Archive for June, 2010

Canfield Slams Virginia Court for Imagining Founding Father Authors as E-Mailers, Not Bloggers

Wednesday, June 30th, 2010

Nathaniel S. Canfield has published The Fallacy of Publius as Spammer: Jaynes v. Commonwealth of Virginia and the Proper Doctrine for Reviewing State Anti-Spam Laws in the George Mason University Civil Rights Law Journal Association.

In the article, Canfield reacts to a decision of the Supreme Court of Virginia to strike down a state anti-spam law as unconstitutionally overbroad and violative of free speech, in part by incanting an analogy to the Federalist Papers — penned by Alexander Hamilton, James Madison, and John Jay under the pseudonym “Publius”:

For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Canfield responds:

The court’s envisioned scene of Alexander Hamilton being led away in handcuffs for spamming The Federalist does not square with reality — Publius would have blogged.

The cite to Canfield’s article is 20 Geo. Mason U. Civ. Rts. L.J. 449. I was not able to find a copy of the article available freely online.

Ambrogi Thinks Libel Litigation Trends May Run Against Bloggers

Tuesday, June 29th, 2010

Robert J. Ambrogi at Media Law blog wonders, Is Libel Law Dead or Alive?

He writes:

Even if it is true that libel actions against newspapers are dropping, there seems to be an increasing trend to threaten libel actions against bloggers and other types of online publishers and commentators. Perhaps the reason many big-name lawyers are not seeing these cases is that these small-time bloggers can’t afford to hire them.

Xinhua Analyzes America’s Free Speech Problem with Anonymity Online

Monday, June 28th, 2010

The official Chinese news agency, Xinhua, has distributed an article that analyzes America’s problems with anonymous commenting on blogs and online forums. It’s a fascinating outsider perspective on the USA:

Americans believe that free speech is a right endowed by their Constitution.

The article draws parallels between the policies of individual websites on anonymous posting and a government-mandated system of tracking internet posters by their identity card numbers:

In response to the serious consequences of anonymous posts, The Washington Post, The New York Times and other American publications will require that users provide personal information before posting any comments. … In 2002, when the South Korean government proposed the idea of Internet registration, it triggered a vehement debate on “violating privacy” and “limiting free speech,” similar to the situation the Americans face now. The implementation of this policy faced significant obstacles, but after several years of practicing and perfecting, the South Koreans now accept it. … South Korea is a successful example for America and other nations debating this policy.

(Ha’p: print version of The Week.)

EFF White Paper on 12 Years of the DMCA

Friday, June 25th, 2010

The Electronic Frontier Foundation recently released a white paper titled Unintended Consequences: Twelve Years under the DMCA.

The paper includes a description of how the Digital Millennium Copyright Act (DMCA) was asserted by calculator manufacturer Texas Instruments against three bloggers who posted about how to hack a TI calculator. The legal threat under the DMCA was interesting because no alleged piracy was even involved.

The EFF also has issued a smart-looking pdf of the white paper.

YouTube is Cleared of Mass Copyright Infringement Claims

Thursday, June 24th, 2010

Courthouse of the Southern District of New York in Manhattan (photo by EEJ)

YouTube has triumphed in a grand copyright battle against media companies and content owners led by Viacom. The case is important not just for YouTube, but for all websites with user-generated content, including blogs allowing automatically posted comments.

Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York, granted Google’s motion for summary judgment against Viacom for all claims for direct and secondary copyright infringement. The opinion is available as an image-based pdf and in an html document format. Google, which owns YouTube, has posted the news of its victory on the Official Google Blog.

The Digital Millennium Copyright Act says that an internet service provider with “actual knowledge” of infringement loses the protection of the DMCA’s safe-harbor provisions. That makes the case seem pretty easy for Viacom. Everyone knows that YouTube hosts tons of infringing video clips. And of course Google knows it too. So doesn’t that mean that it’s a slam dunk and Viacom should win? Nope.

The court said, “Mere knowledge of prevalence of such activity in general is not enough.” An ISP’s immunity evaporates only when it has “knowledge of specific and identifiable infringements of particular individual items.”

The court explained what was at stake in the big picture: “To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”

That means that going forward, the Viacom and other content providers, if they want their content scrubbed from YouTube, will have to do the policing themselves, sending DMCA take-down notices, at which point it will be YouTube’s responsibility to remove it.

The court continued, “The DMCA is explicit: it shall not be construed to condition ‘safe harbor’ protection on ‘a service provider monitoring its service or affirmatively seeking facts indicating infringing activity….’ Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.” (citations omitted)

Viacom has vowed to appeal.

10th Circuit Opinion Discusses Something Called a “Blog”

Wednesday, June 23rd, 2010

A slip opinion issued June 14, 2010 by the 10th Circuit in the case of Silver v. Brown shows that the federal appeals court is worried that you might not know what a blog is. The opinion, written by Circuit Judge Monroe G. McKay, puts quotations marks around the word “blog” when first using it:

The basis for Mr. Silver’s personal tort claims for slander, defamation, and duress against Mr. Brown and Mr. McMullen was a “blog” that Mr. Brown posted to the internet regarding this conflict, with the intent of negatively affecting Mr. Silver’s and Santa Fe’s reputation.¹

[Footnote:] ¹ A “blog” is short for “weblog” and is defined as “a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer; also: the contents of such a site.” Merriam-Webster Online Dictionary, (last visited May 13, 2010).

Judge McKay wouldn’t be the first judge to do this. But as of right now, he appears to be the last.

At least “internet” is no longer drawing quotation marks.

(The slip op may be found on Westlaw at 2010 WL 2354123.)

Corbett’s Subpoenas to Twitter Dropped

Tuesday, June 22nd, 2010

(Image from the Pennsylvania Office of Attorney General, used without permission.)

The attorney general of Pennsylvania, Tom Corbett, issued a subpoena last month to get the identity of two anonymous posters on Twitter who criticized him.

Corbett, a Republican currently running for governor, eventually withdrew the subpoenas after receiving hot criticism. An article in the Philadelphia Bulletin has some interesting analysis.

A cover letter with the subpoena requested Twitter to keep the subpoena secret. (Well, it did turn out to be embarrassing.)

The attorney general of Pennsylvania, Tom Corbett, issued a subpoena last month to get the identity of two anonymous posters on Twitter who criticized him.

Scassa on Canadian Data Protection Law and Blogs

Monday, June 21st, 2010

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

The abstract:

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

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

Tomain on Cyberspace and the Schoolhouse Gate

Friday, June 18th, 2010

Joseph A. Tomain at the University of Louisville Brandeis School of Law has published a pre-print of an article slated for the Drake Law Review, Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, addressing the ability of public schools to punish students for what is said by way of off-campus blogging.

(Ha’p: Media Law Prof Blog)

Jalopnik Libel Suit Settled by Deleting Post and Issuing Correction

Thursday, June 17th, 2010

Gawker Media has settled a defamation lawsuit with Confederate Motors over a post on its Jalopnik blog. Online Media Daily reports Gawker bailed out by deleting the post and issuing a correction, with no money being paid as part of the settlement. Gawker COO Gaby Darbyshire said the case was settled “because it was too trivial an issue to take to court,” adding that “[o]ne must pick one’s battles.”

The allegedly defamatory statement that passed the judge’s early scrutiny was that “Last we heard the Alabama-based company was being sued so heavily in state courts by disgruntled owners that they were unable to do business [in New York.]”

Gawker Media has backed off that representation with their correction.

The above quotes and an explanation of the case and the settlement are in Wendy Davis’s Online Media Daily story.

Ben Sheffner’s Copyrights & Campaigns blog has a March 2010 post describing the lawsuit and a June 2010 update on the settlement.

Confederate motorcycle on salt flats

A motorcycle of plaintiff Confederate Motors. It looks cool, no doubt. But the bike's maker has been hit with blog cracks about reliability problems and litigation turmoil. (Image: Confederate Motors)

Legal Info Online for Bloggers: the EFF’s Legal Guide for Bloggers

Wednesday, June 16th, 2010

There’s not a whole lot out there as sources of information about blog law, but there is one excellent resource from the Electronic Frontier Foundations. It is the EFF’s Legal Guide for Bloggers.

Thoughtful and thorough, the Guide is written from a pro-blogger perspective that is not overly cautious, nor does it ignore ugly realities. Everyone who does a lot of public blogging ought to consider perusing it.

I am particularly jealous of their awesome blogger illustration used in the banner. I totally want to read this cartoon character’s blog:

Not only do I get the idea that the cartoon figure writes a really interesting blog, I also get the idea that he probably is the kind of blogger who finds himself in trouble with the law, and, therefore, a blogger that should be particularly happy the EFF’s looking out for him.

(N.B.: The angry cartoon blogger guy is available on a t-shirt from the EFF’s swag collection.)

USA Today Editorial Supporting Federal Anti-SLAPP

Tuesday, June 15th, 2010

USA Today has published  an editorial supporting federal anti-SLAPP legislation to protect bloggers and other non-mainstream-media online complainers.

San Francisco Landlord Sues Housing Activist Blog

Monday, June 14th, 2010

In the SF Weekly: Landlord Sues Blog, City-Funded Nonprofit That Runs Blog.

According to the SF Weekly, landlord Rita O’Flynn is suing, a blog operated by housing lawyer-activist Randy Shaw, for defamation.

Dallas Morning News Supports Federal Anti-SLAPP Law

Friday, June 11th, 2010

The Dallas Morning News has written an editorial (here) supporting the efforts of U.S. Representative Charles Gonzalez (Democrat from San Antonio), who is trying get a federal anti-SLAPP law passed.

The Dallas Morning News’s reason? To protect bloggers:

Blog participation is exploding, and consumers increasingly are using their keyboards to vent frustrations over being cheated or mistreated by companies. Once posted, those complaints can fall under state defamation laws. In other cases, lawyers for a company criticized on the Internet often sue by claiming “tortious interference” – that the blogger is hindering a company’s right to conduct business.

James Rainey from the LA Times on Artiegate

Thursday, June 10th, 2010

James Rainey has written a column in the Los Angeles Times on the Las Vegas Review Journal’s federal court fight against a Boston-based blogging cat and the humans who apparently lent the cat a computer. The copyright suit ensued after the blog reposted an LVRJ story about a fire at a bird sanctuary. (My original post on Artiegate is here.)

“The newspaper people had me pretty much in their corner until they went after the cat people,” Rainey writes.

For the column, Rainey spoke with the Review Journal’s in-house lawyer, and Rainey hints that the LVRJ’s lawyer, who apparently is not involved in the litigation, may have found the lawsuit against Artie’s humans a bit uncomfortable:

The paper’s in-house counsel, Hinueber, seemed to have a sense that his paper effectively had blasted a small tabby with a howitzer. He didn’t promise to drop the suit, but offered: “I just learned about the filing on the cat thing. I’m going to talk to [Righthaven] about that.”

Righthaven is the plaintiff in the lawsuit. Righthaven acquires copyrights to articles from the Review Journal before filing suit against the alleged infringers.

China Leads World in Jailing of Bloggers

Wednesday, June 9th, 2010

Flag of the People's Republic of ChinaAccording to continuously updated figures from Reporters Sans Frontieres (Reporters Without Borders), China leads the world in the jailing of bloggers, with 11 behind bars.

Iran is runner-up with five in jail. Vietnam and Azerbaijan are tied for third place with two each.

RWB’s press freedom barometer tracks the numbers here.

Purr-loined Story Gets Cat Blog Sued

Tuesday, June 8th, 2010

ALLEGED COPYCAT: Artie, a cat living in Boston, Mass., is the supposed author of a blog that has been sued for reposting a newspaper story about a bird sanctuary.

The Las Vegas Sun reports that its rival newspaper, the Las Vegas Review Journal, has partnered with a company called Righthaven LLC to sue bloggers and others for copyright infringement for reposting Review Journal stories, or portions of stories, on the web.

A total of 34 defendants have been sued in such suits, according to the Sun, the latest group of which includes Allegra and Emerson Wong of Boston, Mass., who have a noncommercial blog about cats: City Feline Blog, written from the perspective of a cat.

Righthaven, the plaintiff in the suits, apparently finds Review Journal stories reposted elsewhere on the web, acquires the copyrights from the Review Journal, and then files suit against the reposters.

The Sun reports that the complaints, filed in federal court in Las Vegas, have generally sought $75,000 in damages, and at least four of the lawsuits have been settled. The amount of the settlement for one of the lawsuits is known: NORML – the National Organization for the Reform of Marijuana Laws – agreed to pay $2,185 to have their action dismissed.

According to the Sun’s review of the court filing, the amount of $2,185  was arrived at by NORML by calculating the maximum amount of the Review Journal’s lost revenue – based on the reposted story’s visitors and the Review Journal’s news archive access fee, and then tripling that amount. The Sun pointed out that NORML’s attorneys’ fees to that point must have easily exceeded the settlement amount. I agree that seems likely.

The NORML filing included this observation: “If Righthaven does not accept this offer, Righthaven may become obligated to pay NORML’s costs incurred after the making of this offer[.]”

I’ll note that with statutory damages, it may well have been possible for the court to award a recovery for Righthaven far in excess of $2,185. Though such a sum might well have been highly unlikely. NORML’s tactic appears then to have been to offer a high nuisance value settlement and then transfer the risk for litigation costs to Righthaven for rejecting the offer and rolling the dice to try to obtain a higher dollar amount.

The Review Journal commented on the lawsuits in their own blog post from the publisher: “Copyright theft: We’re not taking it anymore.”

In a twist, the Las Vegas Sun has, themselves, reposted the bird sanctuary story by hosting a pdf of Exhibit 1 to the complaint against the Wongs.

We’ll be waiting to see if Righthaven takes the bait and sues the Sun.

More Waiting in Jail for Kuwaiti Blogger

Monday, June 7th, 2010

AFP reports that Mohammed Abdulqader Al-Jassem, a 54-year-old Kuwaiti lawyer, journalist, and blogger, has been ordered by a criminal court in Kuwait to remain behind bars until at least a June 21 hearing date.

The case is a double whammy for press freedom. Following a May 24 hearing in the case, the court issued an order that banned all publication of news relating to Al-Jassem’s case.

The charges in the case stem from blog posts written by Al-Jassem over the last five years that were considered highly offensive to the emirate of Kuwait. According to AFP, Al-Jassem faces charges of “undermining the emir’s status, attacking the regime and spreading false information damaging to Kuwait’s national interests.”

A statement issued by Amnesty International last week is here.

Some additional background, in a Kuwait Times article from December 2009 about a public protest demanding Al-Jassem’s release, is here.

Al-Jassem’s name in the English-language has also been spelled “Muhammad ‘Abd al-Qader al-Jasem” and “Mohamed Al-Jassim,” perhaps among other spellings. My post here follows the usage of the Kuwait Times.

Blogs and Open Meeting Laws

Friday, June 4th, 2010

Massachusetts lawyer Robert J. Ambrogi at Media Law blog asks: “Does A Public Official’s Blog Violate the Open Meeting Law?

His answer: Maybe

Company Assisting Adult-Content Industry Sues Chicago College Student Over Anonymous Blog Posts

Thursday, June 3rd, 2010

Remove Your Content, LLC is suing a Chicago resident over blog posts. Remove Your Content, according to its complaint, “was formed to help combat copyright infringement and piracy on the internet. Plaintiff provides various services to its clients, such as searching for illegally uploaded content, sending Digital Millennium Copyright Act (DMCA) notices, and working with websites to remove the stolen content.”

The specialty of Remove Your Content is working with adult entertainment industry clients who believe their content is being hosted on other persons’ websites. The complaint accuses the Chicago-area college student of being behind anonymously authored websites such as, which criticizes Remove Your Content and its owner, including with regard to the use of takedown notices.

The student denies he is behind the blogs, and he claims in motion papers that evidence coming out of the Rule 26(a) disclosure proves that he is not the individual responsible for the critical blogs.

Remove Your Content’s allegations are, according to the student, based on information gathered through subpoenas sent to Google, AT&T, and a university.

In addition to questions on the merits, there is also a jurisdictional question. Remove Your Content filed the lawsuit in its home state of Texas. The defendant avers that he has never traveled to Texas prior to the lawsuit.

[This post was revised in a few minor substantive ways after June 3, 2010. My policy is to eliminate typo-type problems on an ex-post basis without notation; but where I change things around more than that, just for the sake of good record-keeping, I make a note. – EEJ]

A Question About Jurors Online

Wednesday, June 2nd, 2010

Following up on my last post, a question:

At what point does checking out your juror online constitute unpermitted communication with a juror?

Obviously, you can’t “friend request” a juror to get access to their Facebook page. And you can’t leave a comment on their blog.

But provided you do so through an anonymous identity, can  you “follow” them on Twitter? That creates a kind of online relationship, though it is one-way and does not identify you as a lawyer.

What about visiting someone’s blog? The mere act of visiting someone’s blog leaves information for the blogger to find about your visit. It could, depending on the circumstances and how much information the blogger saves and reviews, reveal the law firm that checked out the juror’s blog. So be careful! But even if you take care to make sure that you review of the blog does not leave your fingerprints, does that count as a communication? In some ways, it is like “following” a person on Twitter with an anonymous identity. But it does feel less like a relationship than “following.” But is it a communication? With the internet, communication is always two-way, at least in certain limited ways.

Reading Jurors’ Blogs, Tweets and Facebook Pages

Tuesday, June 1st, 2010

From Ann T. Greeley, a trial consultant and psychologist, just published in the ABA’s Brief:

Jurors’ uses of social media provide a source of information about them. Jurors are addicted to their Facebook pages, their Twitter accounts, and their myriad Internet sources. Their use of these accounts to post personal information, to blog, and to post comments has become a source of pretrial data for those who know how to search the right Web sites. Trial consultants have developed methodologies for these searches that yield pretrial attitudinal data as well as jury selection information.
(39-SPG Brief 48, Spring 2010)

Yup. There’s a wealth of information you can learn about jurors by going online.

If you are quick enough, maybe with someone’s help outside the courtroom, you can read juror’s blogs, tweets, and facebook pages during voir dire, to inform your decision about whether or not you are going to use peremptory strikes to boot them from the jury box.

Even if you miss that opportunity, you can still scope them out afterward to learn about their likes, dislikes, fears, passions, prejudices, and allegiances – all of which may allow you to tailor your arguments and trial presentation right for them.

Jurors used to be so mysterious. Now everyone is getting less and less mysterious.

The bigger this world gets, the more personal it gets. It’s weird, but that’s how we live today.