Archive for December, 2010

The Top Blog Law Story of 2010

Friday, December 31st, 2010

The top blog law story of 2010 is …

What else could it be?

Happy New Year, everybody!

Photo from

Tweet Law Tweets

Thursday, December 30th, 2010

gavel coming down on twitter bird logo

If you like Blog Law Blog, try @tweetlawtweets, my new twitter feed, wherein I tweet about the legal aspects of tweets and Twitter.

Smith v. Arden: Utah Attorneys File Funny, Misguided Complaint on Behalf of Motivational Speaker

Wednesday, December 29th, 2010

James Smith, motivational speaker. (Image: James Smith's Real Estate Group of Companies, Inc.; used without permission)

Motivational speaker James Smith has filed a defamation lawsuit aimed at some online tormentors who’ve accused him of extramarital wanderings. (Ha’p MLRC)

Smith is a “Get Motivated” speaker and purveyor of such programs as “Stock Cash Flow 3-Day Training” and “Tax Liens & Deeds Self Study Program.”

The defamation lawsuit is aimed at,, and the Xenophilia blog for defamation. The central allegation is (I think) that anonymous commenters accused Smith of having an extramarital affair.

It’s kind of hard to tell what the allegations are because the complaint [pdf], filed by the Stevenson & Smith, P.C. law firm of Ogden, UT, is a bizarre mess.

For example, one defendant,’s parent, Automattic, is being sued on the theory that, well, uh, I just don’t know. is a blog host, and Xenophilia is hosted on Those are the facts. Here is what is alleged.

Read this:

8. Defendant Automattic, d/b/a WordPress, d/b/a Xenophilia (hereinafter “Xenophilia”) is a California corporation doing business worldwide via the internet.

9. Defendant Xenophilia runs a website known as WordPress. Wordpress provides free blog hosting for its users. One such user is the Xenophilia blog located at

These attorneys don’t seem to understand much about blogs – nor did they bother to learn much before they filed the complaint. Clearly, they don’t seem to understand the difference between a blog host and a blog.

Nor, does it seem, do they understand the difference between a blogger and a commenter.

Here’s a passage I particularly like from paragraph 23:

Neither, or has revealed the contact information and identity of the bloggers, despite the fact that such information is not protected when the bloggers use the blog for illegible purposes.

I mean, that’s just funny. Can you imagine the law looking askance at blogs used for “illegible purposes”?

And you’ve got to wonder, if it’s illegible, how can it be defamatory?

(By the way, that’s the complaint’s original spelling of “” as “”)

And there’re also other problems, of course, such as, Section 230, which I’m not sure the attorneys understand either.


Mike Masnick on Outsourced IP Policing

Tuesday, December 28th, 2010

From Mike Masnick in TechDirt:

[W]ith our [U.S.] government often believing just about anything Hollywood tells them, and with a long term effort by the industry to have the government act as its own private police force, we’re seeing things like the totally botched seizure of domain names of blogs and forums on a questionable basis.

The outsourcing of police work to trade groups is not unique to the USA, as Masnick notes. He reports on similar ploys afoot in the Netherlands, and it turns out that at least one Dutch court is fed up. That court dismissed a criminal action when Dutch police relied on an industry group, BREIN, to do the investigating for them.

More from Masnick:

Texas Court Rejects Ex Parte Request for Restraining Order Against Blogger

Monday, December 27th, 2010

From the websites of dueling Dallas neighbors Lost Society and Barking Dogs

The Reporters Committee for Freedom of the Press reports that a court in Texas has tossed out a request for a restraining order against a blogger.

The plaintiff, Fernando Rosales, sought the injunction to stop blogger Avi Adelman of from writing about Rosales’s Dallas nightclub, Lost Society. [LINK WARNING: excessive levels of décolletage and thumpy music!]

The injunction request was related to a defamation suit against Adelman. Also noteworthy in that suit, Adelman has invoked Texas’s shield law in resisting a subpoena served by Rosales seeking sources relating to a post about a shooting in the vicinity of the bar.


Letter to Santa re Law o/b/o Bloggers

Friday, December 24th, 2010

Dear Santa:

On behalf of bloggers across the USA and around the world, BlogLawBlog respectfully requests the following:

With warm holiday wishes,

Eric E. Johnson

Ontario Mayor Looking to Unmask Critical Blogger

Thursday, December 23rd, 2010

Francis Richardson, blog-bothered mayor of Meaford. (Image: Francis Richardson for Mayor, used without permission.)

The Sun Times of Owen Sound, Ontario reports that the town of Meaford, Ontario has obtained the identity of a person behind, an anonymously authored blog that was critical of the incumbent mayor during a recent election.

The mayor, Francis Richardson, managed to get re-elected despite the blog supposedly having interfered with the election.

The town of about 11,000 people was able to get the identity from IP addresses turned over by Google.

The town is still pressing Google for more information so it can get the identity of anonymous commenters.

Richardson wants to publicly reveal the blogger’s identity “for the main reason of having that kind of thing stopped.”

Richardson claims it wasn’t attacks on him that pushed the city to use legal process to find the blogger’s identity. It was, he says, the material critical of his staff.

“It was the attack on the staff that council responded to. It requires us to get very, very, very serious to get people to realize they can’t take those kinds of shots at our staff without the corporation doing something about it,” Richardson told the Sun Times.

The article doesn’t say what the blogger or commenters said that is allegedly civilly actionable. Supposedly a defamation lawsuit is in the offing.

FCC Passes Net Neutrality Rules, Reactions Mixed

Wednesday, December 22nd, 2010

FCC headquarters in Washington, DC. (Photo: FCC)

Yesterday the FCC approved new rules to guarantee at least a watered-down version of net neutrality for wired internet connections.

The order has not been publicly released, but here are three articles (best first) that you can read to get up-to-date on what  is known and how people are reacting:

Two key issues in the ongoing controversy are “paid prioritization” and whether net neutrality will be enforced for wireless services. Senator Al Franken, an outspoken proponent of net neutrality, touched on both in a statement he issued expressing his disappointment at what transpired. In part, he said:

The FCC’s action today is simply inadequate to protect consumers or preserve the free and open Internet. I am particularly disappointed to learn that the order will not specifically ban paid prioritization, allowing big companies to pay for a fast lane on the Internet and abandoning the foundation of net neutrality. The rule also contains almost no protections for mobile broadband service, remaining silent on the blocking of content, applications, and devices. Wireless technology is the future of the Internet, and for many rural Minnesotans, it’s often the only choice for broadband.

But while the rules don’t explicitly ban paid prioritization, they do ban unreasonable discrimination, at least for hardwired internet access. Chloe at PCMag explains what that might mean:

Among those things that would probably be unreasonable? Paid prioritization. The whole idea behind net neutrality is that everyone has equal access to the Web; a wealthy company like Amazon should not be able to pay to have their Web site load faster than a mom-and-pop e-commerce site. While this practice of paid prioritization is not strictly banned in the net neutrality rules, the FCC said yesterday that it would likely be deemed unreasonable.

FCC Expected to Adopt a Compromise Net Neutrality Order Today

Tuesday, December 21st, 2010

FCC logoToday the FCC is slated to consider a new net neutrality order that will be binding on American telecom companies. It looks like it will be adopted on a 3-2 vote with the three Democrat commissioners supporting it and the two Republican commissioners opposing it.

Net neutrality is incredibly important for bloggers. Without net neutrality, telecom companies will be allowed, basically, to accept bribes from big-money media companies. In return telecoms would their new friends preferential fast-lane treatment on the internet, pushing citizen bloggers onto side roads.

Say you have a blog that dishes celebrity gossip. With a non-neutral internet, your readers may begin to lose patience over your slowly downloading pages, choosing instead to jump over to bigger operations, like Access Hollywood or TMZ, that could afford to pay tolls to telecoms for lightning fast download times.

Here are two solid articles if you want to read up on what’s ahead for the FCC:

The rule that the FCC is considering today is a compromise. It draws a distinction between wired and wireless. Regular wired broadband internet access (e.g., for your home and work computers, whether plugged in or accessed through a wi-fi router) would be subject to net neutrality rules. Wireless/mobile internet services (e.g., through your phone, 4G services) would not.

You might ask, does it really matter if phones don’t get net-neutral service? Let me answer that with another question: Do you want people to be able to read your blog on their phone? (And before you answer, think about how much internet end-user traffic is going to phones …)

More from me on net neutrality:

Fired Lawyer and Sex Blogger Sues Allen & Overy

Monday, December 20th, 2010

From the homepage of self-described "naked poet," Deidre Dare (a/k/a Deidre Clark)

Deidre Clark was fired from the Moscow office of London-based law firm Allen & Overy after it came to light that she was behind the online identity of Deidre Dare (NSFW).

Clark, a lawyer from New York, blogged about her sex life and penned an online book, Expat, about sex and drugs in the Russian capital, which she said was based on her own experiences at A&O.

Word from A&O is that Expat used names of A&O employees and even the name of a client.

In addition to her book, Clark’s website contains poetry, philosophical musings, and a set of boudoir photos of herself. Let me warn you: Her whole site should be considered NSFWUYHTEOBALP (Not Safe For Work Unless You Have The Excuse Of Being A Law Professor).

She is now suing her former employer for wrongful termination, seeking more than $5 million in damages.

I don’t know much about British or Russian employment law, but my thought would be, good luck with that!

The Great Fallacy of Intellectual Property

Friday, December 17th, 2010

On my other blog, Pixelization, I have started a series called The Great Fallacy of Intellectual Property.

The long understood theory for why IP rights are necessary has been that people won’t invent useful technologies or create worthwhile art and literature without having the right to profit from their labors.

But, as I am explaining in this series of posts, this fundamental assumption turns out to be wrong.

People are driven to create and invent even in the absence of external rewards, such as those provided by IP rights. Some big projects, such as Wikipedia and Creative Commons, are real-life demonstrations of how this assumption is flawed. Additionally, a new wave of social science research is showing how people are intrinsically motivated to create and innovate.

For a great example, look no further than blogs. Probably 99% of the blog content out there is written without expectation of financial reward. Indeed, copyright entitlements do not seem to be an important driver of blogging at all.

In fact, if anything, it seems like copyright may do more to hinder blogging than to help it. As we’ve seen with the Righthaven lawsuits, copyright can be a powerful source of woe for bloggers.

Very little of the social science work on inherent motivation for creative labor has made its way into the legal scholarship about intellectual property. But I think that will have to change.

I’ll be exploring details and implications (including lots of caveats) on Pixelization over the coming days and weeks.

Is the Tyler Clementi Act a Threat to Free Speech?

Thursday, December 16th, 2010

David French in the National Review Online argues that the Tyler Clementi Higher Education Anti-Harassment Act (H.R. 6425) is a threat to free speech.

As I mentioned previously, the bill specifically targets cyberbullying and includes blogging activity within its coverage. My discussion of the bill is here.

French’s argument is that the bill has First Amendment problems because it lacks a requirement that the harassment be “objectively offensive.”

I see his point, but I think he’s off the mark. The text of the bill requires that the harassment be:

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

That seems to me to be limiting enough to protect legitimate expressive interests. At the same time it seems specifically tailored to protecting a person’s ability to benefit from a federally funded educational program.

In fact, the bill’s current limitations seem to be more protective of free speech interests than an “objectively offensive” requirement would be by itself.

An objectively offensive requirement would presumably make a jury issue out of how far the content of the speech deviates from community norms. That sounds to me like a device that could marginalize minority viewpoints and cause more First Amendment problems than it solves.

At any rate, I certainly disagree with French’s assertion that the law’s “primary effect will be a greater chill on free expression.” I think the primary effect would be communicating to gay students society’s revulsion at gay-bashing, as well as our commitment to allowing all students, regardless of sexual orientation, to benefit from America’s educational opportunities.

I’m Back on TWiL this Friday

Wednesday, December 15th, 2010

On Friday of this week I’m very excited to be back on This Week in Law with Denise Howell, a video netcast, which can be seen live on at 11 a.m. Pacific, and will be available afterward as episode no. 92.

You can suggest topics for the upcoming episode on Facebook or tweet them on Twitter with hashtag #twil92.

I had a blast when I was on the show in November (episode no. 86). I was on with USC law prof Jack Lerner and lawyer co-host Evan Brown. We discussed telecom lobbying, the creepy xBox Kinect technology, and much more.

CMLP is Hiring

Tuesday, December 14th, 2010

Citizen Media Law Project, a program of Harvard’s Berkman Center for Internet & Society, is hiring an assistant project director / program fellow. The position is for lawyers with at least three years experience in IP, media, or the like. The job is in Cambridge, Mass., just outside of Boston.

Righthaven, Images, and Drudge

Monday, December 13th, 2010

Righthaven is now suing over photos. And they’re taking on Drudge:

David S. Ardia on Defamation and Reputation in a Networked World

Friday, December 10th, 2010

David S. Ardia of Harvard Law School’s Berkman Center for Internet & Society has posted to SSRN his paper titled Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law. The paper is forthcoming in the Harvard Civil Rights- Civil Liberties Law Review.

Here is the abstract:

It is time again to rethink defamation law. The law we know today saw its origin in feudal times, expanded to serve as a counterweight to the disruption occasioned by the printing press, and was constitutionalized in the low-participation age of broadcast and print mass media. The journalistic institutions that led the fight for constitutional reform are now in decline while online platforms optimized for high participation, such as blogs, social networks, and discussion forums, are in ascendency. In this age of the networked information economy, reputation occupies a very different role in the social order than it did even twenty years ago.

Using a recent defamation lawsuit filed by the actor Ron Livingston against a user of Wikipedia as a lens through which to examine defamation law’s operation in our increasingly networked society, this Article argues that defamation law suffers from significant doctrinal and practical limitations that preclude it from achieving its goal of protecting reputation. Cognizant of these limitations, it offers some guidelines for reforming defamation law, suggesting that existing monetary remedies should be deemphasized while alternative approaches that seek to correct inaccurate information and provide opportunities for contextualization should be pursued.

The Article concludes that we should take as our touchstone that reputation is a societal interest and devise remedies that leverage the power of communities to deal with reputational harm. Although the global communication networks that are the hallmarks of our networked society have brought new reputational challenges, they also provide novel solutions to prevent and ameliorate those harms. One solution is to enlist, through legal and social incentives, the help of online intermediaries such as content hosts and search providers. These intermediaries play a central role in community governance and are often in a position to recognize and respond to reputational harms. By harnessing the power of communities to deter and mitigate reputational harm, we will be better able to balance the protection of reputation with society’s desire to maintain an environment for speech that is conducive to public engagement and vigorous debate.

Did the Denver Post Give Lowcountry912 Implied Permission to Repost?

Thursday, December 9th, 2010

On Monday and Tuesday of this week, I wrote about a breakthrough Righthaven copyright-infringement suit, filed on behalf of Righthaven’s new client, the Denver Post, against a local Tea Party activist blog from South Carolina,

Like many other newspaper websites, the Denver Post has inserted some clever code so that when you highlight some text and copy-and-paste it into another document – say an e-mail or a blog post – along with the text you copied, you also paste an additional bit of information that says “Read more” and then has the URL to go to see the story on the newspaper’s website.

Lowcountry912 has now removed their own reposting of the Mike Rosen column that they were sued over. But I saved a copy before they removed it. At the bottom of their repost, you see this:

Read more: Rosen: A letter to the Tea Partyers – The Denver Post

Now, so you can tell what you are looking at, the pound sign (“#”) and the string of characters following the pound sign is an ID number that would have been unique to the site visitor that grabbed that text for Lowcountry912.

Why would a newspaper put this bit of code in? It seems clear enough that the paper understands you are copying-and-pasting, and the paper wants the recipient of your copied-and-pasted text to know where to go for more. That way the newspaper benefits from the free advertising you are doing for them.

So, here’s the $150,000 legal question: Does the insertion of the “Read more” text constitute an implied license to copy, paste, and redistribute?

I think so. The implication is that the newspaper knows you are copying and pasting, and they are okay with that.

But now there’s a twist. Are you ready?

When I went to the Mike Rosen column to test this out, and I copied and pasted the text into a blank document, here’s the tag I got at the end:

Read more: Rosen: A letter to the Tea Partyers – The Denver Post
Read The Denver Post’s Terms of Use of its content:

See what’s different? There’s two extra lines instructing you to read the terms of use. If you do, you’ll find what amounts to a short essay on copyright and fair use. It includes this:

The fair use rule generally does not entitle users to display the whole story or photograph on their website. To do so is a violation of our copyright and we will use all legal remedies available to address these infringements.

So here’s another $150,000 question: Did the Denver Post’s code insert the instruction to read the terms of use before the Righthaven lawsuit, back when Lowcountry912 copied it?

If you know, please let me know.

And if anyone has a copy of the Denver Post’s terms of use from before they linked up with Righthaven, I would love to see those.

Edmonton Mayor Suing Over Blog Posts, Loses Bid to Keep Suit Secret

Wednesday, December 8th, 2010

Edmonton Mayor Stephen Mandel. Image copyright claimed by City of Edmonton. Used without permission.

Another politician angered by an anonymous blogger has sued; this time in Canada.

Edmonton Mayor Stephen Mandel not only wanted to unlock the secret of his critic’s identity with a lawsuit, Mandel wanted to keep his own lawsuit a secret. But a court in Alberta has now unsealed the mayor’s complaint for defamation, reports the CBC broadcast network.

Mandel’s lawyer argued that the lawsuit should proceed in secret until an investigation was completed. But Justice Donna Read of Alberta Court of Queen’s Bench ordered the unsealing after hearing arguments from the CBC and the Edmonton Journal newspaper.

“The courts are open,” Read said, according the CBC. “Freedom of expression exists. There is no good reason for that statement of claim to be sealed.”

Politicians love to have it both ways: silence their anonymous critics, but remain anonymous as they do it. Put another way, secrecy is okay for the plaintiff politician, but not for the defendant blogger. Recall the case of Pennsylvania Attorney General Tom Corbett vs. his Twitter tormentors.

Righthaven’s New Target, Lowcountry912, is in Core First Amendment Territory

Tuesday, December 7th, 2010

Yesterday, I posted about how regrettable it was that copyright thugster Righthaven has signed up a new client, the enormous MediaNews Group.

Now, let’s talk about the lawsuit itself. This new docket item landed on top of Lowcountry912′s Blog. Coming out of Summerville, South Carolina, the blog describes itself as the product of “a group of conservative Americans who want to do everything possible to keep America safe from its enemies within as well as without”.

A grassroots Tea Party affair, the blog makes a habit of reposting stories from the news media as it attempts to rally like-minded citizens to attend weekly meetings at an area church.

What Lowcountry912 is doing is core First Amendment stuff. It involves not just political speech, but it also implicates freedom of association, the Bill of Rights stepsister of freedom of expression.

Or, maybe a better way to put it is that freedom of association is the Park Place to freedom of expression’s Boardwalk. It’s a powerful combination for a plaintiff’s copyright claim to land on.

The post that got Lowcountry912 in trouble was a repost (now removed) of a September 23, 2010 column from Denver Post columnist Mike Rosen that was styled as an open letter to Tea Partyers.

Ironically, Rosen wrote: “While I’m not a card-carrying member of your movement, I enthusiastically support and applaud it. My activism in the war of ideas takes the form of a radio show and a newspaper column. Yours, at the grassroots level, has been invaluable this election year.”

Hmmm. That almost could be interpreted as implied permission to repost his column as part of a grassroots organizing attempt, especially when the column was put in the form of an open letter.

Righthaven Now Suing on Behalf of Denver Post

Monday, December 6th, 2010

The threat Righthaven poses to unsuspecting bloggers has just increased in a big way. Righthaven, who has been busy for the better part of a year suing on behalf of the Las Vegas Review-Journal, is now suing on behalf of the Denver Post.

Steve Green of the Las Vegas Sun reports.

This news is potentially much bigger than just the Denver Post. The Colorado newspaper is owned by MediaNews Group, which bills itself as the country’s second-largest media company. Three huge newspapers owned by MediaNews Group are the Detroit News, the San Jose Mercury News, and the Salt Lake Tribune. Other substantial papers in the group include the Oakland Tribune and Contra Costa Times in California, and the El Paso Times in Texas.

This is a major get for Righthaven, which has been hoping to expand its business of no-warning copyright-infringement suits against unsuspecting small timers. New media clients are important for Righthaven, which thrives on a volume business of grabbing nusiance-value settlements from defendants too poor or too resignedly self-interested to put up a fight.

I’m very sad to see such a large media company with so many good newspapers sign up with Righthaven’s questionable cash-grab scheme.

Trademarking Your Blog

Friday, December 3rd, 2010

I talk a lot about copyright on Blog Law Blog. But another – completely different – form of intellectual property that bloggers ought to be aware of is trademark.

You can use trademark, potentially, to protect the name and brand-identity of your blog. Trademark is about reliable indications of the source of goods or services, enabling people and companies to develop and profit from their reputation. Trademark doesn’t protect content, it protects names, symbols, logos, slogans, and other forms of commercial identity that a business uses. (Non-profit enterprises can assert trademarks as well.)

The Citizen Media Law Project has published a new section of their legal guide that provides a lot of information on getting and maintaining trademark rights: Securing Trademark Rights: Ownership and Federal Registration.

A backgrounder on trademark law is available in a “nanotreatise” [pdf] I wrote, which is in my Compendium of Materials for Intellectual Property Law.

Edward M. McClure on Accelerated Cultural Awareness

Thursday, December 2nd, 2010

Edward M. McClure of the Phoenix School of Law has posted to SSRN How to Drink from a Firehose Without Drowning, or Online Current Awareness Made Less Difficult.

Here is the abstract:

Once upon a time, the law changed gently; actively keeping ahead of your students was unnecessary. Now you can have up to the minute information on your desktop. In fact, now you must have up to the minute information on your desktop, because your students are following “blawgs” and sub-scribing to “feeds” and reading “tweets”. While you are asking that elegant Socratic question, they are reading an appellate opinion that had not been published when class began. Some of your peers – and rivals – are doing the same. No matter how unnatural they seem, we must force ourselves to learn how to use the Internet tools that have accelerated current awareness to the point of seeming madness. It is difficult, confusing, frustrating – and so, so important. This paper attempts to smooth your path towards online awareness sanity in the Twenty-First Century.

What’s in the Public Domain?

Wednesday, December 1st, 2010

If something is in the public domain – such as text or an image – that means you can use it on your blog without being liable for copyright infringement. But how do you know if something is in the public domain?

Contrary to widespread myth, something is not in the public domain if it is on the web!

It is actually quite unusual for things to end up in the public domain. Under our modern system of intellectual property law, copyright is the rule, and the public domain is the exception.

Generally there are four ways works can end up in the public domain: (1) Expiration: Something can be too old, so that its copyright has expired. (2) Abandonment: For really old works, there may be a lack of proper copyright notice or a foregone renewal which has the effect of transferring the work into the public domain. (3) Federal government: If it was originally authored by the federal government, then it is born in the public domain. (4) Donation: Sometimes people purposefully donate their copyrighted work into the public domain.

There’s a great website, Public Domain Sherpa, that can help you try to figure out if a particular work is in the public domain. It’s worth checking out.