Archive for November, 2010

Vanity Fair’s Guide to Gawker Lawsuits

Tuesday, November 30th, 2010

Juli Weiner at Vanity Fair has published A Guide to Gawker Lawsuits. The post includes reference to two legal matters that came along before Blog Law Blog started (Sean Salisbury and Fred Durst).

What Weiner left out you can fill-in in good measure by looking at the gawker category here on Blog Law Blog.

Federal Law Would Require Colleges to Prohibit Harassment by Blog

Tuesday, November 30th, 2010

U.S. Capitol dome in daytimeIn response to the suicide of Rutgers University student Tyler Clementi, Rep. Rush Holt (D-NJ) and Sen. Frank Lautenberg (D-NJ) have introduced in Congress the Tyler Clementi Higher Education Anti-Harassment Act, H.R. 6425.

Clementi killed himself by jumping from the George Washington Bridge over the Hudson River after fellow students secretly videotaped an intimate encounter Clementi had with another man and uploaded it to the internet.

The bill specifically targets cyberbullying and thereby brings within its ambit blogging.

If enacted as law, H.R. 6425 would require higher-ed institutions, as a condition of participating in federal financial aid programs, to prohibit “harassment” of students by faculty, staff, and other students, whether that harassment is done on or off campus, and it would include harassment through the use of university computer networks.

Under the bill, “harassment” is defined as:

conduct, including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility (including conduct that is undertaken in whole or in part, through the use of electronic messaging services, commercial mobile services, electronic communications, or other technology) that –

(I) is sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment at an institution of higher education; and

(II) is based on a student’s actual or perceived — race; color; national origin; sex; disability; sexual orientation; gender identity; or religion.

some signposting removed]

The bill would also establish a grant program for activities aimed at preventing harassment.

I’m not sure how much good this law would do. Will people sufficiently evil to do what was done to Tyler Clementi be deterred by a campus policy? It seems unlikely. But since you can’t legislate tolerance and compassion, I suppose you do what you can do. If nothing else, a new federal law would be an expression that our society’s self-ascribed moral character is incompatible with bullying young people on the basis of sexual orientation.

More: OpenCongress,

Gawker and HarperCollins Settle Suit Over Palin Excerpt

Monday, November 29th, 2010

Digital Spy reports there was a quick settlement after HarperCollins sued Gawker for copyright infringement for publishing excerpts of Sarah Palin’s new book, America By Heart, in advance of its public release.

(My previous post, speculating on the merits of a fair-use defense in this case, is here.)

Black Friday Blog Leaks Ads, Stores Make Legal Threats

Friday, November 26th, 2010

screen shot of

A blog dedicated to reporting news of Black Friday sales,, has been publishing leaked copies of sale circulars long before Thanksgiving. Numerous stores have sent cease-and-desist letters (or, at least, please-stop letters). A great website that archives C&D letters, Chilling Effects, has published examples:

The Michael’s letter is fine – it doesn’t make any legal arguments. It simply asks to take the letter down and requests that rat out their snitch. Hmm, okay. I guess it never hurts to ask.

The Belk letter has a more legalish tone, but it also declines to make any legal arguments.

Now, the JCPenney letter does make a legal argument. But it’s a spurious one. The letter refers to what has done as “an infringement of our intellectual property[.]”


The problem with that is that there’s no such cause of action. The letter writer should pick an actual law. Is it copyright infringement? Trademark infringement? Is it a misappropriation of a trade secret? If someone is accusing you of an infringement of intellectual property, take a breath and relax a little. That’s a sure sign that what you have done is either (1) perfectly lawful, or (2) is, as luck would have it, legally actionable, but only in someway that the letter writer doesn’t actually understand.

Now, the JCPenney letter does mention that the ad is “copyrighted.” But is publishing a copyrighted ad on actionable as copyright infringement? In my opinion, it’s not clear that it is. Notice that the letter doesn’t actually make a claim of copyright infringement.

The JCPenney letter does, however, contain a practical argument: The ad is not the final version and therefore could provide readers with inaccurate information. That seems persuasive. Sometimes an argument that appeals to the reader’s sense of propriety and judgment is better than a legal threat.

Now here’s a letter from 2007, from Macy’s, that advances some actual theories of legal liability:

This letter says that what has released is “protected by copyright, trade secret, and other federal and state laws.”

Right away you should see that “other federal and state laws” is catch-all bluster to cover up ignorance, bluff, or legal-research laziness. So let’s skip to copyright.

Copyright does cover a sale circular. That’s true. But Macy’s only has a good copyright claim to the extent that what is doing is not fair use. And since’s usage could not have any conceivable effect on the market for Macy’s circulars (in fact, Macy’s isn’t selling its circulars at all), there’s at least a non-laughable argument for fair use. In fact, if you built it out, there would be a solid fair-use argument here. If another store were copying Macy’s ads but just changing the numbers and words, there would be a less persuasive fair-use argument. But that’s not what happened.

What about trade secret? Well, in my view – and I’ve studied this kind of thing – advance information about a sale may constitute confidential information, but not a trade secret.

A trade secret is a specific kind of business confidence, and it’s not the kind involved here. The distinction between a trade secret and a regular business confidence is the subject of a presentation I gave at a symposium earlier this year at Hamline Law School and an upcoming article of mine [now published] in the Hamline Law Review. Unfortunately, courts frequently misconstrue trade-secret law, so there’s always a chance that a judge would (erroneously) hold liable for trade-secret misappropriation. But if a judge interprets the law correctly, and finds that Macy’s sale information is not a trade secret, then can’t get in trouble for publishing it (though a Macy’s employee could be in trouble for leaking it).

Laws Bloggers Can Be Thankful For

Thursday, November 25th, 2010

Photo of pumpkin pie by Peggy Greb of the USDA Agricultural Research ServiceHappy Thanksgiving to bloggers everywhere!

Here are some laws and legal concepts bloggers can be thankful for.

Public domain photograph of pumpkin pie by Peggy Greb, USDA Agricultural Research Service.

Inimai Chettiar and James Scott Holladay on the Economic Benefits of Net Neutrality

Wednesday, November 24th, 2010

Inimai Chettiar of the NYU School of Law and James Scott Holladay of NYU School of Law’s Institute for Policy Integrity have posted to SSRN Free to Invest: The Economic Benefits of Preserving Net Neutrality.

Here is the abstract:

It is hard to imagine a future where the value of the Web takes a downward spiral: where less content is created, online access is less useful, and fewer people log on. Currently, thousands of new websites and applications are constantly created. The content attracts millions of new users who email, tweet, blog, and discuss the information on the Web freely. Net neutrality supports this open and entrepreneurial dynamic which helps to create billions of dollars in free value for the American public. In Free to Invest, the Institute for Policy Integrity warns of negative economic consequences if net neutrality is weakened. The report arrived at five main findings that describe the trade-offs of revoking net neutrality.

Lamebook v. Facebook

Tuesday, November 23rd, 2010

A blog called Lamebook that posts funny Facebook status updates has been threatened with a trademark infringement lawsuit by Facebook. Seeking to vindicate their rights, and probably trying to keep the lawsuit near home where it will be cheaper and easier to deal with, the folks at tiny Lamebook have sued megalithic Facebook for declaratory judgment in Texas. (TeleCrunch, Washington PostHuffington Post)

I haven’t read the pleadings, but this sounds like a strong case for Lamebook. That is, if they can survive a blizzard of high-paid lawyers and billable-hour-sucking motions.

Lamebook should have the right to pick an name and identity that calls to mind Facebook where, as is the case here, it is undertaking an activity that directly concerns Facebook, and it is producing content critical of Facebook.

In my view, that’s not actionable under trademark law, and, to boot, it’s protected First Amendment activity.

But let’s face it: Justice isn’t perfect and dollars matter. We’ll see if Lamebook can survive Facebook’s trademark bullying.

Go Lamebook!

Gawker Posts Palin Excerpt, Then Backs Off

Monday, November 22nd, 2010

Sarah Palin's America by Heart bookcoverMegablogger Gawker posted excerpts of Sarah Palin’s book, America By Heart, ahead of its release to bookstores. Palin reacted in a tweet: “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn’t that illegal?”

Gawker responded, claiming fair use. But the Associated Press reports that HarperCollins, the book’s publisher, filed a federal copyright-infringement lawsuit against Gawker on Friday.

Gawker, despite maintaining indignancy, has, according to the AP, pulled the exerpted pages down.

So, was it fair use?

Without knowing exactly what Gawker posted and how it fits into to Palin’s book, my initial, very strong, reaction is no, it’s not fair use.

There is actually a U.S. Supreme Court opinion remarkably close on the facts. In Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the high court held that Nation magazine’s unauthorized advance publication of excerpts of Gerald Ford’s soon-to-be-released A Time to Heal: The Autobiography of Gerald R. Ford, did not qualify as fair use.

Ford’s publisher, Harper & Row, has, by way of merger and acquisition, become HarperCollins, which is Palin’s publisher.

You think HarperCollins will cite that case in their brief?

You betcha.

Fair use is a fuzzy, flexible doctrine that produces unpredictable results when introduced in court. At least usually. But wow, it’s hard to imagine better precedent for a plaintiff than this.

In its post defending its actions, Gawker snottily taunted Palin, “[Y]ou may want to take a moment to familiarize yourself with the law … Or skip the totally boring reading and call one of your lawyers. They’ll walk you through it.”

But Gawker may have penned that jibe before they called their own lawyer.


Little wonder Gawker has now backed off.

Patricia Salkin on Social Networking and Land Use Planning

Friday, November 19th, 2010

Albany Law School logo depicting school edifaceProfessor Patricia Salkin of Albany Law School has posted to SSRN Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations. The paper is forthcoming in the Pace Law Review.

Here is the abstract:

This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses on the professional ethical considerations of the various players in the land use game as it specifically relates to the use of social networking sites. For lawyers, the applicable Rules of Professional Conduct are examined and for Planners, the Code of Ethics of the American Institute of Certified Planners (AICP) is explored for guidance. The article concludes with a warning that that although there are benefits to the use of social networking tools for land use planning and zoning initiatives, attorneys, government agencies, planners and others should use caution when employing these tools, being certain to weigh ethics and professionalism implications, social justice goals and public participation mandates and aspirations against the advantages of these tools, and the uncertainty of how courts might apply myriad legal mandates in cyberspace.

Battle Over Sale of TeleCrunch Blog to AOL

Thursday, November 18th, 2010

The Guardian UK writes about a battle over the sale of the TeleCrunch blog to AOL.

Former TeleCrunch partner Jason Calacanis has filed a lawsuit against TechCrunch founder Mike Arrington, seeking part of the profits of the sale. The nub of the lawsuit is the ownership of the blog network’s conference business.

Amway Beats a Grumbling Blogger in Court in Michigan

Wednesday, November 17th, 2010

Evan Brown on Internet Cases writes about Amway Global v. Woodward, Case No. 09-12946 (E.D.Mich. September 30, 2010):

The court upheld an arbitration decision that the nonsolicitation clause in the Amway’s agreement with sellers (a.k.a. “IBOs”), which prohibited “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to compete with”, was breached when an Amway seller blogged about his decision to leave Amway, posting, “[i]f you knew what I knew, you would do what I do.”

The decision is on Google Scholar. The Westlaw cite is 2010 WL 3927661.

Note that this is not Amway’s first venture into litigation against a griping blogger. In July I blogged about an Amway 9th Circuit case: 9th Circuit Allows Amway to Unmask Kvetching Bloggers.

Social Media Restrictions on Athletes at Public Universities

Tuesday, November 16th, 2010

Eric P. Robinson at Citizen Media Law Project writes about Twitter bans on football players at public universities and the First Amendment.

When Does Federal Labor Law Protect an Employee’s Right to Blog?

Monday, November 15th, 2010

Photo by EEJ

The National Labor Relations Board is suing a private ambulance company in Connecticut over the company’s blogging and internet policy and its handling of the termination of one of its employees.

Dawnmarie Souza posted negative comments on Facebook about her supervisor at American Medical Response of Connecticut Inc., and the company fired her.

In its lawsuit, the NLRB charges that Souza’s posts were a “protected concerted activity.”

That’s a problem for the company, because federal labor law gives employees the right to gripe and vent to one another about work. Why? Kvetching is proto-union-forming activity. And the National Labor Relations Act protects, at its heart, the right to form a union.

Thus, the NLRB says it was illegal for the company to have internet-usage policies that “prohibited employees “from making disparaging remarks when discussing the company” and “from depicting the company in any way over the Internet without company permission.”

I discussed this story on Friday on This Week in Law with Denise Howell. The podcast is available here.


(Ha’p: Denise Howell)

Today I’m on TWiL on

Friday, November 12th, 2010

Today I will be on This Week in Law with Denise Howell, netcasting live on at 11:00 a.m. Pacific, Noon Mountain, 1 p.m. Central, 2 p.m. Eastern.

Afterward, it will be available as a podcast, episode 86.

Before the show, suggest topics on Facebook or tweet them on Twitter with hashtag #twil86.

Two EFF Arguments Against Righthaven

Thursday, November 11th, 2010

Joe Mullin at discusses two challenges brought by the EFF to Righthaven: that Righthaven shouldn’t be eligible for attorney’s fees, since it is a made-for-litigation business entity, and that Righthaven has no right to a turn-over of defendants’ domain names.

Rebecca Tushnet on Regulation of Commercial Speech and User-Generated Ads

Wednesday, November 10th, 2010

Professor Rebecca Tushnet of the Georgetown University Law Center has posted to SSRN Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation on SSRN. The paper is being published by the Buffalo Law Review. Cite: 58 Buffalo Law Review 721 (2010)

Here is the abstract:

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, regulators retain flexibility in many situations. The Article considers the Federal Trade Commission’s (“FTC”) recent revisions of its guides on testimonials and endorsements. The guidelines apply to bloggers and others who receive substantial benefits from advertisers in return for their endorsements. After exploring the First Amendment challenges posed by such situations, including questions that go to the heart of the justification for regulating commercial speech, I contend that neither section 230 nor sound policy require the FTC to ignore these new forms of communicating with potential purchasers.

My Deacon, My Sheriff

Tuesday, November 9th, 2010

Mike Masnick at TechDirt has a nice succinct synopsis of the incredibly frightening I-can’t-believe-this-happened-in-America story of the First Baptist Church in Jacksonville, Florida and the government/church joint venture that came after blogger Tim Rich:

As Masnick says,

A local sheriff’s detective, Robert Hinson, who was (in addition to being a sheriff’s detective) a member of the same church, a provider of security to the church, a deacon at the church and a member of the church’s “disciplinary committee,” used his position in the sheriff’s office to open an official investigation into the blog …

I posted about this case a little while back: Justice for a Blogger Ganged Up On By Sheriff and Church.

Cooks Source Reprints Webpage as Magazine Article Without Permission

Monday, November 8th, 2010

Web-author and blogger Monica Gaudio did some freelance work for Cooks Source magazine – unwittingly.

While the Las Vegas Review Journal and Righthaven continue to be hotly indignant about bloggers reposting content from newspapers, the print trade is nabbing content from bloggers, and being kindof snotty about it.

Gaudio’s write-up of apple tarts, which appeared on her online cookbook of medieval cooking, was reprinted on page 10 of Cooks Source’s latest issue. Cooks Source never got – or even sought – permission.

Now unlike thugsters LVRJ and Righthaven, Gaudio was nice about it. Assuming the best of intentions, she let the editor know that the article was used without her permission, and she asked for an apology and a $130 donation to the Columbia School of Journalism.

What civility.

Astoundingly, this is the response she got from editor Judith Griggs. It’s just a jaw dropper:

Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was “my bad” indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.
But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!

Just so we are clear, despite Griggs’s assertion that she knows about copyright law, the web is certainly not considered public domain. Well, maybe by Griggs, but not by the law. Not at all.

I think it was stellar of Gaudio to offer the $130 make-good. But now that she’s been responded to with outright rudeness, I think she should up her figure. My thought is $5,000 for a retroactive license / settlement. That’s a high-end payment for freelance work, and it’s in the neighborhood of Righthaven settlements. So that seems like a good number to me. And Monica, keep that money for yourself. The one thing Griggs is probably right about is that CSJ is doing alright for itself. Not that even well-to-do institutions of higher learning don’t deserve donations, but you oughtta feel free to hold on to anything that comes your way out of this.

In the meantime, Monica: Register that apple pie article with the Copyright Office! If your reference point is 14th Century cooking, copyright registration is even easier than apple pie.

If it’s been less than three months since you published it, you are still in a position to file for registration and get eligible for attorney’s fees and statutory damages. If too much time has passed, you can still threaten them with actual damages. There’s also the possibility of  an injunction and an order of impoundment and destruction, which, while not really a problem for online publications that can change their content at will, is potentially more of a pain for print publications.

More: Lance Whitney on CNET: Lifting of blogger’s story triggers online furor

Peruvian Blogger Sentenced for Defaming Politician

Friday, November 5th, 2010

On Global Voices in English:

Blogger José Alejandro Godoy, a law school graduate, was handed a suspended sentence for three years in prison, commuted to a three-year period of probation on the condition that Godoy performs 120 days of community serivces and pays a $125,000 fine (350,000 soles).

Godoy’s trouble started with a post he wrote critical of former parliament member Jorge Mufarech Nemy. Godoy said Nemy was a political “star” whose “shining achievements” were tax evasion, pursuing favorable treatment for his companies, and negotiating an advantageous agreement with an allegedly corrupt person from the television news business. The court’s opinion, according to a lawyer who examined it, justifies the conviction based on the “star” and “shining achievements” wording, rather than the assertions about tax evasion and favors, for which Godoy provided links to journalist reports.

N.H. KingCast Blogger Lost His Pre-Election Challenge in Court

Thursday, November 4th, 2010

Here’s an update on the crusade of left-leaning New Hampshire blogger Christopher King to be able to attend campaign events of Kelly Ayotte, Republican for U.S. Senate.

The Nashua Telegraph reports today that King lost his pre-election request for a federal injunction that would have permitted him entry to Ayotte’s election-day party.

The party went on without him, and it turned out to be a victory party. The Sarah-Palin-endorsed Ayotte beat Democrat Paul Hodes. That keeps the seat – now held by retiring Republican Judd Gregg – in the column for the GOP.

In recent weeks King was bounced out of a Republican fundraiser by the Nashua police – at the organizers’ request – and was barred from attending Ayotte campaign events.

Despite losing the injunction, King is committed to pursuing the case and its crop of constitutional questions. As the Nashua Telegraph explains:

Those issues involve whether a private event that aggressively seeks media coverage can cherry pick which reporters attend and which don’t.

It is also about whether bloggers – including sharp-tongued partisans like King – will receive the same graces of First Amendment shed on mainstream journalists.

This is a case to watch.

Legal Info Online for Bloggers: The Shifting Legal Landscape of Blogging

Wednesday, November 3rd, 2010

Looking for legal guides for bloggers online, one reference that pops up is Jennifer L. Peterson’s article, “The Shifting Legal Landscape of Blogging,” from Wisconsin Lawyer, March 2006. It is a bit old at this point, of course, but it’s well written and provides good analysis.

Is it Defamation to Link to Defamation?

Tuesday, November 2nd, 2010

Mike Masnick at TechDirt ask whether linking to defamatory content can be and should be considered defamatory itself. Apparently there is a whole a batch of litigation brewing in Canada.

Righthaven Loses Early on Fair Use

Monday, November 1st, 2010

Thugster slayer Michael Nelson

Righthaven has lost a copyright infringement case because of a successful fair-use defense raised at the earliest procedural opportunity. The case is Righthaven LLC v. Realty One Group, Inc., 2:10-cv-1036-LRH-PAL.

In May 2010, Michael J. Nelson, a Las Vegas realtor, posted a portion of a Las Vegas Review Journal news story about a federal housing program on his blog, Righthaven took a copyright assignment from the Review Journal and pounced with a federal lawsuit. Happily for bloggers everywhere, instead of caving and forking over a low-dollar-value nuisance settlement, Nelson fought back and claimed that what he did was legally protected fair use.

The court agreed.

Of key importance for the court was that Nelson copied only eight sentences of a 30-sentence story, and the portion he copied was of a factual nature, as opposed to the portion which contained the reporter’s commentary.

U.S. District Judge Larry R. Hicks made short work of the case in a four-page order.

The court found that the first fair-use factor – purpose and character of the use – weighed against Nelson because he used his blog to promote his realty business. The second factor – nature of the work – weighed in Nelson’s favor because the portion of the news article copied was factual in nature. The third factor – amount and substantiality of the portion of the copyrighted work used – weighed in favor of Nelson, the court held, since he only copied eight sentences from a total of 30 in the news story. The fourth factor – effect on the potential market – weighed in Nelson’s favor as well. Regarding this factor, the court said:

The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson’s use supports a finding of fair use.

That line of analysis portends very well for other bloggers sued by Righthaven.

Now I’d like to see Nelson file a motion to get attorneys’ fees.

Nelson’s case seems like a great victory for free speech and fair use, but there’s a sad postscript: As of the time I am writing this post, Nelson has removed all the content from his blog.

So Righthaven has lost, but free expression has lost too.