Antitrust officials at the FTC are looking into Google. Background here and here.
Google, of course, is a big player in blogging, with its Blogger platform.
Now comes Reagan-era former FTC chairmen James C. Miller III and Daniel Oliver arguing in the Washington Examiner that against the FTC investigation, deriding it as “returning to its Star Trek law enforcement policies – that is, to boldly go where no agency has gone before.”
That’s a cheap shot. The FTC has to break new ground when monopolizers do. That would mean they are doing their job.
Miller and Oliver say that antitrust law “is for consumer welfare, not competitor welfare.” True. I totally agree with that. But Miller and Oliver go from there to a silly argument:
Has anyone heard consumers complaining about Google? We have not, probably because consumers are under no pressure to use Google. They do so because they get what they want from Google, and they get it for free.
Duh. So what? Consumers also don’t complain about predatory pricing – designed to drive out competitors. But consumers are sure hurt when competition eventually dries up.
I have no reason to think Google is engaging in any anti-competitive conduct. Time and time again, I see them on the anti-anti-competitive conduct side. But there’s no reason for the FTC not to look into it.
The best part of the op-ed is when Oliver and Miller disclose they are “advisers to Google,” and then immediately say, “but their thoughts and views are their own.”
Ha. Sure. Their arguments may still have merit regardless of their relationship to Google. But to lamely claim their opinions to be unfettered erases credibility in my book.
The real reason Google seems not to be a potential antitrust threat is that in the cyber world, today’s charging gorilla can quickly be hunched over wheezing (Microsoft, MySpace, and many others.)
But bellyaching about the FTC looking into it and doing their jobs is sorry work.
The blog, the Gold Bar Reporter, has become a disruptive force in the Gold Bar, Washington, population 2,000. But good disruptive or bad disruptive?
There’s no doubt that it’s costing the town money. In 2010, the town spent $70,000 responding to public-records requests, nearly all of them from Gold Bar bloggers Anne Block and Susan Forbes. That’s out of a total annual budget of $573,898. The town says that they’ve had to re-assign staff to deal with the onslaught of records requests.
On the other hand, the blog has uncovered some things that seem worth uncovering. During the re-election campaign of County Executive Aaron Reardon, the blog accused Reardon of using taxpayer money for a trip with a mistress. A month afterward, a county employee came forward to admit that she traveled with Reardon in pursuit of an affair on county trips. And now the Washington State Patrol is doing an investigation to see if county funds were misused.
Beau Zimmer of WTSP television in Florida reports that Jacob Jock, a male juror in a vehicular negligence civil suit attempted to friend the “young, attractive” female defendant. Good for her she didn’t accept the friending. Instead, she altered her attorney, who told the judge, who kicked the guy off the jury.
Then the ex-juror, who has a large helping of some kind of reverse common sense, proceeded to get on Facebook and brag about how he got out of jury service.
That finally did it, and the judge held him in contempt. Now he’s facing possible jail time.
BTW, USA Today mis-credited Beau Zimmer as “Ben Zimmer”.
USA Today reports that two Americans and two Egyptians, who are employees of the International Center for Journalists, have been referred to Egypt’s Justice Ministry for prosecution.
ICFJ is a DC-based non-profit org that “promotes quality journalism worldwide in the belief that independent, vigorous media are crucial in improving the human condition.”
The president of ICFJ said that the organization was in Egypt to help improve citizen journalism by teaching fair, responsible, and in-context news coverage.
The American staffers are currently stateside – and presumably they won’t be headed back. The two Egyptian staffers have been questioned by Egyptian authorities, but they have not been arrested at this point, and only learned about the prosecutorial referral via reports in the media.
Pallas Athena fountain in front of the Parliament Building in Vienna, Austria (Photo: CIA)
An Austrian appeals court has upheld the conviction of Elisabeth Sabaditsch-Wolff for insulting Islam.
This is a case that came down just before the New Year. I think it’s worth discussing here because blogs, of course, cross borders. American bloggers are likely to think that American concepts of free expression are likely to be shared with other industrialized Western countries. But that’s not true at all.
Eugene Volokh on the Volokh Conspiracy explains the legal angle with a post that provides a quick look at recent blasphemy prosecutions around Europe, as well as a discussion of America’s history of criminalizing blasphemy back in the early 1800s.
As far as the prosecution of Sabaditsch-Wolff, the defendant herself explains what happened in an interview:
What was the reason for this conviction, you may ask. Well, during the course of my seminars, I mentioned the choking EU directive “Framework decision on combating racism and xenophobia,” and in order to illustrate my point I told the audience about a conversation I had with my sister and how she believed that one should find a different word for Mohammed’s actions with Aisha. I said, “How does one name what he did if not call it pedophilia?” And this sentence got me convicted, for I am allowed by law to say that Mohammed had sex with a young girl, but I may not qualify this behavior as this is deemed “excessive” and thus denigrating.
It would be unthinkable for anyone in the United States to get in legal trouble for something like this. But, as Commenter Parker said in the thread after Volokh’s post, “This is Europe we are speaking of. Europe has a different idea of human rights and especially a different idea of the freedom of speech.”
True that. With the similarity in the media, press, and arts between the U.S. and Europe, you could easily assume that what’s sacrosanct as a matter of American expressive freedom would be protected in Europe. Just about anyone could guess that there’s no right to bear arms across Europe. But with free speech, you would be forgiven for thinking they are basically the same. And it’s probably true that 99% of what is protected in America is protected in EU countries. But once you get toward the fringes, you’ll realize that freedom of expression in Europe is actually very different. Free speech is at the apex of American freedoms and values. In the European scheme of values, there is the idea that free speech must often be subservient in the hierarchy of human rights. The Sabaditsch-Wolff case illustrates, I think, the European impulse that the right to be free from religious insult is considered as or more important than the right to be free to say whatever you want.
A state court in Illinois has ruled that gadget blog TechnoBuffalo is not covered by the Illinois shield law. Chris Healy of the Reporters Committee for Freedom of the Press reports on the decision.
In August of last year, TechnoBuffalo published photos of an instruction manual for a yet-to-hit-stores Motorola Droid smartphone. The photos came to the blog by way of an “anonymous tipster.”
The Johns-Bryne Company, the printers hired to reproduce the material for Motorola, sued the blog to learn the identity of the leak, and the blog claimed the protection of Illinois’s reporter’s privilege law. The court, however, read the statute in a restrictive way, saying that TechnoBuffalo does not qualify as a “news medium” and its bloggers are not “reporters,” thus making the law inapplicable.
TechnoBuffalo has asked the court to reconsider and has vowed to appeal.
The emergence of social media, from Facebook to Myspace and Linkedin to Twitter – much like the earlier evolution of email, IM and web 2.0 – have changed communications, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones, and other data interfaces including iPads and eReaders, and even internet hotspots in motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.
In the first case of its kind, the National Labor Relations Board (NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her personal password-protected Facebook page. The NLRB alleged the employer retaliated against the terminated employee for her Facebook postings and for requesting a union representative at an investigatory interview that led to her discipline, thus violating her Weingarten right. Most importantly, the NLRB maintained that the employer’s social media policy was overbroad because its rules on blogging and internet posting, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, interfered with employees’ rights to engage in concerted activities protected by section 7 of the National Labor Relations Act (NLRA). The AMR case and the NLRB’s ongoing interest in employer social media policies has signaled that the agency will prosecute companies whose policies interfere with employee communications concerning wages, hours, and working conditions, and other matters for mutual aid or protection on social media sites. Employers should review their policies governing employee communications, including the use of email and social media during non-work time, to ensure compliance with the NLRA.
Guess what I did today! I was on the radio talking about SOPA! Not an internet radio station, but a real stick-in-the-ground over-the-airwaves AM radio station: KNOX 1310 Grand Forks, a talk program hosted by Brian Michaels and Denny Johnson.
Has the MPAA and RIAA finally overreached when a law professor is on a midday radio show talking about INTELLECTUAL PROPERTY? Yup, I think so.
Thanks to the blackout against SOPA, and mostly Wikipedia’s part in it, Copyright’s suddenly become a mainstream political issue. The blackout against SOPA was even on NBC Nightly News with Brian Williams last night! How about that?
Today, Congress is considering passage of SOPA – the Stop Online Piracy Act – legislation that would destroy the free architecture of the internet and initiate censorship.
I’m blacking out Blog Law Blog for the day to join with many others in showing symbolically what the internet could look like if this bill becomes law.
Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.
I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.
The White House has responded to online petitioning done by opponents of SOPA. In a blog post, IP czar Victoria Espinel, U.S. CTO Aneesh Chopra, and national cybersecurity coordinator Howard Schmidt wrote:
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
New trends in how juries are being instructed about social media have been a recurrent topic on this blog. I thought it might be interesting to let you see that those Jury instructions actually look like in the flesh.
These particular jury instructions come from a Missouri automobile-collision negligence case, Molina v. Harlan. The full instructions comprise 1641 words. (I’ve put the whole set of instructions in the Blog Law Blog library.) The portion concerning juror research or communication about the case is 335 words (so, it’s a little more than a fifth of the whole thing).
One thing that strikes me as kind of funny, right off the bat, is that even as the instructions are an attempt to stay in step with the times, they show an old-school haplessness with punctuation and capitalization. Not only do they capitalize “Internet,” but they lowercase and place in quotes “‘facebook’,” “‘myspace’,” and “‘twitter’.”
What’s up with that? Does the court think that “facebook” is some kind of slang that the young kids are using? It’s very odd.
And, of course, another sign of out-of-touchness is any reference at all to Myspace.
(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE
Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.
Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.
If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.
Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.
Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”
A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.
The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”
“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.
It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.
In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.
For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)
Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.
That’s why the article kind of misses the point when it says:
The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.
The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.
Professor Eric Goldman has been keeping a list of cases in which a person’s social media has been used as evidence against them, or, as he puts it, when litigants say “one thing in court and another when talking to their friends online.”
In the latest case, a workers comp claimant, who says he is in excruciating pain after a refrigerator fell on him, put pictures on Facebook and MySpace that show him drinking and partying. To try to get the photos excluded from evidence, the claimant attempted to seize the moral high ground, arguing that the use of the pictures in litigation was “a disgrace to the dignity of the workers’ compensation proceedings and the legal system.”
Nice try.
The court allowed the evidence.
Confronted with this case, Goldman offers the following:
Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!
Goldman’s quite a guy, huh? Instead of trying to grab some quick cash by applying for a software/business-method patent on this, he’s offered it up as a public service. Someone note this down so that Goldman’s post can be used as prior art to block patent-hungry Facebook if and when they apply for a patent on “Method of Shielding Workers Comp Claimants from Impeaching Photos of Boozing”.
Here’s the full list of social-media-evidence-gotcha cases Professor Goldman has collected:
Stanford University Graduate School of Business (Photo: EEJ)
Attempting to extract advertising revenue from your blog introduces a myriad of potential legal problems. I’ve said before, I think it’s not worth the hassle for the tiny bits of coin you might eek out. Now here comes an interesting paper form Monic Sun, Assistant Professor of Marketing at the Stanford Graduate School of Business, and Feng Zhu, Assistant Professor of Strategy, Management and Organization from the University of Southern California Marshall School of Business. The working paper, posted to SSRN, is Ad Revenue and Content Commercialization: Evidence from Blogs.
Investigating a new ad-revenue-sharing program introduced to a Chinese blogging platform, Sun and Zhu conclude that the availabilty of ad revenues increased the quality of participating bloggers’ posts and caused an overall shift toward “popular” topics, including primarily the stock market, celebrities, and “salacious content.”
What does that say about the desirability or perniciousness of blog ads? Good question. And here’s another: To what extent might these results be affected by the repression of political speech in China? After all, political speech is a huge driver of blogging in the rest of the world.
Here’s the abstract:
Many scholars argue that content providers, when incentivized by ad revenue, are more likely to tailor their content to attract “eyeballs,” and as a result, popular content may be excessively supplied. We empirically test this prediction by taking advantage of the launch of an ad-revenue-sharing program initiated by a major Chinese portal site in September 2007. Participating bloggers allow the site to run ads on their blogs and receive 50% of the revenue generated by these ads. After analyzing 4.4 million blog posts, we find that, relative to nonparticipants, popular content increases by about 13 percentage points on participants’ blogs after the program takes effect. This increase can be partially attributed to topics shifting toward three domains: the stock market, salacious content, and celebrities. We also find evidence that, relative to nonparticipants, participants’ content quality increases after the program takes effect.
An article by Erika Fry in the Columbia Journalism Review investigates an intriguing question arising out of the police action against people reporting on the occupy protests in New York. With bloggers and other non-traditional reporters seeking to avoid being swept up by the New York Police Department, Fry asks: Who’s A Journalist?
The article’s a great read, and it gets at one of the essential questions of blog law – to what extent are bloggers entitled to be treated by the police and the government like traditional journalists?
The particular object of Fry’s scrutiny is the NYPD’s system for issuing press credentials to reporters. The credentials help in official and unofficial ways, getting reporters access to press conferences and allowing them to avoid hassles at crime scenes and to avoid roundups of crowds. The way the NYPD doles out press credentials has been hotly criticized. But for bloggers, things are, at least, better than they used to be. Fry writes:
Yet this system, backlog and all, is roundly considered by journalists and civil liberty types to be an improvement over the NYPD’s press credentialing process that was in place until 2010, and was notorious for being opaque and inaccessible to bloggers and journalists from nontraditional media organizations—so much so that three men filed a lawsuit against the NYPD for unfairly denying them credentials in 2008. As Gothamist reported at the time, the reforms to the system in 2010 were intended to “help the Police Department modernize the City’s credentialing system to reflect changes to the media industry and, for the first time, expressly incorporate online-only media such as blogs.”
Unlike a lot of tawdry, pandering, cut-rate journalistic operations out there (Time, CNN, etc.) who claim to review 2011 before it’s over yet, here at Blog Law Blog, your faithful blogger waited until it was all over before claiming to look back at it.
So now it’s time. What characterized 2011 in blog law?
First up: Bad legislating. This was a year when legislatures engaged in all kinds of nonsense that, at best, was dopey, and, at worst, was potentially disastrous.
The California legislature outdid itself this year. First there was the absurd new statute threatening jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The law’s not inane because I have an affection for tweeting jurors. It’s inane because, when you look at it closely, it’s inane:
Could the California legislature have felt egged on by reading my withering critique? Well, they urned around and did something even worse with their Reader Privacy Act. Some laws I just disagree with. But the California Reader Privacy Act actually makes no sense. Here’s an actually quote from me about this law:
That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.
Now, the worst legislation of 2011 was a set of related measure working their way through the U.S. Congress: the Protect IP Act (PIPA) in the U.S. Senate and the Stop Online Piracy Act (SOPA) in the House of Representatives. Now this stuff hasn’t become law yet – it’s still a bill (sittin’ there on Capitol Hill). But it’s really bad. The House Judiciary Committee will be taking SOPA back up this month. Let’s hope 2012 is a better year for legislation than 2011 was.
This happened back in October, but you’re just now finding out about it on Blog Law Blog, where, with paywall-less blogging, you get what you pay for.
Darm sued for defamation, but then dismissed the suit. It looks like Darm just bailed after he realized that all that was likely to happen was that he would lose and get stuck with legal fees for both sides, thanks to Oregon’s anti-SLAPP law. The complained-of tweet and blog post are staying up.
The suit appears to have arisen out of this blog post, in which Craig embedded a YouTube video, since removed, of an uploaded Dr. Darm television commercial. Underneath, Craig wrote:
Seen that around? Sure you have. If you watch television in Portland Dr Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.
What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action. …
EFFECTIVE 10/18/01 RECEIVED A LETTER OF REPRIMAND FROM OREGON, REQUIRED TO HAVE A CHAPERONE WHEN EXAMINING FEMALE ADULTS, AND ADDITIONAL CONTINUING MEDICAL EDUCATION COURSES. EFFECTIVE 01/08/09 STIPULATED ORDER OF 10/18/01 IS TERMINATED.
That’s right, he was censured by the state because he was examining female patients without a chaperone. If that’s not bad enough? Apparently needed just a teensy bit more education about how to respect the boundaries of his patients.
Oh and California just decided that he shouldn’t be licensed at all. If he tries to get licensed in California, he has to reapply.
And maybe you’re thinking, “so what if he examined a female patient without a chaperone? How is that a big deal.” You should really read the judgement which says:
“Licensee examined Patient A on August 3, 2000 and September 21, 2000 to evaluate the treatment results. Patient A repeatedly expressed concern about some “spider” veins on her legs, but that she could not pay for additional treatment. Licensee informed Patient A that he would provide her with free treatment at his clinic closing time. On or about November 16, 2000 at about 9:30 PM, Licensee used a laser to treat Patient A’s condition on her legs. At the conclusion of the treatment, as she was reclined on her back, Licensee leaned over Patient A and made intimate physical contact with her and inferred that would be his payment.”
That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.
I’m don’t think Results May Vary is quite enough to warn people off being treated by Dr. Darm.
Assuming the quotes are accurate, how could this be defamatory?
A report on the settlement by Alex Zielinski in the alternative weekly newspaper, the Portland Mercury, implies it was this:
Craig … didn’t note that Darm’s license is now renewed in Oregon.
So what? If the reasonable implication of Craig’s post was that Darm wasn’t licensed in Oregon, then, true, that could be actionable. But when I read Craig’s post, I certainly do not come away with the idea that Darm is unlicensed in Oregon. Quite the opposite. Craig’s post seems to imply that he still is licensed in Oregon.
A better candidate for the allegedly actionable content is this:
That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.
Indeed, the quoted material Craig uses does not support the literal truth of that statement. Making “intimate physical contact” with a patient and “inferr[ing] that would be his payment” does not literally mean that Darm tried to get the patient to sleep with him. But American defamation law is tolerant of this kind of poetic license. An instructive case on this point is another litigation I blogged about out of the District of Oregon in 2011: Obsidian Finance Group v. Cox. (What is up with the onslaught of Oregon defamation-by-blog cases?) According to heritage Portland newspaper The Oregonian the papers filed by Craig’s attrorney, Linda Williams, argued that “the gist” of the blog post was true and that the statements, in context, were opinions based on verifiable facts.
In Monday’s post, I noted that Dutch M.P. Marietje Schaake linked America’s proposed Stop Online Piracy Act (SOPA) with China’s censorship of political expression (a point also picked up by Techdirt’s Glyn Moody.)
So, is it really fair to equate shutting off internet access because of claims of intellectual-property infringement with shutting off internet access because of unapproved political expression? Yes it is. Here’s why.
It’s what I call Newton’s Third Law of Intellectual Property. This is actually my thing, not Isaac Newton’s. But it is analogous to Newton’s Third Law of Motion.
In physics, Newton’s famous Third Law is that for every action there is an equal and opposite reaction.
My law, is that for every intellectual property entitlement, there is an equal and opposite reduction in freedom.
So, if someone has a trademark entitlement with regard to a certain word or phrase, the extent of that right is exactly coextensive with the public’s lost ability to legally use that word or phrase. Same for copyright: A copyright over a musical melody means a loss of freedom of everyone else to play that melody.
I don’t mean for Newton’s Third Law of IP to impugn all intellectual property. Just because something reduces freedom doesn’t mean it’s unjustified. But it does mean that there is an inescapable tradeoff. When one person gains an IP right, everyone else loses a freedom. Perhaps the loss of freedom is worth it for the good that the IP entitlement does, such as encouraging innovation. But it is intellectually dishonest to argue or imply that intellectual property entitlements don’t come without a surrender of some amount of liberty.
From the front page of American Justice Associates' website
As a postscript to yesterday’s post about court-ordered free-speech lessons for Occupy L.A. protesters, let’s look at one more heaping spoonful of irony.
Jeffrey P. Hermes at CMLP blog pointed out that American Justice Associates, who has been tapped to run the course, bills itself on its website as “a supportive arm of the Los Angeles City Attorney’s Office since 1995.” Yet, as Hermes notes, the company is a private firm and not a branch of the government.
That’s pretty funny, because you imagine that one of the first things they will say in this free-speech class is that the First Amendment’s guarantee of free expression is not absolute. And that’s true. Of course, one of the hallowed examples of speech that’s not entitled to protection is false advertising. There’s federal and California state law that prohibits false statements in advertising. And saying your organization is an “arm” of the city attorney’s office, when it’s really a private contractor, sure seems false to me.
But I’m going to try to be thorough and fair before I accuse anyone of making false and misleading statements.
I’ll begin with the obvious: The word “arm,” when used in conjunction with an organization, is ordinarily understood to mean a branch of the organization.
Now, American Justice Associates could argue that you’ve got to look at the fact that they use the word “arm” in context with the word “supportive.” They claim to be “a supportive arm.” But then we have to ask, what the heck is a “supportive arm” anyway?
If “supportive arm” doesn’t mean a helpful branch of the government, then it’s oxymoronic. Arms don’t support. Okay, well, I guess arms are supportive for someone who is down on their hands and knees. So is that what American Justice Associates is saying about justice in Los Angeles? That it’s crawling on the floor? That’s pretty rough.
So, I have to conclude that “arm,” as American Justice Associates uses it, is false and misleading.
I think what they probably should revise it to is “crutch”: American Justice Associates – The Crutch of the LA City Attorney’s Office. That’s what they seem to mean when they put themselves out there as the solution to a justice system too overburdened to try defendants and put the guilty ones in jail.
Jeffrey P. Hermes at the Citizen Media Law Project Blog has spotted a small volcano of irony erupting from Los Angeles: The L.A. City Attorney’s Office has announced that it won’t press charges against Occupy L.A. protesters arrested on low-level misdemeanor offenses if they complete a free-speech course.
But freedom isn’t free: The lessons for the pre-trial diversion program will be supplied by a private-contractor, American Justice Associates, which will charge $355 per person for the course. Checks can be made out to “The One Percent, LLC.”
It’s a move Hermes calls “a dramatic, last-minute effort to win the prize for ‘Most Obnoxious Law Enforcement Tactic of the Year.’” Hmmm. Well put. As he explains:
Let’s reflect for a moment on this one, shall we? … This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.”
But there’s another side to this. As a Los Angeles Times article explains, the city wants to save on the expense of prosecuting the hundreds of people it’s rounded up. Fair enough. We all know how California is hurting for money. (Actually, in recent years the office has suffered a 25% budget reduction.)
Look, I think I’ve got an easy fix: Just require Occupy protesters to complete community service by teaching the class themselves, with LAPD higher-ups enrolled as students.
Earlier this month the Netherlands’ Ministry of Foreign Affairs hosted a conference called Freedom Online: Joint Action for Free Expression on the Internet. The conference was attended by more than 20 countries and NGOs, including the United States, which sent Secretary of State Hilary Clinton.
One particular subject of discussion was the need to help bloggers in countries ruled by oppressive regimes. There’s a good write up by Toby Sterling of the Associated Press: EU official: Protect bloggers from repressive governments.
Secretary Clinton, who opened the conference, issuing a call for companies to refuse to sell surveillance technologies to repressive governments. It’s wonderful to see the U.S. take a leadership stance on internet freedom, but there’s some irony as well.
Syrian blogger Amjad Baiazy, who was arrested and tortured earlier this year because of his online writing, noted that Western companies surveillance system that Syria’s been using to ferret out internet dissidents.
And Dutch member of parliament Marietje Schaake, while dittoing Clinton’s call for restraint among tech companies, took the U.S. to task for Congressional consideration of SOPA (the proposed Stop Online Piracy Act,” which, she said, “give great incentives to governments like China to do the same,” blocking access to expression they find inappropriate.
Under a wave of phone calls and social-media attention, Lamar Smith (R-Texas) abruptly called an end to the hearings on SOPA, saying they would be rescheduled for the future. Lamar Smith is a toughie. So getting him to take a step backward is quite an accomplishment!
This is it. This is the time to make your voice heard on Capitol Hill before the disastrous Stop Online Piracy Act is passed by the U.S. House of Representatives.
Go to EFF’s action page on SOPA and type in your zip code to instantly get the phone number of your rep. And you can bet I’ve called.
SOPA is a threat to blog freedom and internet freedom in American and abroad.
Copyright 2010-2012 Eric E. Johnson. All rights reserved - including, in the tradition of the National Football League and Lego-brand legos, many rights which I do not even legally have.
Beau Zimmer of WTSP television in Florida 
USA Today 
Christine Neylon O’Brien, Professor of Business Law at Boston College’s Carroll School of Management, has published
Guess what I did today! I was on the radio talking about SOPA! Not an internet radio station, but a real stick-in-the-ground over-the-airwaves AM radio station: KNOX 1310 Grand Forks, a talk program hosted by Brian Michaels and Denny Johnson.
Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.
The White House has 
As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:
Unlike a lot of tawdry, pandering, cut-rate journalistic operations out there (Time, CNN, etc.) who claim to review 2011 before it’s over yet, here at Blog Law Blog, your faithful blogger waited until it was all over before claiming to look back at it. 
Oregon plastic surgeon Jerry Darm (Image: Darm, via YouTube)
In 
But I’m going to try to be thorough and fair before I accuse anyone of making false and misleading statements. 
