Archive for April, 2011

Looking Back: Rankled Local Officials vs. Anonymous Bloggers

Thursday, April 28th, 2011

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

In both Canada and the United States, it seems like local government officials are highly intolerant of harsh criticism. They try to unmask anonymous bloggers and commenters. They use town counsel money and subpoenas to get at their tormentors.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010:

It’s Blog Law Blog’s One-Year Anniversary!

Thursday, April 28th, 2011


GIVEWAWAY!

Yahoo Style Guide book coverIt’s been one whole year of Blog Law Blog! I feel like I should have a giveaway.

Since the first anniversary is the “paper” anniversary, I’ll give away a couple copies of the paperback manual of online content, the Yahoo Style Guide, which includes a chapter on the legal aspects of writing online.

Send me an e-mail at ejohnson@law.und.edu. Put “blog law blog contest” in the subject line. I’ll send one copy to the first entrant, and I’ll put the the next 50 entrants into a drawing, the winner of which will receive the other copy.

Open to persons with a U.S. address. Entries must be received on or before Monday, May 2, 2011. Void where prohibited. Good luck! And thanks for reading Blog Law Blog!

High Schooler Who Called Admins “Douchebags” Loses Appeal 3-0

Wednesday, April 27th, 2011

The Second Circuit U.S. Court of Appeals has ruled against Avery Doninger, a student who blogged that administrators of her high school were “douchebags” because of their cancellation or forced rescheduling of Jamfest, a student-organized battle of the bands.

Doninger also sent out an e-mail which got the administration deluged with e-mails and phone calls of protest. In response, Lewis S. Mills High School of Burlington, Connecticut banned the Doninger, who was then junior class secretary, for running for senior-class secretary.

The Second Circuit panel ruled 3-0 against Doninger. Writing for the court, Judge Debra Ann Livingston wrote:

… Doninger’s discipline extended only to her role as a student government representative: she was not suspended from classes or punished in any other way. Given that Doninger, in serving in such a position, was to help maintain a “continuous communication channel from students to both faculty and administration,” it was not unreasonable for [Principal Karissa] Niehoff to conclude that Doninger, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness properly to carry out this role.

That’s silly. Let’s face it, student government is bascially useless. The only purpose it has is planning events and serving as a kind of practice democracy. What good is the First Amendment for students if it doesn’t protect you in the course of practice democracy?

Not to mention, the speech concerned a matter of planning an event! In my opinion, Doninger’s speech was at the very core of protected First Amendment student expression. I mean it was involving JAMFEST for crying out loud!!

You should read the facts in the decision. They’re super fun. It’s like a John-Hughes-type movie. I’m not making this up: There as a school assembly where students came in wearing t-shirts with “Team Avery” on the front and “Support LSM Freedom of Speech” on the back. And Principal Niehoff instructed them to remove their shirts! Can you believe it?

Count me as a member of Team Avery!

Update on Sherrod v. Breitbart: Motion to Dismiss Filed

Monday, April 25th, 2011

MLRC has the latest on the Sherrod v. Breitbart litigation. Breitbart has filed a motion to dismiss.

Eugene Volokh: Freedom of the Press as an Industry or as a Technology?

Friday, April 22nd, 2011

UCLA's Royce Hall
(Photo: EEJ)

Eugene Volokh of the UCLA School of Law has posted to SSRN The Freedom…of the Press, from 1791 to 1868 to Now – Freedom for the Press as an Industry, or the Press as a Technology?. The cite is 160 University of Pennsylvania Law Review ___ (2011)

Here’s the abstract:

Both Justices and scholars have long debated whether the “freedom…of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.

This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom…of the press” has long been understood as meaning freedom for all who used the printing press as technology – and, by extension, mass communication technology more broadly – and has generally not been limited to those who belonged to the institutional press as an industry.

The CIA: Copyrightless Image Agency

Wednesday, April 20th, 2011

Saint Basil's Cathedral in Moscow
(Photo: CIA)


Here’s a tip on how to get copyright-free images to use to illustrate your blog posts: The CIA World Factbook. It’s a public domain set of images, maps, and text about the countries of the world, courtesy of America’s spooks.

I’ve used CIA World Factbook images on this blog to illustrate posts about Peru and Ireland.

There’s more background by me on Pixelization.

Lawyers Advised Not to Overreact About Ethics Rules

Monday, April 18th, 2011

You don’t see this every day.

Robert Ambrogi and Reid Trautz at the American Bar Association’s Techshow offered tips to lawyers on using social media to build business.

One sage tip was this:

“Don’t overreact about ethics rules.”

Okay, that may be true. But like I said, that’s something you don’t see every day.

The advice, apparently paraphrased by the ABA, continues: “Follow the same etiquette for sharing (and common sense) that you would at a professional cocktail party.”

Well, it depends on the cocktail party. At a cocktail party, the whole idea is to talk during the course of downing cocktails. I don’t recommend blogging under the influence, especially if you are writing about the law in a way that is intended to land you clients. But that’s just me.

More:

Kozinski Says Winklevoss Twins Get One Shot Among them at Facebook Suit

Friday, April 15th, 2011

Kozinski has bounced the Winklevii attempt to blow up their settlement agreement and start all over again in their suit against Facebook.

The order is here.

Poor Mark Zuckerberg has been hounded by this. Sketchy business arrangments at the beginning of a venture can definitely lead to big litigation down the line. Indeed, this is a situation that could happen to any blogger with a blockbuster idea.

So, how would I advise you to immunize yourself from a Winklevoss-type suit if you are working on the next Facebook?

I would say just get that next-Facebook thing right. (And then call me about it and ask me to help you with it to create a foggy kind of record that will allow me to sue you for billions of dollars if you turn out to be successful.)

Look, lawsuits always follow the money. You can’t have a runaway business success without attracting some litigation. By all means, hire a good lawyer when you’re making business arrangements at the outset of an entrepreneurial venture. But the better practical advice might be to stay away from prepsters belonging to exclusive dinner clubs.

School Assembly Shocker: Student’s Social Media Skimmed for Slideshow

Thursday, April 14th, 2011

Lynde Point Lighthouse near Old Saybrook, Conn. (Photo: Robert J. Beyus, NPS)

A high school in Connecticut illustrated a slideshow on internet privacy with photos of the school’s students, taken from Twitter, Tumblr, and Facebook.

Kashmir Hill called the ploy a “clever lesson,” and she gave “[k]udos to the Connecticut high school employee who came up with this dramatic lesson on Internet safety.”

Some students at Old Saybrook High School, however, reacted angrily, saying it invaded their privacy.

Do the students have a point? Legally speaking, yeah, maybe.

I think this would probably not make for an ultimately successful lawsuit for copyright or right-of-publicity infringement. But there’s probably enough on both of those causes of action to file a complaint that isn’t frivolous. And hey, publicity rights have been getting crazy lately, so you never know.

So far no word on whether Righthaven is trying to sign up students for copyright lawsuits.

According to the New Haven Register, principal Oliver Barton said the pictures selected were publicly accessible and thought unlikely to embarrass anyone.

But that didn’t stop the backlash.

For me, I just can’t believe school administrators thought this was a good idea. What a great way to peeve off parents. While I question their sense of judgment, it does look like their lesson is working. Check out this passage from the New Haven Register article:

“They told us we were going to watch something about Internet safety, and they said they personalized the slide show, ” said a freshman named Kayla, who didn’t want to use her last name.

Did you catch that? Kayla didn’t want to use her last name!

Lesson learned.

Excerpts and My Analysis of Tasini v. HuffPo

Wednesday, April 13th, 2011

The complaint in Jonathan Tasini’s class-action lawsuit against the Huffington Post, owner AOL, and founder Arianna Huffington has been posted online.

I’ve gone through it. If you don’t feel like reading the whole thing, here are excerpts I’ve transcribed that I think capture the essence of the complaint. (Italicized portions are my own paraphrasing. Otherwise, it’s quoted material.) As you’ll see, I’ve interspersed my own thoughts.

JUDGE GRIESA 11 CV 2472

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Jonathan Tasini, individually and on behalf of all others similarly situated, Plaintiffs, v. AOL Inc., TheHuffingtonPost.Com, Inc., Arianna Huffington and Kenneth Lerer, Defendants.

¶1:
This action seeks to vindicate the fundamental principle that creators of value deserve to be compensated and, in particular, addresses the important issues of (a) whether in the digital age, profitable digital media sites should be required to compensate the creators of valuable content from which such sites derive substantial revenues and (b) if so, how the creators of content should be compensated.

¶3:
Of the $315 million paid by AOL to purchase HuffPo, at least $105 million was due to the contribution of content by the unpaid bloggers.

¶6:
… TheHuffingtonPost.com’s continued assertion that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes has the broad detrimental effect of setting an artificially low price for the valuable digital content created by Plaintiff and the Classes, depressing the market for such content and, over the long term, having a serious depressing effect on the value of intellectual content being created by Plaintiff and the Classes and on the ability of Plaintiff and the Classes to support themselves as creators of high quality, engaging, digital content. According to Article 1, Section 8 of the United States Constitution, the purpose of copyright is “to promote the Progress of Science and the useful Arts” by allowing creators to be appropriately compensated for their contributions. Yet, despite our founders’ intent, TheHuffingtonPost.com continues to assert that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes.

This leads me to one of the problems with this lawsuit. Should Tasini be successful with is unjust enrichment argument, which I don’t think he will be, he is vulnerable to a copyright pre-emption argument. That is, AOL and Arianna can argue that Congress’s legislation in this vein cuts off common-law causes of action that might otherwise exist. In fact, I think it was a bad choice for Tasini and his attorneys to put this reference to copyright and the Constitution in here; it just wraps up the pre-emption argument with a bow.

¶¶11, et seq.:
Bio of Tasini: Union leader, social activist, writer on work/labor issues, successful U.S. Supreme Court litigant.

Arianna, can there be any surprise that this guy ended up suing you with a résumé like his?

¶23:
There are approximately 9,000 unpaid content providers at TheHuffingtonPost.com

That makes it ripe for a class action, provided other elements are met …

¶¶29-33:
Jurisdiction and venue. Allegations to create subject-matter jurisdiction under the Class Action Fairness Act of 2005 and establish the appropriateness of filing the litigation in federal court in New York.

¶33:
Finally, the “Terms of Use” for TheHuffingtonPost.com states “Any dispute between us will be governed by New York law.”

Yikes – what an endorsement for the enforceability of terms of use! I wouldn’t have gone there. What else is in the terms of use that Tasini would not want to be enforced?

¶50:
… Defendant Arianna Huffington’s statements indicate her own belief that the creators of content should be fairly compensated for the value provided.

¶51:
For example, in her book “Third World America” (Crown 2010), Ms. Huffington … states: “… The middle class, by and large, plays by the rules, then watches as its jobs disappear. The corporate class games the system – making sure its license to break the rules is built into the rules themselves.”

¶52:
Towards the conclusion of “Third World America,” Ms. Huffington writes that to avoid a “Third World America,” she believes the nation needs to make certain it is “a place where economic opportunity is once again real for everyone, not just the economic elite” and “a place where greed and selfishness are no longer rewarded and the ‘least among us’ are given a helping hand, rather than the back of it.” (page 237).

That’s pretty funny. She’s something like the opposite of a “victim of her own success.” That is, Arianna is basically a “beneficiary of her own failure.” Well, okay, you can accuse limousine liberals of being hypocrites. You can wave at them through the tinted windows. But they are just going to drive off to the next black-tie fundraiser you’re not invited to.

¶53:
HuffPo is unlike other media outlets in that HuffPo selects its content providers and does not allow content from non-vetted providers.

¶56:
Plaintiff and the Classes were not officious contributors to the TheHuffingtonPost.com and, rather, were carefully selected, and in some cases recruited, by TheHuffingtonPost.com to perform services for it.

One of the purposes of those allegations, I suppose, would be to defeat sky-is-falling type arguments that HuffPo might make, such as, “Your Honor, if you award compensation to Tasini and the HuffPo unpaid bloggers, you’ll open it up for people to employ themselves by stuffing sites with unsolicited content and then sending the site owners a bill.”

¶57:
… the vast majority of the Classes’ members, like Plaintiff, are quasi-professional writers, meaning that they occasionally earn fees for their writing, but it was not their principal occupation. …

¶62:
Executives of AOL noted that $20 million in “cost savings” would be recognized by AOL due to TheHuffingtonPost.com’s history of not compensating Plaintiff and the Classes for high quality content. …

¶64:
Allegations about “The AOL Way” document discussing how each post is tracked and evaluated in terms of the cost required to produce it and the revenue gained from it.

¶69:
Upon information and belief, AOL only offers to pay amounts for content which are less than the revenue potentially earned from that content. …

That sounds suspiciously like capitalism to me.

¶71:
In sum, by eliminating all costs associated with content production and placing those costs with Plaintiff and the Classes, Defendants are being unjustly enriched.

¶77:
Despite the value provided, Plaintiff and the Class were only offered “exposure.”

¶85:
Because of the system set up by TheHuffingtonPost.com, Plaintiff and the Classes gave the Defendants more exposure than vice-versa, namely, Plaintiff and the Classes typically shared the link to the content provided with their social networks, sharing via electronic mail, Facebook, Twitter and the like (as so encouraged and directed by TheHuffingtonPost.com) – driving internet traffic to the HuffingtonPost.com and creating value for the Defendants.

¶91:
… Arianna Huffington, at a meeting in Beverly Hills, California, February 8, 2011 stated: “People have not fully adjusted to the fact that self-expression is, for many people, a new source of fulfillment and entertainment … We have 9,000 bloggers with a password and literally get hundreds of submissions that our editors have to process. People are dying to blog for us … ”

¶¶92, et seq.:
Complaints that HuffPo doesn’t give contributors information about how much exposure they are getting, such as how many page views they get.

¶94:
Finally, TheHuffingtonPost.com’s assertion that “writers write for free” serves to bring an ages-old falsity into the digital age, one this Court should reject. Indeed, writers, like all creators, deserve a share of the value they create and allowing such value to rest solely with Defendants is against equity and good conscience.

¶¶100, et seq.:
FIRST CAUSE OF ACTION
DECEPTIVE BUSINESS PRACTICE
(N.Y. Gen. Oblig. Law §349 et ff. as per the Terms and Conditions)
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶103:
It is deceptive to promise exposure (visibility, promotion and distribution) in lieu of monies to Plaintiff and the Classes, but then not provide a real and accurate measure of exposure and it is deceptive to solicit content on the promise of providing a free forum for ideas when, in fact, a product with tremendous value is being created by the solicited and uncompensated services provided.

Sorry to say it, but this doesn’t sound deceptive to me. Tasini and unpaid bloggers got exposure. Tasini wants more than that, but I don’t see how he was deceived into thinking he would get it.

¶¶106, et seq.:
SECOND CAUSE OF ACTION
UNJUST ENRICHMENT
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶107:
Plaintiff and the Classes provided valuable services to Defendants, services that were encouraged and accepted by Defendants.

This, I think, is the essential problem with the unjust enrichment claim: The defendants were actively encouraging the labor. The prototypical unjust enrichment claim is when an unconscious person arrives at the emergency room and receives life-saving treatment. The patient never agreed to receive the care, so does the patient owe the hospital and doctors compensation? The courts say yes, under a theory of unjust enrichment. It would unjustly enrich the patient to allow him or her to retain the benefits of the medical treatment without paying for it. Part of what makes it unfair is that there was no chance for the parties to make a contract, since the patient was unconscious. Now, imagine a patient came into a clinic and asked – even actively encouraged – being treated for free. If the clinic provides treatment for free, you can’t say the patient was unjustly enriched. There’s nothing unfair – nothing unjust – about the patient retaining the benefits of the treatment in this case, because the patient went looking for free treatment and got it.

Ironically, Tasini’s case for unjust enrichment would be stronger if HuffPo had somehow ended up with the content despite not having sought it out. I don’t know how that would hypothetically happen, but if it somehow did, then unjust enrichment might seem to fit the bill. Unjust enrichment is a flexible doctrine, and it’s not limited to the ER hypothetical or highly similar cases. But under the circumstances in this case, I just don’t see it.

Tasini Sues Huffington Post

Tuesday, April 12th, 2011

Megablog mogul Arianna Huffington, along with the Huffington Post and the HuffPo’s new parent entity AOL, have been sued in a class-action suit led by Jonathan Tasini on behalf of a throng of unpaid HuffPo keyboard jockeys.

The Huffington Post, AOL, and Arianna Huffington have been sued in a class-action suit led by Jonathan Tasini on behalf of a throng of unpaid HuffPo keyboard jockeys.

The lawsuit is the latest expression of ire from the HuffPo volunteer blogger corps after the megablog was acquired by AOL for $315 million in February 2011.

The rabble-rousing Tasini already made legal history years ago in Tasini v. New York Times, a class-action lawsuit brought by freelancers whose works were put into electronic databases without permission or compensation. Tasini took that case all the way to the U.S. Supreme Court and won.

It’s unclear now what the legal claims are in Tasini’s new case. I’ll update when I find out more.

More:

NPR on Arrested Blogger Maikel Nabil Sanad

Thursday, April 7th, 2011

NPR logoNPR’s All Things Considered has a story about military repression in post-Mubarak Egypt. The story discusses law student and blogger Maikel Nabil Sanad, arrested 11 days ago for posting a blog entry saying the military was not with the people, despite its claims to the contrary. Sanad has been charged with insulting the military and harming state security. Each count carries a potential sentence of three years in prison.

Blog Law Way-Back Machine: Goldman in 2006

Wednesday, April 6th, 2011

I don’t know why I never noticed this before, but Eric Goldman at one point gave a talk on blog law, way back in 2006. A pdf of his presentation slides shows that he did a good job of seeing the blog litigation of the future. (At least he was a lot more prescient with blog law than he was when he predicted the failure of Wikipedia by 2010.)

Guide Released by Access Organization

Tuesday, April 5th, 2011

The Access organization has released a “A Practical Guide to Protecting Your Identity and Security Online and When Using Mobile Phones” for people in the Middle East and North Africa. It offers “tips and tools for reducing surveillance and monitoring, protecting privacy, and dealing with censorship.”

Ha’p @cshirky, @bahrainiac

Zuckerberg is Officially a Californian, Sorry New York

Monday, April 4th, 2011

A federal court in New York, after thinking through the issue thoroughly, has decided that Facebook founder Mark Zuckerberg is domiciled in California. That means that the federal court will hold on to jurisdiction in Ceglia v. Zuckerberg, instead of kicking it to state court. Oddly enough, it doesn’t look like Zuckerberg’s Facebook profile information settled the issue. Evan Brown blogs it.

I’m Guest Blogging at PrawfsBlawg in April

Friday, April 1st, 2011

PrawfsBlawg logo
For the month of April, I will be guest blogging at PrawfsBlawg, a multi-author blog written by law professors about law and professoring. (I’ll continue to be blogging here, too.)