Archive for July, 2010

Gun-Rights Blog Fires Back Over Righthaven Suit

Friday, July 30th, 2010

The Armed Citizen, a pro-gun-rights blog, has been one of the defendants targeted in the Las Vegas Review-Journal / Righthaven lawsuits. The Armed Citizen’s take on it is here: Lawsuit Update. They have also uploaded a document listing Righthaven lawsuits since March [PDF]. The Armed Citizen tallies 81 so far.

TechDirt Dishes on Righthaven

Thursday, July 29th, 2010

TechDirt on Righthaven: RightHaven Ramping Up Its Copyright Trolling Business.

Chris Reed: Think Global, Act Local

Wednesday, July 28th, 2010

A new scholarly article discusses cross-border jurisdictional issues that are relevant for bloggers. The paper is Think Global, Act Local: Extraterritoriality in Cyberspace. Its author is Chris Reed, Professor of Electronic Commerce Law, Queen Mary University of London School of Law, Centre for Commercial Law Studies.

Reed argues that, although countries can apply their own national laws to foreigners outside the country for what they do online, countries should refrain from doing so. From the abstract:

“Laws which are in practice unenforceable reduce the normative force of law as a whole and create the risk that otherwise respectable cyberspace actors will become deliberate lawbreakers. Instead states should attempt to reduce the reach of their laws into cyberspace except where doing so is the only way to protect an essential interest of the state.”

(Ha’p: Media Law Prof Blog)

Say Hello to My Little Friend: A Federal Complaint for Copyright Infringement

Tuesday, July 27th, 2010

The latest Righthaven / Review Journal copyfighting news dispatch out of Glitter Gulch: Las Vegas Sun – “R-J mob source hit with copyright suit.”

This time the Las Vegas Review-Journal, through their copyright enforcer Righthaven, is taking on mob-enforcer-turned-federal-witness Anthony Fiato.

The allegation is that Fiato reposted Review-Journal reports about Las Vegas organized crime on his personal blog. The complaint against Fiato was filed yesterday in Nevada federal court.

All this despite the fact that Fiato was a source for LVRJ columnist John L. Smith. Fiato was even the subject of a book by Smith.

Righthaven is demanding $75,000 from Fiato. But maybe Fiato will make Righthaven an offer they can’t refuse …

Such as a lowball nuisance-value settlement.

The Las Vegas Sun reports in the same story that Righthaven accepted a $5,000 settlement offer from Odds on Racing, a horse racing news website sued previously over an allegedly reposted Review-Journal column.

Here’s my question: How do you serve a summons on someone in the witness protection program?

Pulse RSS Reader and the New York Times

Monday, July 26th, 2010

Kimberley Isbell at the Citizen Media Law Project blog tackles claims by the New York Times regarding pay-for-access RSS readers that provide viewing of NYT web content without the Gray Lady’s permission. (RSS readers allow access to blogs and similar online media through a dedicated application that is not a general web browser.) Isbell asks, Is the New York Times Really Claiming That All Paid RSS Readers Infringe its Copyright?

The particular flap here involves the Pulse RSS reader, available from the Apple Apps Store.

9th Circuit Allows Amway to Unmask Kvetching Bloggers

Friday, July 23rd, 2010

The Ninth Circuit has upheld a trial court’s order compelling the disclosure of the identity of anonymous bloggers.

Citizen Media Law Project has analysis here: Ninth Circuit Weighs In On Internet Anonymity, Consumer Griping At Risk.

This bruhaha stems from a lawsuit involving Amway (a/k/a Quixtar). The anonymous bloggers targeted took various potshots at the company famous for its multi-level, pyramidal marketing system.

My opinion: You don’t need to hear allegedly defamatory statements about Amway to know it’s bad news. All you need to know is that John Tesh does commercials for them. I worked in radio, and as a former disc jockey, I’ve got to say that John Tesh and his radio show are utterly offensive. He defiles the medium.

But back to the law …

The Ninth Circuit, in the course of its opinion, characterized the statements criticizing Amway as commercial in nature, and therefore entitled to less First Amendment protection. That’s worrying. CMLP said:

While the Ninth Circuit is correct that the First Amendment generally extends less protection to commercial speech, its decision is troubling for a couple of reasons. First, the court’s sense of what qualifies as commercial speech seems unduly broad. It is hard to draw a principled distinction between the derogatory statements here (e.g., “Quixtar currently suffers from systemic dishonesty”) from some of the more extreme statements that might appear on a consumer review site or gripe site.

Anonymous Blog Commenter IDs Ordered Revealed in North Carolina

Thursday, July 22nd, 2010

The banner for Home in Henderson, the blog ordered to reveal commenter identities.

A state trial court in North Carolina recently ordered the proprietor of the blog Home in Henderson to release the identities of anonymous commenters who posted allegedly defamatory remarks about a former county commissioner.

Citizen Media Law Project has this post:

Ninth Circuit Weighs In On Internet Anonymity, Consumer Griping At Risk

And the Reporters Committee for Freedom of the Press has this:

Jason Chen Getting His Stuff Back

Wednesday, July 21st, 2010

EFF’s Deep Links blog reports that the county prosecutors have now withdrawn the warrant they obtained to search Gizmodo blogger Jason Chen’s home during Apple’s desperate attempt to claw back its lost iPhone prototype: San Mateo D.A. Withdraws Controversial Gizmodo iPhone Warrant.

That means Chen will get all his stuff back. In April, members of the Silicon Valley’s R.E.A.C.T. law-enforcement task-force seized four of Chen’s computers and two servers from his home. (My posts: here, here, here, here, here, and here. All the posts together here.)

It’s ironic looking back at it all. Apple was so keen to protect the secrets of its G4 iPhone before the big product launch date. And now the ultrahyped gadget has turned out to be a total dog. Maybe Apple should have lost more prototypes in bars. That way, perhaps they would have gotten wind of the phone’s call-dropping problems when there was still time to change the design.

And this sad news just out today: The Associated Press reports via the NY Daily News: iPhone factory worker commits suicide over lost G4 prototype.

Copyright Defendants Remember, Fees Go Both Ways

Tuesday, July 20th, 2010

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

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

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

The article is here in pdf format.

(Righthaven defendants might want to take note.)

Federal Criminal Defendant Cites Blog’s Reposted Newspaper Story in Appellate Brief

Monday, July 19th, 2010

While Righthaven is suing people left and right for reposting newspaper articles, a federal criminal defendant from North Carolina has cited to a blog’s reposted version of a newspaper article in an appellate brief to the Fourth Circuit.

The case is United States v. John Douglas Bird, Jr., No. 09-4806. The blog is News, and the paper is the Asheville Citizen-Times.

Here is the portion of the brief’s table of authorities that cites the blog’s repost:

Other Authorities:

* * *

Jon Ostendorff, DA: No Assault Evidence Found Against SBI Agent, Asheville Citizen-Times, Dec. 2, 2009, (accessed on January 25, 2010, at http:// … 11

Note: That link won’t work, but this will:

Indeed, as you might expect from the fact that the brief cited the blog, the Asheville Citizen-Times story is no longer available for free on the newspaper’s website. There is a $3.95 charge to access it from the archives.

Bird is represented by the Federal Defenders office in Charlotte, North Carolina.

Blog Post Accusing Town Officials of Sexism Helps Discrimination Claim Survive

Friday, July 16th, 2010

An opinion from a federal court in New York has cited blogged accusations of sexism as part of a set of allegations sufficent to uphold a constitutional equal-protection gender discrimination claim brought by a real estate developer against government officials. The complaint stems from rejected requests for zoning changes.

The case is Catcove Corp. v. Heaney, No. 08-CV-4156 (JS)(ETB), E.D.N.Y., Seybert, J., presiding. The opinion is at 685 F.Supp.2d 328. Here is the excerpt about the blog post:

Plaintiffs also allege an Equal Protection violation based upon sex discrimination. Specifically, Plaintiffs allege that: (1) Mr. Heaney “possessed [ ] a clear bias against women,” and that “women were discriminated against” within Southampton; (2) in a local blog report, “several women” described “Heaney and his administration’s ‘Neanderthal’ Town Legal Staff-to be disrespectful, misogynistic and crude”; (3) Mr. Heaney “discriminate[d] against Ms. Gotthelf because she is female” and wanted “to force her to sell her properties” to his “male friends,”; (4) Mr. Murphee said that he liked Plaintiffs’ proposed project, but “wanted a real developer to develop it”; and (5) Messrs. Heaney and Murphree coerced Plaintiffs to sell a different property to one of “defendants’ ‘good old boys.’ ” (Amend. Compl. ¶¶ 32, 35, 41, 46, 51). Given these allegations, the Court will permit Plaintiffs’ sex discrimination claims against Mr. Heaney and Mr. Murphree to survive-for now. With respect to Mr. Heaney, Plaintiffs have pled enough factual allegations to suggest that Mr. Heaney possessed an animus towards women and favored male developers over Ms. Gotthelf. These allegations (and reasonable inferences drawn therefrom) suffice to set forth a “plausible” claim against Mr. Heaney, albeit barely.

Also interesting in the opinion: other parts of the lawsuit – ones not concerning blogs apparently – led the judge to impose Rule 11 sanctions on the plaintiff. Claims against certain defendants were, according to the court, “utterly lacking in support.”

It’s not every day you see Rule 11 used.

The court was merciful however, saying that “only mild sanctions” were warranted, leveling a $1,000 fine.

Chinese Soldiers’ Blogging Banned

Thursday, July 15th, 2010
Chinese soldiers training by carrying logs

China's army has prohibited its soldiers from having blogs.
Logs, apparently, are still allowed.

The Associated Press reports that new orders handed down by the People’s Liberation Army ban blogging by soldiers.

(Ha’p: Media Law Prof Blog)

New Deepwater Horizon Media Policy’s Implications for Bloggers Unclear

Wednesday, July 14th, 2010

Coast Guard Cutter Walnut skims oil using an inflatable boom, July 2, 2010. (Photo: U.S. Coast Guard)

The U.S. Coast Guard has issued a new policy for boaters trying to get near to Deepwater Horizon oil spill clean-up and containment operations. Previously, there was a 20-meter exclusion zone around booms and operations.

On Monday, the Coast Guard announced in a press release “new procedures to allow media free travel within the 20-meter boom safety zones.” Getting inside that zone will obviously be a priority for persons trying to get the best photographs of the spill and the response.

But National Incident Commander Admiral Thad Allen drew a distinction that may separate citizen bloggers from professional press.

“We need to discriminate between media, which have a reason to be there and somebody who’s hanging around when we know that we’ve had equipment vital to this region damaged,” Allen said in the press release.

The new procedure calls for a credential to be issued to “media representatives.” The press release says, “Media representatives can obtain credentials by providing their name, media affiliation, and contact information to the Unified Area Command Joint Information Center at”

I would be curious to know if non-professional bloggers are provided with or denied credentials.

Appeals Court OKs Prosecuting Blogger for Threats Against Juror

Tuesday, July 13th, 2010

Eric P. Robinson at Citizen Media Law Project has this: 7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror.

The case, United States v. William White, involves an alleged threat against the foreperson of the jury who convicted white supremacist leader Matt Hale for soliciting the murder of a federal judge.

White is alleged to have posted the juror’s name, address, and phone numbers, along with the name and a picture of the juror’s cat. Indicted under 18 U.S.C. § 373 for solicitation of violence against the juror, White claimed the First Amendment privileges the publication of the information about the juror.

The 7th Circuit held the indictment was adequate to proceed to trial, and that the First Amendment defense could be raised at the trial stage.

Robinson’s post explains the case and the legal issues thoroughly yet concisely in his post.

Google Nabs EFF Lawyer Fred von Lohmann

Monday, July 12th, 2010

THR, Esq. reports that Google has grabbed star public-interest copyright lawyer Fred von Lohmann from the Electronic Frontier Foundation to join up as senior copyright counsel.

Previously, I linked to one of von Lohmann’s posts on the EFF Deep Links blog about how music bloggers can keep from getting into trouble with litigious record companies.

Google is usually on the public-interest side of copyright battles. Indeed, in my opinion, Google has done more than anyone else in contemporary times to push back against the unceasing expansion of copyright entitlements. But it’s a mistake to think that Google is a charitably minded do-gooder. Google pushes back against copyright because it’s usually in its interest to do so. But make no mistake, Google is ready to assert copyright in dubious ways when doing so is in itself interest. (See, e.g., the Google Books settlement, my takes here and here.)

In 2005, von Lohmann wrote a blog post for EFF in which he described his “conversion moment.” It was in 1994 when he read John Perry Barlow’s essay, The Economy of Idea, which includes this passage, quoted by von Lohmann: “The greatest constraint on your future liberties may come not from government but from corporate legal departments … ”

Google’s a fantastic company, and I congratulate von Lohman on his new job. There’s no shame in working for a for-profit company – I’ve done a lot of that myself. And there’s absolutely nothing wrong with moving from public-interest work to for-profit work. None at all. But von Lohmann is the latest in a string of public-interest-minded IP lawyers that have been hired by Google. And that gives me pause. They can’t all go. We still need great public-interest copyright lawyers. Now more than ever.

[Cross-posted from Pixelization.]

Alan Schwarz: “I have no problem with bloggers.”

Friday, July 9th, 2010

I got a call today from New York Times sports reporter Alan Schwarz. He read my post from yesterday – via his Google alert – which discussed a recent podcast interview he did.

Mr. Schwarz took issue with something I wrote.

In introducing the blockquote in that post, I originally used this sentence: “Like many mainstream journalists, Schwarz sees bloggers as endangering traditional journalism.”

Mr. Schwarz disagrees with that characterization. I listened to the podcast in its entirety, and I chose my words carefully. I think my characterization was fair. Nonetheless, no one knows better what Mr. Schwarz thinks than he does. So if other words better reflect his opinion, I’m happy to use them. Indeed, the flexibility and updatability of blogging is one of its great attributes. Thus, I replaced the contested sentence with: “Schwarz is critical of bloggers who go too far in using copyrighted content.”

In his phone call with me, Mr. Schwarz emphasized that the gravamen of his complaint is copyright infringement.

“I have no problem with bloggers. I have a problem with thieves,” Mr. Schwarz said on the phone. In general, he sees value in blogging, and he does not regard blogging itself to be a threat to the continued existence of the traditional news media. His problem is with what he characterizes as stealing.

“Thieves endanger traditional journalism,” he said, regardless of whether they are bloggers, other traditional journalists, or whomever.

So noted. But Mr. Schwarz’s distinction points to a deeper question: What counts as theft? There are, after all, usually two sides to a copyright dispute.

We might be tempted to say that some cases are easy. What about when someone, who is not the copyright owner, takes an entire newspaper story and posts it online? You might figure that is clear case of theft, but that is exactly what the New York Times did in the case of New York Times v. Tasini.

In that case, the New York Times uploaded articles written by freelance writers to an electronic database, accessible to paying online customers, despite the fact that the freelancers, who owned the copyright to their stories, never provided the New York Times with the relevant permission. Of course, the New York Times argued that what they did was entirely proper.

As it turns out, the U.S. Supreme Court disagreed and sided with the freelancers. But it goes to show, what one person regards as theft, another person may regard as being productive.

The questions, of course, will continue.

Podcast on Bloggers’ Use of Mainstream News

Thursday, July 8th, 2010

A podcast from the Legal Talk Network tackles the issue of bloggers’ legal and ethical obligations regarding use of material from mainstream news sites. In the piece, lawyers Robert J. Ambrogi and J. Craig Williams interview Alan Schwarz, sports reporter for the The New York Times. Schwarz is critical of bloggers who go too far in using copyrighted content. Schwarz says:

When you create your own work, you have rights to its dissemination. You know, this whole information, you know, “wants to be free” business is a bunch of hooey. It’s preposterous. And an entire generation of Americans has grown up with no respect for copyright law.

For the purpose of policing his own material, Schwarz has a Google alert set to notify him when a blog uses his name. I would assume many reporters do the same. (Hi, Mr. Schwarz!)

Note: This post was revised July 9, 2010, as explained here.

Righthaven “Really Outdid Itself” Suing Blogger Over Article That Contains His Material

Wednesday, July 7th, 2010

Wendy Davis on MediaPost’s Daily Online Examiner has slammed copyright thugster Righthaven for filing a copyright infringement suit against Anthony Curtis, the publisher of The Las Vegas Advisor blog.

The allegedly reposted article in this suit was written about the defendant, and used his data and contained quotes from him. 

Davis says that Righthaven, who is the outsource copyright plaintiff for the Las Vegas Review-Journal, “has filed some questionable lawsuits in the past, but really outdid itself” this time.

According to Davis, the article involved Curtis’s annual survey results on ticket prices for Las Vegas shows. She writes:

… Curtis went to the trouble of fielding a survey and then shared his findings with the newspaper, only to find himself sued for posting portions of the ensuing article on his own blog. … if there’s ever a situation where publishing an entire article (or the bulk of one) is fair use, Curtis’s post of an article based on his own research should be it.

Lawsuit Against Travel Blogger Dismissed

Tuesday, July 6th, 2010

Berkman Center fellow Kimberley Isbell reports on the Citizen Media Law Project blog that travel blogger Christopher Elliott has obtained a dismissal of a defamation suit brought by Florida travel agency Palm Coast Travel.

Elliott’s blog announcement explained that the lawsuit was dismissed in exchange for an apology.

Isbell writes that Elliott got his lawyer through the Citizen Media Law Project’s Online Media Legal Network, which hooks up qualified bloggers and other online media creators with free and reduced-fee legal representation. Sweet!

Wedding Gifts and the FTC’s Differential Treatment of Bloggers and Mainstream Media

Monday, July 5th, 2010

View from the rooftop of the Empire HotelEric P. Robinson at Blog Law Online has analyzed a flap over Josh Ozersky, a food reviewer who wrote about the food at his own wedding, created by prominent NYC chefs, but did not disclose that the menu items had been given to him as wedding gifts.

Reviewing the food at your own wedding? I thought that’s what in-laws were for.

But there’s a blog-law issue here. Robinson notes:

As an online columnist for a major, “mainstream” media organization, Ozersky’s problem is primarily an ethical one between him and his employer, and between him and his readers, who may discount his praise of certain chefs or restaurants, based on his relationships with them.

But if Ozersky was a blogger, he may have faced penalties under the FTC’s endorsement guidelines …

As I’ve noted before, the FTC rules explicitly state that “”bloggers may be subject to different disclosure requirements than reviewers in the traditional media.”

A post that Robinson did last year about the FTC’s different treatment for bloggers than for the mainstream media is here.

Ozersky’s review of the food at his own wedding is here. The New York Times reports on the Ozersky affair here.

Note: Ozersky’s wedding reception was held on the roof of the Empire Hotel. Nice. Above is a picture I took from the Empire Hotel rooftop a couple years ago when I stayed there. Funny story: When I checked in, they gave me a key, and I went to the room, opened the door, and there was a guy already in the room – apparently another Eric Johnson. That’s why I like using my middle initial!

Righthaven’s at it Again, Syringe-Safety Group Gets Stuck, Along with Others

Friday, July 2nd, 2010

The Las Vegas Sun reported yesterday that cross-town rival newspaper, the Las Vegas Review-Journal, has six new copyright lawsuits in the courts, bringing the total to at least 56, for reposted news stories.

Individuals bloggers and a nonprofit organization that advocates for needle safety in healthcare settings are among the defendants. The suits are filed by Righthaven, who takes assignment of the LVRJ copyrights before filing suit.

According to the court filings, many of the defendants credited the Review-Journal when they reposted the story. What do we make of that? It’s pretty obvious that these people thought they were doing nothing wrong. Should copyright law make unlawful something that so many people seem to think is both legal and wholesome?

The Righthaven Review-Journal lawsuits may tell us a lot about the future of copyright and news stories online.

WIll other newspapers follow the LVRJ’s lead? Or will they decide they don’t care to pursue copyright entitlements in this way? If the industry as a whole shrugs its shoulders, it may establish a custom and practice that eventually cements into a judicial view of fair use highly permissive of reposting.

Daily Kos Planning to Sue Polling Company

Thursday, July 1st, 2010

Mega-blog Daily Kos has announced that it is preparing to sue the Maryland-based firm Research 2000 over political polling data that firm provided to the blog.

Based on a review of the data by statistics experts, Kos claimed, “the weekly Research 2000 State of the Nation poll we ran the past year and a half was likely bunk.”

Greg Sargent of Washington Post’s The Plum Line blog spoke with Kos lawyer Adam Bonin to get details on the pending litigation. Bonin told Sargent that the claims will be breach of contract, negligent misrepresentation, and fraud (which usually means intentional misrepresentation). Bonin told Sargent that they are planning to file suit in federal court in Northern California, where the blog’s founder, Markos Moulitsas, is based.

I’m not sure why the Daily Kos is announcing all of this. They sure aren’t proceeding as if they want a settlement. Announcing the lawsuit before it is filed seems to invite Research 2000 to strike first and gain home-court advantage by filing an action for declaratory judgment, and maybe defamation if they could allege it, in Maryland.

We’ll see what happens.