Week of January 29, 2010 [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...

Like a dog with a bone, Andrew Moshirnia calls shenanigans on the latest recording industry claims.
Each Man an Island? Record Industry Denies that Three Strikes Ban Will Be Collective Punishment [2]

Helen Fu looks forward to a time when code is journalism.
Open Government Data Presents New Journalism Opportunities and Legal Challenges [3]

Justin Silverman reports that the record labels aren't fans of bad lip-synching (unless it's done by Milli Vanilli -- then they award a Grammy).
EMI/Vimeo Lawsuit Leaves Lip-Dubbers Speechless [4]

Arthur Bright follows the clues, and posits that it was the FBI, in the study, with a trapdoor.
Did the US Enable Chinese Hackers to Crack Google? [5]

Eric Robinson explains that, in the courtroom, a little (outside) knowledge is a dangerous thing.
Courts In Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research [6]

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Recent threats added to the CMLP database...

Moore v. Boing Boing [7]
Posted Jan. 28, 2010

Dane v. Gawker [8]
Posted Jan.  28, 2010

Moore v. Jezebel.com [9]
Posted Jan. 27, 2010

Stone v. Hipcheck16 [10]
Posted Jan. 26, 2010

Vision Media TV Group v. Forte [11]
Posted Jan. 26, 2010

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Other citizen media law news...

State high court suspends prior restraint on news coverage
RCFP [12] - Fri. 01/29/10

Bill would limit access to online court records
JS Online [13] - Wed. 01/27/10

AP: Shepard Fairey under criminal investigation over falsehoods in copyright case
Copyrights & Campaigns [14] - Tues. 01/26/10

Pa. court won't ban courtroom tweets during trial
First Amendment Center [15] - Tues. 01/26/10

Activist ejected from "public" meeting on secret copyright treaty for tweeting
Boing Boing [16] - Fri. 01/22/10

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The full(er) Brief...

"It looks like Britain is seriously considering going ahead with its three strikes Internet ban for accused pirates. I have previously written on exactly how monstrous this law (and others like it) might be. But, for a brief moment, I entertained the possibility that the law's drafters have a noble goal at heart—to unite mankind by forcing one man to pay for his brother's sins. A little scary that they would go to these lengths, but maybe just maybe this is the result of a desire to raise consciousness of a collective humanity rather than a symptom of shortsighted stupidity. But that fun little thought experiment didn't last long. Industry representatives seem to realize that violating tenets of tempered justice that date back to the enlightenment might not be such a good thing. Recently, Shira Perlmutter of the International Federation of the Phonographic Industry claimed during a panel discussion at the Congressional Internet Caucus' State of the Net conference that ISPs will only punish the offender's account and thus will (miraculously) avoid inflicting collateral damage on the whole family. What world is this industry group thinking of? What family has multiple Internet accounts? Further, even if they do have multiple accounts, what would keep little pirate Jimmy from hopping onto little innocent Suzy's Internet? Perhaps they are developing an app that requires you to double pinky swear that you aren't Jimmy every time you log on. I call shenanigans. . . ."
Andrew Moshirnia, Each Man an Island? Record Industry Denies that Three Strikes Ban Will Be Collective Punishment [2] 

"On December 8, 2009, the White House directed every federal agency to publish before the end of this month at least three collections of ‘high-value' government data on the Internet that had never been previously disclosed, with the objectives of ‘increas[ing] accountability, promot[ing] informed participation by the public, and creat[ing] economic opportunity.' On Data.gov, the public can see a list of the participating agencies and access the catalog of available datasets online. In Massachusetts, the Open Data Initiative is in its pilot period after launching in December 2009, and data from the Massachusetts Department of Transportation are available online. This has already resulted in an iPhone app using real-time bus location information that predicts when the next bus will arrive for users of the application. Similar efforts to make data available are underway in Washington, D.C., San Francisco, and New York City. . . . Still, making data available is not the same as making data available without conditions. In making data available, governments have had to address legal issues [and] [d]evelopers using the data will do well to keep [their] terms in mind because these terms-and other, similar terms-present an array of legal issues . . . ."
Helen Fu, Open Government Data Presents New Journalism Opportunities and Legal Challenges [3]

"A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger's ‘Flagpole Sitta.' In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the song's end. . . . The problem, however, is that some of the friends mouthing those catchy lyrics were employees of Vimeo. Several record labels working under the EMI Music group filed a complaint on December 10, 2009, alleging that Vimeo not only hosts high-quality, full-length recordings of their music, but also ‘actively encourages' and ‘induces' its users to post that music as part of original work, most commonly ‘lip dubs' . . . . [A] case could be made that these lip dubs are transformative, meaning they differ from the original work in a way that creates new meaning. Adding video arguably turns the original sound recording into a new expression altogether. . . . The viewer is no longer concerned with the music and lyrics, so much as how the people look when singing the words. The thrust of the new work is humor: the humor in watching ordinary people mouthing the words of big pop stars in incongruous places while engaged in incongruous activities. . . . They have independent value. They are creative. They transcend the copyrighted material and become something new. At the very least, they're funny. Although I'm skeptical a court will favor this type of expression over what may be the economic interests of copyright holders, I do hope that in some way, on some site, lip dubs will stick around." 
Justin Silverman, EMI/Vimeo Lawsuit Leaves Lip-Dubbers Speechless [4]

"If you're a regular user of the Webtubes—and if you're reading this blog, you probably are—you're well aware of the kerfuffle that ensued after Google's decision to cease its search-engine operations in China. . . . But the piece of analysis of the China-Google-US fracas I've found most interesting is one written by security technology blogger Bruce Schneier and hosted by CNN. Schneier, whose blog can be found here, writes that what the Chinese hackers used to break into Google were the very backdoors that the US government required Google to put there to comply with government search warrants. And it's not just the US and Google where this is an issue. . . . Schneier writes that, at least in the phone arena, such systems have led to abuse by both official and unofficial parties-the FBI illegally wiretapped some 3,500 times between 2002 to 2006, and between June 2004 and March 2005, someone tapped the phone calls of several Greek ministers, including the prime minister. Ironically, when China responded to Secretary Clinton's speech about Internet freedom (via an editorial from Xinhua, one of China's official mouthpieces), they justified their own activities by citing the same sort of US actions as mentioned above. . . ." 
Arthur Bright, Did the US Enable Chinese Hackers to Crack Google? [5]

"Appeals courts in Maryland and New Jersey appear to be the first to reverse jury verdicts because of social media use by jurors during trial. I wrote about the issue of jurors' use of social media back in May, and reported: ‘there do not appear to be any cases in which courts overturned a jury verdict or ordered a new trial because of use of social media by jurors during trial. . . .' It turns out that the Maryland Court of Special Appeals had done just that two weeks prior to my post, and did it again seven months later. . . . The appellate court, in a unanimous, three-judge decision, concluded that the trial court's failure to question the jurors about the influence of the Internet research required a reversal. . . . The appeals court reversed in another unanimous decision, holding that an ‘adverse influence on a single juror compromises the impartiality of the entire jury panel'. . . . As noted previously, the use of social media by jurors-to do their own research, or to share their impressions and opinions of the cases in which they sit-is only likely to increase. And courts will have to deal with it through practical solutions, such as jury instructions that not only tell jurors not to do their own research, but also explain why they should not do so."  
Eric Robinson, Courts In Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research [6]

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