Archive for May, 2010

Conviction Upheld for Blogger/Stalker

Monday, May 31st, 2010

A just released opinion from the Second District of the California Court of Appeals makes for some terrifying reading.

In People v. Costales, the intermediate California appeals court upheld a two-year sentence for Michigan resident George Christian Costales, who used his blog to document his obsession with Stacy B., a musician maintaining a MySpace page. Costales eventually used his blog to document his cross-country road trip to attempt to visit Stacy B. in person in California.

On appeal, Costales contended there was insufficient evidence to show that he had made a “credible threat,” required for a stalking conviction under California Penal Code § 646.9. The statute defines “credible threat” as “a verbal or written threat … or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat … ”

The court held that Costales’s blogging provided all the evidence that was necessary for the conviction.

The opinion is here. Some excerpts:

George Christian Costales appeals a judgment following his conviction of stalking. (Pen.Code, § 646.9, subd. (a).) We conclude, among other things, that: 1) substantial evidence supports the judgment, and 2) Costales has not shown that his two-year prison sentence was retaliation for his decision to proceed to trial instead of making a plea to the charges. We affirm. …

Stacy B. was a musician who used an Internet program called MySpace to “market” her music. She had “an open profile” to allow the public to go to her site. She began receiving disturbing e-mails from Costales, a stranger from Michigan.

Let me just pause for a moment to note that it is interesting that the Court of Appeals put the word “market” in quotes – as if MySpace is somehow a silly way to go about marketing music. Also, judging by her  MySpace page, it looks like she still is a musician. It says she’s currently in the studio. At any rate, the court continued:

Stacy B. was so disturbed by the content of his messages that she used a security feature on her MySpace page to block him from leaving his profile and his comments. Costales discovered that she had blocked his access to her site. He posted a message stating, among other things, “[S]he has blocked me and has never uttered even one word to me. I do believe she loves me…. [¶] … Oh, hell, am I a f***ing stalker ? I visit her page every day. In my mind she’s the perfect woman for me.” He created new profiles to avoid the blocking mechanism and continued to send messages.

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FTC Attorney Discusses Rules for Blogging About Products

Friday, May 28th, 2010

David M. Newman, an attorney with the Federal Trade Commission, discussed how FTC rules apply to blogs and bloggers in a just-published piece for New York’s Practising Law Institute.

With regard to blogs, he said:

The core principles of Commission consumer protection jurisprudence are flexible enough to adapt to new media and new marketing techniques. As Gertrude Stein might have said, “deception is a deception is a deception.” Nevertheless, the Commission has had to address how existing deception and unfairness standards apply to marketing on the Internet and through social media.

Blog Endorsements. The Commission recently announced that bloggers who review products or services in their blogs will have to disclose if they receive free products or compensation in connection with the review. This is not designed to stifle blogs, but it is designed to ensure that bloggers who have turned their websites into commercial ventures, where they promote an advertiser’s product in exchange for free products, payments or other perks, reveal that relationship to readers. It is a new application of the well established principles in the Commission’s Endorsement Guides, which have always required that endorsers disclose any compensation or connection with the product they are endorsing.

From: 1811 PLI/Corp 679, PLI Order No. 22603, May-June 2010 (citations removed).

The revised guidelines to which Mr. Newman refers are here (pdf format). The FTC’s press release about the revisions to the guides is here.

Wired’s Mr. Know-It-All on Blog Copyright

Thursday, May 27th, 2010

Brendan I. Koerner, writing the Mr. Know-It-All column in the June issue of Wired, on blog copyright.

It’s a pithy and well-written explanation. But I blanched at this:

As boring as it is to talk about, you should consider an alternative like Creative Commons …

Sharing licenses a boring topic? I never thought about it that way. Definitely a humbling reality check for me – a law professor who writes about that stuff.

While you’re bored, I might mention there’s always konomark.

Reilly on Audioblogging and Copyright

Wednesday, May 26th, 2010

Steven M. Reilly has just published a law review note titled Losing My Edge: The Copyright Implications of Audioblogging and Why Blogs Matter to the Music Industry, in the Vanderbilt Journal of Entertainment & Technology Law, Winter 2010 (12 Vand. J. Ent. & Tech. L. 439).

The abstract:

In the past decade, the information distribution channels for music have changed dramatically. Not only have they largely moved from radio and print to online sources, but many audioblogs have formed to cover various niches according to the individual tastes of bloggers. This democratization of music criticism has been popular with listeners, as the information is easily and immediately available as well as tailored to a particular interest.

A defining feature of the audioblog is the inclusion of a downloadable MP3 in each post. In some cases, especially for more popular audioblogs, the download is approved by the copyright holder. In most cases, however, songs are posted without approval. This creates obvious copyright infringement implications.

Because audioblogs serve a valuable function, this Note looks within copyright law for a potential exemption for these posts, focusing on the fair use defense. Through an analysis of the four factors of the traditional fair use test, the Note concludes that, based on current precedent, a court would not likely find that this use falls within fair use. Under the current law, however, it is possible that music labels will not bring infringement cases to court, relying instead on their DMCA rights.

As a result of the potential liabilities and the tactics and beliefs of copyright owners, this Note then considers a variety of solutions to resolve the tension between marketing, information sharing, and infringement, considering the current state of technology. Finally, it concludes with a look forward at a potentially ideal system that would capture the appeal and utility of audioblogs while satisfying the requirements of copyright.

Ashes to Ashes, Bits to Bits: Estate Planning for Your Online Self

Tuesday, May 25th, 2010

What will happen to your blog after you die? Last week, an “unconference” (a sort of free-form conference) called Digital Death Day asked “[W]hat does death of the physical self mean for the digital self?” (Hap: Likelihood of Confusion)

It’s a good topic for discussion. I do think it makes sense to consider what you want done with your blog and other digitally embodied intellectual property after you move on. For instance, you might want to put it into the public domain to make it available to everyone. Alternatively, you might want to put it into a trust to limit what your heirs can do with it.

If you don’t make special provisions, your copyrights will pass along to your heirs with the rest of the property in your estate. Is that okay by you? Do you trust your heirs with your blog posts and Flickr photos like you do with your money?

Here’s another question: Would your heirs be able to get their hands on your passwords – assuming you even wanted them to? As a legal guy, let me suggest that you just put your passwords somewhere findable upon your death. Your heirs will likely be able to get your passwords through legal process. But what an amazing headache that would be! Ugh.

UK Politician Complaint Against Blogger Decided for Blogger

Monday, May 24th, 2010

Media Law Prof Blog on the UK’s Press Complaints Commission’s negative decision on politician Viscount Monckton’s complaint against a blogger.

Louisiana Parish Government Drops Lawsuit Seeking Anonymous Commenter Identities

Friday, May 21st, 2010

The Times-Picayune of New Orleans ( reports that the president of Jefferson Parish, Steve Theriot, has caused the parish to drop a lawsuit that had sought the identities of anonymous posters who left comments on critical of Theriot’s administration and some former officials of the county-equivalent government covering much of suburban New Orleans.

(Ha’p: Media Law Prof Blog)

Anonymity in a Canadian Internet Case Defamation Case: Warman v. Fournier

Thursday, May 20th, 2010

Canadian Defamation Law Blog provides analysis of Warman v. Fournier, 2010 ONSC 2126 (Div. Ct.), regarding ordering disclosure of e-mail addresses and IP addresses of persons making anonymous internet posts in the context of a defamation case.

(Ha’p: Inforrm’s Blog)

Obama Signs Law to Require State Department to Report on Blog Repression

Wednesday, May 19th, 2010
Obama signing Daniel Pearl Act

President Obama talks with Adam Daniel Pearl, son of murdered journalist Daniel Pearl, at the signing ceremony for the Daniel Pearl Act. (Official White House Photo)

On Monday, President Barack Obama signed into law H.R.3714, the Daniel Pearl Freedom of the Press Act. [pdf] [Thomas info]

The law requires the State Department to include information on press freedoms in human right assessments of foreign countries.

The act does not mention blogs or the internet specifically, but Obama’s remarks at the signing did: “All around the world there are enormously courageous journalists and bloggers who, at great risk to themselves, are trying to shine a light on the critical issues that the people of their country face; who are the frontlines against tyranny and oppression.”

The law’s requirements include, “a description of the status of freedom of the press, including initiatives in favor of freedom of the press and efforts to improve or preserve, as appropriate, the independence of the media, together with an assessment of progress made as a result of those efforts” and “an identification of countries in which there were violations of freedom of the press, including direct physical attacks, imprisonment, indirect sources of pressure, and censorship by governments, military, intelligence, or police forces, criminal groups, or armed extremist or rebel groups.”

Another iPhone Prototype Surfaces on Taoviet Blog from Vietnam

Tuesday, May 18th, 2010

Another blogger and another wayward iPhone prototype, on Taoviet blog out of Vietnam. (PC Magazine, Vanity Fair)

Unsealed Affidavit in iPhone/Blogger Raid

Monday, May 17th, 2010 has the unsealed search warrant and search inventory from the raid on blogger Jason Chen’s home in the search for a wayward Apple iPhone prototype.

The search warrant claims the iPhone is a trade secret of Apple. As I have discussed previously (here and here), the iPhone is, in fact, not a trade secret.

Texas Man Argues State Harassment Law Unconstitutional, Cites Implications for Blogs

Friday, May 14th, 2010

An appeal to Texas’s Court of Criminal Appeals is arguing that Texas Penal Code § 42.07 (prohibiting electronic and telephonic harassment) is unconstitutionally overbroad, violating the First Amendment.

The appeal in the case of Scott v. Texas (nos. PD-1069-09, PD-1070-09) results from the conviction of Samuel Scott for harassing phone calls and voice-mail messages directed to his estranged wife. Mr. Scott was sentenced to two days in the Bexar County jail and a fine of $50.

Scott’s brief argued that blogs and social media are singled out for criminal sanction where traditional media is not:

In our fast growing social media world Twitter, Facebook, Myspace, and any number of blogs all facilitate electronic communication. It is absolutely legal and expected that in societies people will argue, debate and verbally confront each others’ ideas. When one annoys another on the street corner, or at a town hall meeting, or even in the newspaper opinionated editorial section no one can be arrested. But if someone tweets, chats, posts or blogs the same Texas Penal Code § 42.07 makes it illegal.

The brief is on Westlaw: 2010 WL 1683760

Record Industry vs. Music Bloggers

Thursday, May 13th, 2010

Sometimes it seems like music industry lawyers act as deliberately and thoughtfully as a rock star wrecking a hotel room. Apparently they are now sending out DMCA takedown notices targeting music bloggers – whose self-appointed thankless task has been providing free publicity to a floundering industry. In an excellent post, Fred von Lohmann of the EFF has provided “Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship.”

Prof. Lipton on Blogging and Cybernorms

Wednesday, May 12th, 2010

Professor Jacqueline D. Lipton has published a pre-print of “What Blogging Might Teach About Cybernorms” on SSRN. She makes a case study of the norm against hijacking comment threads by hyperlinking to other blogs. Her conclusion is that “too much weight is often placed on vague and opaque norms in online interactions.”

The article is forthcoming in the Akron Intellectual Property Journal. Lipton is at Case Western Reserve University School of Law.

Blogger Blights Bench

Tuesday, May 11th, 2010

Via FindLaw: Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger by Anita Ramasastry.

(Ha’p: Media Law Profs)

No Trade Secret Liability for iPhone, Part 2 – Wrongful Appropriation

Monday, May 10th, 2010

I explained previously one reason why, in my opinion, there were no protectable trade secrets embodied in the Apple iPhone prototype which led to a police raid on a blogger’s home. That reason was, in short, that Apple did not use reasonable efforts to secure any alleged trade secrets.

Here let me explain a second and independent reason there should be no cause of action under trade secret law in this case: There was no wrongful appropriation.

In California, the Uniform Trade Secrets Act requires, for liability, that the alleged wrong-doer have engaged in “misappropriation” of the alleged trade secret. It is not illegal, without more, to take someone’s trade secret. The taking must be of a kind that counts as “misappropriation.” Under California Civil Code 3420.1::

   (b) "Misappropriation" means:
   (1) Acquisition of a trade secret of another by a person who knows
or has reason to know that the trade secret was acquired by improper
means; or
   (2) Disclosure or use of a trade secret of another without express
or implied consent by a person who:
   (A) Used improper means to acquire knowledge of the trade secret;
   (B) At the time of disclosure or use, knew or had reason to know
that his or her knowledge of the trade secret was:
   (i) Derived from or through a person who had utilized improper
means to acquire it;
   (ii) Acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use; or
   (iii) Derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use; or

Here, based on the facts as we understand them, there was no misappropriation, since the phone was lost, not stolen, and after it was lost, the retention of it was neither illegal nor wrongful.

My previous posts explain both of these aspects, that retaining the iPhone was, under the circumstances, in compliance with the law and not wrongful.

Since it was okay for the person who found the phone to keep it, it was similarly okay for him to sell it, and for someone to buy it.

Trade secret law is a serious matter. Trade secret law allows injunctions, huge damage awards, and felony convictions. After being utterly careless with their phone and then totally nonresponsive to phone calls, Apple is attempting to bring down the very heavy hand of the law to claw back what it regretted letting go of. A system of law that allows Apple to do this creates a travesty of justice.

Implode-o-Meter Decision Upholds Journalist Privilege for Website

Friday, May 7th, 2010

A decision out of the New Hampshire Supreme Court yesterday on the journalist/source privilege was a victory for a website that is a mix of blogs and longer-format articles with anonymous commenting from the public. The site, The Mortgage Lender Implode-O-Meter, is owned and operated by a company that has the coolest name EVER:


That is awesome. Seriously. If they issue stock certificates, I would buy shares just to be able to get the stock certificate to put up on my wall.
But back to the law… The court’s opinion is here: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. [PDF]
The Implode-o-Meter Blog explains:
The case was The Mortgage Specialists vs. Implode-Explode Heavy Industries, Inc. (the owner of It concerned items posted to MoSpec’s “Ailing/Watch List” entry — the 2007 “Loan Chart” data for the company, and a post by username “Brianbattersby” accusing MoSpec and its President, Michael Gill, of habitual/systemic fraud.
Sam Bayard at Citizen Media Law Project provides analysis here. The court held that the state’s qualified reporter’s privilege applies and Implode-O-Meter could use it to protect the identity of an anonymous source that leaked a loan document to the site. The court wrote:
[W]e reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting.  … [W]e observe that: “Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals. . . .  The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. … [quoting Branzburg v. Hayes, 408 U.S. 665 (1972)]“
The victory is, sadly, bittersweet for Implode-O-Meter. Since the privilege is a qualified one, the N.H. Supreme Court sent the case back to the trial court to engage in a balancing test. And that’s a problem, because Implode-O-Meter is now, thanks to lawsuits, out of money. Founder and publisher Aaron Krowne said yesterday:
We are pleased with the court’s ruling on the fundamental questions of free speech and find little to complain about in the analysis. … We are, however, perplexed that the case was not completely dismissed. … Besides the overall frivolity of the original action, we are unclear what valid issues involving us remain in play … At any rate, since we have been rendered insolvent by the expense of this and similar frivolous SLAPP suits, we aren’t sure how we will be able to mount a continuing “defense” at all.

The Downside of Trumped Up Trademark Claims – A Case Good for Bloggers

Thursday, May 6th, 2010
The Franklin Mint's Princess Diana Vinyl Portrait Doll with blue beaded silk gown. $245 USD.

The Franklin Mint's Princess Diana Vinyl Portrait Doll with blue beaded silk gown. $245 USD.

A new California appellate decision suggests that trademark overreaching and bullying has a downside. As Rebecca Tushnet reports, the plaintiff Franklin Mint has won an appeal in their lawsuit against Los Angeles law firm Manatt, Phelps & Phillips for malicious prosecution in alleging federal dilution and false advertising claims over Princess Diana merchandise.

Tushnet recaps:

Manatt argued that the issues were complex and that there was no directly controlling authority. But the fundamental principles of trademark law were clear and well-established, and their application to the case was “straightforward and uncomplicated.” The complexity arose from Manatt’s attempts to avoid those principles. Thus, remand was required for trial on malice and damages.

This suggests that even indie bloggers may have a saber to rattle when it comes to far-out trademark bullying.

The case is Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, — Cal.Rptr.3d —-, 2010 WL 1744635 (Cal. App. 2 Dist.).

Also: Ron Coleman, An Opinion to Di For.

RWB on Wael Abbas Conviction

Thursday, May 6th, 2010

Reporters Without Borders on the conviction of blogger Wael Abbas, sentenced to six months jail time for selling communications services without a licence in a trial conducted in Abbas’s absence and without notifying him.

Hopkins Recounts Week of Online Tyranny

Wednesday, May 5th, 2010

Curt Hopkins recounts a week of news of “online tyranny” at ReadWriteWeb.

The iPhone Was Not Stolen, Not Wrongfully Retained

Tuesday, May 4th, 2010

In a previous post, I argued that it is unfair to blame the person who found Apple’s iPhone prototype for not returning the phone. The issue is an important one, because the adventures of the wayward phone led to a police raid on tech blogger Jason Chen’s home. The short version is this: the finder of the phone tried in earnest to return it, but Apple wouldn’t return his calls. Thus, the iPhone ended up in Chen’s hands.

That’s the fairness issue. Now on to the law.

The statute at issue is California Civil Code § 2080, et seq., which provides:

Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property … shall, within a reasonable time, inform the owner, if known, and make restitution …

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police …

So in California, if you find something valuable, you have to give it back to the owner, and if you can’t identify the owner, you have to give the thing to the police. So far so good. But this does not mean that the finder of the iPhone violated the law. The provisions of the California statute don’t apply under these facts because the finder did identify the owner, and did contact the owner. The owner then declined to respond. Apple’s refusal to take back the iPhone takes this out of the circumstances contemplated by the statute.

Reading the statue, it seems pretty clear that there is not intended to be a continuing legal obligation on the finder when the owner has rebuffed attempts to give the property back. In such a case, silence may be reasonably interpreted as abandonment of the property. This is not a matter of the property having been “not claimed” in the words of the statute. This is a matter of the property having been relinquished.

Much of the commentary coming out about the iPhone affair has been critical of Gizmodo and the finder with regard to the lost property aspect. These commentators have focused too much on the fact that this phone was some top-secret hyper-valuable prototype. That may be true, but it’s a fact known only now, a fact made evident because of what Apple eventually did to get the phone back.

But for the legal analysis, we need to look at the facts from the perspective of a reasonable person who does not know the end of the story. Back before the finder sold the phone to Gizmodo, the finder had no reason to believe the phone was anything other than a curious piece of junk. Apple clearly treated it like junk: (1) when they let it wander off at a bar, and (2) when they didn’t respond to efforts made to try to return it to them. It appeared, at best, to be some kind of rejected experiment without any continuing worth.

Now, you might say, surely the finder was on notice of how valuable it was when someone paid $5,000 for it. But if you say that, I say you don’t know Silicon Valley geeks.

The fact is, techies with money often spend it on tech junk. Tech weens will pay large amounts of money for vintage Betamax machines from the 1970s that don’t even work. Try buying a new inbox six-switch Atari 2600 on eBay for a reasonable price. Unless you think north of $2,000 is reasonable for one of the world’s most antiquated gaming systems, you’re out of luck. It is entirely reasonable to think that a prototype phone, worthless to Apple, would be highly prized as a curiosity by passionate geeks.

Conviction of Cuban Blogger Diana Virgen Garcia

Tuesday, May 4th, 2010

World Women International on the conviction of Cuban blogger Diana Virgen Garcia.

Garcia’s blog reported on violence and repression against independent journalists, according to the World Women International post, and she was sentenced to 20 months in prison after a trial on unknown charges

Reporters Without Borders Names 40 Predators of Press Freedom

Monday, May 3rd, 2010

Today, World Press Freedom Day, the press-freedom group Reporters Sans Frontieres (Reporters Without Borders) has released its list of 40 “predators” of press freedom. (press release can be found here; a list of the “predators” can be found at the bottom of RSF’s home page).

Nong Duc Manh, Vietnam’s Communist Party general secretary, received attention on the list for  ”waging an offensive” against bloggers, writers, and the liberal press.

In Celebration of World Press Freedom Day

Monday, May 3rd, 2010
UNESCO's copyrighted graphic for World Press Freedom Day (depicting a stack of documents, the word "classified" crossed out, and the word "unclassified" appearing above)

UNESCO's unfree graphic for World Press Freedom Day

In celebration of World Press Freedom Day, I am posting, without authorization, the graphic, above, which comes from the World Press Freedom Day website maintained by the day’s official sponsor, UNESCO. You will notice its prominent copyright notice.

I note that UNESCO’s terms of use do not acknowledge concepts of fair use, instead taking a rather aggressive stance about the maintenance of copyright legends in the limited allowable re-use, and limiting allowable downloads to only those for personal, non-commercial usage.

Many in the United States and other countries with established fair-use entitlements will be able to safely ignore UNESCO’s overreaching. But that is not likely to be the case worldwide. With UNESCO’s mission of global public service, and their particular interest in press freedom and cultural participation, they should take the deliberate step to be less threatening with IP rights.

UNESCO’s stance is yet another reminder of the unfortunate view so many seem to have – that IP and expressive freedom are entirely separate issues, the consequence being that expansive intellectual property entitlements are not seen as posing a threat to free speech and free press rights.

UNESCO Terms of Use partial screen capture

UNESCO's Terms of Use: "All rights reserved."

Today is World Press Freedom Day

Monday, May 3rd, 2010
World Press Freedom Day logo

UNESCO logo for World Press Freedom Day

Today is World Press Freedom Day, as declared by the United Nations General Assembly. The date, May 3, commemorates the 1991 Declaration of Windhoek, asserting that “the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation, and for economic development.”