Archive for the ‘journalists’ Category

Famed Media Lawyer James C. Goodale Calls Out Obama on Press Freedom

Thursday, May 16th, 2013

Daily Beast logoFamous media lawyer James C. Goodale (who I was lucky enough to meet when I was a summer associate at his law firm in New York in 1999), has written a provocative piece for the Daily Beast that I think is worth a read: Is Obama Worse For Press Freedom Than Nixon?

Goodale argues that Barack Obama’s campaign to stamp out leaks is trampling on the freedom of the press. He notes that the Obama administration has obtained more indictments of leakers – a total of six – than any other American president. (That’s a factoid I found somewhat surprising.)

To avoid making bad history, Goodale urges the Obama administration to drop any effort to prosecute Wikileaks founder Julian Assange under a theory that the conspired with the Army’s Bradley Manning to violate the Espionage Act. Doing so would breathe life into a legal theory that Goodale calls “extremely dangerous to freedom of the press.”

Such a prosecution, Goodale explains, “would only require that Manning agreed with Assange to leak information. This would be far easier to prove than trying to prove Assange, in fact, violated the Espionage Act.” Going there would “put in jeopardy the gathering of national security information by any reporter and so criminalize the newsgathering process.”

The Citizen Media Law Project Has Changed its Name to the Digital Media Law Project

Tuesday, May 14th, 2013

Harvard Law School’s Citizen Media Law Project

CMLP logo

has changed it’s name. It’s now the Digital Media Law Project.

Digital Media Law Project logo

The change was effective March 1, 2013.

I know this change has been in the works for quite sometime. I remember talking to David Ardia, the program’s founder, about this in March of 2011.

I was a fan of “Citizen Media Law Project” as a name, but I like the new name too. Whether you use the word “citizen” or “digital,” the point is that this goes beyond a “media law project” in that it’s focused on the new reporting opportunities and legal threats that have been created and revealed by the democratization of the news media as fueled by computers and the internet.

I guess you could call it the “Non-Traditional Media Law Project,” but that’s pretty awkward. Even worse, it makes it sound like it’s the project that’s non-traditional, rather than the media. Any good copyeditor – even a non-traditional one – would see the problem with that.

So Digital Media Law Project it is. And the change is more than a change in name. There’s also a change in mission.

As project of Harvard’s Berkman Center for Internet & Society, the Citizen Media Law Project was launched in 2007 “to support the vibrant online culture of citizen media and independent journalism by providing free legal advice and information on a wide range of media law, intellectual property and business law issues,” as is explained on the project’s homepage.

With the change to “digital,” the project is acknowledging that reporters with their bona fides – that is, people who can be called “professional journalists” – are now increasingly working online and outside of a traditional media entity. They too face a uniquely challenging legal environment.

“Citizen journalists continue to do excellent work,” wrote Jeffrey P. Hermes, the project’s director, in a blog post about the change, “but professional journalists who believe in the potential of online speech have launched numerous independent ventures as well.”

So DMLP is broadening its focus. Hermes wrote, “Our project is no longer limited to addressing the narrow challenges faced by new and inexperienced entrants into the journalism market, but innovating to provide a comprehensive and mutually supporting set of resources to assist digital journalism as a whole.”

Best wishes to DMLP on their rechristening!

Amicus Filed for Quashing Subpoena of Blogger Related to Duke Lacrosse Scandal

Thursday, November 8th, 2012

Duke University has issued a subpoena seeking a blogger’s notes and correspondence, and the Reporters Committee for the Freedom of the Press has filed an amicus brief urging the court to quash the subpoena.

The underlying case is McFadyen & Carrington v. Duke University, which stems from the Duke lacrosse scandal. The subpoena is aimed at blogger, author, and history professor KC Johnson (formally, Robert David Johnson).

Johnson’s blog is Durham-in-Wonderland.

The brief was filed in federal court in Maine. With RFCP filing the brief are the Maine Press Association, MaineToday Media Inc., Bangor Publishing Co., and the Maine Association of Broadcasters.

Twitter Deserves Continuing Credit for Defending Privacy in Harris v. N.Y.

Saturday, September 15th, 2012

gavel coming down on twitter birdFrom what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

CMLP Hosting Talk on Reporting at the Political Conventions

Wednesday, August 15th, 2012

CMLP logoThe Citizen Media Law Project has announced that its Digital Media Law Project, along with the International News Safety Institute and an organization called “Free Press,” will be hosting live web chats about legal issues involved in doing reporting/blogging at protests of the Republican and Democratic national conventions. The talks will be tomorrow, August 16 at 7 p.m. (I’m guessing that means Eastern Time), and then again next Thursday, August 23 at 8 p.m.

CMLP notes that almost 90 people have been arrested in the United State while doing reporting at protests. The webcasts will include journalists relaying their personal experiences, presented along with legal analysis.

It’s free and there’s no advance signup necessary. Go to the Free Press website to participate.

L.A. Times’ Dan Turner Defends Anonymous Commenters and Dares the Fourth Wall

Monday, July 16th, 2012

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Hmmm. No one bit. Just four comments, all of them tré civil.

Free Webinar from RCFP on Covering Protests

Saturday, May 5th, 2012

Reporters Committee for Freedom of the Press logoThe good folks at the Reporters Committee for the Freedom of the Press are putting on a free webinar for reporters and photographers who are covering events, such as protests, where they could be blocked from reporting or detained by the police. Examples include the Occupy protests as well as the upcoming political conventions in Charlotte and Tampa. Or, you know, if you are in Los Angeles, your local elementary school science fair.

The one-hour webinar will be held May 9, 2012 from 1:00 p.m. EDT. (That’s 12 noon Central, which is my time zone and the time zone where the next big opportunity for reporter-police interaction will be: Chicago, May 20-21, for the NATO Summit.)

The webinar will be lead by Lucy Dalglish, RCFP Exec Director and Gregg Leslie, Legal Defense Director. It looks like they will be giving both a theoretical perspective on where your journalist rights come from as well as practical advice on what to do when confronted or detained by the police.

Excellent stuff! I am signed up and looking forward to it.

To reserve your own place:

https://www4.gotomeeting.com/register/941031095

Righthaven Story by Defendant Eriq Gardner is ABA Journal Cover Story

Thursday, April 26th, 2012

Eriq Gardner, legal-issues journalist for the Hollywood Reporter, has penned the ABA Journal magazine’s new cover story: “The Righthaven Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him.”

As a funny aside, the online version of the story says “Posted May 1, 2012 5:20 AM CDT.”

As I write this, it’s April 26, 2012 7:35AM CDT.

Posted May 1, 2012 5:20 AM CDT By Eriq Gardner

Judge Posner Worried By Mic-Wielding Bloggers

Tuesday, September 27th, 2011

Hon. Richard A. Posner (Photo: U. Chicago)

Illinois has an eavesdropping and wiretapping statute that prohibits making an audio recording of any conversation without the consent of all persons involved. This applies not only over the phone or in a private place, but even in a public place. And even when the conversation is with public officials concerning a matter of public concern. Violations can be prosecuted as felonies, and civil suits are authorized as well.

If you don’t think that sounds constitutional, I’m inclined to agree. And so is the ACLU, who is suing on behalf of several people arrested for secretly recording on-duty police officers. The civil liberties group is challenging the law in ACLU v. Alvarez.

On appeal to the federal Seventh Circuit, the ACLU faced questioning by a panel that included America’s most famous federal circuit judge, the Hon. Richard A. Posner. His questioning was alarming. Just 14 words into his argument, ACLU lawyer Richard O’Brien was interrupted with this:

“Yeah, I know … But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”

Huh? Really? Ferreting out public corruption, abuse of power, obstruction of justice by those charged to guard it – all that sounds interesting to me.

Posner proceeded to worry about how striking down the law could aid snooping bloggers:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Such a thing as privacy for on-duty police officers? Even when they are in public or interacting with civilians? Gosh, I can’t get behind that.

Justin Silverman at CMLP has an extremely thoughtful post on the matter. He writes, “Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.”

Jonathan Turley also is taken aback. He writes on his blog, “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. … As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering ‘who will rid us of these meddling citizens?,’ they appear to have one jurist in Illinois not just ready but eager to step forward.”

Unfortunately, the facts of the case show that Turley’s comment is not the hyperbole you wish it were. The story told by one of the plaintiffs in the suit, Tiawanda Moore, is terrifying: She was groped in her home by a Chicago police officer who had responded to a domestic disturbance call. Moore was brave enough to take the issue to internal affairs. But they tried to deflect her complaint and sought to dissuade her from pursuing the matter. In the interests of protecting herself, she began to secretly record her conversations with investigators on her Blackberry.

When the recordings came to light, Moore was arrested and charged with violation of Illinois’s eavesdropping statute. Sadly, prosecutors took the case to trial. But in a strong affirmation of the role of civilian jurors, the jury acquitted her of the charge.

Just a few weeks ago, the First Circuit ruled that there is a constitutional right to record police actions in public places. Hopefully the Seventh Circuit will follow the lead and clear the way for snooping bloggers and sexually harassed citizens alike to be free to record the police in the City of Big Shoulders.

More:

Imprisoned Bloggers Around the World

Thursday, September 22nd, 2011

According to Reporters Without Borders there are currently 121 netizens imprisoned, along with 157 journalists and 9 media assistants behind bars.

They include:

  • Blogger Henghameh Shahidi of Iran, in prison since February 25, 2009
  • Blogger Sakhi Righi of Iran, in prison since June 18, 2009
  • Blogger Wu Baoquan of China, in prison since a date unknown

The leading countries in jailing the persons RWB classifies as netizens are China (70), Iran (17), and Vietnam (17).

Trial Court Upholds $60K Award Against Johnny Northside

Tuesday, September 13th, 2011
Landmark building at the University of Minnesota

The University of Minnesota (Photo: EEJ)

Judge Denise Reilly in Minneapolis has upheld a jury verdict requiring blogger John Hoff (a/k/a “Johnny Northside”) to pay $60,000 for his blogging about Jerry Moore. This is a setback for free speech and bloggers’ rights, but I believe Hoff will eventually win this suit on appeal.

Moore worked at UMinn’s Urban Research and Outreach/Engagement Center where his job was studying home foreclosures. The dispute started when Hoff took to his Adventures of Johnny Northside blog to accuse Moore of involvement in a “high-profile fraudulent mortgage.” Moore was then immediately terminated by UMinn. Moore then sued Hoff.

The crazy thing about the story is that what Hoff wrote was true.

Truth, as you probably know, is a defense to defamation. But Moore’s cause of action wasn’t defamation; it was “tortious interference” with contract and prospective economic advantage.

Economic interference claims reside in the backwater of tort law. Most law-school classes in torts don’t bother to cover them. But the reality is that they are well-used in the courts. (I teach torts, and yes, I do teach economic interference.)

Based on claims of tortious economic interference, the Minneapolis jury awarded Moore $35,000 for lost salary and $25,000 for emotional distress. Real money, obviously.

Of course, not all jury verdicts become executable judgments. Trial judges can throw them out or reduce them. And appeals courts can overturn them. But we now know that this verdict has taken a big step forward, since the trial judge has approved of it. That means that if Hoff is going to be let off the hook, it will have to be by an appellate court.

An amicus brief [pdf] from the Minnesota Pro Chapter of the Society of Professional Journalists argued, correctly in my view, that when a claim is in essence a defamation claim, then the courts should apply the safeguards of defamation law’s defenses – even when the claim is dressed up as one for tortious interference.

The amicus argued:

Outside the context of online publications, Minnesota courts have long held that merely providing truthful information cannot provide the basis for an action for tortious interference with contract or with prospective economic advantage, and both federal and state courts have rejected attempts by plaintiffs to evade the requirements of defamation law with the claim is essentially a defamation claim. … The court should … reject the plaintiff’s attempt to recover under a theory of tortious interference when that claim is based upon the same statement as his failed claim for defamation.

Unfortunately, this argument didn’t carry the day. At least not yet.

Hoff’s lawyer has vowed to appeal, and I think Hoff’s chances on appeal are excellent.

The correct view of the law is that the First Amendment protects what Hoff did here. And I think we can count on the courts to uphold that view. Consider that the U.S. Supreme Court held just this year that the First Amendment was effective in shielding the way-out-there members of the Westboro Baptist Church, who were found liable for intentional infliction of emotional distress when they picketed funerals of fallen soldiers with hate-filled signs such as “Thank God for Dead Soldiers.” (Snyder v. Phelps, No. 09–751 [pdf])

The way I see it, if there’s a First Amendment for Fred Phelps, then there’s just got to be one for Johnny Northside.

The Hale Case: What’s Good for Old-Guard Journalists May Not Be Good for Bloggers

Friday, June 10th, 2011

The Reporters Committee for the Freedom of the Press has issued a news release about the New Jersey Supreme Court’s decision in Too Much Media v. Hale [pdf of opinion], in which the state’s shield law was held not protect writer Shellee Hale in responding to discovery requests about her sources for allegedly defamatory postings she made on an online message board.

The RCFP piece’s outlook is rosy. New Jersey media lawyer Bruce Rosen is quoted as saying the decision is a “victory for journalists” because, by overturning the intermediate appeals court decision in the case, the burden has been lowered on people seeking to invoke the shield law.

But for those people who care as much about bloggers as old-guard reporters, the takeaway from the decision may be less sanguine.

… Rosen said that individuals who host blogs and view themselves as citizen journalists may face hurdles to invoking the shield law.

“For the general public, [the case] makes it harder for individual bloggers to have automatic protection,” he said.

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!

More:

N.H. KingCast Blogger Lost His Pre-Election Challenge in Court

Thursday, November 4th, 2010

Here’s an update on the crusade of left-leaning New Hampshire blogger Christopher King to be able to attend campaign events of Kelly Ayotte, Republican for U.S. Senate.

The Nashua Telegraph reports today that King lost his pre-election request for a federal injunction that would have permitted him entry to Ayotte’s election-day party.

The party went on without him, and it turned out to be a victory party. The Sarah-Palin-endorsed Ayotte beat Democrat Paul Hodes. That keeps the seat – now held by retiring Republican Judd Gregg – in the column for the GOP.

In recent weeks King was bounced out of a Republican fundraiser by the Nashua police – at the organizers’ request – and was barred from attending Ayotte campaign events.

Despite losing the injunction, King is committed to pursuing the case and its crop of constitutional questions. As the Nashua Telegraph explains:

Those issues involve whether a private event that aggressively seeks media coverage can cherry pick which reporters attend and which don’t.

It is also about whether bloggers – including sharp-tongued partisans like King – will receive the same graces of First Amendment shed on mainstream journalists.

This is a case to watch.

Righthaven Loses Early on Fair Use

Monday, November 1st, 2010

Thugster slayer Michael Nelson

Righthaven has lost a copyright infringement case because of a successful fair-use defense raised at the earliest procedural opportunity. The case is Righthaven LLC v. Realty One Group, Inc., 2:10-cv-1036-LRH-PAL.

In May 2010, Michael J. Nelson, a Las Vegas realtor, posted a portion of a Las Vegas Review Journal news story about a federal housing program on his blog, www.michaeljnelson.featuredblog.com. Righthaven took a copyright assignment from the Review Journal and pounced with a federal lawsuit. Happily for bloggers everywhere, instead of caving and forking over a low-dollar-value nuisance settlement, Nelson fought back and claimed that what he did was legally protected fair use.

The court agreed.

Of key importance for the court was that Nelson copied only eight sentences of a 30-sentence story, and the portion he copied was of a factual nature, as opposed to the portion which contained the reporter’s commentary.

U.S. District Judge Larry R. Hicks made short work of the case in a four-page order.

The court found that the first fair-use factor – purpose and character of the use – weighed against Nelson because he used his blog to promote his realty business. The second factor – nature of the work – weighed in Nelson’s favor because the portion of the news article copied was factual in nature. The third factor – amount and substantiality of the portion of the copyrighted work used – weighed in favor of Nelson, the court held, since he only copied eight sentences from a total of 30 in the news story. The fourth factor – effect on the potential market – weighed in Nelson’s favor as well. Regarding this factor, the court said:

The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson’s use supports a finding of fair use.

That line of analysis portends very well for other bloggers sued by Righthaven.

Now I’d like to see Nelson file a motion to get attorneys’ fees.

Nelson’s case seems like a great victory for free speech and fair use, but there’s a sad postscript: As of the time I am writing this post, Nelson has removed all the content from his blog.

So Righthaven has lost, but free expression has lost too.

“Media Law in the Digital Age” Conference in Atlanta

Thursday, September 2nd, 2010

“Media Law in the Digital Age: The Rules Have Changed, Have You?” will be held September 25, 2010 in Atlanta. The event is co-hosted by the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet & Society and the Center for Sustainable Journalism at Kennesaw State University.

The conference is aimed at “journalists, bloggers, and lawyers who work with media clients.” More on the Citizen Media Law Project blog.

Alan Schwarz: “I have no problem with bloggers.”

Friday, July 9th, 2010

I got a call today from New York Times sports reporter Alan Schwarz. He read my post from yesterday – via his Google alert – which discussed a recent podcast interview he did.

Mr. Schwarz took issue with something I wrote.

In introducing the blockquote in that post, I originally used this sentence: “Like many mainstream journalists, Schwarz sees bloggers as endangering traditional journalism.”

Mr. Schwarz disagrees with that characterization. I listened to the podcast in its entirety, and I chose my words carefully. I think my characterization was fair. Nonetheless, no one knows better what Mr. Schwarz thinks than he does. So if other words better reflect his opinion, I’m happy to use them. Indeed, the flexibility and updatability of blogging is one of its great attributes. Thus, I replaced the contested sentence with: “Schwarz is critical of bloggers who go too far in using copyrighted content.”

In his phone call with me, Mr. Schwarz emphasized that the gravamen of his complaint is copyright infringement.

“I have no problem with bloggers. I have a problem with thieves,” Mr. Schwarz said on the phone. In general, he sees value in blogging, and he does not regard blogging itself to be a threat to the continued existence of the traditional news media. His problem is with what he characterizes as stealing.

“Thieves endanger traditional journalism,” he said, regardless of whether they are bloggers, other traditional journalists, or whomever.

So noted. But Mr. Schwarz’s distinction points to a deeper question: What counts as theft? There are, after all, usually two sides to a copyright dispute.

We might be tempted to say that some cases are easy. What about when someone, who is not the copyright owner, takes an entire newspaper story and posts it online? You might figure that is clear case of theft, but that is exactly what the New York Times did in the case of New York Times v. Tasini.

In that case, the New York Times uploaded articles written by freelance writers to an electronic database, accessible to paying online customers, despite the fact that the freelancers, who owned the copyright to their stories, never provided the New York Times with the relevant permission. Of course, the New York Times argued that what they did was entirely proper.

As it turns out, the U.S. Supreme Court disagreed and sided with the freelancers. But it goes to show, what one person regards as theft, another person may regard as being productive.

The questions, of course, will continue.

Podcast on Bloggers’ Use of Mainstream News

Thursday, July 8th, 2010

A podcast from the Legal Talk Network tackles the issue of bloggers’ legal and ethical obligations regarding use of material from mainstream news sites. In the piece, lawyers Robert J. Ambrogi and J. Craig Williams interview Alan Schwarz, sports reporter for the The New York Times. Schwarz is critical of bloggers who go too far in using copyrighted content. Schwarz says:

When you create your own work, you have rights to its dissemination. You know, this whole information, you know, “wants to be free” business is a bunch of hooey. It’s preposterous. And an entire generation of Americans has grown up with no respect for copyright law.

For the purpose of policing his own material, Schwarz has a Google alert set to notify him when a blog uses his name. I would assume many reporters do the same. (Hi, Mr. Schwarz!)

Note: This post was revised July 9, 2010, as explained here.

Scassa on Canadian Data Protection Law and Blogs

Monday, June 21st, 2010

Teresa Scassa of the law school at the University of Ottawa has published Journalistic Purposes and Private Sector Data Protection Legislation: Blogs, Tweets and Information Maps in the Queen’s Law Journal.

The abstract:

This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems that will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exceptions in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions about the purpose and scope of these exceptions. Recent case law illustrates the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She then reviews how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.

The cite is 35 Queen’s L.J. 733. I was not able to find a copy of the article available freely online.