Archive for the ‘lawsuits by bloggers’ Category

“Diabetes Warrior” Challenges North Carolina Licensing Board’s Attempt to Restrict his Blogging

Monday, April 22nd, 2013
Steve Cooksey's before-and-after photos.

Steve Cooksey's before-and-after photos. (From his blog.)

A North Carolina diabetic blogger’s lawsuit may help answer the question of when occupational licensing laws can be used to restrict speech.

The blogger, Steve Cooksey, runs Diabetes Warrior, which answers questions sent in my readers about how to manage their disease.

It’s not surprising that Cooksey has raised eyebrows. His advice is decidedly anti-establishment.

“[Y]ou know that we have been lied to by Big Food, Big Pharma and the medical industry,” he tells his readers, “including doctors, diabetes educators, dietitians and nutritionists.”

Cooksey’s slogan is, “Diabetes Management from a Paleolithic Perspective.” Instead of insulin treatment, Cooksey advocates a “primal” diet – one patterned after what humans from the Stone Age would have eaten. His chief claim to expertise on the matter is his own experience as a diabetic. He blogs, “I have not taken a drug since March 2009. I have weaned off drugs and insulin completely… and I have normal blood sugar.”

A month after starting his blog in 2011, the North Carolina Board of Dietetics/Nutrition informed him he was engaging in the unlicensed practice of dietetics. As his public-interest law firm, The Institute for Justice, explains it:

[T]he State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service. The State Board went through Steve’s writings with a red pen, indicating what he may and may not say without a government-issued license.

So Cooksey sued to vindicate a free-speech right to blog as he sees fit.

He was dealt an early blow when a federal district court dismissed his case for lack of an injury. But the case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. Cooksey quotes his attorney, Jeff Rowes, as saying:

Under the First Amendment, a citizen is injured by the mere existence of a statute that regulates speech. And there are literally dozens of Supreme Court and federal appellate cases saying that you have standing when the government actually tells you that your speech is illegal. The courts have a very relaxed standard for bringing a First Amendment case because the right to free speech is considered to be so important.

Once the court of appeals recognizes that this is a First Amendment case, we expect it to rule that we have standing and send the case back to the district court to be litigated as a free-speech case.

I think occupational licensing, in general, is okay. It is sometimes badly needed to protect consumers from rank incompetence. But such statutes can conflict with free speech. And in this case, it seems to me that the North Carolina licensing authority has indeed gone beyond regulating a profession and has entered into the business of censorship.

(Another case along the same lines is that of Horace Hunter, an attorney in Virginia.)

Blogger Hal Turner Pursues §1983 Case After Acquittal on Threats Charges

Tuesday, February 5th, 2013

Blogger Hal Turner of North Bergen, N.J. is currently pursuing a federal civil-rights lawsuit against the Connecticut State Capitol Police. The cause of action is under 42 U.S.C. §1983 – the general civil-rights statute that allows lawsuits against state officials acting in violation of the federal Constitution.

Last year, Turner was arrested for comments he made on his blog that were interpreted by as a threat against Connecticut state legislators. He wrote, “TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. … It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.” (Blog Law Blog, Oct. 21, 2011: State v. Turner: Incitement to Violence and Jurisdictional Questions)

Turner ended up winning an acquittal. Now he is seeking $50 million in his civil suit.

Most recently, Turner is proclaiming a victory of sorts in that suit because the State of Connecticut has retained outside counsel. His statement says, “On Friday, January 25, 2013, a Partner from the mega law firm McCarter & English, LLP filed his appearance in the case and asked the US District Court in New Jersey for an extension of time to answer Turner’s lawsuit. This represents a significant change from the state’s prior decision to utilize its own Attorney General’s Office, which assigned Assistant Attorney General Philip Miller to the case.”

I’m not sure what it means that the state has obtained outside counsel. McCarter & English is a large regional law firm, although I don’t think it is accurate to call them a “mega firm.”

Turner is something of a self-employed First-Amendment tester. He apparently started out as a frequent caller to conservative talk radio shows, then branched out into blogging and webcasting. He currently operates the Turner Radio Network, which bears no relation to media tycoon Ted Turner. (And I can’t figure out why neither Ted Turner, nor his merger-partner Time Warner, hasn’t shut down Hal Turner’s use of “Turner Radio Network” name on trademark grounds.)

No matter how much you like the First Amendment, Hal Turner is one of those people who is hard to root for. His varied causes have included Holocaust denial, white-supremecist causes, and threatening judges.

While involved with white-supremecist groups, Turner was a paid informant on those groups to the FBI. But any effort on his part to work against those groups can contextualize only so much of his ranting.

In June 2009, angered about a case upholding municipal handgun ordinances, Turner blogged that federal judges of the Seventh Circuit Court of Appeals “deserve to be killed” and, referencing a Thomas Jefferson quote, wrote that “their blood will replenish the tree of liberty.”

Those comments got him a conviction in 2010 with a 33-month federal sentence. He was released from prison in 2012 to serve out the remainder of his sentence from a halfway house in New Jersey.

Former Mayor Must Pay $21,275 in Bloggers’ Legal Bills

Monday, October 29th, 2012

Aurora town logo(Image: Aurora, Ontario website, used without permission.)

A court in Ontario has ordered a former mayor to pay $21,275 in legal bills accumulated by bloggers defending themselves against a local politician’s attempt to silence online criticism.

In 2010, Phyllis Morris, then mayor of Aurora, Ontario, waged a litigation campaign against online critics while she was running for re-election. Notably, she got the town council to foot the bill for the lawsuit with taxpayer money. Months later, well after she lost the election, she voluntarily dismissed her lawsuit.

But defendants William Hogg, blog proprietor-moderator, and Richard Johnson, a blog contributor, kept the case file open to press the court for a money award to pay their defense bills.

Their push paid off.

According to the Toronto Star, in making the award, the Ontario Superior Court characterized Morris’ lawsuit as an attempt to hit her critics “quickly and hard,” in order to quiet her opponents “sooner rather than later in the weeks leading up to the October 2010 elections.”

Blogger Christopher Watts has more about the court’s award, plus a link to the court’s opinion, on his blog, Temporary Sanity.

Prior coverage on Blog Law Blog:

Coverage of the fee award:

Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Video Blogger Sues Keith Olbermann

Tuesday, March 6th, 2012

James O'Keefe (Image: O'Keefe, via Twitter)

Conservative video blogger James O’Keefe is suing liberal TV talker Keith Olbermann for defamation, reports The New York Post)

O’Keefe is an A-lister of politically fueled citizen investigative journalism. He gained his fame by going undercover to expose the shenanigans of liberal community-activist group ACORN.

Last week, Olbermann-show guest David Schuster called O’Keefe “a convicted felon” and said he’d been accused of rape by a former co-worker. It appears that, in fact, O’Keefe once pled to a misdemeanor charge and had once been accused of harassment by a co-worker. Kind of not the same thing. Or even close.

If that’s all true, it looks like a decent libel case to me. But since O’Keefe is a public figure, he’ll have to over come the First Amendment standard of showing “actual malice,” which can be hard.

I personally didn’t realize that Olbermann was still on TV. It turns out that after disappearing from MSNBC, he’s turned up on Current TV, an Al-Gore-backed left-leaning cable network, which, I guess, I had kind of heard about some time ago. Current TV is also named in the suit.

Referring to the “mainstream media” by acronym, O’Keefe tweeted: “MSM will say, do anything to take a stop a citizen journalist they can not control. Understood. I’m going to sue them for libel, each time.”

I understand that O’Keefe is venting, but referring to Current TV as “mainstream media” is going off a little half-cocked. Mainstream? I’m not sure I get Current TV in my channel lineup, and I get approximately 17 bazillion channels. I think O’Keefe’s slam may be the best compliment Current TV has gotten recently.

Todd Kincannon Unfazed by Righthaven’s Bankruptcy Talk

Tuesday, September 13th, 2011

Righthaven antagonist J. Todd Kincannon (Photo: The Kincannon Firm)

I asked Todd Kincannon, the lawyer signing up plaintiffs for a Righthaven class action, what he thought of the company’s claim that it was on the verge of bankruptcy.

“I always knew Righthaven would file bankruptcy if things got rough,” Kincannon told me by e-mail. “They
were set up as a limited liability company just so they could do that. Fortunately, Stephens Media, MediaNews Group, Sherman Frederick, Steve Gibson, and Dickinson Wright all seem to have plenty of money.”

I kind of thought he might think that.

The truth is that Righthaven’s bankruptcy, if and when it comes to that, won’t be the end of the Righthaven story. Instead, it will be the beginning of the second half.

Over its first year and a half, Righthaven was on the offense, swooping down on unsuspecting bloggers and holding them up for a few thousand dollars a piece. Then, in June, the Democratic Underground decision came down, and the tide reversed. Things are now swooping down on Righthaven. Not only does Kincannon have his nascent class-action, but there’s the strong possibility of bar discipline against Righthaven attorneys, and you can even see the potential for criminal charges (federal racketeering charges and conspiracy to obstruct justice, for instance).

The Shields are Down! The Shields are Down!

Friday, September 2nd, 2011

Righthaven – the copyright thugster and blogger-suer extraordinaire – continues the nosedive it began with its Democratic Underground defeat in June, the revelations from which led me to suggest the Nevada bar should consider attorney misconduct charges against Righthaven CEO Steve Gibson.

Here’s some of the latest to happen since then:

Insignificant rebellion? South Carolina attorney Todd Kincannon is looking for people who’ve been sued by Righthaven to be clients for a class-action litigation he’s putting together. He’s even looking for people who’ve already settled. Wow, I don’t recall ever seeing people have a potential cause of action because they’ve settled. Righthaven hoped to blaze new legal trails – but not like this!

Screenshot of Righthaven website

I used to bulls-eye womp rats in my T-16 back home. They're not much bigger than two meters.

Righthaven has a website! I don’t know when this started, but it’s the first I’ve noticed it. When Righthaven originally hit the news, they didn’t have a web presence, but now they have this intimidating looking site. And what’s funny about it is, the first time I looked at, the television in our home happened randomly to chime in with a sound clip of the Darth Vader Theme from Star Wars. (For reals!) On its website, Righthaven declares itself “THE NATION’S PREEMINENT COPYRIGHT ENFORCER.” It’s also got a funny kind of graphic which, I have to say, kind of looks like the view down the trench of the Death Star. The only thing that interrupts the Dark Side theme is what looks like a gigantic bacterium that is dividing in two. And that, at least, certainly looks foreboding. Now, there’s no other pages or any other content except for the graphic, which has the slogan and contact information embedded in it. (Much of the text is hard to read because it disappears into the background in a typographic meltdown.) Now, you do realize what that means: By my putting up the one inset picture of the Righthaven website (upper right), I’ve copied 100% of the website. Uh oh. And since it’s Righthaven’s own website, this is one copyright infringement suit that they actually wouldn’t have standing problems with. Now, what I’ve done is fair use. Helpfully Righthaven’s misfires have helped establish solid precedent that taking 100% of something can qualify as fair use. Now, a solid fair-use defense hasn’t stopped Righthaven from suing in the past, but maybe it will in the future, since …

lots of $100 bills spread outCha-CHING! After losing on fair use in Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011), Righthaven’s now been order to pay $34,000 in attorneys fees. “The wheels appear to be coming off the Righthaven trainwreck-in-progress,” says Ars Technica. And that’s gonna matter for a business that thrives on low-dollar settlements somewhere in the $2,500 range.

Will Righthaven declare bankruptcy before the year is out? Hmmm. Difficult to see. Always in motion the future is.

HuffPo’s Motion to Dismiss Tasini’s Lawsuit

Wednesday, August 31st, 2011

Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.

First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship?

Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.

The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.

Rule 12(b)(6)  allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”

What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:

Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …

But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.

Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.

That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

Freelancer Litigation from 1990s Has No End in Sight

Monday, August 22nd, 2011

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

South Carolina Supreme Court Filing Claims Righthaven Committed Unauthorized Practice of Law

Wednesday, June 29th, 2011

Todd Kincannon, the South Carolina lawyer representing Dana Eiser of the Lowcountry912 blog, sent me a petition that he just filed in the South Carolina Supreme Court alleging that Righthaven is engaged in the unauthorized practice of law.

I’ve posted the petition to my own server: [pdf].

I’ve been waiting for someone to do this since I heard about Righthaven splitting litigation proceeds with its newspaper partners. You can’t do that. Lawyers can’t split fees with non-lawyers.

Why not?

If a lawyer splits fees with a non-lawyer, then that means a non-lawyer is collecting fees for practicing law. And you have to be a lawyer to practice law. That’s the logic of it.

As the petition says: “[A]n entity in the business of seeking assignments, pursuing litigation in its own name, and splitting the proceeds with the assignor commits a fraud on the court and the unauthorized practice of law.” (Pet’n, pp. 4-5).

After I get a chance to take a better look at the petition, I’ll write with more.

High Schooler Who Called Admins “Douchebags” Loses Appeal 3-0

Wednesday, April 27th, 2011

The Second Circuit U.S. Court of Appeals has ruled against Avery Doninger, a student who blogged that administrators of her high school were “douchebags” because of their cancellation or forced rescheduling of Jamfest, a student-organized battle of the bands.

Doninger also sent out an e-mail which got the administration deluged with e-mails and phone calls of protest. In response, Lewis S. Mills High School of Burlington, Connecticut banned the Doninger, who was then junior class secretary, for running for senior-class secretary.

The Second Circuit panel ruled 3-0 against Doninger. Writing for the court, Judge Debra Ann Livingston wrote:

… Doninger’s discipline extended only to her role as a student government representative: she was not suspended from classes or punished in any other way. Given that Doninger, in serving in such a position, was to help maintain a “continuous communication channel from students to both faculty and administration,” it was not unreasonable for [Principal Karissa] Niehoff to conclude that Doninger, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness properly to carry out this role.

That’s silly. Let’s face it, student government is bascially useless. The only purpose it has is planning events and serving as a kind of practice democracy. What good is the First Amendment for students if it doesn’t protect you in the course of practice democracy?

Not to mention, the speech concerned a matter of planning an event! In my opinion, Doninger’s speech was at the very core of protected First Amendment student expression. I mean it was involving JAMFEST for crying out loud!!

You should read the facts in the decision. They’re super fun. It’s like a John-Hughes-type movie. I’m not making this up: There as a school assembly where students came in wearing t-shirts with “Team Avery” on the front and “Support LSM Freedom of Speech” on the back. And Principal Niehoff instructed them to remove their shirts! Can you believe it?

Count me as a member of Team Avery!

Excerpts and My Analysis of Tasini v. HuffPo

Wednesday, April 13th, 2011

The complaint in Jonathan Tasini’s class-action lawsuit against the Huffington Post, owner AOL, and founder Arianna Huffington has been posted online.

I’ve gone through it. If you don’t feel like reading the whole thing, here are excerpts I’ve transcribed that I think capture the essence of the complaint. (Italicized portions are my own paraphrasing. Otherwise, it’s quoted material.) As you’ll see, I’ve interspersed my own thoughts.

JUDGE GRIESA 11 CV 2472

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Jonathan Tasini, individually and on behalf of all others similarly situated, Plaintiffs, v. AOL Inc., TheHuffingtonPost.Com, Inc., Arianna Huffington and Kenneth Lerer, Defendants.

¶1:
This action seeks to vindicate the fundamental principle that creators of value deserve to be compensated and, in particular, addresses the important issues of (a) whether in the digital age, profitable digital media sites should be required to compensate the creators of valuable content from which such sites derive substantial revenues and (b) if so, how the creators of content should be compensated.

¶3:
Of the $315 million paid by AOL to purchase HuffPo, at least $105 million was due to the contribution of content by the unpaid bloggers.

¶6:
… TheHuffingtonPost.com’s continued assertion that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes has the broad detrimental effect of setting an artificially low price for the valuable digital content created by Plaintiff and the Classes, depressing the market for such content and, over the long term, having a serious depressing effect on the value of intellectual content being created by Plaintiff and the Classes and on the ability of Plaintiff and the Classes to support themselves as creators of high quality, engaging, digital content. According to Article 1, Section 8 of the United States Constitution, the purpose of copyright is “to promote the Progress of Science and the useful Arts” by allowing creators to be appropriately compensated for their contributions. Yet, despite our founders’ intent, TheHuffingtonPost.com continues to assert that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes.

This leads me to one of the problems with this lawsuit. Should Tasini be successful with is unjust enrichment argument, which I don’t think he will be, he is vulnerable to a copyright pre-emption argument. That is, AOL and Arianna can argue that Congress’s legislation in this vein cuts off common-law causes of action that might otherwise exist. In fact, I think it was a bad choice for Tasini and his attorneys to put this reference to copyright and the Constitution in here; it just wraps up the pre-emption argument with a bow.

¶¶11, et seq.:
Bio of Tasini: Union leader, social activist, writer on work/labor issues, successful U.S. Supreme Court litigant.

Arianna, can there be any surprise that this guy ended up suing you with a résumé like his?

¶23:
There are approximately 9,000 unpaid content providers at TheHuffingtonPost.com

That makes it ripe for a class action, provided other elements are met …

¶¶29-33:
Jurisdiction and venue. Allegations to create subject-matter jurisdiction under the Class Action Fairness Act of 2005 and establish the appropriateness of filing the litigation in federal court in New York.

¶33:
Finally, the “Terms of Use” for TheHuffingtonPost.com states “Any dispute between us will be governed by New York law.”

Yikes – what an endorsement for the enforceability of terms of use! I wouldn’t have gone there. What else is in the terms of use that Tasini would not want to be enforced?

¶50:
… Defendant Arianna Huffington’s statements indicate her own belief that the creators of content should be fairly compensated for the value provided.

¶51:
For example, in her book “Third World America” (Crown 2010), Ms. Huffington … states: “… The middle class, by and large, plays by the rules, then watches as its jobs disappear. The corporate class games the system – making sure its license to break the rules is built into the rules themselves.”

¶52:
Towards the conclusion of “Third World America,” Ms. Huffington writes that to avoid a “Third World America,” she believes the nation needs to make certain it is “a place where economic opportunity is once again real for everyone, not just the economic elite” and “a place where greed and selfishness are no longer rewarded and the ‘least among us’ are given a helping hand, rather than the back of it.” (page 237).

That’s pretty funny. She’s something like the opposite of a “victim of her own success.” That is, Arianna is basically a “beneficiary of her own failure.” Well, okay, you can accuse limousine liberals of being hypocrites. You can wave at them through the tinted windows. But they are just going to drive off to the next black-tie fundraiser you’re not invited to.

¶53:
HuffPo is unlike other media outlets in that HuffPo selects its content providers and does not allow content from non-vetted providers.

¶56:
Plaintiff and the Classes were not officious contributors to the TheHuffingtonPost.com and, rather, were carefully selected, and in some cases recruited, by TheHuffingtonPost.com to perform services for it.

One of the purposes of those allegations, I suppose, would be to defeat sky-is-falling type arguments that HuffPo might make, such as, “Your Honor, if you award compensation to Tasini and the HuffPo unpaid bloggers, you’ll open it up for people to employ themselves by stuffing sites with unsolicited content and then sending the site owners a bill.”

¶57:
… the vast majority of the Classes’ members, like Plaintiff, are quasi-professional writers, meaning that they occasionally earn fees for their writing, but it was not their principal occupation. …

¶62:
Executives of AOL noted that $20 million in “cost savings” would be recognized by AOL due to TheHuffingtonPost.com’s history of not compensating Plaintiff and the Classes for high quality content. …

¶64:
Allegations about “The AOL Way” document discussing how each post is tracked and evaluated in terms of the cost required to produce it and the revenue gained from it.

¶69:
Upon information and belief, AOL only offers to pay amounts for content which are less than the revenue potentially earned from that content. …

That sounds suspiciously like capitalism to me.

¶71:
In sum, by eliminating all costs associated with content production and placing those costs with Plaintiff and the Classes, Defendants are being unjustly enriched.

¶77:
Despite the value provided, Plaintiff and the Class were only offered “exposure.”

¶85:
Because of the system set up by TheHuffingtonPost.com, Plaintiff and the Classes gave the Defendants more exposure than vice-versa, namely, Plaintiff and the Classes typically shared the link to the content provided with their social networks, sharing via electronic mail, Facebook, Twitter and the like (as so encouraged and directed by TheHuffingtonPost.com) – driving internet traffic to the HuffingtonPost.com and creating value for the Defendants.

¶91:
… Arianna Huffington, at a meeting in Beverly Hills, California, February 8, 2011 stated: “People have not fully adjusted to the fact that self-expression is, for many people, a new source of fulfillment and entertainment … We have 9,000 bloggers with a password and literally get hundreds of submissions that our editors have to process. People are dying to blog for us … ”

¶¶92, et seq.:
Complaints that HuffPo doesn’t give contributors information about how much exposure they are getting, such as how many page views they get.

¶94:
Finally, TheHuffingtonPost.com’s assertion that “writers write for free” serves to bring an ages-old falsity into the digital age, one this Court should reject. Indeed, writers, like all creators, deserve a share of the value they create and allowing such value to rest solely with Defendants is against equity and good conscience.

¶¶100, et seq.:
FIRST CAUSE OF ACTION
DECEPTIVE BUSINESS PRACTICE
(N.Y. Gen. Oblig. Law §349 et ff. as per the Terms and Conditions)
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶103:
It is deceptive to promise exposure (visibility, promotion and distribution) in lieu of monies to Plaintiff and the Classes, but then not provide a real and accurate measure of exposure and it is deceptive to solicit content on the promise of providing a free forum for ideas when, in fact, a product with tremendous value is being created by the solicited and uncompensated services provided.

Sorry to say it, but this doesn’t sound deceptive to me. Tasini and unpaid bloggers got exposure. Tasini wants more than that, but I don’t see how he was deceived into thinking he would get it.

¶¶106, et seq.:
SECOND CAUSE OF ACTION
UNJUST ENRICHMENT
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶107:
Plaintiff and the Classes provided valuable services to Defendants, services that were encouraged and accepted by Defendants.

This, I think, is the essential problem with the unjust enrichment claim: The defendants were actively encouraging the labor. The prototypical unjust enrichment claim is when an unconscious person arrives at the emergency room and receives life-saving treatment. The patient never agreed to receive the care, so does the patient owe the hospital and doctors compensation? The courts say yes, under a theory of unjust enrichment. It would unjustly enrich the patient to allow him or her to retain the benefits of the medical treatment without paying for it. Part of what makes it unfair is that there was no chance for the parties to make a contract, since the patient was unconscious. Now, imagine a patient came into a clinic and asked – even actively encouraged – being treated for free. If the clinic provides treatment for free, you can’t say the patient was unjustly enriched. There’s nothing unfair – nothing unjust – about the patient retaining the benefits of the treatment in this case, because the patient went looking for free treatment and got it.

Ironically, Tasini’s case for unjust enrichment would be stronger if HuffPo had somehow ended up with the content despite not having sought it out. I don’t know how that would hypothetically happen, but if it somehow did, then unjust enrichment might seem to fit the bill. Unjust enrichment is a flexible doctrine, and it’s not limited to the ER hypothetical or highly similar cases. But under the circumstances in this case, I just don’t see it.

Tasini Sues Huffington Post

Tuesday, April 12th, 2011

Megablog mogul Arianna Huffington, along with the Huffington Post and the HuffPo’s new parent entity AOL, have been sued in a class-action suit led by Jonathan Tasini on behalf of a throng of unpaid HuffPo keyboard jockeys.

The Huffington Post, AOL, and Arianna Huffington have been sued in a class-action suit led by Jonathan Tasini on behalf of a throng of unpaid HuffPo keyboard jockeys.

The lawsuit is the latest expression of ire from the HuffPo volunteer blogger corps after the megablog was acquired by AOL for $315 million in February 2011.

The rabble-rousing Tasini already made legal history years ago in Tasini v. New York Times, a class-action lawsuit brought by freelancers whose works were put into electronic databases without permission or compensation. Tasini took that case all the way to the U.S. Supreme Court and won.

It’s unclear now what the legal claims are in Tasini’s new case. I’ll update when I find out more.

More:

Photobucket is Watertight Against Artist’s Injunction Request

Friday, March 25th, 2011

Photobucket logopaidContent reports that Photobucket and partner Kodak have handily fended off a preliminary injunction request from artist Sheila Wolk (apparently here), who sued over her images being uploaded without her consent.

I’m putting two and two together here, but I’m guessing that the gravamen of Wolk’s complaint is that people are uploading her images of fairies to Photobucket and then using the Kodak partnership to make coffee mugs and whatever with those images on them.

The judge, Robert W. Sweet of the U.S. District Court for the Southern District of New York, wrote in an order that Photobucket was protected under the Digital Millennium Copyright Act’s safe harbor.

Under the DMCA, copyright owners can send takedown notices to such sites, and as long as the sites respond to those notices appropriately, the sites are basically shielded from infringement liability.

Wolk wanted the Photobucket site to check itself for infringing artwork and remove it without waiting for a takedown notice. The court said that wouldn’t work.

Eric Goldman blogs that the case is “a useful boundary-setting for service providers when dealing overzealous copyright owners who want turnkey never-infringe-my-stuff-again services.”

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:

Blogger Aiming to Force Righthaven to Give Back Settlement Money

Monday, February 28th, 2011

Steve Green of the Las Vegas Sun reports on the latest Righthaven news – Dana Eiser, the blogger behind Lowcountry912, is looking to force Righthaven to refund its previously collected settlement amounts.

That would be awesome if it could work.

Blogger Continues Suit Against Fluvanna County over Seal Ordinance

Wednesday, February 9th, 2011

The Seal of Fluvanna County, Virginia, pixelized

The Seal of Fluvanna County, Virginia

Tasha Kates at The Daily Progress of Charlottesville, Virginia reports about legal manuverings in Fluvanna County stemming from lawsuit brought by blogger Bryan Rothamel of Fluco Blog.

Rothamel is suing to assert his First Amendment right to use the county’s seal to illustrate news stories about county government. A county ordinance passed in September 2010 made unauthorized use of the seal a Class 1 misdemeanor punishable with a fine of up to 12 months in jail and/or a fine of up to $2,500.

After being sued, the county’s board of supervisors voted to change the ordinance to downgrade the punishment to a maximum $100 fine and/or as long as 30 days in jail. That will bring Fluvanna County into line with the Commonwealth of Virginia’s seal statute.

The suit, however, will go forward. Suing on Rothamel’s behalf is The Rutherford Institute, a civil liberties organization that says the state law suffers from the “same vagueness problem” as the original ordinance.

Here’s Byran Rothamel’s March 2010 post about the ordinance accompanied by a big blank spot where the seal would be restored, I take it, if Rothamel’s suit is successful.

WSJ on Employers Stepping on Social Media Mines

Friday, January 21st, 2011

Wall Street Journal logoFor a long time there’s been a lot of talk about how employees and job candidates are hurting themselves by posting to blogs, Facebook and Twitter. But, as The Wall Street Journal notes in a story today by Jeanette Borzo (page B6 in print), employers are increasingly causing a mess for themselves by way of social media too.

The American Medical Response case has a hearing next week, the WSJ reports. There, the employer is accused of violating federal labor law for terminating an employee based on postings to Facebook.

The WSJ article also discusses the case of restaurant managers of Hillstone Restaurant Group in New Jersey who broke into a password-protected MySpace page that employees had set up. The employees were using the MySpace page to gab about work. The restaurant group was sued for violating the Stored Communications Act, a federal law, and was ordered to serve up $3,403 in back wages and $13,600 in punitives. The suit was eventually settled pending appeal.

Now, on a bit of a sidenote, I thought it was noteworthy that the Wall Street Journal article disclosed the following:

(Myspace is a unit of News Corp., which also owns The Wall Street Journal.)

Isn’t that a little surprising? I mean, I of course know that Rupert Murdoch bought MySpace for half a billion dollars a few years ago. I just didn’t know that MySpace still existed.

Ha ha. And while we’re on that invective tangent, here’s Ross Pruden on how Facebook vanquished MySpace. Interesting business-managementy stuff.

(By the way, I’ll confess I’m a little loathe to link to a Wall Street Journal article when I know that they may dump it behind their paywall any minute. I’ve avoided the WSJ in the past because of that. But I’m letting it go this time.)

Fired Lawyer and Sex Blogger Sues Allen & Overy

Monday, December 20th, 2010

From the homepage of self-described "naked poet," Deidre Dare (a/k/a Deidre Clark)

Deidre Clark was fired from the Moscow office of London-based law firm Allen & Overy after it came to light that she was behind the online identity of Deidre Dare (NSFW).

Clark, a lawyer from New York, blogged about her sex life and penned an online book, Expat, about sex and drugs in the Russian capital, which she said was based on her own experiences at A&O.

Word from A&O is that Expat used names of A&O employees and even the name of a client.

In addition to her book, Clark’s website contains poetry, philosophical musings, and a set of boudoir photos of herself. Let me warn you: Her whole site should be considered NSFWUYHTEOBALP (Not Safe For Work Unless You Have The Excuse Of Being A Law Professor).

She is now suing her former employer for wrongful termination, seeking more than $5 million in damages.

I don’t know much about British or Russian employment law, but my thought would be, good luck with that!

Lamebook v. Facebook

Tuesday, November 23rd, 2010

A blog called Lamebook that posts funny Facebook status updates has been threatened with a trademark infringement lawsuit by Facebook. Seeking to vindicate their rights, and probably trying to keep the lawsuit near home where it will be cheaper and easier to deal with, the folks at tiny Lamebook have sued megalithic Facebook for declaratory judgment in Texas. (TeleCrunch, Washington PostHuffington Post)

I haven’t read the pleadings, but this sounds like a strong case for Lamebook. That is, if they can survive a blizzard of high-paid lawyers and billable-hour-sucking motions.

Lamebook should have the right to pick an name and identity that calls to mind Facebook where, as is the case here, it is undertaking an activity that directly concerns Facebook, and it is producing content critical of Facebook.

In my view, that’s not actionable under trademark law, and, to boot, it’s protected First Amendment activity.

But let’s face it: Justice isn’t perfect and dollars matter. We’ll see if Lamebook can survive Facebook’s trademark bullying.

Go Lamebook!

My Deacon, My Sheriff

Tuesday, November 9th, 2010

Mike Masnick at TechDirt has a nice succinct synopsis of the incredibly frightening I-can’t-believe-this-happened-in-America story of the First Baptist Church in Jacksonville, Florida and the government/church joint venture that came after blogger Tim Rich:

As Masnick says,

A local sheriff’s detective, Robert Hinson, who was (in addition to being a sheriff’s detective) a member of the same church, a provider of security to the church, a deacon at the church and a member of the church’s “disciplinary committee,” used his position in the sheriff’s office to open an official investigation into the blog …

I posted about this case a little while back: Justice for a Blogger Ganged Up On By Sheriff and Church.

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.

Justice for a Blogger Ganged Up On By Sheriff and Church

Wednesday, October 27th, 2010

Out of Florida is an extremely interesting story involving religion, police, and anonymity for bloggers. Sandhya Bathija has posted about it on The Wall of Separation: I Sued The Sheriff: Unmasked Blogger Gets Some Justice In Florida. Bathija writes:

What would theocracy look like if it ever came to America? … After an anonymous blogger criticized Jacksonville’s First Baptist Church and its pastor Mac Brunson, Sheriff’s Office Detective Robert Hinson engaged in a crusade to find out the blogger’s identity. Operating at the church’s request, Hinson – a member of the congregation who served on the pastor’s security detail – even secured a subpoena from the State Attorney’s Office ordering the Internet service to provide the information.

The blogger, Tim Rich, ended up filing a federal civil rights lawsuit against the City of Jacksonville, the Jacksonville Sheriff’s Office, and an assistant state attorney. That suit has now settled to the tune of $50,000. As part of the settlement, the Sheriff’s Office has agreed to provide better training to its detectives on First Amendment issues.

Rich’s post on the settlement is here: FBC Jax Watchdog: Lawsuit Settled with Eye Toward Making Positive Changes

N.H. Blogger King to Get Pre-Election Hearing

Monday, October 25th, 2010

Yesterday’s Nashua Telegraph reported that lefty New Hampshire blogger Christopher King has succeeded in getting his hearing for an injunction moved up to before the November 2 general election. King is seeking a court order to have him un-barred from Republican campaign events.