David Ardia's blog

Report Describes High Cost of Copyright Confusion for Media Literacy

The Center for Social Media at American University has just released a study entitled The Cost of Copyright Confusion for Media Literacy. The report, which is based on interviews with dozens of teachers and educators, concludes that:

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Libel Threat Brings Down Blogs in UK

Robin Hamman noted yesterday that a number of UK bloggers had their blogs taken down by their ISP following threats of legal action by Uzbek billionaire Alisher Usmanov. According to Hamman:


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CMLP Seeking Interns

The CMLP is looking to hire law students (and lawyers) to work as paid interns for the 2007-08 academic year. Interns will perform legal research and draft sections of the CMLP’s legal guide and will analyze recent lawsuits and other legal threats involving online speech for our legal threats database. Interns will be required to work onsite at our offices at Harvard Law School's Berkman Center for Internet & Society in Cambridge, Massachusetts one day per week, but otherwise will be permitted to work remotely.

If you are interested in working on cutting edge legal issues relating to the intersection of law and journalism on the Internet, please apply. You can find more information on the position and where to apply here. (For information about other opportunities at the Berkman Center, come to their Open House on September 24th.)

On a related note, if you are a college student -- and a blogger -- you should consider applying for the Daniel Kovach Scholarship Foundation's college blogger scholarship. Applications for the scholarship, which pays $10,000, are due October 6, 2007. Details can be found at the Foundation's website.

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Pennsylvania Considering Strengthening Open Records Law

The Pennsylvania House and Senate are considering new legislation designed to strengthen the state's Open Records Law. This is welcome news, as Pennsylvania's current law is one of the most antiquated -- and public-unfriendly -- laws in the country. (It's an indication of Pennsylvania's disregard for public access that I had to link to the Pennsylvania Newspaper Association's website for the current version of the law because the state's legislative website does not include laws enacted prior to 1975, and the Pennsylvania law came about in 1957.)

There are currently three Open Records reform bills pending in the Pennsylvania House and Senate: HB 443, introduced by Rep. Tim Mahoney; SB 1, introduced by Sen. Dominic Pileggi; and SB 765, introduced by Sen. Jim Ferlo.

The Evening Bulletin, which does a good job comparing the three versions, is sanguine that a reform bill will pass this session:

A major obstacle standing between proposed reform and passage is the reformers themselves. They all appear to agree on the need for more access to public records, but they don't all agree on how it should be accomplished. It is more difficult to find and acquire public records in Pennsylvania than just about anywhere else in the country.Legislators, terrorized by the threat of being cast and perceived in an election year as against reform, appear ready to vote for open records reform.

To help recalcitrant legislators do the right thing, the Pennsylvania Newspaper Association and PassOpenRecords.org are sponsoring a public "PA Open Records Challenge." Let's hope they succeed in pushing through a reform bill. It's long overdue.


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Short Hiatus

I'll be traveling for the next ten days.  Postings will be light as a result.

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Chinese Cyber-Dissident Sentenced to 4 Years for "Inciting Government's Overthrow"

Reporters Without Borders is reporting that a Chinese court in the southeastern province of Zhejiang sentenced lawyer and cyber-dissident Chen Shuqing to four years imprisonment for posting articles critical of the government on the Internet:


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Regulating Blog Campaign Advocacy

Allison Hayward, an assistant professor of law at George Mason University, has a new article coming out entitled Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S., German, and EU Approaches. (Credit to Todd Zywicki at the Volokh Conspiracy for the tip.) Hayward writes in her abstract:

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.


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N.Y. City Backs Down on New Photography and Filming Rules

In June we reported that the New York Mayor's Office of Film, Theater and Broadcasting was considering new rules that would require any group of 2 or more people who want to use a camera on city property -- including sidewalks -- for more than a half hour to get a city permit and $1 million in liability insurance.

Not surprisingly, the new rules were roundly criticized from the start. The New York Civil Liberties Union, which said the rules encroached on First Amendment rights, threatened to file a lawsuit to invalidate them. One of the more interesting approaches was taken by Olde English, a comedy group based in New York City that created a rap video lampooning the new rules and directing viewers to contact the Office of Film to express their dissent. (Don't miss the video, it's great.)

The city has now backed down, following a strong public outcry by photographers and independent filmmakers. NY1 News reports:

The Mayor's Office of Film, Television, Theater and Broadcasting said Friday that it will re-evaluate its set of proposed rules that would have required permits and as much as a million dollars in insurance for small, independent productions. The announcement comes at the end of a 60-day public comment period on the policies. The organization Picture New York gathered a petition with 31,000 signatures opposing the rules.

According to NY1 News, the Office of Film says it will take the public's comments into account in the next draft of the rules.


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Berkman Center Hiring Media Fellow

The Berkman Center for Internet & Society at Harvard Law School is seeking a Media Fellow to undertake a project to comprehensively study the new/citizen/social media landscape. The fellow will perform a critical analysis of where citizen media has fallen short, where it has delivered, and how we as a community can help it to do better. Details:

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First Criminal Online Libel Verdict in Bhutan

Kuensel Online, the electronic version of Bhutan's English-language national newspaper, reported last week that a man who posted comments on its discussion forums was convicted of criminal libel:

On July 16 the Paro district court sentenced an employee of the National Housing Development Corporation (NHDC) to one year in prison, with an option to pay thrimthue, in the first ever online defamation case in Bhutan. The thrimthue of Nu. 36,000, in lieu of one year imprisonment, has to be paid within 10 days.

Defendant Yeshey Lotay was ordered to pay compensatory damages of Nu. 36,000 each to a couple, both forest rangers, within one month of the judgment. Pema Dorji and Ugyen, both civil servants in Paro dzongkhag, had filed the case against Yeshey Lotay for defamation in a kuenselonline discussion forum in August, 2006.

According to Kuensel Online, the defendant "pleaded guilty" in his opening statement and admitted that he acted with malice and had no proof to substantiate his allegations of bribery, corruption, and misuse of power.

Although it doesn't appear that Kuensel Online or the defendant's ISP were implicated in the case, the article quotes the court as stating that regulatory authorities and Internet Service Providers share equal responsibility to regulate Internet related crime:

"The websites that solicits online discussion forums must also be equally responsible to protect from the vices of any internet related crimes and the principle of vicarious liability impugn that it is just not good enough to say that the webmaster or editors are not responsible of the content with a disclaimer clause," said the Paro drangpon.


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Olympic Athletes May Be Allowed to Blog Again (with Conditions)

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.


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Bloggers Are Not Journalists, Illinois Juvenile Court Judge Declares

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:


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Bill Proposes to Criminalize Copyright Infringement

The Electronic Frontier Foundation reports that the U.S. House of Representatives is considering criminalizing copyright infringement, again:

Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn't the first time that Congress has taken up the DoJ's copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don't need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

Among other things, the proposed legislation, entitled "Intellectual Property Enhanced Criminal Enforcement Act of 2007," would make it a crime to attempt to engage in copyright infringement, which would be punishable by imprisonment of up to 20 years.

The bill was introduced on July 24, 2007 by Rep. Steven Chabot, and is currently sitting in the House Judiciary Committee. You can track its status at Govtrack.us and at OpenCongress.org.

To find out what you can do to derail this dangerous bill, visit the EFF's Fight The Justice Department's Copycrime Proposal!

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Libel Insurance For Bloggers?

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.

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CIA Definition of 'News Media' for FOIA Requests Could Include Citizen Journalists

GovernmentExecutive.com is reporting that the CIA has adopted a new definition of "news media" that could significantly reduce the fees and costs for citizen journalists who request documents under the Freedom of Information Act.

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Revealing Undercover Police Officer's Identity Not Privacy Violation in New Mexico

To keep the police misconduct theme going here at the CMLP, I'll expand on a short post I read by Eugene Volokh on the Volokh Conspiracy. Volokh notes:


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Public Employee Blogs: A Means to Ensure Free Speech Protections?

Paul Secunda of the Workplace Prof Blog has a post up observing that the Supreme Court's decision last term in Garcetti v. Ceballos, "completely eviscerated public employee free speech protection." According to Secunda:

Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.

Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.

In a recent case applying the Garcetti framework, the 7th Circuit was faced with a situation where a police officer had made allegations of misconduct by his police chief to an assistant district attorney and in a civil deposition. In the case, Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007), the 7th Circuit held that the officer's statements to the assistant district attorney were not protected under the First Amendment because -- and the court seems to have turned the world on its head to conclude this -- the officer was acting within his official duties when he reported the alleged misconduct.

Interestingly, the Morales court also held that because the officer made the same allegations in a deposition, that speech was protected under the First Amendment:

We recognize the oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same speech said to another individual is not protected. Indeed, this is exactly the concern that Justice Stevens voiced in his dissent in Garcetti. . . . Despite Justice Stevens' admonishment, Garcetti established just such a framework, and we are obliged to apply it.

Because the 7th Circuit was unable to determine which speech was the motivation for retaliation against the officer, the court remanded the case for a new trial.

So what does this have to do with citizen media? This could make public employee blogs even more important as a means to ensure that those who report governmental misconduct are afforded full First Amendment protection. Report the misconduct only to another government employee and you run the risk of losing your job. Report the misconduct on your blog and the First Amendment will likely protect you (there are obviously other issues involved here, including state whistleblower statutes).

Let's hope the district court clarifies this important issue on remand.

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French Court Finds DailyMotion Liable For Copyright Infringement

Written by Kyle Junik, CMLP Intern

Brad Spitz reports in his blog that a French court held DailyMotion liable for copyright infringement, despite concluding that the site was a mere "hosting service." DailyMotion is an online video-sharing site similar to YouTube. In a July 13 ruling (in French), the court went out of its way to label DailyMotion a hosting service, an argument DailyMotion itself put forth. In France, hosting services typically enjoy a safe harbor from the infringing acts of users under the French Act of 21 June 2004 on Confidence in the Digital Environment (in French). The Act implements the European Commission directive on electronic commerce and states in part:

Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent; and
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

The court found DailyMotion was aware of the infringing content, in part because the site deliberately furnished the users with the means to commit the acts of infringement. The court stated that the Act's limitation on liability is not available when the infringing activities are created or induced by the provider itself. DailyMotion has appealed.

Notably, the language of the French Act is almost identical to the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA) codified at 17 U.S.C. Sec. 512(c). Google (on behalf of its popular video-sharing site, YouTube) frequently invokes the DMCA safe-harbor provisions as a defense to copyright infringement claims brought against it. At the end of the day, the French court ruling has no direct effect on any U.S. court's interpretation of the DMCA, but it may cause Google to reassess its stance on its liability via YouTube.


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JD Lasica and Colette Vogele on Rights-of-Publicity for Video Blogs

JD Lasica has a post up on Social Media about rights-of-publicity associated with video blogs. JD interviewed Colette Vogele, who provides some very useful (and concise) advice. One of the things Colette highlights is the importance of having your subjects sign a release form if you plan to use the video commercially.

Do video producers and video bloggers need to obtain a right-of-publicity/model release form from the subjects of their videos if they plan on using the video commercially (including making money from ads)? I posed the question to San Francisco attorney Colette Vogele at the recent Web Video Summit in San Jose, and then caught up with her in the hallway to capture her answer in this 3-minute video interview taken with a Nokia N-95 cell phone.

We'll be including a detailed analysis of this subject in the soon-to-be-public CMLP Legal Guide along with links to model forms you can use to get the necessary releases.

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Japan Considering Extending Broadcast Law to Bloggers

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:
While nobody was watching, an interim report drafted by a study group under the Japanese Ministry of Internal Affairs and Communications has set down guidelines for regulation of the Internet in Japan which, according to one blogger, would extend as far as personal blogs and homepages. In the report, this Study group on the legal system for communications and broadcasting, headed by Professor Emeritus at Hitotsubashi University Horibe Masao, discusses the possibility of applying the exising Broadcast Law [Ja] to the sphere of the Internet to regulate, under government enforcement, what gets on the web. The report also suggests that public comments be sought on the issue [Ja], in response to which the ministry has opened a space on their webpage for the public to submit comments [Ja], available in the period between June 20th and July 20th.

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.)


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