Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness.
Reprinting content from other information sources is one of the trickiest areas of communications law -- especially for bloggers and other publishers on the Internet, where the legal framework has yet to be established. InfoMean blog has a useful set of pointers to help publishers avoid infringement lawsuits when reprinting information.
(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)
This interview of Wael Abbas sheds some light on the legal and political climate for bloggers in Egypt. While Wael has not been detained by the Egyptian security forces for his blogging, the government has put him under surveillance and harassed him and his family, both electronically and otherwise. He says that one of his biggest fears is "somebody filing a lawsuit against [him], accusing [him] of defaming Egypt or spreading false rumors -- the usual stuff that is used against journalists in Egypt."
Following up on our previous posting about blog campaign advocacy, the Federal Election Commission announced yesterday that it has rejected conservative blogger John Bambenek's complaint alleging that the liberal website Daily Kos operates as a "political committee." The Commission's news release suggests that it will not treat online media sources differently from traditional media sources, and that it will not lightly find that a blog's "major purpose" is to influence elections:
In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act. . . . Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that "costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station . . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.
This decision provides some reassurance that bloggers do not run afoul of federal election laws simply by strongly and consistently advocating a particular political viewpoint.
Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website, fakelaugh.com, along with some blog commentary. You've got to hear and see this one to believe it:
A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint, filed Friday, August 24, includes counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleges that "Produce Paradise" depicts the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."
David Lat runs a legal tabloid blog called Above the Law, which provides "news and gossip about the profession's most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments." No stranger to notoriety in the past, he's recently become the center of attention in a humorous episode involving a leaked "celebratory anthem" created by the law firm, Nixon Peabody, when the firm made Fortune magazine's 2007 list of the best companies to work for. The song is embarrassingly bad -- As Frank Pasquale of Concurring Opinions puts it, "think 'Up With People' meets Sheena Easton meets B of A's version of U2's One." Lat himself writes:
On the musical merits, the song itself is just as horrific as the idea of a law firm theme song. Yes, we miss the eighties, but not this much. The lyrics include such gems as "Everyone's a winner at Nixon Peabody" (the chorus) and "It's all about the team, it's all about respect, it all revolves around integri-tee yeah." . . . Check it out for yourself below. But we're warning you: even though the Nixon Peabody anthem is dreadful, it's as catchy as HPV. If that "everyone's a winner" chorus gets stuck in your head for the rest of today, don't blame us.
Following up on our posting yesterday about WordPress in Turkey, the MidEast Youth project has launched a petition calling on the Turkish government to invalidate the judicial decision to block the entire WordPress blog-hosting service in that country. The petition states:
Reports (here, here) indicate that WordPress.com, in its entirety, has been blocked in Turkey. People trying to visit the website get the following message: "Access to this site has been suspended in accordance with decision no: 2007/195 of T.C. Fatih 2.Civil Court of First Instance." The founding developer of WordPress, Matt Mullenweg, began writing about the situation last week on his personal blog, and he received a letter on Saturday night from a Turkish attorney representing Mr. Adnan Oktar, who apparently is a Turkish national and the author of books written under the pen name Harun Yahya. Mr. Oktar's attorney claims that another Turkish national, Edip Yuksel, started a number of WordPress blogs dedicated to defaming his client. The attorney says that he sent a number of letters complaining about the alleged defamatory statements to the WordPress legal department and apparently to Matt personally. According to the letter, he then brought the matter before a Turkish court, which granted Mr. Oktar's request to block access to WordPress.com in Turkey. The letter demands that WordPress "remove and prohibit any blogs in [its] site that contain my client's name Adnan Oktar or his pen name Harun Yahya or various combinations of these 4 names."
In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution.
This is a subject we are working on for the CMLP Legal Guide, so I eagerly printed her excellent article (yes, I prefer to read things in hard copy). I'll touch on a few of the more important issues in this post.
The Australian is reporting that the International Olympic Committee (IOC) will likely rescind its requirement that Olympic athletes refrain from blogging during the Olympics:
The IOC Press Commission, chaired by Australian Kevan Gosper, is set to recommend that the IOC's powerful executive board drop its opposition to athletes writing blogs during the Games when it meets in November. Competing athletes are specifically prevented from working as journalists during the Games and have so far been strictly denied rights to continue writing internet columns during the event. But Olympic sources said yesterday that the IOC was set to make the shift as it realised it had to recognise the dramatic expansion of the internet in the daily lives of athletes. The IOC is also keen to expand the appeal of the Olympics to the youth market.
This seems like a complete no-brainer. Who better to provide first-person perspectives on the Olympics than the athletes themselves. The fact that they can't currently write about their experiences is lamentable, but not surprising given the IOC's strict control of everything related to the Olympics.
Of course the IOC's change, assuming it is approved, wouldn't just open the blogging floodgates. According to The Australian, the head of the IOC Press Commission said athletes "would have to comply with some strict conditions on their blogging, including not benefiting financially and not criticising coaches or other athletes."
Not criticising coaches or other athletes?! I guess that is free speech IOC style.
An Illinois juvenile court judge refused to allow blogger Elaine Hopkins from Peoriastory.com to observe and cover a July 25 juvenile court hearing in Peoria, IL. In excluding Hopkins from the courtroom, Judge Albert Purham, Jr. ruled that bloggers are not journalists under Illinois law. Hopkins, who covered her ouster on her website, reported:
Operating a "so-called blog" doesn't make the person a journalist, Purham said. Before the ruling he consulted the lawyers in the courtroom. A lawyer for the parent in this child welfare case had no objection, and her client, Lorraine Singleton who lost her children in 2003 and is trying to get them back, also had no objection. But assistant state's attorney Susan Lucas objected, as did an unidentified female lawyer apparently representing the Illinois Department of Children and Family Services. An explanation that Peoriastory.com has operated since February 2007, has business cards, and is run by Hopkins, a former newspaper reporter known to court personnel, did not sway the judge.
Unlike adult criminal proceedings, which are presumed to be open to the public, juvenile proceedings have traditionally been closed. See In re Gault, 387 U.S. 1, 25 (1967). Under Illinois' Juvenile Court Act, the general public, except for the "news media," are excluded from juvenile proceedings. The provision addressing access, 705 ILCS 405/1-5, states:
To follow up on Dan Gillmor's post earlier today, disturbing reports (here, here, and here) are emerging about the legal climate for bloggers in Malaysia. Yesterday, police detained Raja Petra Kamarudin, a prominent political commentator and blogger. They interrogated him for eight hours about articles he has posted recently and about user comments to his postings. Kamarudin is the editor of one of Malaysia's most popular political websites, Malaysia Today, which draws approximately 340,000 visitors a day, according to Chow Kum Hor of the Straits Times. The police summoned Kamarudin to Dang Wangi district police headquarters in Kuala Lumpur, following a complaint by the ruling United Malays National Organization on Monday, claiming that Kamarudin had insulted the king and Islam on his website.
Upon his release from detention, Kamarudin wrote to his readers, emphasizing the government's interest in user comments and warning that "what you post in the comments section may get me sent to jail under the Sedition Act." According to Reporters Without Borders (RWB), Kamarudin faces a possible three-year prison sentence. Charles Ramendran of the Sun reports that Kamarudin's wife said that this is the second time her husband has been brought in for questioning over a posting on his website. The police questioned him last year over a posting about the sale of state titles, but did not formally charge him.
Eugene Volokh has reposted a very useful analysis of whether homeowner's insurance policies cover libel lawsuits, entitled Blogger -- You Might Have Already Had Libel Insurance. Volokh concludes -- in my opinion, correctly -- that homeowner's insurance policies, and possibly some renter's insurance policies, generally cover libel lawsuits. While these policies don't cover punitive damages (almost all policies exclude intentional or willful conduct), they do cover compensatory damages and attorney's fees.
Hanako Tokita of Global Voices reports that the Japanese Ministry of Internal Affairs and Communications is considering extending Japan's existing Broadcast Law to regulate bloggers and other website operators:
Despite the obvious significance of the proposed regulation, neither media nor the majority of bloggers are aware of its existence. The most detailed coverage of the issue has been provided by tokyodo-2005, a former journalist, now a lawyer and prolific blogger on media related issues, who has (at time of writing this) already posted seven entries on the topic. In these blog entries, he warns that this legislation would be applied not only to general websites but also to personal blogs and home pages. The report advises, he cites, that contents found illegal based on the significance of their activity ( would be outside the scope of protections on freedom of expression as specified in the Japanese Constitution; therefore, it is claimed, there would be no constitutional issue with regulating such content.
(Note: Global Voices, like the CMLP, is affiliated with the Berkman Center and Ethan Zuckerman, a founder of Global Voices, is on the board of advisors for the CMLP.)
Citizen journalists commonly embed video clips to illustrate a story or other posting. Sometimes, the posting itself (and its dissemination on YouTube) is the story. Have you ever wondered whether embedding that video clip might lead to copyright woes? If so, apparently you're not alone. There's been a good deal of discussion relating to this issue on various blogs and websites recently. The discussion took a humorous turn this week when a Seventh Circuit Court of Appeals judge inserted a link in an opinion directing readers to a YouTube video about George Brett's famous "pine-tar incident," only to find that the link was removed from YouTube due to a notice of infringement by Major League Baseball. (For more details see Eric Goldman's blog.)
The Blog Herald recently ran a story suggesting that, indeed, bloggers could be held liable for embedding an infringing video on their sites. The story quoted an IP attorney to the effect that "[a]ny time you incorporate a copyrighted work into a site without the rightsholders' consent, you're potentially liable. . . It doesn't matter where it's hosted." The story further indicated (on the opinion of the same attorney) that it does not matter if the person doing the embedding is aware of the infringing nature of the work because innocent infringement is just as actionable as intentional infringement.
Fred von Lohmann's informative post on EFF's Deep Links makes some good points that go a along way toward lightening up this rather gloomy picture. The post points out that an embedded YouTube video is just a link. So, there is "no copy of the YouTube video being stored on your server (only the HTML code for the embed)." A post on Techdirt last week made a similar observation, noting that "[a]ll you've done is put a single line of HTML on your page."
As von Lohmann writes, this makes embedded video just like any other in-line image links found on the web, including Google Image's search functionality. This is significant because an important recent case from the Ninth Circuit Court of Appeals, Perfect 10 v. Google Inc., held that Google Image's in-line linking of copyrighted photographic images posted on third-party websites did not constitute direct copyright infringement of the plaintiff's display or distribution rights because no copies of the plaintiff's photographic images were stored on Google's computers. The court wrote:
The Boston Globe reported today that a pediatrician settled a medical malpractice case in the middle of trial when opposing counsel revealed that she had discovered the doctor's anonymous blog in which he had provided "unvarnished" commentary on the lawyers, jurors, and defense strategy of his case.
We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.