Archive for August, 2010

India IT Firm Watches What Employees Blog

Tuesday, August 31st, 2010

Romit Guha and Dhanya Ann Thoppil in the Wall Street Journal’s India Real Time blog: IT Firms to Staffers: Watch What You Blog.

The post discusses Wipro Ltd., the third-largest software exporter in India, and the troubles they have had with blogging employees, leading to Wipro’s new blogging policy for employees.

Google’s About Face and Bloggers’ Stake in Net Neutrality

Monday, August 30th, 2010

“Net neutrality” means that internet traffic is all treated equally. On a non-neutral internet, some webpages will download faster if the host of those pages has paid a special fee to your internet service provider.

If you are a blogger, should you care about net neutrality? Yes, you should care about it dearly. It’s a complicated issue, involving complicated technology, complicated economics, and complicated industrial models. That’s all true. But it comes down to something quite simple. Right now, a lone blogger is on an equal footing with the New York Times in terms of the being able to deliver content to end-users across the internet. Without net neutrality, that could change.

What will happen to blog readership in a non-neutral world? Imagine you have a choice between reading a blog or reading news from a big media company. The blog downloads at a glacial pace. You’re waiting. And waiting. And waiting. Meanwhile, the big media company’s content goes ZIP! and it’s all there. Readership of traditional blogs will plummet.

The political picture on a postage stamp is this: Big telecom companies generally don’t like net neutrality, because they would like to charge for non-neutral carriage of data. Little guys without a lot of political clout like net neutrality. The one mega-sized corporate friend that net-neutrality supporters had was Google. That’s why Google made such big news when it announced recently that it had struck a deal with Verizon to support non-neutral carriage for wireless services and other tweaks on net-neutrality.

Learn about it:

In favor of net neutrality, read this very well-done post by Jeff Sayer: How the Death of Net Neutrality Effects You. Also good is this post on Gizmodo: Google Just Killed Net Neutrality

For the other side of the argument, there’s no better source than Google itself. Read Google’s announcement, Google’s explanation for why it is not a sell-out.

Philadelphia Slaps Blogs with $300 Tax

Friday, August 27th, 2010

mastheads of blogs MS Philly Organic and Circle of Fits blogsVery interesting article: Valerie Rubinsky in the Philadelphia City Paper: Pay Up: Got a blog that makes no money? The city wants $300, thank you very much.

Philly is not taxing all blogs – just blogs that are set up to make money – any money, no matter how small. If a blog is designed to make a profit, even if it doesn’t, the City of Brotherly Love requires a business privilege license (a $300 one-time fee or $50 per year) plus taxes on the profits.

So that means Philadelphia is after Sean Barry’s Circle of Fits, a music blog hosted on Blogspot, which has made $11 over two years, according to the article.

Also getting billed is MS Philly Organic, a blog by Marilyn Bess that, combined with earnings from some posts for eHow, has brought in about $50 over three years.

Rubinsky reports that City Council members Bill Green and Maria Quinones-Sanchez have proposed reforming the law to help make the city a more accommodating place for small businesses. But while the reform would exempt the first $100K in profits, nano-sized online “businesses,” such as ad-hosting blogs, would still have to pay $50 per year or $300 upfront for a license. Some reform.

Apparently the tax-collector letters went out to bloggers who did the right thing and reported tiny-sized revenues on their income tax returns.

I’d like to hear a tax attorney weigh in on whether there is serious argument that these bloggers are not businesses engaged in an activity for profit since the amount of money they are earning is trivial and undoubtedly doesn’t cover their expenses. But I’m not a tax attorney, so I’ll have to leave that to someone else.

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.

In fact, if you are really in it for profit, then you are probably better off doing whatever it takes to build readership in the near-term – and in my opinion, that means turning off the ads. If and when your readership ever gets big enough that ads would bring in real money, you can start providing advertising space at that point. Take a cue from big start-up ventures. None of them try to make money in the early years. For a VC-funded start-up, making money at the beginning usually means that you aren’t trying hard enough to grow and gain market share.

More: Lyrissa Lidsky on PrawfsBlawg: (Business) License to Blog (with good discussion in the comments)

(Ha’p: Media Law Prof Blog)

Chicago Police Officer Under Investigation for Blog Post Criticizing Department

Thursday, August 26th, 2010

Lt. Andrews riding (from Andrews' blog, photo by killboy.com)

Chicago police Lt. John Andrews is under investigation by Internal Affairs after he posted A City at War With Itself: Chicago – Fast Tracking To Anarchy … on his motorcycle-themed blog The Adventures of a Highway Road Runner.

In the post, Andrews talks about the CPD’s low morale and lack of staffing and leadership. He also criticizes the promotion of a police officer. This seems to be the particular passage that caused the most consternation:

A recent example of alleged political corruption ties to top tier leadership in the Chicago Police Department.

While Superintendent Jody Weis recently appointed Lieutenant Anthony Carothers to Commander of the Englewood District, his appointment has been received by the rank & file with utter disdain. They and some city residents call the appointment of Carothers a true lack of ethical consideration by the Superintendent.

Interestingly, the newly appointed Commander Anthony Carothers is the brother of Isaac Carothers, the Chicago Alderman recently convicted on charges of public corruption in Federal Court. Ironically, their father, William Carothers, also served as a Chicago Alderman until his conviction on public corruption charges in 1983.

The Chicago Tribune quotes Professor Sheldon Nahmod of Chicago-Kent College of Law as saying that there is “a serious First Amendment issue here,” and that the law should shield Andrews from discipline as long as he is writing as a public citizen out of public concern and not just airing a personal gripe.

Nahmod said that Andrews “was griping about the morale of the Police Department in general, the support it’s getting from its supervisors, superiors and from politicians, and that’s not the same thing as a personal gripe,” in the Trib’s quote.

More: Neil Steinberg column in the Chicago Sun-Times: Fed-up cop rips ‘hacks’ running department.

Righthaven Resentment Popping Up All Over Web

Wednesday, August 25th, 2010

Some websites and resources popping up about Righthaven:

Righthaven Victims: A blog posting lists of defendants, highlighting defenses, and linking to other Righthaven sites

Scribd Respository of Righthaven Litigation Documents: Scribd is pretty annoying to deal with, but the site does have many court filings that can be downloaded.

Justia Dockets for Righthaven Cases: Shows case numbers, assigned judges, and filing dates.

Righthavenlawsuits.com: Sweet domain name. A critic’s page of links.

Facebook: stop the LVRJ/RIGHTHAVEN witch hunt!: Liked by 257 people and counting.

And this is inventive: a Firefox plug-in to prevent you from visiting media company sites with ties to Righthaven, described here.

Thanks to commenter LisaMM for pointing a couple of these out.

Guardian: Kamarudin Blogs On About Malaysia From His London Safe Haven

Tuesday, August 24th, 2010

Flag of MalaysiaBen Bland in the UK’s Guardian: Malaysian blogger continues attacks from his UK base

The story concerns blogger Raja Petra Kamarudin, who fled Malaysia after learning that he might face further criminal prosecution for his blogging. The current charges are sedition and defamation.

(Ha’p Media Law Prof Blog)

Techdirt Digs Up Cache Problem for Cash-for-Nuisance Suer Righthaven

Monday, August 23rd, 2010

Ooooh. Very interesting. Techdirt asks:

Could The Legality Of Google’s Cache Kill Righthaven’s Copyright Claims?

Two things I would add:

1. This is especially interesting since the Field v. Google case came out of the District of Nevada. That means it’s real precedent in federal court in Las Vegas.

2. The Field v. Google case was in my view wrongly decided. But not real surprising. Bad facts + silly plaintiff => bad reasoning + silly precedent. The Righthaven case may force the issue.

Mall-Haul Vloggers and the Law

Friday, August 20th, 2010

Blair Fowler shows off snake-skin 4-and-a-1/2-inch gladiator heels from Shoes of Prey on her juicystar07 vlog.

The July issue of Marie Claire magazine (p. 75 in print, online here) has an interesting story by Abigail Pesta about shopaholic vloggers and the emerging YouTube genre of mall-haul videos.

Let’s explore the legal implications, shall we?

Marie Claire says that the fashion and beauty industry is sending “loads of free stuff” to the vloggers in the hopes of getting good reviews. There’s nothing illegal about getting free stuff. (Whew!) But if vloggers do go online singing the praises of their buddy swag-slingers, they’ll need to be upfront about it and disclose the relationship to viewers. (It’s all part of the new Federal Trade Commission guidelines.)

To see how this is playing out on YouTube, I watched a video in which juicystar07 (née Blair Fowler) plugged custom-designed footwear from Shoes of Prey. According to Marie Claire, Shoes of Prey got 200,000 visitors to their site after Fowler discussed the brand on her vlog. While I can’t be sure of which video Marie Claire was talking about, the video I watched seemed to introduce Shoes of Prey to Fowler’s viewers. The video was, in my view, entirely on the up and up. Fowler says in the video that Shoes of Prey sent her the shoes and that she has been talking with the firm’s “head honcho.” Fowler does not explicitly say that she received the shoes for free, but the implication is clear, I think.

(Also noteworthy: The video evidences solid production and post-production work. It’s a good example of the level of polish that can be achieved with citizen-produced media.)

Blogger Jan Klerks Asserts Implied License Defense Against Righthaven

Thursday, August 19th, 2010

From Online Media Daily: Blogger Sued By Copyright Troll Argues He Had ‘Implied License’ by Wendy Davis. It’s a new tack against Righthaven. Blogger Jan Klerks of noncommercial skyscrapercity.com argues the Las Vegas Review-Journal impliedly licensed republication of its articles by encouraging readers to save the stories and send them to others.

The story also quotes me on Righthaven’s  ”deplorable behavior.”

(Ha’p: MLRC)

Legal Info Online for Bloggers: Aviva’s 12 U.S. Laws to Know

Wednesday, August 18th, 2010

One online article that turns up high in search engine results for legal aspects of blogging is Aviva Directory’s 12 Important U.S. Laws Every Blogger Needs to Know, dated May 2008.

This article does a good job of spotting issues that bloggers should be aware of, but I disagree with a fair amount of its analysis and advice. Some of the counsel it gives is needlessly conservative.

Jonas Brother Threatens Blogger Zack Taylor

Tuesday, August 17th, 2010

Celebuzz reports that Jonas brother Joe is threatening a lawsuit against blogger Zack Taylor over a post headlined, “DEMI LOVATO AND JOE JONAS ARE FRIENDS WITH BENEFITS?!

TMZ chimes in as well, and they have posted a pdf of the nastygram from law firm Carroll, Guido & Groffman, LLP, saying that Taylor’s post is defamatory and asserting a completely absurd right-of-publicity claim:

We understand that you have posted a number of similar blogs on the Website over the last few months — all of which contain fabricated stories about our client and his brothers, Nicholas Jonas and Kevin Jonas — in what appears to be a desperate attempt to promote the Website through the unlawful exploitation of their names and likenesses.

And what’s up with calling a blog post a “blog”? Does this guy also think the New York Times publishes its most important newspapers every day on its front page?

Righthaven Getting Small Settlements

Monday, August 16th, 2010

The latest on Righthaven from the Las Vegas Sun: Righthaven reaches settlements in 2 cases over R-J copyrights by Steve Green.

The article discloses that publicly disclosed settlements have been in the small-claims range, from $2,185 to $5,000.

Tennessee AG on Media Credentialing at State Universities

Friday, August 13th, 2010

I’ve come across an interesting opinion issued by Tennessee’s attorney general regarding restrictions placed on uses of photographs and other content made by members of the credentialed media at sporting events hosted by state universities. Much of the opinion is dubious, including the assertion that University of Tennessee sports events are not “public events,” a position supposedly rationalizing restrictions on the press’s publication of content gathered through their in-venue attendance at athletic contests. The opinion notes that media credentialing applies to blogging activities.

The battle over the legality of blogging from sporting events is only in its opening stages, but this AG opinion is a good example of position-taking on the part of sports teams and leagues.

(The link to the Tennessee AG opinion was provided by a in response to a post by Robert J. Ambrogi at Media Law blog.)

A Chilling Wind Blows in from the Mojave Desert

Thursday, August 12th, 2010

Here’s evidence that Righthaven’s shoot-first/shoot-everybody/shoot-often style of copyright enforcement is chilling bloggers out of their fair use rights:

From Opposing Views, by NORML:

Since Righthaven Inc. may be watching, I’m not going to blockquote any of this story from the Las Vegas Review-Journal (LVRJ). According to the report …

McSteamy v. Gawker Sextape Suit Settled

Wednesday, August 11th, 2010

A still from the Dane/Gayheart/Peniche tape posted by Gawker.

Megablogger Gawker has settled a suit brought by Eric Dane (Grey’s Anatomy’s “McSteamy”) and wife Rebecca Gayheart (90210, Nip/Tuck, Noxema commercials) over a threesome sextape that Gawker posted on the Defamer, reports Matthew Belloni on THR, Esq.

Dane and Gayheart’s claim against Gawker was for copyright infringement. Dane and Gayheart claimed the copyright reportedly because Dane held the camera for part of the time, and Dane and Gayheart bought out the rights of fellow threesome participant Kari Ann Peniche (2002 Miss Teen USA), who also held the camera for part of the time.

Belloni says that suing for copyright infringement is “a somewhat novel legal theory in cases involving sex tapes.” Well, I don’t know about that. It seems pretty standard to me, and I know it came up in the Paris Hilton / Rick Salomon case.

If someone asked me for advice on how to legally protect their sextape, my very second piece of advice would be to hold the camera or, if it’s a tripod shoot, set up the tripod and do the aiming and zooming yourself. That way, you can claim you’re the author for copyright purposes.

(My first piece of advice, if it needs to be said, is, of course, don’t make a sextape.)

Having concluded the lawsuit, Gawker COO Gaby Darbyshire was quoted by THR, Esq. as saying that her company was nonetheless “confident that our use of the video on Gawker was protected fair use.” Hmmm. I don’t think so. But, hey, settlement is all about everyone walking away happy.

Documents:

Righthaven’s Innovation? Stooping Lower

Tuesday, August 10th, 2010

I’ve done several posts about the Righthaven lawsuits, but I haven’t really set forth my opinion, though you may have divined one. I go on the record here:

I think what the Las Vegas Review-Journal and its thugster stooge Righthaven are doing is completely obnoxious. It reeks. It also makes the Las Vegas Review-Journal look like a pack of feral alley dwellers instead of an earnest news organization that is deserving of the public trust.

That being said, the suits are not frivolous. There are some legal issues to contend with, but Righthaven has the upper hand in these lawsuits. The first thing that jumps out to most people is fair use. Fair use is the great pressure-relief valve on our system of copyright law. Fair use frequently comes to the rescue when someone tries to employ copyright law in an unfair and harsh way. But not this time. Reposting an entire story from a newspaper on the internet, as a general matter, is just not fair use. I can imagine, hypothetically, circumstances where reposting an entire newspaper story would be fair use, but such circumstances would be very rare. The fact of the matter is, reposting whole newspaper stories is conduct that infringes copyright, and it’s generally actionable. Copyright law makes it easy for copyright holders to sue over minor transgressions. That’s the reality.

That being said, there’s nothing virtuous about Righthaven suing everyone and anyone they can without warning and without any modicum of amiability. As you go through life, you are constantly collecting opportunities to sue people. If you wanted to, you could file a stream of lawsuits for trespass, battery, and breach of contract against a variety of people with whom you have relatively normal dealings. Our system of civil law – and our system of criminal law, for that matter – work relatively well because people and businesses at all levels of society exercise considerable restraint in deciding whether or not to go to court.

Filing federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior. That would apply to anyone. But for a newspaper to do it is abhorrent.

Righthaven’s business plan is based around taking advantage of the law to do something the law itself never contemplated. I’ll give them this: Righthaven’s entrepreneurial angle is unique. But there’s nothing clever about it. Righthaven and its associated newspapers are on the cutting edge because they have stooped lower than anyone else in the news business has been willing to go. That’s nothing to be proud of.

FTC Factsheet on Blogger Endorsement Guidelines

Monday, August 9th, 2010

FTC headquarters in Washington, D.C. (Photo: Jonathan B. Morgan, FTC)

The Federal Trade Commission has issued a factsheet on last year’s revisions to its guidelines on testimonials and endorsements in advertising. Those revisions made it clear the FTC includes social media within its jurisdiction. Bloggers who engage in compensated buzz marketing and are not upfront about it are running afoul of federal unfair-competition law, under the new guidelines.

Attorney Eric P. Robinson has analysis at CMLP.

I’ve gotta say, I think this FTC factsheet is really well written. Kudos to the FTC. It’s really refreshing to see legal guidance doled out with phrases like,

It’s all pretty common sense: Don’t mislead readers into thinking that you are giving an unbiased testimonial if you’re on the take.

If you want an example of someone who doesn’t get it, check out the story of the New York Times food critic who reviewed the food at his own wedding. Ah, the taste of integrity!

In the factsheet, FTC helpfully boils the guidelines down to three key points:

The revised Guides – issued after public comment and consumer research – reflect three basic truth-in-advertising principles:
  • Endorsements must be truthful and not misleading;
  • If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances; and
  • If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed.

Then, the FTC answers your questions. Here are a few of the Q&A pairs:

What are the essential things I need to know about using endorsements in advertising?
The most important principle is that an endorsement has to represent the accurate experience and opinion of the endorser:
  • You can’t talk about your experience with a product if you haven’t tried it.
  • If you were paid to try a product and you thought it was terrible, you can’t say it’s terrific.
  • You can’t make claims about a product that would require proof you don’t have. For example, you can’t say a product will cure a particular disease if there isn’t scientific evidence to prove that’s true.
Do the Guides hold online reviewers to a higher standard than reviewers for paper-and-ink publications?
No. The Guides apply across the board. The issue is – and always has been – whether the audience understands the reviewer’s relationship to the company whose products are being reviewed. If the audience gets the relationship, a disclosure isn’t needed. …
I’ve heard that every time I mention a product on my blog, I have to say whether I got it for free or paid for it myself. Is that true?
No. If you mention a product you paid for yourself, the Guides aren’t an issue. Nor is it an issue if you get the product for free because a store is giving out free samples to all its customers. The Guides cover only endorsements that are made on behalf of a sponsoring advertiser. …
What if all I get from the company is a $1-off coupon, or if the product is only worth a few dollars? Do I still have to disclose?
Here’s another way to think of it: While getting one item that’s not very valuable for free may not affect the credibility of what you say, sometimes continually getting free stuff from an advertiser or multiple advertisers is enough to suggest an expectation of future benefits from positive reviews. If you have a relationship with a marketer who’s sending you freebies in the hope you’ll write a positive review, it’s best if your readers know you got the product for free.
I have a website that reviews local restaurants. It’s clear when a restaurant pays for an ad on my website, but do I have to disclose which restaurants give me free meals?
If you get free meals, it’s best to let your readers know so they can factor that in when they read your reviews. Some readers might conclude that if a restaurant gave you a free meal because it knew you were going to write a review, you might have gotten special food or service.
Is there special language I have to use to make the disclosure?
No. The point is to give readers the information. Your disclosure could be as simple as “Company X gave me this product to try . …”
Do I have to hire a lawyer to help me write a disclosure?
No. What matters is effective communication, not legalese. A disclosure like “Company X sent me [name of product] to try, and I think it’s great” gives your readers the information they need. …
Would a single disclosure on my home page that “many of the products I discuss on this site are provided to me free by their manufacturer” be enough?
A single disclosure doesn’t really do it because people visiting your site might read individual reviews or watch individual videos without seeing the disclosure on your home page.
What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?
The FTC isn’t mandating the specific wording of disclosures. However, the same general principle – that people have the information they need to evaluate sponsored statements – applies across the board, regardless of the advertising medium. A hashtag like “#paid ad” uses only 8 characters. Shorter hashtags – like “#paid” and “#ad” – also might be effective.
Are you monitoring bloggers?
We’re not monitoring bloggers and we have no plans to. If concerns about possible violations of the FTC Act come to our attention, we’ll evaluate them case by case. If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been.

Righthaven Rainmaking

Friday, August 6th, 2010

Searching for news on Righthaven on Google a couple days ago, I was greeted with a keyword ad from the Las Vegas law firm of Lewis and Roca, who is looking for some of the ever-expanding multitude of Righthaven defendants to come on as clients. Lewis & Roca’s landing page says:

Lewis and Roca has represented defendants in a substantial number of the cases filed by Righthaven to date in settlement negotiations and litigation. Lewis and Roca has formed a team to handle these cases in an efficient and effective manner.
Google keyword ad for Lewis & Roca: "Need Info on Righthaven? ... We defend copyright infringement cases filed by Righthaven."

Righthaven defense work is turning into a business of its own.

Using the Public Domain for Images for Blogs

Thursday, August 5th, 2010

1894 photograph of trainBlogs look better with images. Bloggers who want to use images have six options, as I see it: (1) Use their own images, (2) Get permission to use someone else’s, (3) Purchase royalty-free images for use, (4) Use images that have no copyright protection, (5) Use copyrighted images in a manner that is protected as fair use, or (6) Incur civil or criminal liability by infringing copyright.

My guess is that most bloggers choose no. 5 or no. 6. Often, bloggers unwittingly choose no. 6 (infringement), hoping that they have actually selected no. 5 (fair use).

I don’t want to discourage people from exercising their fair use rights, but more bloggers should be aware of and make active use of choice no. 4 (the public domain).

To use public domain images, you’ll need a source of them. A good starting point is this list from wikipedia. You also should learn something about how the public domain works. You can’t necessarily take wikipedia’s word for it that an image is in the public domain. Wikipedia’s legal counsel is sometimes a little wonky. So learn something about the law of the public domain. A good source is Public Domain Sherpa – a wonderful site that can help you determine whether an image is in the public domain or not.

Since I did mention that blogs look better with images. I realized I had better include one. The above image, from the Library of Congress’s American Memory collection, is a 1894 photograph of a train on the Italian Line between Tunis and the site of ancient Carthage, photographed leaving Marsa. Photographer: William Henry Jackson.

The Sun Says Some Righthaven Defendants are Fighting Back

Wednesday, August 4th, 2010

Today, from the Las Vegas Sun:

Some targets of Righthaven lawsuits fighting back, by Steve Green

Righthaven’s claims don’t appear to be so cut and dried. The defense attorneys and some defendants without attorneys are making complex legal arguments about whether the Nevada court has jurisdiction over the out-of-state defendants, whether Righthaven itself has standing to sue and whether Righthaven failed to follow the law in filing no-warning lawsuits rather than first sending requests or takedown orders …

James B. Astrachan: Advertising, Bloggers, and Transparency

Tuesday, August 3rd, 2010

James B. Astrachan, a lawyer with Astrachan, Gust & Thomas, P.C. and an adjunct professor at University of Baltimore School of Law, writes about blogging and the FTC endorsement rules for the Legal ADvice column in the Daily Record: Transparency in the New Media.

(H’ap: Media Law Prof Blog)

A Database of Company Social Media Policies

Monday, August 2nd, 2010

Lawyer Doug Cornelius maintains a Social Media Policies Database, which aggregates links to a slew of policies on blogging and other uses of social media. It includes employer policies for employees and other policies. It’s a great resource.

(Ha’p: Megan J. Erickson’s Social Networking Law Blog)