensing or pay-per-view fees. Furthermore, the entire Industry's approach to piracy prevention spurs pro-piracy education. The high profile attempts to quash DeCSS, the DVD decrypter, have served only to publicize the program, encourage creative diffusion, and embarrass the MPAA. By focusing on all the ways pirates could be pirates, the Industry is putting on a clinic. . . ."
Andrew Moshirnia, NEEEEEDDDD BRAAAAINNS: MPAA Resurrects Plan to Take the R Out of DVRs [6]
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