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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Embedded Video and Copyright Infringement

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:

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Delaminate the Bastards?!

Not unlike John Perry Barlow's 1996 Declaration of the Independence of Cyberspace, David Weinberger has penned a new declaration of independence. This time from the telecommunication cartels. In Delamination Now!, Weinberger eloquently explains the need for "network neutrality" and proposes a long-term solution to make that neutrality stick:

The way the old phone system was is the way the current suppliers of Internet connectivity are. That's not too surprising since the old phone companies are Internet carriers. The problem is the same and so is the solution. We should do to the carriers of Internet signals what we did to the carriers of telephone signals. Bust 'em up so that the companies that connect us to the Internet don't also sell us services over the Internet. Providing connection and providing content and services can and should be profitable businesses. They just shouldn't be the same business...just as you wouldn't want your local school owned by The Acme Textbook Company, or your safety inspectors supplied by The Acme Burglar Alarm Company. It's just too hard to resist your own brand. No, we have to bust up the carrier cartel. Structural separation. Divestiture. It's the only way to get the Internet that our economy, culture and democracy need.

If you have been wondering what the hubbub about network neutrality is all about, you won't want to miss Delamination Now!


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Oregon Extends Public Access to Governmental Records

The Reporters Committee for Freedom of the Press reports that Oregon Governor Ted Kulongoski recently signed two bills that increase public access to government records.

The first of the two bills now requires that "the public body receiving the request shall respond as soon as practicable and without unreasonable delay." While this is an improvement over the prior law, which merely required that the requester be given a "reasonable opportunity to inspect or copy the public record," see ORS 192.440, Oregon still provides no set time period by which a governmental body must respond to a request for public records.


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Exclusive Rights: The Wrong Goal for NFL

The NFL just doesn't know when to stop. The Washington Post reports on a new NFL policy limiting journalists' use of video online:

In a move designed to protect the Internet operations of its 32 teams, the pro football league has told news organizations that it will no longer permit them to carry unlimited online video clips of players, coaches or other officials, including video that the news organizations gather themselves on a team's premises. News organizations can post no more than 45 seconds per day of video shot at a team's facilities, including news conferences, interviews and practice-field reports.

Now this policy isn't copyright-based -- the NFL doesn't have copyright in the un-fixed statements of its players and coaches -- but good old real property law. The NFL teams own their facilities, and with them have the right to exclude people physically, as trespassers. So the NFL is telling sportswriters, who depend on physical access to gather the background for their stories, they'll be barred at the gates if they use more than 45 seconds of video online.


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New York City May Require Permits and Insurance for Public Photography

The New York Mayor's Office of Film, Theater and Broadcasting is 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, the New York Times reports today:


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Creative Commons Announces Canadian Podcasting Legal Guide

Creative Commons of Canada recently announced that it has published a Canadian version of the well written and highly recommended Podcasting Legal Guide. As Colette Vogele, who helped author the original Podcasting Legal Guide, notes:

[T]he authors did nearly a complete re-write of the guide because copyright, trademark and publicity rights receive different treatment in Canada. One example, is that Canada has many collecting societies that need to be understood if licensing music from Canadian artists (see page 15). This adapted guide for Canada also includes a "copyright matrix" (page 16) and a "rights clearance flow chart" (page 19), both of which will help explain the various rights and who get's paid for what in the world of music licensing.

The Canadian version, with the intriguing subtitle "Northern Rules For The Revolution," is available in both html format and pdf format.



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Can Public Records Be Too Public?

That is the question that Jason Fry raises in a provocative column in the Wall Street Journal Online. Fry writes that:

Property deeds, marriage and divorce records, court files, motor-vehicle information and tax documents are increasingly being digitized, and contain a wealth of information that few of us would want online: Social Security numbers, birth dates, maiden names and images of our signatures. Local governments have rushed to put those documents online for a decade or so, often without scrubbing them of such information. And that's made them potentially fertile ground for busybodies, stalkers and identity thieves.

I have no doubt that this comes as a shock to many people. But it shouldn't. The records being put online are public. They are available to anyone willing to schlep to the courthouse or county clerk. As Fry notes, "[o]pen records are a longstanding American tradition."

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U.S. Supreme Court Limits Student Speech Rights

The Supreme Court has once again cut away at student speech rights. In its recent decision Morse v. Frederick, the Court held that a high school did not violate the First Amendment when it suspended a student for displaying a 14-foot banner proclaiming "Bong Hits for Jesus" during an Olympic torch parade.

In Morse, the Court declares that public schools can censor speech relating to activities "illegal to minors." In addition, and perhaps most importantly, the Court holds it is appropriate to defer to school administrators' "reasonable" interpretations of what the speech at issue means. Chief Justice Roberts, joined by four other justices, concludes that although the banner's message was offensive to some and merely cryptic or amusing to others, it was reasonable for the principal to conclude that the statement "bong hits for Jesus" promoted illegal drug use.

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Chilling Effects and

As David posted, celebrity gossip site has battled ISP takedown over claimed copyright infringement. A key problem, the Houston Chronicle reports, is that site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.


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Gossip Site Temporarily Shutdown Due to Copyright Claims

CNN is reporting (via the Associated Press) that Internet gossip columnist Perez Hilton's site was shut down for several hours after his hosting company received complaints that the site contained copyrighted photos of celebrities. According to CNN:

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Massachusetts Considering Strengthening Open Meetings Law

Robert Ambrogi reports that:

The Massachusetts legislature's Joint Committee on State Administration and Regulatory Oversight today held a hearing on a number of open government bills and both the Senate and House chairs of the committee indicated support for measures that would add "teeth" to the law. In my capacity as executive director of the Massachusetts Newspaper Publishers Association, I testified in support of House Bill 3217, an MNPA-drafted bill that would allow fines against individual board members who violate the law and allow recovery of attorneys' fees by private citizens who bring actions to enforce the law.

Let's hope the Massachusetts legislature follows through on this. While state open meetings laws can provide useful leverage in the battle to get access to the workings of government, they typically lack any real enforcement mechanisms. Oftentimes the only recourse available when a meeting has been improperly closed is to get a "ruling" by a state official -- long after the fact -- that the meeting should have been open. Allowing fines and the recovery of attorneys' fees will add some real teeth to the Massachusetts act.

You can track the status of the Massachusetts bill at




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Google Opens Internal Public Policy Blog

Not citizen media law related per se, but with Google's reach, it's recently opened Public Policy Blog, which offers "Google's views on government, policy and politics," is going to be must reading.   As Cory Doctorow reports:

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Dell Tells Site to Take Down Posting, Then Admits Goof

Well, Dell Computer is learning about the web. See the confession at Consumerist, in which the company admits its mistake in demanding that the site take down a posting about its kiosk sales operation. Some things do change.

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Canadian Blogger Sued for Libel by Brewery President

The president of Steelback Brewery, based in Ontario, Canada, filed a $2 million lawsuit against an Ottawa-based blogger that he claims libeled him on his sports website.  The Ottawa Citizen reports:


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Testimony on Shield Bill in Massachusetts

Yesterday our very own Mary-Rose Papandrea, a professor at Boston College Law School, testified before the Joint Committee on the Judiciary at the Massachusetts State House regarding a proposed shield law. For most of the hearing, the questions focused on the scope of the privilege (the bill proposes an absolute privilege for the identity of sources and a qualified privilege for newsgathering materials) and not on who would be covered under the privilege.

However, near the end of the hearing, Senator Robert Creedon expressed concern about extending the privilege to bloggers, describing them as "loose cannons." Papandrea, together with Lucy Dalglish, Executive Director of the Reporters Committee for the Freedom of the Press, responded that the term "bloggers" is ill-defined and includes many journalists from the mainstream media. Given that it would be unwise to place internet communications outside the scope of any shield law, Papandrea and Dalglish argued that the better answer would be to define those covered under the law by their function - i.e., whether they are disseminating information to the general public. Papandrea also pointed out that the proposed shield law would not immunize bloggers - or anyone else - from libel suits, which appeared to be Senator Creedon's primary concern.

You can track the status of the Massachusetts "Free Flow of Information Act" at

UPDATE: Robert Ambrogi has posted a detailed report on what happened at the hearing.


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Teen Arrested for Videotaping Police

An 18 year-old from Carlisle, Pennsylvania has been charged with a felony under Pennsylvania's wiretap statute -- for videotaping a police officer during a traffic stop.

Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. [...] Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. [...] Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent.


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