Archive for August, 2011

HuffPo’s Motion to Dismiss Tasini’s Lawsuit

Wednesday, August 31st, 2011

Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.

First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship?

Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.

The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.

Rule 12(b)(6)  allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”

What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:

Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …

But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.

Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.

That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

What Do You Do with a Blogging Teacher?

Monday, August 29th, 2011

Blogging English teacher, Natalie Munroe (Photo apparently from Munroe's own blog.)

Suburban Philadelphia English teacher Natalie Munroe wrote a personal blog on which she called her students “disengaged, lazy whiners,” “utterly loathsome,” and “frightfully dim.”

She was suspended last February, and now, after a summer of blogging about such things as blueberry-cranberry bread pudding, Munroe is back in her classroom, but parents are still mad.

The Associated Press reports that over 200 parents at Central Bucks East High School have informed school officials that they want their children kept out of Munroe’s classes. Yet some out there hail her for telling the truth.

Munroe says her blog quotes have been taken out of context and that the media has made inaccurate statements about her. So I’ll let her provide some context with a quote from her blog post the day the scandal broke: (And note that when Munroe says “blogs” she apparently means “blog posts.”)

Of my 84 blogs, 60 of them had absolutely nothing to do with school or work. Of the 24 that mentioned it, only some of them were actually focused on it–others may have mentioned it in passing, like if I was listing things that annoyed me that day and wrote without any elaboration that students were annoying that day. …

Contrary to what seems to be popular belief, I didn’t–and don’t–feel negatively toward all students. As I mentioned in another blog that nobody chooses to talk about, there were delightful students in school, too. I fondly discussed some wonderful students who shined in the school’s Jazz and Poetry Festival, and I even said that I was proud to be part of the school at events like that.

But the fact remains that every year, more and more, students are coming in less willing to work, to think, to cooperate. These are the students I was complaining about in my blog. The same way millions of Americans go home at the end of the day and complain about select coworkers or clients or other jerks they had to deal with, I came home and complained on my blog about those I had to deal with.

Unfortunately, the 84 prior posts have been deleted. Without Munroe making her old posts available, it’s hard to form your own opinion from scratch. (And unfortunately, the Internet Wayback Machine doesn’t have the old posts either.) So I guess we’ll have to say she’s at least guilty of writing something regrettable.

One interesting note is that Munroe apparently tried to keep her blog anonymous. But she didn’t try very hard. For instance, she didn’t use student names or her own whole name. But she did sign her blog as “Natalie M.,” and she apparently included a picture of herself as well. So, not real anonymous at all.

So, what’s the legal dimension here? While some people are calling for Munroe to be fired, one blogger wants the school district to keep her on to avoid a lawsuit.

Was Munroe’s blog protected free speech?

That’s a good question. Off-site speech by public employees concerning their job is an area where the First Amendment has an impact but doesn’t offer full protection. There’s a lot of case law in this area, but I haven’t researched it. So, I can’t say which way I think this would come out.

Also, it’s possible Munroe could make the argument that her blogging is protected under federal labor law. I don’t know how strong that argument would be, and the strength of it would in part depend on the content of her posts and her intended audience, which are facts that are obscured by the deletion of her old posts.

Then, of course, there’s the issue of whether a firing would violate the collective bargaining agreement between the teachers and the school district. That’s something that would depend entirely on the CBA’s terms.

Bottom line, apparently the school district has determined it is not legally in the clear to fire her. That means this story will eventually fizzle out.

A few years from now, it will be something a few students gossip about sporadically: “Did you know that Ms. Munroe … “ A few years after that, no one will remember it at all. (I read recently that Anita Hill’s students today generally have no idea about her nationally famous role in the Clarence Thomas hearings. That kind of boggles my mind … )

Anyway, I guess the broader lesson we are learning is that high school teachers trail only slightly behind high school students and maybe just ahead of high school administrators in their moth-to-a-flame attraction to blogging trouble.

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

Angela Daly: Recent Issues for Competition on the Internet

Wednesday, August 24th, 2011

Logo of the European University InstituteAngela Daly of the European University Institute’s Department of Law has posted to SSRN Recent Issues for Competition on the Internet: Google’s Search and Advertising, the Apple App Store, and the AOL Huffington Post Merger (SSRN No. 1838346).

Now, if Angela will just tackle the virtual monopoly Blog Law Blog has on blogging about the law of blogging, she’ll have covered everything.

Here’s the abstract:

This paper will examine three recent instances involving competition concerns on the Internet. The Internet at its inception was widely viewed as not suffering from any competition concerns, however in the last ten years, with on the one hand the emergence of major Internet corporations, and on the other the recognition of the Internet as an important trading platform for offline corporations and their subsequent use of the medium, the issue of anticompetitive behaviour by such entities has reared its head.

The three instances involving competition concerns that this paper will consider are: the progress of the European Commission’s antitrust investigation into Google for alleged anticompetitive behaviour in the markets for online search and advertising; the situation with Apple’s App Store and the ability of developers to create applications for its devices (i.e. the iPad, iPhone and iPod Touch); and the circumstances surrounding the merger between popular blog the Huffington Post and Internet giant AOL and any implications this may have for concentration and media plurality on the Internet.

The legal and regulatory responses so far to these scenarios will be examined, along with an analysis of whether there are legitimate competition and regulatory concerns, and the extent to which they are being addressed by the appropriate authorities. Finally, based on this consideration, a determination on whether any further action should be taken to safeguard competition in these parts of the Internet will be made.

John Connor: Digital Life After Death

Tuesday, August 23rd, 2011

John Conner of Texas Tech Law School has posted to SSRN Digital Life after Death: The Issue of Planning for a Person’s Digital Assets after Death (SSRN No. 1811044, Texas Tech Law School Research Paper No. 2011-02), dealing with the grim but important question of what happens to blogs after bloggers depart this mortal coil for that great blogosphere in the sky.

I guess I should thank Professor Connor. He’s prompted me to give my wife a big list of all my passwords. On the other hand, he’s also forced me to dwell on my own mortality. Ashes to ashes, dust to dust, bits to bits, and bytes to bytes.

Here’s the abstract:

In “Digital Life After Death: The issue of planning for a person’s digital assets after death,” author John Connor discusses the concept of a digital asset and what happens to these assets when the owner dies. First, Connor lays the foundation to define what a digital asset is and why these assets can create problems in estate planning. Next, the author examines how various social networking sites, e-mail providers, and blog hosting sites are dealing with the concept of digital assets. Connor then provides possible solutions for dealing with digital assets. These solutions include: planning for digital assets prior to death, leaving instructions (including usernames and passwords) on how to access digital assets in the event of death, setting up a trust in which the usernames and passwords can be stored and accessed by the trustee and eventual executor, and possibly providing some information about digital assets in a will. Finally, the author describes the consequences of failure to provide for your digital assets after death.

Freelancer Litigation from 1990s Has No End in Sight

Monday, August 22nd, 2011

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

I’m Joining Stanford CIS as an Affiliate Scholar

Friday, August 19th, 2011

Stanford Center for Internet and Society logoI’m very excited to say that I’ve joined Stanford Law School’s Center for Internet and Society as an affiliate scholar – a non-residential position I’ll hold as I serve on the faculty at the University of North Dakota School of Law.

My primary work through the center will be my Konomark project, which seeks to facilitate sharing of intellectual property on the internet. (You may have noticed that this blog is konomarked – as evidenced by the logo and sign on the right.) I’ll also be blogging at CIS – something I’ll do simultaneously with blogging here.

Through its Fair Use Project and its many other endeavors, Stanford CIS has done a lot in the service of freedom and democracy on the internet. They’ve been very good for bloggers and very good for cyberspace as a whole. I’m very honored to be invited on board.

ALCU to Sue Baltimore Police Over On-the-Spot Video Seizure and Deletion

Thursday, August 18th, 2011

Badge of the Baltimore Police Department and still from YouTube video of police incident at 2010 Preakness Stakes

The Baltimore Sun reports that the American Civil Liberties Union is threatening to sue Baltimore police for illegally seizing a man’s camera and deleting videos from it at the 2010 Preakness Stakes. This could be an important case for citizen journalists and bloggers.

The man, Christopher Sharp, was taking video with his cell phone of what appears to be the use of excessive force in the arrest of a woman, a friend of Sharp’s, at the prestigious thoroughbred horse race. According to the ACLU press release:

[A]fter Sharp recorded the police beating, he was detained and harangued by police officers, who demanded that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer who assured him he would simply download the videos for evidentiary purposes, then return the phone to Sharp. Instead, police destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.

Another video of the same event shows the bleeding woman pinned down on the floor of the Pimlico Race Course clubhouse as a crowd watches in a wide circle. One police officer can be heard asking “Why’re they taking pictures?” and saying “Get him,” directing a fellow police officers to the location of a camera-operating onlooker.

Also in that video, you can hear another police officer making false assertions about the law, saying that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” In order for Maryland’s wiretapping law to apply, there would have to be a reasonable expectation of privacy. It would be beyond absurd to argue that the police had a reasonable expectation of privacy while arresting a woman in the middle of huge crowd at one of the biggest sporting events of the year. Even if there had been no crowd, the law should, in my opinion, construe an implied lack of expectation of privacy in all encounters between police, in the course of their duites, and members of the public.

Putting aside the legal, constitutional, and political questions, there is the simple sad fact that Sharp lost a lot of video footage that was tremendously valuable to him.

“I’m heartbroken over the videos I lost of my son and I doing things together,” said Sharp in the press release. “The videos were keepsakes of memories like his soccer and basketball games, times at the beach and the Howard County fair. It kills me that the police acted as if it was okay for them to could just wipe out some of my fondest memories. I used to trust police, but now I don’t anymore, because of how wrongly the police acted here, and because it seemed like this was just routine procedure for them.”

Big Island Blogger Bloodied and Bruised for Photographing Police

Tuesday, August 16th, 2011

Damon Tucker's wife took these pictures of Tucker's injuries which Tucker posted on his blog.

Hawaiian Blogger Damon Tucker has reported he was arrested recently for taking pictures and video of police arresting other people. Tucker wrote that his camera and cell phone were seized and that he was roughed up pretty badly, as evidenced by pictures he posted (example at right). He writes:

 

People are allowed to take pictures and videos of police officers w/out getting roughed up. I’m battered, bruised and bloody from an officer slamming on the sidewalk …

I just want my cell phone back and camera back…. I was rolling video when the officer took me down and they took my cell phone and camera from me for “Evidence”.

Tucker says he has eyewitnesses who will corroborate his story. He plans to sue.

More:

Lawyers Smacked for Knee Slaps

Tuesday, August 9th, 2011

NexGen knees marketed by Cyberdyne Systems, umm, I mean 'Zimmer medical products company of Northern Indiana.' (Photo: Zimmer)

Alex Nussbaum and David Voreacos of Bloomberg report that Zimmer, the world’s largest maker of knee and hip implants, is suing lawyers who sue them. And their offensive against plaintiffs’ lawyers is headed into the blogosphere.

After lawyer/blogger Brett Emison wrote a blog post about failures of Zimmer’s NexGen knees, he got a letter from Zimmer attorneys demanding he stop what they termed “alarmist fear mongering.”

Emison called Zimmer’s conduct “a blatant attempt to try to frighten plaintiffs’ lawyers from pursuing these cases.”

I myself don’t need to get a warning letter to be frightened. Look at that promotional picture of Zimmer’s technologically advanced knees. Don’t tell me those won’t be useful to the machines after Skynet takes over. Everyone knows that the only thing humanity has going for it in a war against robots is that robots are generally slow and lumbering. If you stick knees like those in terminator-series cyborgs, they’ll be able to jog effortlessly all over the post-apocalyptic landscape picking off humans at will.

Well, with Zimmer raking in $1.8 billion in annual artificial-knee revenues, its not surprising they would be somewhat, shall we say, inflexible when it comes to assaults on their safety record. And Zimmer’s legal gambit appears to be working. Bloomberg reports that Zimmer has settled four of its law-firm lawsuits on terms requiring retractions.

Law professor and dean of Roger Williams Law School David Logan says in the story that recent U.S. Supreme Court decisions have given lawyers the freedom to say anything not “provably false or misleading.” That, in turn, has “opened up a new front in the product-liability wars” with corporate defendants suing lawyers as they go searching for clients.

With “blawgs” already constituting a leading means of lawyer rainmaking, we may see Zimmer-type offensives become more and more important in shaping the legal context of law-blogging. Of course, on “Blog Law Blog,” I can only blog so much about the law of law blogging. To provide in-depth commentary in this arena, I will soon be launching my new blog, Law Blog Blog Law Law Blog.

Or, on the other hand, maybe I’ll skip that.