Archive for March, 2011

New Level of Crazy as Righthaven Sues Eriq Gardner then Pulls Back

Thursday, March 31st, 2011

A reproduction of a reproduction of a reproduction of a reproduction of the photo. (Photo credit: Ay yay yay yay. I have a headache.)

Wow, this is crazy even for Righthaven.

The copyright thugster sued reporter Eriq Gardner for copyright infringement for posting on Ars Technica a photo reproduced in one of Righthaven’s own lawsuit filings. They then voluntarily dismissed the suit.

Court in Cali Bounces Copyright Suit Over 26-Word Listserv Post

Wednesday, March 30th, 2011

A case just out suggests that microblog posts, such as tweets on Twitter, might not be copyrightable. Eugene Volokh discusses the case of Kenneth M. Stern, a California attorney, vs. people who forwarded his listserv post. The case is Stern v. Does (C.D. Cal 2011) [pdf].

The complained of comment was 26 words and just a few bytes bigger than a tweet. Here are all 150 characters, which I can fearlessly reproduce here in their entirety thanks to the decision of the Central District:

Has anyone had a problem with White, Zuckerman . . . cpas including their economist employee Venita McMorris over billing or trying to churn the file?

The court held that this was uncopyrightable, on account of being too short, and that forwarding it by e-mail was fair use, to boot.

DEER Shoots Back: Stock-Pick Blogger in Crosshairs of Blender Maker

Tuesday, March 29th, 2011

DEER's Meat Grinder MG-4118. Who'd want to short that? (Photo: DEER)

A publicly traded manufacturer of small kitchen appliances, DEER Consumer Products, has distributed a press release announcing that it is suing stock-picker blogger Alfred Little of the blog Seeking Alpha.

I haven’t seen the complaint, but the press release says the suit in New York state court is “related to … false ‘research reports’ about DEER, which appear to be part of an orchestrated scheme to manipulate and depress DEER’s stock.”

DEER makes blenders, ice shavers, juicers, and things like that. They are traded on the Nasdaq (symbol: DEER).

It looks like an example of the kind of thing that provoked DEER would be this blog post, accusing DEER management of inflating sales numbers and misappropriating $12 million from a supposedly shady land purchase.

I’ve got to say, both sides of this controversy strike me as being a bit off.

A big chunk of DEER’s press release is devoted to explaining how great their attorney is. The press release states, “DEER IS REPRESENTED BY HIGHLY QUALIFIED LITIGATION COUNSEL.” (It’s a former SEC attorney named Robert Knuts.)

Meanwhile Alfred Little, the blogger, recounts how he conducted some kind of investigation by visiting government offices in China, during which he recorded all his conversations. His blog post includes pictures of the buildings he visited and some office wall plaque.

Maybe it’s totally cool with the Chinese government for bloggers to run around government offices taking pictures and recording conversations, but, hmmm, It would give me pause.

Is this par for the course for stock blogging and small publicly traded company press releases? I don’t know. But the whole thing makes me happy I’m not a day trader.

Question for You: Troubling Terms of Service

Monday, March 28th, 2011

Here’s a question for the Blog Law Blog readership: Have you noticed any troubling terms of service in online blogging platforms? If so, please share, either in the comments or by e-mailing me.

Lisa Di Valentino: An Annotated Bibliography of Open Access and Legal Publishing

Monday, March 28th, 2011

Lisa Di Valentino has posted to SSRN Open Access and Legal Publishing: An Annotated Bibliography. This seems to me like an enormously useful document.

Di Valentino is a research assistant and J.D. candidate at University of Western Ontario where she works with the Faculty of Information and Media Studies.

The issue is near and dear to my heart. One key question implicates blogs: whether publishing in print law journals does more or less to contribute to scholarly discourse than blogging. Di Valentino finds that “there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice.” I’d have to agree with that.

Here’s the abstract:

Several commentators argue that the law review is well-suited to open access publishing, although it has not been embraced quite as enthusiastically as it might be. Others assert that self-publishing will signal end of the law review as we know it. Some authors express concern that the rise in blogging will have little positive effect, or indeed a detrimental effect, on the general quality of legal scholarship. These views are countered by those who believe that blogging and collaborative editing provide opportunities and benefits to students and scholars and that the new methods of communicating will give rise to new methods of evaluating works.

Other issues are brought up such as the demographics of the audience for legal writing, the responsibilities of the legal scholar, the use of open access in legal education, the benefits of university repositories, and advice for young professors who are considering publishing in open access journals.

A few of the articles were written before the open access campaign gained momentum around 2006-2007. These articles are included to demonstrate the history of and impetus behind the open access movement.

The conclusion one might draw from the following articles is that there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice. However, open access publishing is gaining in popularity, and it is possible that the next generation of legal scholars, accustomed to finding information online, will embrace open access as the standard manner of publishing.

Photobucket is Watertight Against Artist’s Injunction Request

Friday, March 25th, 2011

Photobucket logopaidContent reports that Photobucket and partner Kodak have handily fended off a preliminary injunction request from artist Sheila Wolk (apparently here), who sued over her images being uploaded without her consent.

I’m putting two and two together here, but I’m guessing that the gravamen of Wolk’s complaint is that people are uploading her images of fairies to Photobucket and then using the Kodak partnership to make coffee mugs and whatever with those images on them.

The judge, Robert W. Sweet of the U.S. District Court for the Southern District of New York, wrote in an order that Photobucket was protected under the Digital Millennium Copyright Act’s safe harbor.

Under the DMCA, copyright owners can send takedown notices to such sites, and as long as the sites respond to those notices appropriately, the sites are basically shielded from infringement liability.

Wolk wanted the Photobucket site to check itself for infringing artwork and remove it without waiting for a takedown notice. The court said that wouldn’t work.

Eric Goldman blogs that the case is “a useful boundary-setting for service providers when dealing overzealous copyright owners who want turnkey never-infringe-my-stuff-again services.”

Hill’s Brief Against Righthaven

Tuesday, March 22nd, 2011

Steve Green of the Las Vegas Sun has a great article covering in considerable detail blogger Brian Hill’s motion filed in his effort to defend himself against a Righthaven copyright infringement lawsuit.

It’s great reading.

Based on the quotes in the story, Hill’s got himself some excellent lawyers They are David Kerr and Luke Santangelo of Fort Collins, Colorado. Great arguments, well written. Fine lawyering. Good job, guys!

Hill, a 20-year-old blogger out of North Carolina, was sued for the Righthaven-standard demand of $150,000 plus forfeiture of his domain name. Hill blogged that despite the fact that he is unemployed and receives disability payments, Righthaven still would not agree to settle for less than $6,000.

Sean Harrington on Righthaven, barratry, and champerty

Monday, March 21st, 2011

I’ve just come across a nice blog post on Righthaven, written by law student Sean Harrington and published on the official blog of the Minnesota State Bar Associations’s Computer and Technology Law Section:

Harrington has a quick analysis of what is happening with two antique defenses that are getting a workout by Righthaven copyright-infringement defendants: champerty and barratry. The post also provides some brief analysis of the relation of Perfect 10 v. Amazon case to Righthaven litigation against someone whose website/blogging platform displayed inline-linked images.

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!


Irish Defamation Law Compared with the UK’s New Reform Effort

Thursday, March 17th, 2011
Irish countryside and ruins of old farm house

The Irish countryside (Photo: CIA)

Happy St. Patrick’s Day!

In a nod to Éire, let me point you to a blog post by Trinity College law faculty member Dr. Eoin O’Dell (@cearta). He’s done a post at comparing a bill that would reform the UK’s much maligned libel law with Ireland’s recent statutory reform, the Defamation Act of 2009. Some differences are subtle. Others – such as the right to a jury in Ireland and the lack of such a right in the British bill – are not so subtle.

The whole idea of wrapping defamation law into a statute is pretty foreign to me. In the United States, defamation law is still almost entirely a matter of common law, with a huge heap of common-lawesque constitutional law thrown in on top. That adds up to a highly complex landscape of American defamation law across our 50-state system. As a law professor, however, I should confess that that makes it comparatively easy to teach. There are few questions that students can ask that I can’t answer honestly with, “It varies by jurisdiction.”

North Dakotans Fighting Back Against Righthaven

Wednesday, March 16th, 2011
Stave church in Scandinavian Heritage Park in Minot, ND

Stave church in Scandinavian Heritage Park in Minot (Photo: EEJ)

The latest Righthaven news is that folks in my own state of North Dakota are fighting back against the copyright thugsters. Steve Green of the Las Vegas Sun reports that Righthaven sued Scott Hennen and Rob Port of The Say Anything Blog, based in Minot (rhymes with “Why not?”), North Dakota.

The suit is yet another one claiming copyright infringement for reposting the TSA pat-down photo from the Denver Post. The bloggers, for their part, are claiming fair use of the photo and have filed some kind of counterclaim. I’m not sure what the purpose is in filing these counterclaims. The one set of papers I saw, which was not from Say Anything, counterclaimed for declaratory judgment. Counterclaiming for declaratory judgment is basically turning around and suing the person who sued you in order to get a pronouncement from the court that the person was wrong to sue you in the first place. I just don’t get how that adds anything to winning the original lawsuit. But, at any rate, I I’m glad to see my fellow North Dakotans fighting back.

Finding Pro Bono Legal Counsel for Bloggers

Tuesday, March 15th, 2011

OMLN and INN logosThe Online Media Legal Network of Harvard Law’s Berkman Center has announced a partnership with the Investigative News Network to help find pro bono and low-cost legal for INN member organizations.

INN was founded in 2009. Its members are non-profit journalism organizations producing non-partisan investigative news. It’s actively soliciting new applications.

OMLN is a network of lawyers willing to provide free and reduced-fee services to digital media creators, including online journalism ventures. OMLN includes law firms, law school clinics, and solo practioners. Interested lawyers can apply to OMLN to be part of its pro bono network.

Cricketer’s Twitter Libel Suit Sustained

Monday, March 14th, 2011

A court in the United Kingdom has rebuffed an attempt to throw out a Twitter libel suit brought by a New Zealander cricket player.

Cricketer Chris Cairns of New Zealand, a right-handed allrounder, alleged that cricket administrator Lalit Modi libeled him with a tweet about match fixing.

Modi’s attempt to have the case dismissed was based on the argument that so few people saw the allegedly libelous tweet, that it would be a waste of court resources. The court did not agree, saying in its decision,

A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false.

The Pinsent Masons law firm discusses the decision on their Out-Law blog.

CNN’s Treatment of “Amateurs”

Friday, March 11th, 2011

Watching the coverage of the Japan earthquake, I find it disappointing that, in this day and age, CNN freely scrapes You Tube videos and then simply credits them to “You Tube,” without crediting the photographer. Then, they denigrate the footage by labelling it “amateur video.” Anyone who struggles to stay upright and continues to film while the ground is hopping around underneath them and while metal, glass, and concrete is crashing down from up above them, does not need to be categorized as journalistically inferior. Perhaps the subtle putdown of “amateur” helps CNN justify to itself its lack of respect for the copyright interests of the individual/non-corporate media. Of course, CNN expects others to stay away from any footage that originates with them.

Tinker with §230?

Thursday, March 10th, 2011


So, as we’ve been discussing, §230 can provide immunity for bloggers from lawsuits based on defamatory comments that have been posted by third parties.

Section 230, as it is broadly understood, also can immunize crowdsourced blogs where users post defamatory content – even where defamatory content is invited. And that immunity can even block a court order to remove content that has been adjudicated to be an invasion of privacy or defamatory.

Some people think, in this respect, §230 goes too far. Some people think it should be amended or tinkered with.

But most legal scholars in the cyberlaw area – the kind of people who were at the §230 conference I was at last week, believe §230 should not be messed with. Cyberlaw people point out, with well-supported arguments, that §230 has been an important factor in fostering a lot of internet innovation, such as Twitter, Facebook, MySpace, blogs, Wikipedia, etc.

Section 230 has done far more good than bad, they argue, and they are right about that. Opening it up to re-engineering, they believe, will invite disaster.

Well, maybe.

But it should be borne in mind that §230 itself invites disaster.

There are women and men who are suffering an ongoing embarrassment because of content that has been rendered irremovable by §230. Those people may not be enough to compel the amendment of a law beloved by Silicon Valley. But the number of people left behind by §230 is growing. It won’t be the accumulated number of §230 victims that causes a change in the law, however. It will be one particular victim. One compromising picture of a U.S. senator’s granddaughter on, for instance, could open the whole statute up for rethinking – whether scholars think that is a good idea or not.

Johnny Northside Trial has Begun

Wednesday, March 9th, 2011

Minneapolis courthouse (on left) where Moore v. Hoff is now taking place (Photo: EEJ)

The civil defamation trial of blogger John Hoff, known as “Johnny Northside,” has begun in a Hennepin County court in Minneapolis.

Plaintiff Jerry Moore is seeking $50,000 in damages against Hoff, the proprietor of The Adventures of Johnny Northside blog, claiming that Hoff got Moore fired from his job at the Urban Research and Outreach/Engagement Center at the University of Minnesota because of a 2009 post accusing Moore of being involved in a “high-profile fraudulent mortgage.”

Hoff told Abby Simons of the Minneapolis Star-Tribune, “My defense is the truth.”

“I’m not being sued because I defamed anybody. I was sued to shut me up,” he said.

Last week the judge ruled that Moore was a “limited-purpose public figure.” This is a huge victory for a defendant in a defamation case. It doesn’t win the case by itself, but it goes a long way.

The First Amendment requires public figures to prove “actual malice” to win a defamation suit. This means that Moore will be held to a very high standard of proof in the suit. It won’t be enough to show that Hoff was careless with the facts; Moore will have to show that Hoff either knew that what he wrote was false or that he wrote with reckless disregard of whether or not it was false.

And, of course, if it was the truth, then Hoff has it in the bag.

Hoff is reporting about the trial on his blog, where he calls it “[t]he blogosphere trial of the century.”

I don’t know about that, but I like Hoff’s defiant sentiment, which he posted today:

“They will stop my blogging when they pry the password from my cold, dead brain.”

Resources on §230

Tuesday, March 8th, 2011


One of the most important laws affecting blogging, at least in the United States, is 47 U.S.C. §230.

Section 230 is a provision of the 1996 Communications Decency Act that shields online content providers from liability for defamation, invasion of privacy, and other state tort law actions based on the actions of users. So, for instance, §230 can provide immunity for bloggers from lawsuits based on defamatory comments that have been posted by third parties.

To learn more about §230, here are two resources:

Google’s “Realtime” Results Skimming Twitter

Monday, March 7th, 2011

On Saturday (March 5, 2011), I noticed for the first time a feature called “realtime results” coming up in response to a Google search query. The feature raises interesting legal questions because it appears to be re-publishing whole tweets from Twitter.

You can see what I saw in the window grab below.

window grab showing Google's realtime search results coming up in regular search query

Click on the image to see an expanded version. (Note that I removed my e-mail address from the upper-right, but the image is otherwise unretouched.)

This is different from what Google has done in the past with reproducing snippets of a page. They are now reproducing whole works, albeit small works that are 140 characters or fewer.

What Google is doing arguably goes beyond “search” and becomes just “skim”. Indeed, watching realtime results float by on Google might well constitute a final destination for many internet users. All the results I saw, by the way, were from Twitter.

Is this copyright infringement? Maybe. Arguably a phrase that is only 140 characters or less is not copyrightable. You could write a whole 50-page law-review article analyzing the copyrightability of tweets. The thing about a suit for copyright infringement is that it would need to be brought by the copyright owners, which are the tweeters, not Twitter. And that seems unlikely to happen.

Is this unfair competition? Maybe. That would be a cause of action that Twitter could possibly use. There’s another law-review article.

There’s also a doctrine known as “hot news misappropriation,” which is a quasi-intellectual-property/quasi-tort cause of action that is rarely used. This doctrine is often applied – more in theory than in litigation – to things like realtime stock quotes. Could Twitter sue for that? There’s another long law-review article you can write.

My short answer is, I don’t know. But Google’s realtime results do strike me as being a lot less “fair” than regular search results. This all continues to fit into Google’s pattern of act first and determine legality later. It’s the whole “better to ask for forgiveness than for permission” thing, of which examples are Google book search, Google street view, Google image search, viewable cached pages, and Google’s road testing of its self-driving car.

Santa Clara University’s § 230 Conference Today

Friday, March 4th, 2011

Seal of Santa Clara UniversityToday I’m at Santa Clara University for a conference, 47 U.S.C. § 230: a 15 Year Retrospective, about the safe harbor that shields online content providers from defamation liability for content posted by users. It’s put on by SCU School of Law’s High Tech Law Institute. I’m tweeting about it from @tweetlawtweets, and so are many others with the hashtag #htli.

Trademark Bullying in the Blogosphere

Thursday, March 3rd, 2011

Mike Masnick:

In the Las Vegas Sun: My Take on the Rule 11 Threat Against Righthaven

Wednesday, March 2nd, 2011

Steve Green of the Las Vegas Sun interviewed me about Dana Eiser’s rule 11 motion against Righthaven:

Separately, two law professors who have been critical of Righthaven expressed skepticism about threats by Righthaven defendant Dana Eiser to ask a federal judge in South Carolina to order Righthaven to refund settlement funds from prior lawsuits.

Attorneys for Eiser made the threat Sunday as they challenged Righthaven’s standard lawsuit demand that Eiser forfeit her website domain name to Righthaven.

“I’ve never heard of anything like this, and I can’t imagine how it would work. Eiser’s heart is in the right place. I’d love to see Righthaven have to give back the settlement money, but I don’t know of any legal way of forcing them to do that,” said Eric Johnson, an associate professor of law at the University of North Dakota. “Eiser’s attorneys don’t cite any legal authority supporting their claim – at least in the motion.

“Courts perceive very strong public-policy reasons for not overturning or interfering with settlements, even when they seem very unfair,” Johnson said.

The full article also contains quote from Eric Goldman of Santa Clara University Law School. Neither Professor Goldman nor I see much prospect for success here. But I like the chutzpah.

NLRB Settles Case, Ambulance Company Agrees to Revise Overly Broad Blogging Rules

Tuesday, March 1st, 2011

The National Labor Relations Board ended up settling its case against Connecticut ambulance company American Medical Response, who fired an employee for posting comments about her supervisor to Facebook.

Here’s how the NLRB explained it:

The NLRB … alleg[ed] that the discharge violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-workers. Under the National Labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers and others.

The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.