Archive for November, 2011

Please Help Stop SOPA

Saturday, November 26th, 2011

STOP SOPA

Something very bad may be about to happen to the internet.

The United States Congress, which is currently slightly more popular than the rabies virus, may be on the brink of passing the Stop Online Piracy Act, an outrage that attempts to placate big Hollywood content industries by selling out freedom on the internet.

I’ll be writing about SOPA (and PIPA, as it’s known in the Senate) in upcoming posts. Please take the time to educate yourself and call your representatives.

Also, consider adding a STOP SOPA badge to your website. Feel free to swipe them off of this blog – I handmade these (entirely independently), so I can and hereby do license them to you. And then link them to one of the many explanations out there for why SOPA presents such extreme peril.

Threatened Black Friday Blog Still Going Strong

Friday, November 25th, 2011

Screengrab of BFAds.net

Happy Black Friday!

Last year I blogged about how Black Friday blog BFAds.net found itself on the receiving end of a legal threat from JCPenney for leaking the store’s Black Friday deals before the ads were officially released.

I checked Chilling Effects just now, and I found no letters to BFAds.net this time around. And I also checked BFAds.net, and they are still blogging away about the deals. I also found scanned ad circulars, which were released before the newspapers hit the streets. (I don’t recall seeing that last year, although they are probably not new.)

At any rate, I’m glad to see BFAds.net still in business, blogging freely.

Happy shopping everyone. And blog on!

Lidsky: Incendiary Speech and Social Media

Wednesday, November 23rd, 2011

Lyrissa Barnett Lidsky, a professor at the University of Florida’s Levin College of Law has posted to SSRN Incendiary Speech and Social Media, published in the Texas Tech Law Review. Here is the abstract:

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the “mismatch” between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

10,000th Konomarked Photo

Tuesday, November 22nd, 2011

icon of a pineapple in a thick black circleI just uploaded my 10,000th konomarked photo to Flickr.

Konomark is a project I’ve started to help facilitate sharing of photos and other copyrighted content on the internet. My putting a “konomark” on your copyrighted content, you invite strangers to e-mail you and ask for permission for gratis re-use.

You may have noticed this blog is konomarked, and there’s a line of konomarked photos that appears running down the column on the right.

If you’d like to konomark a photo on Flickr, here’s the best way to do it.

First, tag the photo with the word “konomark”.

Second, insert the following into the description for the photo:

This photo is <b><a href=”http://www.konomark.org” rel=”nofollow”>konomarked</a></b> (“Most Rights Sharable”): If you would like to use this image without paying anything, e-mail me and ask. I’m generally willing to share.

My Citizen Journalism Rights Respected Just Now

Friday, November 18th, 2011

On my drive home here in Grand Forks, North Dakota I came across the scene of a bad car accident. Oldsmobile sedan vs. GMC Jimmy, and everybody lost. I didn’t witness the accident, but I imagine that speeding, ice, and inattentive driving were factors.

I decided to take my citizen-journalist rights for a try-out with my Canon SLR camera with a big 70-200mm telephoto lens. These pictures were taken about 35 minutes ago at about 4:40 p.m. CST. I am very happy to report that police and fire officials treated me courteously.

Car accident scene with firefighters and police officer standing nearby

Blue GMC Jimmy SUV with hood open and severe damage to front driver side

Canadian Supreme Court OK’s Hyperlinking to Defamation

Monday, November 14th, 2011

Front of Supreme Court of Canada courthouse on sunny dayThe Supreme Court of Canada courthouse in Ottawa. (Photo by Philippe Landreville, courtesy of the
SCC)

The Supreme Court of Canada has cleared bloggers from any feared liability for linking to defamatory content.

In Crookes v. Newton, a 6-3 decision held that a hyperlink to defamatory content does not make the linker a “publisher” of the defamatory content, which means that the linker cannot then be sued for defamation. Signaling agreement with the linked-to defamation doesn’t expose the linker to defamation either. Linkers can only be liable for libel if they use the link in such a way that they, themselves, end up conveying a defamatory communication.

Paul Schabas and Jon Goheen on the Inforrm blog have written a good synopsis of the case. In their words:

According to the majority, virtually any text accompanying a hyperlink to defamatory material will not lead to liability unless the text itself is defamatory. Even where a party indicates an unequivocal and positive adoption of the libel, as in the example given by the trial judge, there will be no defamation.

Also, Media Law Prof Blog has posted a long excerpt of the decision.

Rights of Photojournalists to Take Photos in Public

Thursday, November 10th, 2011

People who like to take random photos in public places (like these unfortunate ACLU plaintiffs) are subject to harassment by law enforcement. They shouldn’t be. But they are.

While there is a fair amount of material providing general legal guidance focused on the writing side of blogging (such as at CMLP and EFF), there is a paucity of material advising you on what you can and can’t get away with using a camera.

The best resource I’ve found – although about six years old – is this legal memorandum [pdf] from Kurt Wimmer and John Blevins at the law firm of Covington & Burling, done for the National Press Photographers Association. From the memo:

In summary, we find that there is no federal law that justifies the broad prohibitions that are being imposed on photography in public areas. There is no new federal law, including the Patriot Act, that restricts photography of public buildings and installations on the basis of concerns over terrorism. Restrictions of photojournalism that proceed on this basis may constitute violations of journalists’ First Amendment right to gather news.

I’ll think I’ll print out a copy and put it in my camera bag.

More:

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

Mobile App Legal Guide for Occupy

Tuesday, November 8th, 2011

Apple iPhone with stick figure elements, shown running awayThe good folks at the Citizen Media Law Project have introduced a mobile app for their legal guide to citizen reporting on Occupy. I wanted to make sure to make a note of that on Blog Law Blog because (1) it may be of help to on-the-go bloggers at Occupy, and (2) it gives me another chance to use the graphic I worked up for when Apple lost another iPhone prototype.

Hey: reduce, reuse, recycle.

In Newly “Free” Egypt, Facebooker Gets Three Years Behind Bars for Insulting Islam

Monday, November 7th, 2011

View of Cairo and the River Nile at duskCairo and the River Nile.
(Image: CIA)

The engine of the Arabspring revolution in Egypt was social media, and its fuel was free speech. But sadly, Egypt continues to be a leader in cyberoppression, even after the ouster of strongman Hosni Mubarak.

Agence France Press has reported that Egyptian Facebooker Ayman Yusef Mansur has been sentenced to three years in prison with hard labor because he “intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule on Facebook,” according to Egypt’s official MENA news agency.

A court in Cairo determined that Mansur made insults “aimed at the Noble Koran, the true Islamic religion, the Prophet of Islam and his family and Muslims, in a scurrilous manner.”

What is not clear is exactly what Mansur wrote that got him in trouble.

Egypt’s constitution has been suspended since the military took control after Mubarak’s February ouster. Countrywide elections are slatted for November 28, and there are increasing concerns that Islamists will win handily, taking control of parliament and ensuring that a new constitution will uphold Islam as the primary source of law in the country. Presumably that means retaining religious-based restrictions on freedom of speech.

Freedom is a delicate, delicate thing. As hard as it was to get rid of Mubarak, it will be far harder still to win lasting freedoms.

(Ha’p Eugene Volokh,In Egypt, Three Years in Prison for “Insulting Islam”)

Bauble Bobble Estoppel: Why Kane’s Tack Against Forever 21 Worked

Wednesday, November 2nd, 2011

Questions
from
Readers

Blog Law Blog reader Amy e-mailed me with a good question about blogger Rachel Kane’s self-declared victory over Forever 21 in a legal dispute that never ended up in court.

Kane is the author of wtforever21.com, a blog devoted to poking fun at Forever 21, the fast-fashion retailer famous for its dogged pursuit of trendiness with a torrent of bangely baubles and shiny swathery.

While they would seem too busy chasing down fashion ephemera to notice a tongue-in-cheek blogger, the folks at Forever 21 eventually looked up from their lamé long enough to dash of a cease-and-desist letter charging Kane with trademark infringement and demanding she take down her blog.

Now, as I pointed out, Forever 21′s legal position was meritless. But they’re a big company, and Rachel Kane is a solo blogger. So it makes for a problem.

What did Kane do about it? Through legal counsel, she wrote to Forever 21 laying out her legal argument for why the company’s claim was baseless and imposing a deadline by which, if she did not hear back from Forever 21, she would assume that she was free to continue blogging.

Thus the question from reader Amy. She writes:

This is a great strategy for bloggers and an awesome victory. However, can’t she still face legal action from the company even though there was no response past her self-imposed deadline?

The answer is that Forever 21 is not absolutely foreclosed from suing Rachel Kane after her self-imposed deadline passes. But by failing to get back to Kane, Forever 21 has evidenced an intent to abandon its claim. That severely compromises F21′s legal position. At this point, if Forever 21 tried to sue, Kane is now in a position to raise the legal defense of “estoppel.”

The idea of estoppel is that if you don’t deal with things at the opportune time, you can’t bring it up later if doing so would end up screwing over someone else. (Courts, in issuing judicial opinions, usually have some slightly higher-brow language than the phrase “screwing over,” but they can’t explain it any better than I did.)

So, through the estoppel defense, a court could rule that Forever 21 lost whatever rights it may have had to sue Kane when it failed to reasonably pursue its claim.

The law generally favors upholding parties expectations when it is possible to do so. Kane can say that, after hearing nothing by silence from Forever 21, she reasonably expected that the dispute was over and that she was free to continue blogging.

Now, key to making this work is that Kane approached this dispute in a reasonable way. She sent a letter explaining why the law did not support Forever 21′s trademark claim, and she gave them a reasonable amount of time to respond. It also counts for something that Forever 21 was the party that brought this up. Since they started the argument by sending a cease-and-desist letter, it’s certainly reasonable to expect that they will respond to Kane’s arguments if they are going to maintain their claim.

There’s nothing magical about estoppel – it’s all based on reasonableness. So don’t get carried away thinking you can get the drop on someone with estoppel. If you’re being tricky, then a court won’t look favorably your estoppel defense. But if someone sends you a legal threat, Kane’s way of dealing with it is a good one. Send a letter patiently explaining why the threat is baseless, and set a reasonable deadline for their response. It can be a good way to put spurious claims behind you.

Playing Simon Says: California’s Crazy, Crazy Reader Privacy Act

Tuesday, November 1st, 2011

Electronic Simon game from the 1980sGetting a subpoena is a highly unpleasant experience.

A subpoena is a legal document that commands you to hand over documents or appear someplace at a certain time to answer questions under oath. Subpoenas are necessary to get the business of our civil justice system done, but they can make the IRS seem like an old friend by comparison.

And that makes for what I think is the biggest problem with the Reader Privacy Act, a new California law intended to increase people’s privacy with regard to what books they choose to read. (More problems here and here.) To accomplish this, the new law puts certain requirements on any online “book service” provider (which, oddly, might include a blog) that receives a subpoena seeking information on any of the provider’s readers. The requirements are that before complying with the the subpoena, the “book service” provider must give notice to any reader whose information is sought and/or the provider must make a number of determinations about the legal appropriateness of the subpoena.

So, for instance, a provider covered under the law is not allowed to comply with a qualifying subpoena unless the provider first gives 35-day advance notice to the reader about the reader’s ability to seek a motion to quash the subpoena. §1798.90(c)(2)(B)(iv).

Just think about that for a minute: The subpoena is an order issued by a court commanding a person to do something. But under this new law, a person is prohibited by law from obeying that court order unless and until the person fulfills certain requirements.

You would think, if you got a court order, you’d be safe in obeying it. But not so!

And that’s crazy. That’s more than just crazy. That’s the Crazy Suite at the Hotel Crazy.

But wait, it actually gets crazier.

Under §1798.90(c)(1), it is illegal for a covered “book service” provider to obey a subpoena commanding the disclosure of information to a law enforcement agency unless the law enforcement agency has met two conditions and the court itself has met three conditions. For instance, you can’t obey a subpoena under the law unless the court first “finds that the law enforcement entity seeking disclosure has a compelling interest in obtaining the personal information sought.” §1798.90(c)(1)(B).

Yes, that means it’s illegal for you to do something the court is commanding you to do unless the court made a certain finding before hand. To be quite plain, it is unlawful for you to comply with a court order demanding that you cooperate with law enforcement.

That’s beyond crazy. That’s No. 1 Crazy Street, Crazy City, Crazyland, U.S.A.

The only precedent I can think for whackitude like this is the children’s game of Simon Says. In Simon Says, the leader barks commands preceded by the words “Simon says.” If you obey a command that is not preceded by the words “Simon says,” you’re out.

It’s silly, but that’s what makes it fun. For children. Who are playing.

But it’s not fun for the California legislature to do this. It’s not fun at all.

If the California legislature thinks the courts and the police are out of control, then – I hate to have to point out the obvious here – they can put restrictions on the courts and the police. That only makes sense.

Instead, the California legislature has made it illegal for people to cooperate with the police and the courts when the police and courts are, in the legislature’s judgment, going too far.

But wait. It gets CRAZIER still. Look at this provision:

A provider shall disclose personal information of a user to a law enforcement entity only pursuant to a court order issued by a duly authorized court with jurisdiction over an offense that is under investigation and only if …
[p]rior to issuance of the court order, the law enforcement entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest issuance of the order.

§1798.90(c)(1)(D).

That’s right: It’s illegal for you to obey the subpoena if the police didn’t inform you of your right to contest the subpoena.

That’s like making it illegal for a suspect to answer questions while in police custody if the police failed to inform the suspect of the suspect’s right to remain silent.

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.