Archive for September, 2010

New York Times on Blog Freedom in Syria

Thursday, September 30th, 2010

thumbnail image from the New York Times storyAn article in today’s New York Times describes a “slim margin” of freedom for Syria’s bloggers and “an ever present fog of fear and intimidation” that surrounds practitioners in Syria’s online press. Several bloggers have been jailed, and a draft law would mandate registration of those who blog and would require their writing to be submitted for review.

The article, by Robert F. Worth, is “Web Tastes Freedom Inside Syria, and It’s Bitter.”

Federal Court in Virginia Releases Browse-Wrap Decision

Wednesday, September 29th, 2010

A “browse wrap” agreement is an alleged contract that binds anyone who views a website to the site’s “terms of use.” The name “browse wrap” is in the tradition of “click wrap,” and ultimately derives from “shrink wrap” agreements, a now largely historical device which purported to bind anyone who tore past the agreement sticker and through the shrink wrap on a new box of software.

A new case, Cvent, Inc. v. Eventbrite, Inc., no. 1:10-cv-00481-LMB –IDD (E.D. Va. Sept. 15, 2010) concerns browse-wrap agreements. Although the case doesn’t involve a blog, it has applicability for bloggers two ways. One, bloggers might try a browse-wrap agreement to bind visitors to their blogs. Two, bloggers may be potential defendants in a breach-of-browse-wrap suit when they link to or repost material from a website they have visited.

Justia has the memorandum opinion on the motion to dismiss and motion to strike, signed by Hon. Leonie M. Brinkema and dated September 14, 2010.

Rebecca Tushnet has blogged about the opinion on her 43(B)log, concentrating on the trademark aspects: Website scraping claim survives Dastar defense.

Illinois Mayor: Bloggers are Terrorists, Creating History’s Greatest First Amendment Crisis

Tuesday, September 28th, 2010

Explosion on keypad of laptop computerJoseph Werner, mayor of Mokena, Illinois, has compared bloggers attacking local officials to terrorists who fly planes into buildings, killing innocent people. Further, Werner believes blogs have given rise to the greatest First Amendment crisis in this country’s history.

That’s according to Phil Kadner of Chicago Sun-Times’ suburban label SouthtownStar:

“They’re no different in my mind than the kind of person who takes an American plane with Americans on it and flies it into an American building and says I did it for a cause,” Werner said at a village board meeting, as quoted by Kadner in the SouthtownStar.

Given a chance to back off of those comments, Werner wouldn’t. He did clarify that he doesn’t have a problem with bloggers in general, just with those who hide their identities.

“They want to be anonymous. That’s cowardly,” Werner told Kadner. “Just like terrorists, they don’t care if they destroy innocent people, and maybe they’re not killing anyone, but they’re destroying reputations.”

Bits Without Borders Conference

Monday, September 27th, 2010

Michigan State law school logoMichigan State University College of Law just held a conference titled “Bits without Borders” over the weekend.

Conference papers are published here. They include many issues relevant to internet freedom and the blogosphere.

Jezebel Threatened Over Aniston Photos

Friday, September 24th, 2010

Gawker blog Jezebel has received a cease-and-desist e-mail over their posting of allegedly unretouched photos of Jennifer Aniston looking old and bedraggled in the absence of post-shoot photoshopping. The nastygram cited claims of copyright.

Jezebel blogger Jessica Coen responded, in part:

One of Jezebel’s most significant areas of interest is the Photoshopping of women who appear in magazines, catalogs, or in any other publication. It’s an important factor that shapes the beauty standard, and it affects how women view themselves, for better or worse. As such, the peg of the post is how Jennifer Aniston looks pre-Photoshop, and I think you can agree that a small image falls under fair use since the existence of these images is indeed news. It’s the peg of the item.

The whole exchange is here.

(Ha’p Hollywood Reporter’s ESQ)

European Parliament Approves Get-Tough Gallo Report

Thursday, September 23rd, 2010

The European Parliament voted to approve the Gallo Report calling for tough intellectual-property enforcement measures. (Photo: European Parliament. Used without permission.)

Following up on yesterday’s post, the European Parliament has approved the Gallo Report. (Europarl press release.)

More:

European Parliament Votes Today on Gallo Report

Wednesday, September 22nd, 2010

Logo of the European ParliamentToday the European Parliament will vote on the Gallo Report [scribd], which recommends strengthening intellectual-property enforcement, including through “non-legislative” measures.

Prepared by French MEP Marielle Gallo, the report has been criticized as a vehicle for laundering lobbying points of the entertainment industry. Although ostensibly aimed at file sharing of movies and music, there is concern that its heavy-handedness could have a detrimental impact on the expressive activities of netizens, such as blogging.

There is also concern that the Gallo Report’s adoption would be seen as a green light for aggressive measures being considered in connection with the Anti-Counterfeiting Trade Agreement, currently the subject of closed-door international negotiations. (EFF on ACTA.)

Reporters Without Borders has issued a statement opposing adoption of the Gallo Report.

Yang-Ming Tham: Honest to Blog

Tuesday, September 21st, 2010

Yang-Ming Tham has published a comment in the Villanova Sports and Entertainment Law Journal titled, Honest to Blog: Balancing the Interests of Public Figures and Anonymous Bloggers in Defamation Lawsuits.

Here is an excerpt:

Post-Internet 2.0 free speech is most commonly represented by the blog, websites devoted almost solely to giving voice to a person’s thoughts and beliefs using the Internet as the medium of free exchange. … As blogs continue to proliferate, diversify and become increasingly complex, the potential for tort suits, such as defamatory libel, increases. The laws of tort and constitutionally based free speech were developed in the absence of the Internet, mostly to address the concerns of the more traditional news media outlets. As an ever-increasing number of citizen journalists continue to supplant blogs and other Internet-based social networks, courts are being challenged to apply legal standards developed for traditional media jurisprudence to blogs and bloggers. Recently, courts have had to determine the proper legal standard for public figure defamation and First Amendment protection for the blogosphere.

This Comment, through a hypothetical lawsuit in which a public figure plaintiff alleges libel by an Internet blog, explores the issue of tort defamation by anonymous bloggers in connection with the legal challenge of balancing constitutional First Amendment protections, and the complicated regime of legal requirements developed pursuant to those standards.

The cite is 17 Vill. Sports & Ent. L.J. 229.

The article is available as a downloadable pdf.

MLRC on Agora v. Samler

Monday, September 20th, 2010

Media Law Resource Center has posted a profile of Agora Financial LLC v. Samler, No. 09-1200 (D. Md. June 17, 2010), a “hot news” type misappropriation lawsuit.

The case involves investment recommendations that were allegedly reposted by the defendant.

A pdf of the court’s opinion is here.

Jacqueline D. Lipton: Moral Rights and Supernatural Fiction

Friday, September 17th, 2010

Jacqueline D. Lipton of the Case Western Reserve University School of Law has posted a paper to SSRN titled Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agendas. The paper is slated to appear in the Fordham Intellectual Property, Media & Entertainment Law Journal in December 2010.

Here is the abstract:

In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The author questions whether the kinds of moral rights models being advocated in modern discourse effectively fill the gaps between authors’ stated interests in their works and the protections currently available under copyright law. The author also questions the extent to which authors’ rights should be elevated against others’ rights to enjoy and adapt their works.

Professor Lipton explains her focus:

Supernatural fiction authors are chosen for examination because they tend to be very articulate in the blogosphere and often maintain active dialogue with their fans about preferred downstream uses of their works.

The working-paper citation is Case Legal Studies Research Paper No. 2010-27. A copy can be downloaded from SSRN.

Ohio Lawyer Sues Atlas Shrugs Blogger

Thursday, September 16th, 2010

Kathy Lynn Gray reports in the Columbus Dispatch that Ohio attorney Omar Tarazi has filed a defamation lawsuit against conservative “diva” blogger Pamela Geller of Atlas Shrugs (née Pamela G. Oshry) along with Florida lawyer John Stemberger.

The $10 million suit alleges that Tarazi was falsely accused of having ties to terrorist organizations.

Tarazi represented Mohamed and Aysha Bary, parents of teenager Rifqa Bary, a convert to Christianity who ran away from her Muslim parents and attempted to emancipate herself.

Geller responded, calling Tarazi a “whiner.”

The complaint is here.

Disgraced Professor Sues Alumni Blog

Wednesday, September 15th, 2010

Charging defamation and invasion of privacy, Bernard Moore, a former visiting professor at Williams College, has sued David Kane, the founder of EphBlog, according to a story from today’s Berkshire Eagle of Massachusetts.

EphBlog is a website run by Williams College alumni that focuses on their alma mater. It is not officially affiliated with the western Massachusetts liberal arts college.

Moore does not come to the lawsuit with a stellar rep. The political science teacher was dismissed mid-semester after pleading guilty to fraud charges, including student-aid fraud. He was also previously convicted of credit card fraud in 1987, according to a report on Moore’s plea in the Williams Record.

Moore (née Ernest B. Moore) is seeking $500,000 in compensatory damages plus $2 million in punitive damages, along with an injunction.

When I checked, I found material about Moore still up on the EphBlog site, although I couldn’t find the passage quoted by the paper as a basis for the suit.

One thing to watch out for in this case is a defense mounted on the idea that Moore is “libel proof.” In defamation law, a plaintiff who is libel proof has such a tarnished reputation, nothing more can be done to destroy it. Theoretically then, even false and defamatory statements about a libel-proof person cannot give rise to liability, since the alleged victim cannot prove that any damage to his or her reputation was caused by the alleged libel. The paper quotes the complaint as stating:

Kane’s public comments included false statements that would tend to expose Dr. Moore to public ridicule and tend to make other[s] less likely to associate and do business with Dr. Moore …

You can see what the possible problem is for Moore. The defense could argue that Moore’s exposure to public ridicule and difficulty in doing business with others – to the extent such facts are proved – cannot be traced to any allegedly defamatory statements made by the defendant.

Honestly, it is a little hard to imagine how an unofficial alumni blog could do half-a-million dollars in actual damage to the reputation of someone in Moore’s position.

Hopefully EphBlog will post court documents and keep us apprised of the litigation.

Bengals Cheerleader Sues and Wins $11M Judgment Against Wrong Blog

Tuesday, September 14th, 2010

Sarah Jones (Photo, Cincinnati Bengals)

A federal court has entered an $11 million default judgment for defamation against a blog that was apparently sued by mistake, says Politico.

The blog at the root of the dispute is TheDirty.com, a site dating back to 2007 which posts pictures of people and then holds them up to extreme ridicule.

As Cincinnati.com explains, TheDirty.com allegedly posted pictures of Sarah Jones, a Cincinnati Bengals cheerleader and Kentucky high school English teacher, and then made claims that she had sexually transmitted diseases, was having an affair with a player (a violation of Bengal cheerleader rules), and had sexual intercourse in her classroom.

This is the kind of off-the-charts fact pattern you can usually find only on a law school exam. It’s the belt-and-suspenders approach to trying to become a defamation defendant.

Assuming the allegations were false, then Jones had a granddaddy of a defamation case.

As a professor who teaches torts and media law, take it from me, this is not what you would call a gray area. As defamation claims go, this is hardy. You could drop it off in the Gobi desert with nothing more than a stick of chewing gum and it would gain 20 pounds of pure muscle and come flying back on a chartered jet sipping champagne.

And yet there was a problem.

It appears that Jones sued TheDirt.com – leaving out the “y” in TheDirty.com.

News of the $11 million dollar judgment must have come as a surprise to TheDirt.com, a fledgling gossip site that seems to have come online only last month.

Now, I have no reason to think that it is, but I tell you if this was typosquatting, it sure backfired. That would be like surreptitiously fishing for perch and landing a great white shark. The silver lining for TheDirt.com, I guess, is that it’s drawing some traffic now.

Hmmm, could this be the makings of the world’s strangest theory of trademark infringement? Imagine: “We demand that you immediately cease and desist from conduct that is acquiring lawsuits that should rightfully belong to us … ”

More: TechDirt, Slashdot, TheDirt.com.

Jordan Modifies Law Targeting Online Reporting

Monday, September 13th, 2010

Reporters Without Borders reports that the government of Jordan has yielded to protests and amended its newly introduced Information Systems Crimes Law to remove some of its most controversial features. But RWB “continues to call for its repeal as it still grants the authorities arbitrary restrictive powers, above all because of its vague wording.”

Background here.

Fair Use and Reposting Articles About You

Friday, September 10th, 2010

A while back, I noted that under most circumstances, there is no good argument that reposting an entire newspaper story on the web qualifies as fair use under U.S. copyright law.

That being said, the Righthaven litigation has caused me to think about one particular set of circumstances for reposting whole newspaper articles that should generally qualify as a fair use. Those circumstances are when the article directly concerns the person (or entity) reposting it, and the article is not made available online so that the person about whom it was written can deeplink to it.

So, for example, if a newspaper writes an article about you, and then no longer makes that article freely available online, it seems to me there are strong reasons it should be a fair use for you to repost that article in its entirety on your website where people can view it without paying a fee or registering to get a password. To me, this rationale should apply even if you do not comment on the article – a common touchstone for fair-use analysis.

This is a fact pattern that has come up in the Righthaven litigation multiple times – a person or organization reposts an article directly concerning that person or organization. In fact, this is a well-established custom in many arenas, and it is a standard practice for many entities. It is often done through an agent, such as a publicist. The ubiquity of the practice suggests a belief among practitioners that it is not wrongful. Established customs do not always indicate widely held community values, but they often do. Here, I think the custom of entities reposting articles written about them reflects a culturally ingrained sense of fairness – one that copyright law ought to appreciate.

I do not know of any cases that support this view of fair-use doctrine – although I haven’t looked for them. But a lack of precedent wouldn’t mean that the fair-use doctrine should not be applied in this manner in appropriate cases. Fair use is meant to be flexible. The list of examples of fair use and the statutory list of factors to be considered in fair-use determinations are not intended to be exclusive.

When I was in journalism school, I recall one of my professors saying a newspaper can be thought of as “a community talking to itself.” If that is true – and I think it is – then the person being talked about has a strong personal interest in allowing that conversation to continue. Reposting a story ensures that.

We should bear in mind that a newspaper does not just write about stories of interest to the public, a newspaper actually infuses stories with public interest by the act of writing and publishing them.

We know that the First Amendment extends broad rights to newspapers to publish material about private persons where the topic or person is one of public interest. By the same token, private persons ought to have broad rights to republish material from newspapers when that material is written about them.

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material. In the great social contract that allows such unfettered freedoms to the press, a limited reposting right could well be considered the benefit of the bargain for the person subjected to the glaring light of the media.

Erickson Begins Series on Blog Legal Issues

Thursday, September 9th, 2010

Megan J. Erickson has started a series of posts on the IowaBiz Business Records blog about legal issues faced by bloggers.

In her first post, she discusses fair use. It’s a very enjoyable post, but I do have to take issue with one thing. In discussing the “nature of the copyrighted work” factor in fair-use analysis, Erickson wrote, “Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.”

I think it’s important to note that depending on the circumstances, the fair-use doctrine can in fact protect the right of bloggers to say something in exactly “the particular way in which the original author expressed that information.”

The factual or fictional nature of the work can weigh in the fair-use analysis – and Erickson is not alone in emphasizing this – but I think it is important to keep the copying of facts analytically distinct from doctrines of fair use. What do I mean? Copying a fact or an idea is not copyright infringement at all. That is because neither a fact nor an idea is copyrightable subject matter. So fair-use analysis is irrelevant in such a situation. On the other hand, repeating an author’s particular expression may constitute copyright infringement, but that infringement may be excused completely on the basis of the fair-use defense.

I should note that Erickson’s regular blog, Social Networking Law Blog, is not only an interesting read, it’s one of the better looking blogs out there. The graphics package looks fantastic.

Vegas Court Rules it has Jurisdiction Over Out-of-State Righthaven Defendant

Wednesday, September 8th, 2010
Street-level view of modern Lloyd D. George U.S. Courthouse in Las Vegas in daytime

The Lloyd D. George U.S. Courthouse in Las Vegas

Judge Roger L. Hunt of the U.S. District Court for the District of Nevada in Las Vegas has ruled that his court has jurisdiction over an out-of-state defendant in one of the Righthaven copyright infringement suits.

Righthaven is thugster ad litem for the Las Vegas Review-Journal in a campaign of no-warning copyright infringement suits filed against bloggers and others who have reposted stories or portions of stories from the newspaper.

Many Righthaven defendants were hoping to get their lawsuits dismissed for lack of personal jurisdiction. With this ruling, it appears defendants will have to look to other tactics if they are to ward off Righthaven claims.

In a case against a Texas law firm, Righthaven LLC v. Dr. Shezad Malik Law Firm P.C. (Case No. 2:10-cv-0636-RLH-RJJ), Judge Hunt denied a motion to dismiss with an order employing analysis that would seem to be applicable to all Righthaven defendants:

… Defendant itself cites to a case both on point and dispositive of this issue. Applying the “effects” test of Calder v. Jones, 465 U.S. 783 (1984), the Ninth Circuit found that where a defendant “willfully infringed copyrights owned by [the plaintiff], which, as [the defendant] knew, had its principal place of business in the Central District [of California], “[t]his fact alone is sufficient to satisfy the ‘purposeful availment’ requirement.” Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1994). It is common knowledge that the Las Vegas Review Journal newspaper is published and distributed in Las Vegas, Nevada by the party which assigned the copyrights together with the right to seek redress for past, present and future infringements. Accordingly, this Court has jurisdiction over Defendant, based upon the allegations of the Complaint.

Steve Green reported the decision in the Las Vegas Sun.

Righthaven Has a Major Card to Play in Nevada Senate Race

Tuesday, September 7th, 2010

Sharron Angle logo and headshotSteve Green of the Las Vegas Sun reports that the Las-Vegas Review Journal, via its plaintiff stand-in, Righthaven, has sued the Nevada Republican nominee for U.S. Senate, Sharron Angle, for reproducing material from LVRJ newspaper stories on her website. Angle is running against Senate Majority Leader Harry Reid.

The lawsuit seeks $150,000 in damages plus the surrendering of the candidate’s domain name, sharronangle.com.

This shows you how far Righthaven and the Las Vegas Review-Journal have strayed from ordinary, civil behavior. This is a newspaper we are talking about, suing a candidate for office. And not just that, but suing that candidate because of the content of her communications to the public.

If Angle is forced to give up her domain name and cough up $150K in damages, that could easily be the difference in a closely contested election. (And apparently, the race is currently close.)

What happened to reporting on the story, not becoming part of it?

There is some indication that the Review-Journal, which previously used Righthaven to file a lawsuit against the Nevada Democratic Party, was bowing to pressure to be more non-partisan in its carpet-bombing litigation activities. Steve Friess, a blogger and columnist for a rival media outlet, the Las Vegas Weekly, used a series of screenshots on his blog to document Angle’s copious borrowing, egging the Review-Journal on. Friess doubled the dare by calling R-J publisher Sherman R. Frederick and chief editor Thomas Mitchell “full-throated Sharron Angle supporters and Ahab-like Harry Reid haters.”

“Righthaven must sue,” Friess wrote. “It took effort to find the cat blogger, but this one was on a major candidate’s site, there in plain sight. If they don’t sue Angle, they provide dozens of infringers with a clear example of the company’s inconsistency in defending its copyright.”

So now they’ve sued.

But in my view, filing the complaint really doesn’t prove much. The real question is how aggressively will Righthaven pursue the case?

The plaintiff-side lawyering in this case could actually make a big difference in how the Senate race plays out. As a tea-party candidate coming from outside the Republican mainstream, running against a powerful incumbent, Angle is already at a disadvantage in terms of cash and political allies. That makes her website and what money she has all that much more important to her. The attorneys fees in defending against Righthaven could significantly affect her ability to buy television ad time and otherwise get her message out. And during campaign season, every day and every dollar counts.

That means that Righthaven/LVRJ has much more leverage in this litigation than they do in most of their lawsuits, which have been settling for pennies-on-the-dollar nuisance-value amounts. Will the Review-Journal and Righthaven pull punches and sit on the complaint without turning up the heat in court? Or will they move things along procedurally and use their leverage to demand a big payoff?

Here are some more questions: Is it fair for Righthaven/LVRJ to use the leverage that exists because of the tempo of the campaign? Is it fair for them not to?

This is a real mess. From the perspective of integrity and the public trust, I think this is a very sorry position for a newspaper to be in. The Review-Journal never should have involved itself in the Righthaven scheme. I wonder if that is dawning on them now.

Jailed Iranian Blogger Kouhyar Goudarzi Honored

Monday, September 6th, 2010
The National Press Club in Washington, D.C. has selected jailed Iranian blogger Kouhyar Goudarzi as the recipient of the 2010 John Aubuchon Freedom of the Press Award. (National Press ClubRadio Free Europe / Radio Liberty)

Legal Info Online for Bloggers: The New PR’s Bibliography

Friday, September 3rd, 2010

If you’re looking for legal guides for bloggers online, there’s not a whole lot out there. One reference, written for a corporate audience, is this bibliography of sources about blog legal problems from TheNewPR.com.

“Media Law in the Digital Age” Conference in Atlanta

Thursday, September 2nd, 2010

“Media Law in the Digital Age: The Rules Have Changed, Have You?” will be held September 25, 2010 in Atlanta. The event is co-hosted by the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet & Society and the Center for Sustainable Journalism at Kennesaw State University.

The conference is aimed at “journalists, bloggers, and lawyers who work with media clients.” More on the Citizen Media Law Project blog.

Robinson on FTC v. Reverb Settlement

Wednesday, September 1st, 2010

Eric P. Robinson on Blog Law Online discusses a settlement reached by Reverb Communications and the FTC over endorsement activity. The case isn’t about blogging itself, but it does fall under the FTC’s guidelines for “new media,” and that does include blogs.