Archive for the ‘California’ Category

Taking Judicial Notice of Blogs

Friday, November 9th, 2012

Daylight exterior

This is the Stanley Mosk Courthouse in Los Angeles. Under the Ragland case, my picture of it here does not permit it to take judicial notice of itself. (Photo: EEJ)

A new California case concerns whether a court can take judicial notice of a blog.

When a court takes “judicial notice” of something, it gives a party a pass on proving something with testimony. So, for instance, you can get a court to take judicial notice of the fact that November 6, 2012 was a Tuesday. You won’t have to produce a witness to testify as to that.

So, how about taking judicial notice of blogs?

This won’t come as a shocker. A court can take judicial notice of the existence of a blog, but not the truth of factual assertions made on the blog. (Can you imagine if it were otherwise!?)

Here’s what the court said in Ragland v. U.S. Bank National Association, 209 Cal.App.4th 182 (Cal. App. 2012):

As evidentiary support for the request for judicial notice, Ragland offers 12 exhibits, [including] printed pages from various Web sites and blogs (exhibits 2–6 and 8–12)[.] Ragland’s request for judicial notice requires us … to take judicial notice of, and accept as true, the contents of those exhibits. While we may take judicial notice of the existence of … Web sites, and blogs, we may not accept their contents as true.

Id. at 193.

Presumably, the court can also take judicial notice not only of the existence of the blog, but also the fact that certain statements exist on the blog. That makes sense, since the judge and all parties can independently access a blog just by using the internet.

But blogs can and do change. There’s clearly a separate question as to what is required as proof that a blog said a certain thing on a certain date. That presumably requires testimony in the form of an affidavit or declaration – though that’s not hard to do.

2012 Election Coverage from a Blog Law Perspective

Wednesday, November 7th, 2012

vote button red white and blue over American flagAs promised, here’s your blog-law-focused election coverage:

Barack Obama, a critic of SOPA, beat Mitt Romney, a foe of net neutrality, for President of the United States.

The main Congressional race of interest from a blog-law perspective is still to call at this hour. But Republican Congresswoman Mary Bono Mack, sponsor of the 1998 Copyright Term Extension Act, is trailing Democratic challenger Raul Ruiz by 48.6% to 51.4% with 66.5% reporting. Mack, widow of entertainer Sonny Bono, for whom the copyright term extension law was named, was also an early proponent of SOPA, those she later said the bill raised “legitimate concerns.”

Other key players in internet law won re-election easily.

Democratic Representative Zoe Lofgren from Silicon Valley, who is one of the strongest members of Congress when it comes to resisting legislation that threatens blogs and the internet, was re-elected with 72.4% of votes cast.

Republican Representative Darrell Issa, a very vocal critic of SOPA, handily won re-election in the California 49th.

Republican Representative Lamar S. Smith, the House Judiciary Committee Chair and chief advocate of SOPA, cruised to re-election in the Texas 21st by a margin of 25 points.

Republican Senator Orrin Hatch, sponsor of the 1998 Copyright Term Extension Act, was re-elected from Utah.

Court Ruling Seems to Overlook the Online Fact v. Opinion Question

Thursday, November 1st, 2012

From contributing blogger John S. Merculief II –

Recently I posted about Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012). It dealt a strong victory for free speech rights, but in my opinion, the California appellate court turned something of a blind eye to the issue of the relative legitimacy of internet postings.

The court reached its decision largely on the basis that the online statements at issue were incapable of being defamatory because they were merely nonactionable opinions. In doing so, however, I think the courts are overlooking the reality that many users of such internet forums actually treat postings they read as fact.

The case principally involved the online postings of Wendy Mateo regarding her daughter Nicole’s ex-husband, Darren Chaker. Here are the key facts:

  1. Nicole Mateo and Chaker had a contentious custody battle over their child.
  2. Wendy Mateo posted degrading comments about Chaker in online forums.
  3. Chaker sued for defamation.
  4. Wendy Mateo filed an anti-SLAPP suit and won.
  5. The appellate court affirmed that she was merely exercising her First Amendment free speech rights in the matter.

The Chaker court points out that “the context in which the statements are made” is an extremely important aspect of the “totality of the circumstances” examination of whether a statement is actionable. “This contextual analysis demands that the courts look at the nature and full content of the audience to whom the publication was directed.”

The two online sites where Wendy Mateo posted her comments were:

  • Ripoff Report, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile.

In arriving at its findings, the court acknowledges and openly joins a trend I see as sad and disturbing: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

By giving credence to the idea that internet forums generally yield nonactionable opinions, I think the courts are overlooking the reality that many users of such forums actually treat postings they read as fact.

It is true that, around the watercooler, someone making a claim he knows to be unsupported by fact, will add, “I saw it on the internet, so it must be true,” as a sarcastic verbal signal that he knows his point is a weak one – even if he is not willing to yield it.

But the thing is, for many people, “I saw it on the internet, so it must be true” is not a sarcastic expression, but rather words to live by.

Does that make such a user legally “unreasonable”? That appears to be the judgment in recent cases. But if courts truly are to look at the “nature … of the audience to whom the publication was directed,” perhaps a better way to articulate the standard is “reasonable when viewed from the perspective of a typical user of an internet forum.”

To be sure, the Chaker court does not actually use the term “reasonable person” nor even the word “reasonable” in its roughly 10-page opinion. But I believe what it’s saying, in joining the internet-forum-as-opinion trend, is that a reasonable person would not go to those sites expecting facts.

And I don’t know whether that makes sense, given actual usage behaviors regarding visitors to internet forums.

Internet forums admittedly are often places for “outrageous claims” where some (the Chaker court says “most”) “visitors are completely aware of the unreliable nature of these posts.” And that seems to tilt the needle toward unactionable opinion.

But if a goodly number of those visitors treats those same claims as hard, verified (or at least verifiable) fact, doesn’t that tilt the needle into the realm of actionable statement of fact?

What Will The Big Mouse Do About Star Wars Fanfic?

Wednesday, October 31st, 2012

Now that George Lucas has announced he’s selling Lucasfilm, including Star Wars, to Disney, the big question in my mind is what will happen to Star Wars fan fiction?

Lucas has long been welcoming of fanfic adaptations of his Star Wars properties. The House of the Mouse, on the other hand, has long been the leader in pursuing ever larger copyright entitlements, dismissing issues of cultural and expressive freedom.

So, will the copyright stormtroopers be coming after camcorder-weilding Star Wars geeks?

Joe Mullin tackles the issue on Ars Technica: Disney owns Lucasfilm: will it have room for Star Wars fan movies?

Mullin’s post includes an embedded YouTube video with an awesome Cops spoof featuring stormtroopers. It’s so awesome, I’ll just embed it here, too.

You can’t tell me the world’s not a little bit better when Hollywood outsiders can create and distribute gems like this:

Court treats degrading online postings as protected free-speech opinions

Friday, October 19th, 2012

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Update on Pandora’s California Consumer Rights Notification

Friday, June 22nd, 2012

Pandora logoA while ago I blogged about a page footer I noticed on internet-radio/jukebox sitePandora with a link to “Your CA Privacy Rights,” advising California residents of California Civil Code §1798.83 and entreating them, pursuant to that law, to “request and obtain from us once a year, free of charge, a list of the third parties to whom we disclosed their personal information (if any) for direct marketing purposes in the preceding calendar year and the categories of personal information disclosed to those third parties.”

I wrote Pandora and made this request just to see what would turn up. As I disclosed to Pandora in the request, I am not, and was not during the past year, a California resident. I asked them if they would honor the request nonetheless. Josh M at Pandora responded the same day to say:

Hi there,

Pandora Media, Inc. has not disclosed your personal information to any third party for the third party’s direct marketing purposes within the immediately preceding year.

Hope that helps and thanks again for writing.
Best Regards,

Josh M

Listener Support
PANDORA® internet radio
Need help? http://help.pandora.com

Interesting. I would have imagined they had.

I wrote in some detail about §1798.83 in my previous post last month.

Your CA Privacy Rights on Pandora

Wednesday, May 23rd, 2012

Pandora logoJust noticed this on Pandora: The page footer contains a link to “Your CA Privacy Rights,” which takes you to this:

California Civil Code Section 1798.83 permits users who are California residents to request and obtain from us once a year, free of charge, a list of the third parties to whom we disclosed their personal information (if any) for direct marketing purposes in the preceding calendar year and the categories of personal information disclosed to those third parties. If you wish to make such a request or have any questions about Pandora’s information sharing practices, you may contact us by sending us an email at pandora-support@pandora.com or write to us at Pandora Media, Inc., 2101 Webster Street, Suite 1650 Oakland, CA 94612, Attn: Listener Support.

As the text discloses, this is the fruit of California Civil Code § 1793.83. It’s an internet era law, dating back to 2005, that puts obligations on businesses who disclose personal customer data to third parties that then use that data for direct marketing.

When I start to read the statute, I get that feeling I so often get when I read California statutes, of wanting to spite my eyeballs for what they are seeing. It’s not only confusing, it’s not even clearly confusing. Which is to say it’s confusing in a confusing way. After I read it, I’m not even clear on how I’m confused. So I really don’t want to try to explain to you what the statute requires because I’m not sure what it requires, and I’m not even sure I could be sure if I spent a lot of time on it.

A business required to comply with this section shall, at its election, do at least one of the following:

(A) Notify all agents and managers who directly supervise employees who regularly have contact with customers of the designated addresses or numbers or the means to obtain those addresses or numbers and instruct those employees that customers who inquire about the business’s privacy practices or the business’s compliance with this section shall be informed of the designated addresses or numbers or the means to obtain the addresses or numbers.

(B) Add to the home page of its Web site a link either to a page titled “Your Privacy Rights” or add the words “Your Privacy Rights” to the home page’s link to the business’s privacy policy. If the business elects to add the words “Your Privacy Rights” to the link to the business’s privacy policy, the words “Your Privacy Rights” shall be in the same style and size as the link to the business’s privacy policy. If the business does not display a link to its privacy policy on the home page of its Web site, or does not have a privacy policy, the words “Your Privacy Rights” shall be written in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language. The first page of the link shall describe a customer’s rights pursuant to this section and shall provide the designated mailing address, e-mail address, as required, or toll-free telephone number or facsimile number, as appropriate. If the business elects to add the words “Your California Privacy Rights” to the home page’s link to the business’s privacy policy in a manner that complies with this subdivision, and the first page of the link describes a customer’s rights pursuant to this section, and provides the designated mailing address, electronic mailing address, as required, or toll-free telephone or facsimile number, as appropriate, the business need not respond to requests that are not received at one of the designated addresses or numbers.

(C) Make the designated addresses or numbers, or means to obtain the designated addresses or numbers, readily available upon request of a customer at every place of business in California where the business or its agents regularly have contact with customers.

Really, do they just go with their first draft of these things? Because I’m not sure most people could write such a confusing first draft. They must draft a first draft and then do some undrafting work on it to walk it back.

I know, I keep railing on California statutes over and over and over and over.

At any rate, I note that Pandora is saying “Your CA Privacy Rights” rather than “Your Privacy Rights” or “Your California Privacy Rights.” Risky, I guess. Or not. Hard to tell.

Anyway, I e-mailed Pandora to ask for a disclosure under the law – and I disclosed that I am not a California resident, but I’d appreciate it all the same if they would honor it – and I’ll post a follow-up here.

2011 in Review: Bad Legislation

Monday, January 2nd, 2012

2011Unlike a lot of tawdry, pandering, cut-rate journalistic operations out there (Time, CNN, etc.) who claim to review 2011 before it’s over yet, here at Blog Law Blog, your faithful blogger waited until it was all over before claiming to look back at it.

So now it’s time. What characterized 2011 in blog law?

First up: Bad legislating. This was a year when legislatures engaged in all kinds of nonsense that, at best, was dopey, and, at worst, was potentially disastrous.

The California legislature outdid itself this year. First there was the absurd new statute threatening jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The law’s not inane because I have an affection for tweeting jurors. It’s inane because, when you look at it closely, it’s inane:

Could the California legislature have felt egged on by reading my withering critique? Well, they urned around and did something even worse with their Reader Privacy Act. Some laws I just disagree with. But the California Reader Privacy Act actually makes no sense. Here’s an actual quote from me about this law:

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.

For a more in-depth explanation:

Now, the worst legislation of 2011 was a set of related measure working their way through the U.S. Congress: the Protect IP Act (PIPA) in the U.S. Senate and the Stop Online Piracy Act (SOPA) in the House of Representatives. Now this stuff hasn’t become law yet – it’s still a bill (sittin’ there on Capitol Hill). But it’s really bad. The House Judiciary Committee will be taking SOPA back up this month. Let’s hope 2012 is a better year for legislation than 2011 was.

How Can You Teach Free Speech’s Limits if You Don’t Understand Them Yourself?

Wednesday, December 28th, 2011
miniaturized version of portion of front page of website

From the front page of American Justice Associates' website

As a postscript to yesterday’s post about court-ordered free-speech lessons for Occupy L.A. protesters, let’s look at one more heaping spoonful of irony.

Jeffrey P. Hermes at CMLP blog pointed out that American Justice Associates, who has been tapped to run the course, bills itself on its website as “a supportive arm of the Los Angeles City Attorney’s Office since 1995.” Yet, as Hermes notes, the company is a private firm and not a branch of the government.

That’s pretty funny, because you imagine that one of the first things they will say in this free-speech class is that the First Amendment’s guarantee of free expression is not absolute. And that’s true. Of course, one of the hallowed examples of speech that’s not entitled to protection is false advertising. There’s federal and California state law that prohibits false statements in advertising. And saying your organization is an “arm” of the city attorney’s office, when it’s really a private contractor, sure seems false to me.

Patent diagram of a crutchBut I’m going to try to be thorough and fair before I accuse anyone of making false and misleading statements.

I’ll begin with the obvious: The word “arm,” when used in conjunction with an organization, is ordinarily understood to mean a branch of the organization.

Now, American Justice Associates could argue that you’ve got to look at the fact that they use the word “arm” in context with the word “supportive.” They claim to be “a supportive arm.” But then we have to ask, what the heck is a “supportive arm” anyway?

If “supportive arm” doesn’t mean a helpful branch of the government, then it’s oxymoronic. Arms don’t support. Okay, well, I guess arms are supportive for someone who is down on their hands and knees. So is that what American Justice Associates is saying about justice in Los Angeles? That it’s crawling on the floor? That’s pretty rough.

So, I have to conclude that “arm,” as American Justice Associates uses it, is false and misleading.

I think what they probably should revise it to is “crutch”: American Justice Associates – The Crutch of the LA City Attorney’s Office. That’s what they seem to mean when they put themselves out there as the solution to a justice system too overburdened to try defendants and put the guilty ones in jail.

Liberty L.A. Style: Free Speech School or Jail

Tuesday, December 27th, 2011

View of the LA City Hall skyscraper under a blue skyL.A. City Hall (Photo: EEJ)

Jeffrey P. Hermes at the Citizen Media Law Project Blog has spotted a small volcano of irony erupting from Los Angeles: The L.A. City Attorney’s Office has announced that it won’t press charges against Occupy L.A. protesters arrested on low-level misdemeanor offenses if they complete a free-speech course.

But freedom isn’t free: The lessons for the pre-trial diversion program will be supplied by a private-contractor, American Justice Associates, which will charge $355 per person for the course. Checks can be made out to “The One Percent, LLC.”

It’s a move Hermes calls “a dramatic, last-minute effort to win the prize for ‘Most Obnoxious Law Enforcement Tactic of the Year.’” Hmmm. Well put. As he explains:

Let’s reflect for a moment on this one, shall we? … This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.”

But there’s another side to this. As a Los Angeles Times article explains, the city wants to save on the expense of prosecuting the hundreds of people it’s rounded up. Fair enough. We all know how California is hurting for money. (Actually, in recent years the office has suffered a 25% budget reduction.)

Look, I think I’ve got an easy fix: Just require Occupy protesters to complete community service by teaching the class themselves, with LAPD higher-ups enrolled as students.

This is a Key Week in the Fight Against SOPA

Tuesday, December 13th, 2011

This is a key week in the fight against SOPA – a sledgehammer law, ostensibly to fight copyright infringement, that would be a disaster for bloggers and for the internet in general. The bill is approaching a vote in the House Judiciary Committee. Please consider taking some time learn about the issue, and if your member of Congress is on the House Judiciary Committee (list below), please write them!

The Stanford Law School Center for Internet and Society (where I am an affiliate scholar), recently hosted a panel discussion called What’s Wrong with SOPA? You can now watch the video of the event.

Julie Ahrens of CIS did a really nice post explaining concisely why SOPA is such a bad idea, broken down into five points:

1. SOPA violates due process.
2. SOPA censors lawful speech.
3. SOPA breaks the Internet’s infrastructure.
4. SOPA blows up the safe harbor.
5. SOPA kills innovation.

She provides an explanation and cites to further reading for each.

Here is the membership of the House Judiciary Committee. If your rep is on here, please call and e-mail!

Adams – (R) Florida, 24th
Amodei – (R) Nevada, 2nd
Berman – (D) California, 28th
Chabot – (R) Ohio, 1st
Chaffetz – (R) Utah, 3rd
Chu – (D) California, 32nd
Coble – (R) North Carolina, 6th
Cohen – (D) Tennessee, 9th
Conyers Jr. – Ranking Member – (D) Michigan, 14th
Deutch – (D) Florida, 19th
Forbes – (R) Virginia, 4th
Franks – (R) Arizona, 2nd
Gallegly – (R) California, 24th
Gohmert – (R) Texas, 1st
Goodlatte – (R) Virginia, 6th
Gowdy – (R) South Carolina, 4th
Griffin – (R) Arkansas, 2nd
Issa – (R) California, 49th
Jackson Lee – (D) Texas, 18th
Johnson – (D) Georgia, 4th
Jordan – (R) Ohio, 4th
King – (R) Iowa, 5th
Lofgren – (D) California, 16th
Lungren – (R) California, 3rd
Marino – (R) Pennsylvania, 10th
Nadler – (D) New York, 8th
Pence – (R) Indiana, 6th
Pierluisi – (D) Puerto Rico, Resident Commissioner
Poe – (R) Texas, 2nd
Polis – (D) Colorado, 2nd
Quayle – (R) Arizona, 3rd
Quigley – (D) Illinois, 5th
Ross – (R) Florida, 12th
S?nchez – (D) California, 39th
Scott – (D) Virginia, 3rd
Sensenbrenner Jr. – (R) Wisconsin, 5th
Smith – Chairman – (R) Texas, 21st
Waters – (D) California, 35th
Watt – (D) North Carolina, 12th

Stanford CIS to Host Panel on SOPA

Monday, December 5th, 2011

Stanford Center for Internet and Society logoThe Stanford Law School Center for Internet and Society, where I am an affiliate scholar, is hosting a panel discussion on SOPA – the Stop Online Piracy Act – and the Protect-IP Act that are making their way through the U.S. Congress.

The discussion – WHAT’S WRONG WITH SOPA? – is open to the public and will take place on Wednesday, December 7, 2011, at 7 p.m. PST in Room 290 of the Law School Building at Stanford. There will also be a 6 p.m. reception on the Neukom Terrace, at the Neukom Building. You’re encouraged to RSVP.

Playing Simon Says: California’s Crazy, Crazy Reader Privacy Act

Tuesday, November 1st, 2011

Electronic Simon game from the 1980sGetting a subpoena is a highly unpleasant experience.

A subpoena is a legal document that commands you to hand over documents or appear someplace at a certain time to answer questions under oath. Subpoenas are necessary to get the business of our civil justice system done, but they can make the IRS seem like an old friend by comparison.

And that makes for what I think is the biggest problem with the Reader Privacy Act, a new California law intended to increase people’s privacy with regard to what books they choose to read. (More problems here and here.) To accomplish this, the new law puts certain requirements on any online “book service” provider (which, oddly, might include a blog) that receives a subpoena seeking information on any of the provider’s readers. The requirements are that before complying with the the subpoena, the “book service” provider must give notice to any reader whose information is sought and/or the provider must make a number of determinations about the legal appropriateness of the subpoena.

So, for instance, a provider covered under the law is not allowed to comply with a qualifying subpoena unless the provider first gives 35-day advance notice to the reader about the reader’s ability to seek a motion to quash the subpoena. §1798.90(c)(2)(B)(iv).

Just think about that for a minute: The subpoena is an order issued by a court commanding a person to do something. But under this new law, a person is prohibited by law from obeying that court order unless and until the person fulfills certain requirements.

You would think, if you got a court order, you’d be safe in obeying it. But not so!

And that’s crazy. That’s more than just crazy. That’s the Crazy Suite at the Hotel Crazy.

But wait, it actually gets crazier.

Under §1798.90(c)(1), it is illegal for a covered “book service” provider to obey a subpoena commanding the disclosure of information to a law enforcement agency unless the law enforcement agency has met two conditions and the court itself has met three conditions. For instance, you can’t obey a subpoena under the law unless the court first “finds that the law enforcement entity seeking disclosure has a compelling interest in obtaining the personal information sought.” §1798.90(c)(1)(B).

Yes, that means it’s illegal for you to do something the court is commanding you to do unless the court made a certain finding before hand. To be quite plain, it is unlawful for you to comply with a court order demanding that you cooperate with law enforcement.

That’s beyond crazy. That’s No. 1 Crazy Street, Crazy City, Crazyland, U.S.A.

The only precedent I can think for whackitude like this is the children’s game of Simon Says. In Simon Says, the leader barks commands preceded by the words “Simon says.” If you obey a command that is not preceded by the words “Simon says,” you’re out.

It’s silly, but that’s what makes it fun. For children. Who are playing.

But it’s not fun for the California legislature to do this. It’s not fun at all.

If the California legislature thinks the courts and the police are out of control, then – I hate to have to point out the obvious here – they can put restrictions on the courts and the police. That only makes sense.

Instead, the California legislature has made it illegal for people to cooperate with the police and the courts when the police and courts are, in the legislature’s judgment, going too far.

But wait. It gets CRAZIER still. Look at this provision:

A provider shall disclose personal information of a user to a law enforcement entity only pursuant to a court order issued by a duly authorized court with jurisdiction over an offense that is under investigation and only if …
[p]rior to issuance of the court order, the law enforcement entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest issuance of the order.

§1798.90(c)(1)(D).

That’s right: It’s illegal for you to obey the subpoena if the police didn’t inform you of your right to contest the subpoena.

That’s like making it illegal for a suspect to answer questions while in police custody if the police failed to inform the suspect of the suspect’s right to remain silent.

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.

Unfounded Allayances for a Misarchitected Law

Tuesday, October 25th, 2011

Huge pile of building rubbleMisarchitected.
(Photo: EEJ)

Over at Technology & Marketing Law Blog, Eric Goldman has written that the just-enacted California Reader Privacy Act may impose a new burden on individual bloggers who are on the receiving end of subpoenas. Paul Alan Levy, a lawyer with Public Citizen, a leading public-interest law firm, doesn’t agree. Levy says that the phrase “commercial entity” in the bill could not be construed to cover individuals because, individuals can’t be “entities.”

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

Here’s Levy’s argument that the statute won’t apply to individual bloggers:

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

More from me:

Yikes! Is My Blog Regulated By California’s Reader Privacy Act? Is Yours?

Monday, October 24th, 2011

Looking up at the California capitol dome on a sunny day
The California Capitol. (Photo: EEJ)

Well, this is terrifying.

Eric Goldman, in a new blog post, hypothesizes that California’s newly enacted Reader Privacy Act could be read to impose statutory requirements on bloggers. The law requires “book services” to give notice to persons who are the target of a personal-information-seeking subpoena served on the book service. In other words, if someone throws a subpoena at an online book service in order to find out what books someone is reading, the book service has to first reach out to that someone before turning over the information.

So far, that doesn’t sound too bad.

But where Professor Goldman gets alarmed … (Let me just pause to note that while I would feel comfortable calling Eric Goldman by his first name, if I start saying “Eric argues” or “where Eric gets alarmed” on this blog, people are going to think I’m talking about myself in the third person. And while I’m generally okay with people thinking I’m a bit eccentric, I don’t want people thinking I’ve got the mindset of a marginal presidential candidate who is slowly losing touch with reality.)

So, anyway, as I was saying, where Professor Goldman gets alarmed is in looking carefully at who qualifies as a “book service” and who is therefore is obligated under the new law:

Let’s look closely at who is required to comply with the law — recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs’ bar.

What?!? A “rapacious” plaintiffs’ bar?!? In CALIFORNIA?!?!? I can’t believe that. Anyway, as Goldman was saying …

[C]learly this covers Amazon and other online book retailers. But in this day and age, what is a “book” and, more importantly, what isn’t? The statute defines a book as:

paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper

… [W]hat about blogs? Are they “book services”? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL–see Blog Law Blog as an example).

Isn’t that awesome? I did a nested double-blockquote! Who knew you could even do that? Hey, wait a minute! That’s ME he’s talking about! AIYEEEAAHHH?!?!? There’s nothing like waking up in the morning and finding out that the California legislature has just done something that might expose you to private plaintiffs’ actions.

But wait, I can actually breathe a sigh of relief, because I’m pretty confident I don’t count as a “commercial entity” under the law. And since I’m not a commercial entity, the law’s requirements don’t apply to me.

But what about you, dear reader? Does your blog have advertisements on it? Even AdSense or Amazon affiliate links could, in Goldman’s view, possibly expose a blogger to “commercial entity” status.

And that’s just one more reason not to have ads on your site. As I said in regards to the question of whether having an ad-bearing blog imposes tax liability (in a post that my WordPress installation faithlessly labeled “page 1075“):

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.

I’ll have more to say on California’s Reader Privacy Act in posts this week. I’ll weigh in on the debate between Paul Alan Levy of Public Citizen and Goldman about whether an individual can be an “entity’ under the new act. I’ll also explain my biggest problem with the new law.

Are You Kidding Me? Apple Loses Another iPhone Prototype in Another Bar

Thursday, September 1st, 2011

Apple iPhone with stick figure elements, shown running awayPhoto: Apple. Deft artistic embellishments: Me.

Last year we followed the story of Apple’s iPhone 4 prototype, which was lost in a Silicon Valley beer garden. It was a blog law story because Apple went in heavy against tech blogger Jason Chen, getting a multi-jurisdiction police task force to raid to his home and seize a bunch of his property. And this was after the guy who found the phone tried to return it to Apple and Apple refused to return his calls.

Now, it’s happening again. This time an iPhone 5 prototype was dropped in Cava 22, a tequila bar in the Mission District of San Francisco.

As CNET, who broke the story, reports:

Apple electronically traced the phone to a two-floor, single-family home in San Francisco’s Bernal Heights neighborhood, according to the source.

When San Francisco police and Apple’s investigators visited the house, they spoke with a man in his twenties who acknowledged being at Cava 22 on the night the device went missing. But he denied knowing anything about the phone. The man gave police permission to search the house, and they found nothing, the source said. Before leaving the house, the Apple employees offered the man money for the phone no questions asked, the source said, adding that the man continued to deny he had knowledge of the phone.

I don’t know what’s more unbelievable, that Apple lost another iPhone, or that the San Francisco Police Department investigated a lost-property claim. When I lived in SF, a friend of mine got his car broken into and his radio stolen, and when he filled out his police report and asked the officer if they would be investigating it, they looked at him like he was crazy. I guess if you are Apple, you can get great customer service from the SFPD. That’s kind of ironic since Apple itself is pretty deficient in the customer service area.

By the way, take it from a law professor, don’t give the police permission to search your home. Arrgh.

Here are last year’s posts about the Jason Chen / iPhone 4 mess:

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

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!

Rachel Kane Should Look to Princess Diana for Inspiration

Tuesday, June 14th, 2011

Here’s a tip for the lawyers of Rachel Kane, the California blogger who has vowed to fight back against Forever 21′s attempt to shut down her blog with a bogus trademark lawsuit:

Make sure you check out Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, 184 Cal.App.4th 313 (2010). It’s a wonderful case which allowed the Franklin Mint to advance its malicious prosecution claim against the prestigious L.A. law firm of Manatt, Phelps & Phillips for filing a baseless trademark and right-of-publicity suit. That suit had been brought by Princess Diana’s estate against the Franklin Mint for, among other things, manufacturing the Princess Diana Vinyl Portrait Doll with blue beaded silk gown (which retailed for $245 – WTF?).

I blogged about the decision last year. As I said then, it’s a great case for bloggers, because it shows that there’s a downside for thugsters overreaching on trademark theories. In the Franklin Mint v. Manatt case, the California appeals court found that there was no “probable cause” to claim trademark dilution or right-of-publicity infringement, and, therefore, Manatt could be liable to the Franklin Mint for maliciously bringing a groundless lawsuit.

Manatt argued vigorously that trademark law was too fuzzy and unsettled for the California court to allow a malicious prosecution claim to go forward. But the court disagreed, saying that the “application of fundamental principles of trademark law to the facts of this case show there was no probable cause to prosecute the trademark dilution claim.”

The same exact thing could be said about Forever 21 v. Kane.

WTForever21.com Blog Will Fight Forever 21′s Absurd Legal Threats

Monday, June 13th, 2011
Woman wearing leopard-print faux fur vest

Rachel Kane has vowed to fight for her right to make fun of faux fur vests and other Forever foibles. (Photo: Forever 21)

Jenna Sauers of Jezebel reports that Rachel Kane will stand and fight Forever 21′s threat to sue her unless she takes down her WTForever21.com blog, which lampoons the fast-fashion retailer several days a week.

And indeed, when I see something like the caveman-meets-drugstore-employee monstrosity at right, I personally can only ask, WTF?

Kane sent Jezebel the following statement, which, although written from her perspective, contains unmistakable scent of lawyer writing:

My site, WTForever21, does not infringe on any of Forever 21′s rights. It contains only criticism, commentary, and news reporting, all written in an educational and humorous manner, which are protected under applicable law. To the extent any of the material used on the site is in fact subject to intellectual property protection (which, in many instances, is by no means clear), the site’s incorporation of that material is a “fair use” under copyright, trademark law, and similar state law. It’s incredibly unlikely that any portion of the site would ever cause confusion in the minds of the general public about whether or not Forever 21 endorses or is affiliated with it. The blog in no way dilutes Forever 21′s trademark, as the company claims. If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.

In the meantime, I am leaving the blog up. I look forward to returning to blogging about fashion atrocities like lime green, faux fur covered vests and candy colored booty shorts on WTForever21.com.

I’m hoping the last sentence was penned by Kane herself rather than her lawyers. Nothing in law school prepares you for making that kind of unequivocal statement about booty shorts.

Anyway, Kane’s lawyers are right on for the most part. I must, however, register my disagreement with the characterization that it’s “incredibly unlikely” that anything on the site would ever cause confusion about endorsement by or affiliation with Forever 21. “Preposterous” is more like it.

Don’t Get Too Excited About Your Company’s Social Media Debut Yet!

Friday, May 20th, 2011

Headshot of Michelle Sherman and social media logo

Michelle Sherman of law firm Sheppard Mullin blogs about social media law

Michelle Sherman, a lawyer with L.A.’s Sheppard Mullin, has a new blog post Sherman’s post asks the question:

Is Your Company’s Social Media Launch Ahead Of Its Compliance Program?

What a buzz kill, huh? This is why people don’t love lawyers. You’re all excited about your company’s social media debut, and then all of a sudden you remember, OH YEAH, I HAVE TO THINK ABOUT THE LAW!. And then you have to pay by the hour, and all of a sudden you are really grumpy.

But, of course, Michelle is right. Any business going into social media as a way to win customers and make money ought to learn something about the law before they do. There are a lot expensive mistakes you can make.

And why, you may ask, why has the law thrown up a bunch of hurdles that make for those potentially expensive mistakes? It’s because there are a lot of people who want to use social media to rip off customers. So, basically, the unscrupulous folks out there ruin it for everybody. Next time you’re grumpy about legal bills, pause for a moment to send some bad juju the way of the sleazes out there who are the reason so many laws exist.

Anyway, Michelle’s post contains a nice rundown of the FTC v. Twitter lawsuit (settlement recently finalized) and the FTC v. Google Buzz settlement.

Zuckerberg is Officially a Californian, Sorry New York

Monday, April 4th, 2011

A federal court in New York, after thinking through the issue thoroughly, has decided that Facebook founder Mark Zuckerberg is domiciled in California. That means that the federal court will hold on to jurisdiction in Ceglia v. Zuckerberg, instead of kicking it to state court. Oddly enough, it doesn’t look like Zuckerberg’s Facebook profile information settled the issue. Evan Brown blogs it.

Prince Albert Takes Defamation Claim to Paris

Tuesday, February 22nd, 2011
Port of Monaco

Monaco. That's the prince's boat on the right. The big one. (Photo: CIA)

Libel tourism alert: The best place to vacay with your tarnished reputation continues to be Paris, France.

Prince Albert of Monaco is petitioning a Paris court to remove blog posts that His Serene Highness says are defamatory, according to a report by the Associated Press.

Robert Eringer, a blogger based in Santa Barbara, California, has accused the principality’s ruler of Olympic-Games-related corruption, saying he accepted the gift of a Russian-built dacha on Monaco’s outskirts. That’s suspect apparently because of its timing in relation to Sochi, Russia’s successful bid to host the 2014 Winter Olympics.

Albert is a member of the International Olympic Committee and a bobsledder who’s competed in several Olympics.

Eringer’s claim to expertise is that he is a former intelligence adviser to the prince. That sounds crazy, but apparently in a previous California lawsuit over backpay, court papers filed on Albert’s behalf confirmed that Eringer carried out “intelligence missions” for the prince.

Wow. Let’s just stop there for a second. What does Monaco need with spies? I guess that’s not fair on my part. If you’re going to have an independent sovereign nation, no matter how small (about 31,000 people and less than one square mile), you might as well do it up right with your own coinage, postage stamps, bobsled team, spies, and everything else.

But shouldn’t you have your own courts too? Why can’t Albert bring this action in Monaco? Is he afraid he won’t get a fair trial? Maybe it has to do with internet access. French wi-fi probably covers a large portion of the principality. Or maybe its just the allure of French libel law, as easy as a Sunday afternoon on the Champs-Élysées.

Awesome §230 Conference at Santa Clara Law

Thursday, January 27th, 2011

Seal of Santa Clara UniversityThe High Tech Law Institute at Santa Clara University School of Law is hosting a fantastic conference on March 4, 2011 about § 230, the safe harbor that shields online content providers from liability for defamation posted by users. It’s one of the most important legal aspects of blogging, and the Santa Clara event, called 47 U.S.C. § 230: a 15 Year Retrospective, offers a spectacular lineup of speakers. Look at this:

  • Kenneth Zeran, plaintiff in Zeran v. America Online (4th Cir. 1997)
  • Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals
  • Zoe Lofgren, U.S. House of Representatives, California 16th
  • Alex Macgillivray, General Counsel, Twitter
  • Kai Falkenberg, Editorial Counsel, Forbes
  • Cindy Cohn, Legal Director, Electronic Frontier Foundation
  • David Ardia, Citizen Media Law Project/Harvard Berkman Center
  • Chris Cox, Partner, Bingham McCutchen LLP
  • Patrick Carome, Partner, WilmerHale
  • Mike Rhodes, Partner, Cooley LLP
  • Maria Crimi Speth, Shareholder, Jaburg & Wilk
  • Eric Goldman, Santa Clara University School of Law
  • Susan Crawford, Cardozo School of Law
  • Nancy Kim, Cal Western School of Law
  • Felix Wu, Cardozo School of Law

The event is co-sponsored by Harvard Law School’s Berkman Center, Stanford Law School’s Law, Science & Technology program, the Berkeley Center for Law & Technology, the New York Law School’s Institute for Information Law and Policy, the Congressional Internet Caucus Advisory Committee, the EFF, and the Media Law Resource Center.

I can’t think of better way to earn five hours of CLE credit. And it’s free for law students, full-time law professors, the press, and public-interest attorneys.

Michelle Sherman on E-Discovery Applied to Blogs and Other Social Media

Wednesday, January 26th, 2011

Sheppard Mullin is one of those law firms that went full tilt on blogging as a means of rainmaking. They’ve got a ton of blogs. Not all of them are updated much. But their Social Media Law Update Blog is good stuff.

Michelle Sherman, an of counsel in the firm’s LA office, who has an interesting bio, has a post on how e-discovery rules apply to social media, including blogs. She recommends building off your e-mail policy as a starting point and checking regulations that are specific for your industry.

By the way, what’s interesting about her bio? She quit as a partner at Sheppard Mullin to do a year as an assistant public defender to do more trials. She then came back to an interesting mix of litigation and corporate advising.

Ha’p @kisbell.