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demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated.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.
Ars Technica reports that the International Olympic Committee has lifted its ban on blogging. Athletes competing in Beijing 2008 will be allowed to blog about the Olympics, so long as they follow some, well, restrictive guidelines.
The mainstream press (here, here) reports that the Saudi Arabian authorities have detained Fouad Ahmad Al-Farhan, a popular Saudi blogger whose blog has been a platform for criticism of government corruption and advocacy for political reform.
Yesterday, Best Buy sent a cease-and-desist letter to Scott Beale of Laughing Squid for reporting on
an "Improv Everywhere" prank and their sales of T-shirts mocking the
Best Buy logo. Best Buy claimed the post infringed its trademarks and
copyrights by "promoting" sales of a T-shirt that mocked the Best Buy
CyberJournalist.net is reporting that the Democratic National Convention Committee (DNCC) is accepting applications
from bloggers interested in being part of the credentialed blogger pool at
the 2008 Democratic National Convention in Denver, Colorado:
Administrators barred a Connecticut high school student from running in a student election after the student critized admininstrators online for their handling of a student festival. In the spring of 2007, Jamfest, a yearly music festival at a Connecticut high school, experienced a series of planning setbacks that threatened to postpone or cancel the event. When Avery Doninger – a junior and incumbent class secretary – was unable to meet with the school's principal, Karissa Niehoff, to talk about the event she and three other students sent a mass e-mail asking members of the community to speak to administrators about putting the event back on schedule. Doninger and Niehoff later had a discussion in the hallway, during which she says Niehoff informed her that the event had been cancelled.
That night, Doninger wrote a Livejournal blog post criticizing the school officials' handling of the issue. In the post, she called the school officials “douchebags” and asked her fellow students and their parents to complain to school superintendent Schwartz in order “to piss [Schwartz] off more” than the mass e-mail had.
In response to her blog post, the school barred Doninger from running for reelection as Class Secretary for her senior year. At the class election, school officials prevented a group of students from wearing “Team Avery” t-shirts. According to school principal Niehoff, the t-shirt ban was intended to prevent electioneering by candidates and supporters who could afford such merchandise.
Avery's mother, Lauren Doninger, attempted to convince school officials to consider alternative forms of punishment. She also tried to establish whether or not the incident would appear in Avery's school record. When a resolution could not be reached on these issues, the Doningers filed suit in Connecticut state court against Niehoff and Schwartz. The defendants removed the case to the federal court in Connecticut.
The Doningers' complaint for injunctive relief alleged violations of Connecticut free speech laws, intentional infliction of emotional distress, and violations of Avery's constitutional rights to free speech, due process, and equal protection under the Civil Rights Act (Title 42 U.S.C. § 1983, 1988). The complaint sought to enjoin the defendants on seven different counts. All told, the complaint would prevent defendants from installing anyone as Class Secretary until an election was held with Avery on the ballot; from maintaining negative remarks related to this incident in Avery's school record; from punishing students for wearing t-shirts bearing slogans related to the incident; from preventing Avery from addressing her class in assemblies; and from punishing or intimidating Avery, her mother, or any students who subsequently might vote for Avery in the new election.
The district court found that Avery met the initial “irreparable harm” standard required for a preliminary injunction through her showing that her speech may have been chilled because she voluntarily chose not to wear a "Team Avery" t-shirt at school, limited her e-mail and blog communications to prevent a similar incident, and restricted her Livejournal account to “private.”
However, the court denied the Doningers' motion, finding that she had not demonstrated a likelihood of success on the merits as to her constitutional claims. In addressing the Doningers' claims, the court divided its discussion into First Amendment and Equal Protection issues.
The court determined that Avery's blog post constituted on-campus speech for First Amendment purposes, regardless of the fact that she wrote it off campus, because "the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Slip op. at 28. The court then noted that school administrators have the right, in certain situations, to restrict on-campus speech to promote school-related goals. The court also ruled that Avery does not have a First Amendment right to run for voluntary office.
Considering these two concepts together, the court determined that the defendants may have had the right to prevent Avery from running for office as punishment for her statements in order to promote civility in school functions, thus making an injunction inappropriate. The court had more serious misgivings about the denial of the right to wear “Team Avery” t-shirts, which it related to the black armbands in the famous Tinker school speech case. However, it decided to reserve that issue until the parties have had a chance to develop the record as the case goes forward.
The court denied the injunction as to the Doningers' Equal Protection claims because Avery's blog post made her situation unique compared to the other students involved.
5/29/2008 - The U.S. Court of the Appeals for the Second Circuit affirmed the district court's decision using similar reasoning.
11/12/2008 - The district court heard argument on the defense's motion for summary judgment.
1/15/2009 - The district court grants the defendants' motion for summary judgment in part and denies the plaintiff's motion for partial summary judgment.
1/23/2009 - District court trial set to begin June 4, 2009.
3/19/2009 - District court denies both the plaintiff's and the defendants' motions to reconsider the rulings on their summary judgment motions.
4/7/2009 - Defendants appeal the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.
4/16/2009 - Plaintiff appeals the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.
5/14/2009 - The district court grants the plaintiff's motion requesting that the district court certify as final judgment its ruling on the defendants' motion for summary judgment. Defendants file motion for stay of trial to allow time for their appeal to the Second Circuit.
4/25/2011 - The U.S. Court of Appeals for the Second Circuit decides in favor of the principal and superintendent on the issue of qualified immunity, affirming those portions of the district court's summary judgment ruling that were in favor of the principal and superintendent and reversing the remainder.
Yesterday, the OpenNet Initiative released an excellent report on the recent Internet shutdown in Burma, entitled "Pulling the Plug: A Technical Review of the Internet Shutdown in Burma." Besides the eye-popping technical analysis ONI was able to carry out in a matter of weeks, the report contains a great overview of the dramatic events of late September and early October 2007, including the role that citizen journalists and
Mike Madison published a thoughtful and thought-provoking post the other day on his madisonian.net blog about the effect that a cease-and-desist letter can have on a collaborative blogging (or "co-blogging") relationship. Madison publishes on a number of blogs, one of which is Blog-Lebo, which covers matters of local interest in Mt.
The San Francisco Chronicle has an interesting article today about Egyptian bloggers posting cell phone videos to document endemic police torture in their country (thanks to 3arabawy for the tip). The most recent iteration of this phenomenon is a clip of a thirteen-year-old boy from Mansoura who died from injuries inflicted in police custody after he was arrested for stealing a few bags of tea a week earlier:
The explicit 13-minute clip is the latest of some dozen amateur videos - mostly from cell phone cameras - that have surfaced on blogs within the past year, showing systematic torture in
Egyptian police stations. The videos have thrust a once rarely mentioned subject onto the front pages of Cairo newspapers.
Some activists hope the incriminating videos will spur a wave of reforms within the justice system.
"Activists that have worked to end torture have told me: 'You've done more in a few days what we were not able to do in 10 years,'" said Wael Abbas, a 32-year-old Egyptian blogger, who recently received the 2007 Knight International Journalism Award by the International Center for Journalists in Washington for posting police torture videos on his Web site.
It's encouraging to see the continued influence of bloggers on the mainstream press in Egypt, but it's been rough couple of month for journalists and activists of every stripe. If you're interested, the Christian Science Monitor has some informative reports on the recent crackdown (here and here).
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.
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.