Archive for the ‘tips for bloggers’ Category

New Booklet on Citizen Journalism Law in Massachusetts

Wednesday, May 15th, 2013

Newsgathering in Massachusetts coverHarvard Law School’s Digital Media Law Project and Cyberlaw Clinic have released a booklet called Newsgathering in Massachusetts, available as free-to-download pdf.

It’s an information-packed reference tailor-made for citizen journalists, and it includes coverage of
open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.

Massachusetts is an especially interesting state for this area of the law. The Boston-born case of Glik v. Cunniffe, discussed in the booklet, is one of the most important citizen-journalist cases to come down the turnpike in the digital era. In that case, a Simon Glik was arrested in Boston Common for filming the police making an arrest of a homeless man. With the help of the ACLU, he got the U.S. First Circuit Court of Appeals to recognize a First Amendment right to videotape in public places.

Kudos to DMLP and the Cyberlaw Clinic for putting this together.

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

Rights of Photojournalists to Take Photos in Public

Thursday, November 10th, 2011

People who like to take random photos in public places (like these unfortunate ACLU plaintiffs) are subject to harassment by law enforcement. They shouldn’t be. But they are.

While there is a fair amount of material providing general legal guidance focused on the writing side of blogging (such as at CMLP and EFF), there is a paucity of material advising you on what you can and can’t get away with using a camera.

The best resource I’ve found – although about six years old – is this legal memorandum [pdf] from Kurt Wimmer and John Blevins at the law firm of Covington & Burling, done for the National Press Photographers Association. From the memo:

In summary, we find that there is no federal law that justifies the broad prohibitions that are being imposed on photography in public areas. There is no new federal law, including the Patriot Act, that restricts photography of public buildings and installations on the basis of concerns over terrorism. Restrictions of photojournalism that proceed on this basis may constitute violations of journalists’ First Amendment right to gather news.

I’ll think I’ll print out a copy and put it in my camera bag.

More:

Mobile App Legal Guide for Occupy

Tuesday, November 8th, 2011

Apple iPhone with stick figure elements, shown running awayThe good folks at the Citizen Media Law Project have introduced a mobile app for their legal guide to citizen reporting on Occupy. I wanted to make sure to make a note of that on Blog Law Blog because (1) it may be of help to on-the-go bloggers at Occupy, and (2) it gives me another chance to use the graphic I worked up for when Apple lost another iPhone prototype.

Hey: reduce, reuse, recycle.

Bauble Bobble Estoppel: Why Kane’s Tack Against Forever 21 Worked

Wednesday, November 2nd, 2011

Questions
from
Readers

Blog Law Blog reader Amy e-mailed me with a good question about blogger Rachel Kane’s self-declared victory over Forever 21 in a legal dispute that never ended up in court.

Kane is the author of wtforever21.com, a blog devoted to poking fun at Forever 21, the fast-fashion retailer famous for its dogged pursuit of trendiness with a torrent of bangely baubles and shiny swathery.

While they would seem too busy chasing down fashion ephemera to notice a tongue-in-cheek blogger, the folks at Forever 21 eventually looked up from their lamé long enough to dash of a cease-and-desist letter charging Kane with trademark infringement and demanding she take down her blog.

Now, as I pointed out, Forever 21′s legal position was meritless. But they’re a big company, and Rachel Kane is a solo blogger. So it makes for a problem.

What did Kane do about it? Through legal counsel, she wrote to Forever 21 laying out her legal argument for why the company’s claim was baseless and imposing a deadline by which, if she did not hear back from Forever 21, she would assume that she was free to continue blogging.

Thus the question from reader Amy. She writes:

This is a great strategy for bloggers and an awesome victory. However, can’t she still face legal action from the company even though there was no response past her self-imposed deadline?

The answer is that Forever 21 is not absolutely foreclosed from suing Rachel Kane after her self-imposed deadline passes. But by failing to get back to Kane, Forever 21 has evidenced an intent to abandon its claim. That severely compromises F21′s legal position. At this point, if Forever 21 tried to sue, Kane is now in a position to raise the legal defense of “estoppel.”

The idea of estoppel is that if you don’t deal with things at the opportune time, you can’t bring it up later if doing so would end up screwing over someone else. (Courts, in issuing judicial opinions, usually have some slightly higher-brow language than the phrase “screwing over,” but they can’t explain it any better than I did.)

So, through the estoppel defense, a court could rule that Forever 21 lost whatever rights it may have had to sue Kane when it failed to reasonably pursue its claim.

The law generally favors upholding parties expectations when it is possible to do so. Kane can say that, after hearing nothing by silence from Forever 21, she reasonably expected that the dispute was over and that she was free to continue blogging.

Now, key to making this work is that Kane approached this dispute in a reasonable way. She sent a letter explaining why the law did not support Forever 21′s trademark claim, and she gave them a reasonable amount of time to respond. It also counts for something that Forever 21 was the party that brought this up. Since they started the argument by sending a cease-and-desist letter, it’s certainly reasonable to expect that they will respond to Kane’s arguments if they are going to maintain their claim.

There’s nothing magical about estoppel – it’s all based on reasonableness. So don’t get carried away thinking you can get the drop on someone with estoppel. If you’re being tricky, then a court won’t look favorably your estoppel defense. But if someone sends you a legal threat, Kane’s way of dealing with it is a good one. Send a letter patiently explaining why the threat is baseless, and set a reasonable deadline for their response. It can be a good way to put spurious claims behind you.

Where Can a Blogger Get a Lawyer Around Here?

Thursday, September 29th, 2011

A person identifying himself as a friend of blogger Crystal Cox asked in a comment to yesterday’s post where Ms. Cox could find legal counsel. That’s a great question that a lot of folks have. And I am happy to say I have a number of places to suggest for any beleaguered blogger looking for a lawyer to throw them a lifeline:

The Berkman Center for Internet & Society has created, as one of its many projects, the Online Media Legal Network, a network of lawyers, law firms, and law clinics willing to represent qualifying media clients for free (pro bono) or at reduced rates. The list of members reveals a bunch of heavyweights, including Manhattan media-law powerhouse Debevoise & Plimpton. Not only have they represented the New York Times, but they even employed the author of Blog Law Blog as a summer associate back in the late 1990s! How’s that for a claim to fame? Of course, there are a bunch of other stars on OMLN’s roster as well. To get started in seeking representation through OMLN, read up on their process and requirements. They can’t help everyone, but it can’t hurt to ask.

There’s also the 800-pound gorilla, the Electronic Frontier Foundation, the granddaddy of public-interest law firms for electronic media. The EFF explains on their website how they select clients and how to contact them about possible representation. If you can get the EFF to represent you, that’s completely fansmashtic! But know ahead of time: Many will apply, few will qualify.

A more general source of information about getting represented can be found in the Citizen Media Law Project’s guide to finding legal help. Information there will help you learn about looking for pro bono representationgoing pro se (representing yourself), or, if it comes to that, hiring a lawyer (as in, paying them money).

Of course, if your problem is the opposite – if you are looking for someone to sue you – then Blog Law Blog recommends, por supuesto, BLOGGING! Especially effective is blogging about people or organizations (1) who are well-off enough to hire a lawyer, and (2) who are not already the target of a torrent of criticism.

So, my friends, lawyer up, and BLOG ON!

Happy Labor Day, Bloggers

Monday, September 5th, 2011

Double dump truck in Seattle at construction site

Happy Labor Day to everyone in the United States and in Canada (Labour Day, for you guys).

If you don’t have the day off, and you find yourself blogging at work, check out the EFF’s Blogger Guide on labor law.

Thanks to the National Labor Relations Act, workers in the U.S. who are fired for blogging about how lousy their workplace is may be protected under federal law. (An example is an ambulance company who fired a worker for griping about work on Facebook, and then was given the smack down by the National Labor Relations Board.)

You know what they say, work is the curse of the blogging class. So read up on what you can get away with, and blog on!

Kane Declares Victory Over Forever 21

Thursday, July 7th, 2011

Black feather cape with broochRachel Kane over at blog wtforever21.com has declared victory over Forever 21 in their nascent legal dispute. After Kane hired legal counsel and told the fast-fashion retailer their legal position was, in so many words, as silly as Feather Cape with Brooch ($39.00), there has been nothing but silence on the other end. So after Forever 21 failed to respond by Kane’s own imposed deadline, she interpreted silence as acquiescence and is now back calling out sartorial snafus on a daily basis.

In her words: “This is a dark defeat for MC Hammer pants, floral jumpsuits and blinged out mini hats, but a joyous triumph for those who like to make fun of them. Which is pretty much anyone with eyes.”

Note to bloggers who are on the receiving end of baseless legal threats: The way Kane handled this is instructive. Respond to the threatening letter with a patient explanation of how the claim is legally lacking, in a tone that is courteous but firm, and then say you’ll get back to doing whatever it is by such-and-such a date unless they give you a compelling response.

Congratulations, Rachel. Blog on!

CMLP Legal Guide on DC’s New Anti-SLAPP Law

Wednesday, May 18th, 2011

CMLP logoThe Citizen Media Law Project has updated their online legal guide with information about Washington, D.C.’s brand new anti-SLAPP law.

An anti-SLAPP law is a tweak to court procedure that empowers defendants, who have been sued because of something they said about a matter of public interest, to quickly get rid of frivolous lawsuits filed against them. Anti-SLAPP short circuits the usual lengthy and expensive litigation process required to beat back an unmeritorious complaint.

The idea is to prevent the courts from being used as a way to gag critics of the well-lawyered. Thus, anti-SLAPP laws are potentially very important for bloggers.

The CMLP’s legal guide also runs down the anti-SLAPP laws in California, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Washington state.

I’m Trying Out Quora

Monday, May 16th, 2011

Quora logoI’m trying Quora. If you have questions about blog law, you can try posting them there, and I’ll consider answering them, especially if you tip me off by e-mail.

The CIA: Copyrightless Image Agency

Wednesday, April 20th, 2011

Saint Basil's Cathedral in Moscow
(Photo: CIA)


Here’s a tip on how to get copyright-free images to use to illustrate your blog posts: The CIA World Factbook. It’s a public domain set of images, maps, and text about the countries of the world, courtesy of America’s spooks.

I’ve used CIA World Factbook images on this blog to illustrate posts about Peru and Ireland.

There’s more background by me on Pixelization.

Kozinski Says Winklevoss Twins Get One Shot Among them at Facebook Suit

Friday, April 15th, 2011

Kozinski has bounced the Winklevii attempt to blow up their settlement agreement and start all over again in their suit against Facebook.

The order is here.

Poor Mark Zuckerberg has been hounded by this. Sketchy business arrangments at the beginning of a venture can definitely lead to big litigation down the line. Indeed, this is a situation that could happen to any blogger with a blockbuster idea.

So, how would I advise you to immunize yourself from a Winklevoss-type suit if you are working on the next Facebook?

I would say just get that next-Facebook thing right. (And then call me about it and ask me to help you with it to create a foggy kind of record that will allow me to sue you for billions of dollars if you turn out to be successful.)

Look, lawsuits always follow the money. You can’t have a runaway business success without attracting some litigation. By all means, hire a good lawyer when you’re making business arrangements at the outset of an entrepreneurial venture. But the better practical advice might be to stay away from prepsters belonging to exclusive dinner clubs.

Trademarking Your Blog

Friday, December 3rd, 2010

I talk a lot about copyright on Blog Law Blog. But another – completely different – form of intellectual property that bloggers ought to be aware of is trademark.

You can use trademark, potentially, to protect the name and brand-identity of your blog. Trademark is about reliable indications of the source of goods or services, enabling people and companies to develop and profit from their reputation. Trademark doesn’t protect content, it protects names, symbols, logos, slogans, and other forms of commercial identity that a business uses. (Non-profit enterprises can assert trademarks as well.)

The Citizen Media Law Project has published a new section of their legal guide that provides a lot of information on getting and maintaining trademark rights: Securing Trademark Rights: Ownership and Federal Registration.

A backgrounder on trademark law is available in a “nanotreatise” [pdf] I wrote, which is in my Compendium of Materials for Intellectual Property Law.

Let the Sun Shine In

Friday, October 15th, 2010

One of the best legal tools available to bloggers and traditional journalists alike is the Freedom of Information Act.

FOIA, as it’s called, allows anybody to obtain copies of government records upon request. There are exceptions, of course. You can’t get national-security-sensitive classified materials this way, and you can’t get information such as tax returns or medical records that would violate an individual’s right to privacy. But you can get a lot. Once you realize the scope of what the government is required to turn over, it’s truly flabbergasting. We’re lucky to live in such an open society.

The best resource that I know of to help you navigate FOIA is the Federal Open Government Guide from the Reporters Committee for Freedom of the Press. RCFP also offers this super handy FOIA letter generator, although I personally would favor a slightly friendlier tone than what comes out of RCFP’s boilerplate. (The civil servant who will read your letter is compelled by law to respond, so you might as well be nice about it.)

You should also know that state governments generally have similar laws, sometimes called “sunshine” or “open records” laws. RCFP has a State Open Government Guide that can let you in on those laws as well.

Erickson Begins Series on Blog Legal Issues

Thursday, September 9th, 2010

Megan J. Erickson has started a series of posts on the IowaBiz Business Records blog about legal issues faced by bloggers.

In her first post, she discusses fair use. It’s a very enjoyable post, but I do have to take issue with one thing. In discussing the “nature of the copyrighted work” factor in fair-use analysis, Erickson wrote, “Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.”

I think it’s important to note that depending on the circumstances, the fair-use doctrine can in fact protect the right of bloggers to say something in exactly “the particular way in which the original author expressed that information.”

The factual or fictional nature of the work can weigh in the fair-use analysis – and Erickson is not alone in emphasizing this – but I think it is important to keep the copying of facts analytically distinct from doctrines of fair use. What do I mean? Copying a fact or an idea is not copyright infringement at all. That is because neither a fact nor an idea is copyrightable subject matter. So fair-use analysis is irrelevant in such a situation. On the other hand, repeating an author’s particular expression may constitute copyright infringement, but that infringement may be excused completely on the basis of the fair-use defense.

I should note that Erickson’s regular blog, Social Networking Law Blog, is not only an interesting read, it’s one of the better looking blogs out there. The graphics package looks fantastic.

Philadelphia Slaps Blogs with $300 Tax

Friday, August 27th, 2010

mastheads of blogs MS Philly Organic and Circle of Fits blogsVery interesting article: Valerie Rubinsky in the Philadelphia City Paper: Pay Up: Got a blog that makes no money? The city wants $300, thank you very much.

Philly is not taxing all blogs – just blogs that are set up to make money – any money, no matter how small. If a blog is designed to make a profit, even if it doesn’t, the City of Brotherly Love requires a business privilege license (a $300 one-time fee or $50 per year) plus taxes on the profits.

So that means Philadelphia is after Sean Barry’s Circle of Fits, a music blog hosted on Blogspot, which has made $11 over two years, according to the article.

Also getting billed is MS Philly Organic, a blog by Marilyn Bess that, combined with earnings from some posts for eHow, has brought in about $50 over three years.

Rubinsky reports that City Council members Bill Green and Maria Quinones-Sanchez have proposed reforming the law to help make the city a more accommodating place for small businesses. But while the reform would exempt the first $100K in profits, nano-sized online “businesses,” such as ad-hosting blogs, would still have to pay $50 per year or $300 upfront for a license. Some reform.

Apparently the tax-collector letters went out to bloggers who did the right thing and reported tiny-sized revenues on their income tax returns.

I’d like to hear a tax attorney weigh in on whether there is serious argument that these bloggers are not businesses engaged in an activity for profit since the amount of money they are earning is trivial and undoubtedly doesn’t cover their expenses. But I’m not a tax attorney, so I’ll have to leave that to someone else.

My advice for most bloggers is this: Dump the ads. Why bother putting ads on your blog unless it is going to make you substantial amounts of money? Ads clutter up blogs. They look terrible, and they are often for products that are either ridiculous (like herbal cures) or kindov depressing (like life insurance). That detracts from a user’s experience. And if ads cause you to have legal trouble – and even trying to figure out if you have legal trouble is a kind of legal trouble – then you should flush them down the drain.

In fact, if you are really in it for profit, then you are probably better off doing whatever it takes to build readership in the near-term – and in my opinion, that means turning off the ads. If and when your readership ever gets big enough that ads would bring in real money, you can start providing advertising space at that point. Take a cue from big start-up ventures. None of them try to make money in the early years. For a VC-funded start-up, making money at the beginning usually means that you aren’t trying hard enough to grow and gain market share.

More: Lyrissa Lidsky on PrawfsBlawg: (Business) License to Blog (with good discussion in the comments)

(Ha’p: Media Law Prof Blog)

Using the Public Domain for Images for Blogs

Thursday, August 5th, 2010

1894 photograph of trainBlogs look better with images. Bloggers who want to use images have six options, as I see it: (1) Use their own images, (2) Get permission to use someone else’s, (3) Purchase royalty-free images for use, (4) Use images that have no copyright protection, (5) Use copyrighted images in a manner that is protected as fair use, or (6) Incur civil or criminal liability by infringing copyright.

My guess is that most bloggers choose no. 5 or no. 6. Often, bloggers unwittingly choose no. 6 (infringement), hoping that they have actually selected no. 5 (fair use).

I don’t want to discourage people from exercising their fair use rights, but more bloggers should be aware of and make active use of choice no. 4 (the public domain).

To use public domain images, you’ll need a source of them. A good starting point is this list from wikipedia. You also should learn something about how the public domain works. You can’t necessarily take wikipedia’s word for it that an image is in the public domain. Wikipedia’s legal counsel is sometimes a little wonky. So learn something about the law of the public domain. A good source is Public Domain Sherpa – a wonderful site that can help you determine whether an image is in the public domain or not.

Since I did mention that blogs look better with images. I realized I had better include one. The above image, from the Library of Congress’s American Memory collection, is a 1894 photograph of a train on the Italian Line between Tunis and the site of ancient Carthage, photographed leaving Marsa. Photographer: William Henry Jackson.

Copyright Defendants Remember, Fees Go Both Ways

Tuesday, July 20th, 2010

Mary Jane Saunders, in the Marquette Lawyer, has some words of wisdom that are good for bloggers to keep in mind if threatened by copyright litigation:

All plaintiffs mention attorney’s fees in their cease-and-desist letters, but few of them remember that they might end up paying the defendant’s fees if they lose.

Saunders says that simply citing to the leading precedent, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), can “dissuade a plaintiff from bringing a questionable case.”

The article is here in pdf format.

(Righthaven defendants might want to take note.)