Week of February 19, 2010 [1]
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The latest from the Citizen Media Law Project blog...
Andrew Moshirnia thinks Vision Media has been very naughty.
Hello Gorgeous! The Streisand Effect Survives Assassination Attempt [2]
Eric Robinson
explains why it's never a good idea to piss off a judge.
Informercial King Gets 30-Day Sentence for EMail Barrage [3]
Justin Silverman
shows why fair use analysis is more like a flamenco dance than a two-step.
Photographing Public Art: A Legal Waltz in Seattle [4]
Arthur Bright
throws some cold water on Iceland's plans to be a free speech haven.
Fortress Iceland? Probably Not. [5]
CMLP Staff laments the day the music (blogs) died.
Google's MP3 Blog Removals: Bloggers, It's Up to You [6]
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Recent threats added to the CMLP database...
Apex Technology Group, Inc. v. Does [7]
Posted Feb. 18th, 2010
iStockphoto v. Awkward Stock Photos [8]
Posted Feb. 16th, 2010
Sarnoff v. Falco [9]
Posted Feb. 16th, 2010
Gwinn v. Nelson [10]
Posted Feb. 16th, 2010
Conde Nast v. Estabrook [11]
Posted Feb. 16th, 2010
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Other citizen media law news...
Legislature to Hold Hearing on Reporters' Shield Bill
Media Law [12] - Thurs. 2/18/10
Local Media: The Magic Combination that Means More Trouble for Newspapers
SimsBlog [13] - Thurs. 2/18/10
Philly targets Facebook, Twitter after snowball fight turns ugly
CNET News [14] - Weds. 2/17/10
IOC Uses DMCA to Suppress Luge Accident Video
Tatical IP [15] - Weds. 2/17/10
Facebook gripes protected by free speech, ruling says
CNN.com [16] - Tues. 2/16/10
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The full(er) Brief...
"I have written plenty of posts in which I have opined that sue-happy entities simply do not understand the Streisand Effect. That is, they do not grasp that the Internet has fundamentally changed the economics of menace: attempts to gag individuals will only result in a greater publication of those pieces of information that the litigant is trying to hide. The story hits Twitter, the net hordes awaken, and the PR battle becomes a rout. See Sarah Palin, Tony La Russa, Shaw Printing, ACORN, et alia. But to be fair, at least some individuals grasp the basics of the Streisand Effect and try to avoid it. Unfortunately, this does not mean that these people refrain from filing meritless lawsuits in order to censor critics. Instead, these wise bullies simply try to suppress the disclosure of their attempted gags. One method is to claim that the threat itself is copyrighted, as was the case with Platinum Equity. I have detailed why this should almost never work; similarly, it offends the sensibilities to allow an extortionist to copyright a threat, or a kidnapper to copyright a ransom note (no matter how lovingly crafted these implements of terror may be). But Vision Media cooked up a more novel method to hide information from the public. Thankfully a judge saw through it; but it truly was an inspired attempt to smother the Streisand Effect. . . ."
Andrew Moshirnia, Hello Gorgeous! The Streisand Effect Survives Assassination Attempt [2]
"On February 11, a federal judge told [Kevin] Trudeau that he didn't want to know about how the author and pitch master had purportedly affected people's lives. The judge held Trudeau in contempt after the judge's email account was flooded with hundreds of emails supporting Trudeau in response to a missive on Trudeau's web site. . . . The judge, U.S. District Judge Robert Gettleman, is hearing a civil case brought by the Federal Trade Commission over Trudeau's weight loss book. This is just the latest round in a long battle between the FTC and Trudeau. . . . On February 10, Trudeau posted to his website a message (since removed) with the headline ‘Kevin needs your voice,' giving the judge's email address and asking supporters to tell Gettleman how Trudeau had improved their lives. He repeated the request on his online radio program. The judge's email account was flooded with what he characterized as ‘harassing, threatening and interfering' emails, which apparently overwhelmed his Blackberry. . . . But were the emails from Trudeau's supporters actually ‘improper ex parte communication,' as characterized by the judge? See Transcript, at 17. And did they ‘obstruct[] the administration of justice,' a required element of criminal contempt? See United States v. McGainey, 37 F.3d 682, 683 (D.C. Cir. 1994). . . . It is common practice for friends and supporters of a criminal defendant-and in some cases, the defendant's victims-to send judges letters prior to sentencing. . . . The bottom line is, Gettleman got upset, and it's not a good idea to piss off the judge. . . ."
Eric Robinson, Informercial King Gets 30-Day Sentence for EMail Barrage [3]
"To photographer Mike Hipple, the claim is baseless. The photo he took about 10 years ago of a woman standing near the ‘Dance Steps on Broadway' sculpture in Seattle's Capitol Hill is an example of fair use. If it's not, he reasons, the right of all photographers to take pictures in public will be in jeopardy. His photo was, after all, ‘taken on a public sidewalk, showing a woman interacting with a piece of public art, paid for by public funds. And it only depicts a small portion of the artwork at that. . . .' [That] sentiment is shared by many Seattle residents who feel that public art, financed with their tax dollars, should be in the public domain. They paid for it, say residents, so they should be able to photograph it without fear of a lawsuit. . . . Hipple sold the photo (pictured above) to a stock photography company [and last February,] Mackie sued Hipple . . . for selling it in the first place. . . . Despite receiving public financing for the project, Mackie retained rights to the artwork. Those rights, according to § 106 of the U.S. Copyright Act, include the exclusive right to reproduce the work or to create derivative work from it. . . . All in all, though, it's a hard call [on the issue of fair use]. . . . Cities like Seattle should reconsider how they commission public artwork. . . ."
Justin Silverman, Photographing Public Art: A Legal Waltz in Seattle [4]
"Today, the Icelandic Modern Media Initiative (‘IMMI') will file a final proposal to the Icelandic parliament to update that nation's journalism laws into a reporter's dream. But frankly, I'm pretty sure it won't be much help to journalists around the world. . . . The IMMI proposal addresses all aspects of media law, beefing up protections for whistleblowers, reporters' sources, and communications with those sources. It also aims to reduce prior restraints, libel tourism, and the statute of limitations for bringing lawsuits against publishers. Plus, it offers protection to ISP hosts and implements fee-shifting for winning media defendants. . . . It's too bad that it probably won't help much. See, the problem is that whatever Iceland does, it can't change the 500-pound gorilla of international media law: the principle that publication happens at the point of download, not the point of upload. . . . The poster child case for this principle is Dow Jones & Co., Inc. v. Gutnick, a case that reached the High Court of Australia in 2002. In that case . . . despite the fact that no one in Australia other than Gutnick's lawyers actually read the offending article, the judges unanimously ruled that Australian laws applied. . . . With the Gutnick ruling setting the current paradigm for international jurisdiction, the IMMI is not nearly the journalistic fortress it's meant to be. Plaintiffs will still be able to sue in a libel-friendly jurisdiction (like London, for example) and thereby circumvent all the protections the IMMI is meant to offer. . . ."
Arthur Bright, Fortress Iceland? Probably Not. [5]
"That feeling-as if a couple dozen voices cried out in terror and were suddenly silenced. If you felt some similar disturbance in the force last week, you might be aware that Google pulled the plug on several MP3 blogs it had previously hosted on its Blogspot service. On Wednesday, The Daily Swarm reported that several prominent bloggers had found their blogs yanked from Google's service. The next day, Google responded with a "quick note", saying that it was merely enforcing its DMCA policy. Ah, our longtime friend the DMCA. The Digital Millennium Copyright Act acts as a safe harbor for web hosts whose users infringe others' copyrights. . . . But where users aren't actually infringing others' copyrights, the DMCA can go too far. Because a host's failure to remove infringing content means it can be sued for that content, the DMCA encourages a ‘takedown first, ask questions later' approach. . . . These innocent users can horn in and perform some DMCA dance moves of their own. Specifically, the DMCA describes a ‘counter-notice' process for notifying your host that you dispute the copyright holder's claims of infringement. There are a lot of hoops to jump through (Chillingeffects.org provides a great counter-notice generator to make it easier), but the results are worth it. . . ."
CMLP Staff, Google's MP3 Blog Removals: Bloggers, It's Up to You [6]
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