Archive for November, 2012

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

Tuesday, November 20th, 2012

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

Taking Judicial Notice of Blogs

Friday, November 9th, 2012

Daylight exterior

This is the Stanley Mosk Courthouse in Los Angeles. Under the Ragland case, my picture of it here does not permit it to take judicial notice of itself. (Photo: EEJ)

A new California case concerns whether a court can take judicial notice of a blog.

When a court takes “judicial notice” of something, it gives a party a pass on proving something with testimony. So, for instance, you can get a court to take judicial notice of the fact that November 6, 2012 was a Tuesday. You won’t have to produce a witness to testify as to that.

So, how about taking judicial notice of blogs?

This won’t come as a shocker. A court can take judicial notice of the existence of a blog, but not the truth of factual assertions made on the blog. (Can you imagine if it were otherwise!?)

Here’s what the court said in Ragland v. U.S. Bank National Association, 209 Cal.App.4th 182 (Cal. App. 2012):

As evidentiary support for the request for judicial notice, Ragland offers 12 exhibits, [including] printed pages from various Web sites and blogs (exhibits 2–6 and 8–12)[.] Ragland’s request for judicial notice requires us … to take judicial notice of, and accept as true, the contents of those exhibits. While we may take judicial notice of the existence of … Web sites, and blogs, we may not accept their contents as true.

Id. at 193.

Presumably, the court can also take judicial notice not only of the existence of the blog, but also the fact that certain statements exist on the blog. That makes sense, since the judge and all parties can independently access a blog just by using the internet.

But blogs can and do change. There’s clearly a separate question as to what is required as proof that a blog said a certain thing on a certain date. That presumably requires testimony in the form of an affidavit or declaration – though that’s not hard to do.

Amicus Filed for Quashing Subpoena of Blogger Related to Duke Lacrosse Scandal

Thursday, November 8th, 2012

Duke University has issued a subpoena seeking a blogger’s notes and correspondence, and the Reporters Committee for the Freedom of the Press has filed an amicus brief urging the court to quash the subpoena.

The underlying case is McFadyen & Carrington v. Duke University, which stems from the Duke lacrosse scandal. The subpoena is aimed at blogger, author, and history professor KC Johnson (formally, Robert David Johnson).

Johnson’s blog is Durham-in-Wonderland.

The brief was filed in federal court in Maine. With RFCP filing the brief are the Maine Press Association, MaineToday Media Inc., Bangor Publishing Co., and the Maine Association of Broadcasters.

2012 Election Coverage from a Blog Law Perspective

Wednesday, November 7th, 2012

vote button red white and blue over American flagAs promised, here’s your blog-law-focused election coverage:

Barack Obama, a critic of SOPA, beat Mitt Romney, a foe of net neutrality, for President of the United States.

The main Congressional race of interest from a blog-law perspective is still to call at this hour. But Republican Congresswoman Mary Bono Mack, sponsor of the 1998 Copyright Term Extension Act, is trailing Democratic challenger Raul Ruiz by 48.6% to 51.4% with 66.5% reporting. Mack, widow of entertainer Sonny Bono, for whom the copyright term extension law was named, was also an early proponent of SOPA, those she later said the bill raised “legitimate concerns.”

Other key players in internet law won re-election easily.

Democratic Representative Zoe Lofgren from Silicon Valley, who is one of the strongest members of Congress when it comes to resisting legislation that threatens blogs and the internet, was re-elected with 72.4% of votes cast.

Republican Representative Darrell Issa, a very vocal critic of SOPA, handily won re-election in the California 49th.

Republican Representative Lamar S. Smith, the House Judiciary Committee Chair and chief advocate of SOPA, cruised to re-election in the Texas 21st by a margin of 25 points.

Republican Senator Orrin Hatch, sponsor of the 1998 Copyright Term Extension Act, was re-elected from Utah.

Illegal to Post Images of Your Ballot?

Tuesday, November 6th, 2012

We’re seeing lots of chatter about people posting photos of their ballots taken with phones (such as on the ABC/Yahoo Live Stream and NBC News Blog.)

The Citizen Media Law Project at Harvard Law School has a wonderful chart, backed up with citations to statutes, of state laws concerning taking photos in polling places. And guess what – yikes, it’s illegal plenty of places.

It sure seems like these laws are behind the times. And there’s reason to think that taking video and photos in the ballot booth is quite the opposite of socially pernicious. For instance, there’s this video (albeit unverified) of a person trying to vote for Obama with the machine registering a vote for Romney:

Vote Obama-Biden for Pro-Blogger Internet Policy

Monday, November 5th, 2012

Many of you out there are single-issue votes when it comes to the office of president. And, of course, that single issue is blog law. Or not.

But if you issue is blog law, your candidate is Barack Obama.

While blog law did not take center-stage (or even side-stage or backstage or offstage) at the debates, we do know something of candidates’ positions on blog law. Happily, Scientific American asked the candidates for president 14 questions related to science. In truth, I’m not sure internet policy is a “science” question, but, as it so happens, SciAm included the following: “What role, if any, should the federal government play in managing the Internet to ensure its robust social, scientific, and economic role?”

Interestingly enough, the candidates’ answers are importantly different. And Governor Mitt Romney takes a position that is squarely against the interests of bloggers. So, if you are voting on the basis of blog law, vote Obama-Biden.

Let’s take a look at what they said.

President Barack Obama:

A free and open Internet is essential component of American society and of the modern economy. I support legislation to protect intellectual property online, but any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet. I also believe it is essential that we take steps to strengthen our cybersecurity and ensure that we are guarding against threats to our vital information systems and critical infrastructure, all while preserving Americans’ privacy, data confidentiality, and civil liberties and recognizing the civilian nature of cyberspace.

That’s a pretty boring response that seems designed to offend no one. There is one nugget of a controversial-stance taking inside of it. When the president says “any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet,” he seems to be talking about the hypercopyright bill SOPA, which I’ve blogged about several times. That’s good, because anti-SOPA is pro-blogger.

Governor Mitt Romney:

It is not the role of any government to “manage” the Internet. The Internet has flourished precisely because government has so far refrained from regulating this dynamic and essential cornerstone of our economy. I would rely primarily on innovation and market forces, not bureaucrats, to shape the Internet and maximize its economic, social and scientific value.

Thanks to the non-governmental multi-stakeholder model, the Internet is — and always has been — open to all ideas and lawful commerce as well as bountiful private investment. Unfortunately, President Obama has chosen to impose government as a central gatekeeper in the broadband economy. His policies interfere with the basic operation of the Internet, create uncertainty, and undermine investors and job creators.

Specifically, the FCC’s “Net Neutrality” regulation represents an Obama campaign promise fulfilled on behalf of certain special interests, but ultimately a “solution” in search of a problem. The government has now interjected itself in how networks will be constructed and managed, picked winners and losers in the marketplace, and determined how consumers will receive access to tomorrow’s new applications and services. The Obama Administration’s overreaching has replaced innovators and investors with Washington bureaucrats.

In addition to these domestic intrusions, there are also calls for increased international regulation of the Internet through the United Nations. I will oppose any effort to subject the Internet to an unaccountable, innovation-stifling international regulatory regime. Instead, I will clear away barriers to private investment and innovation and curtail needless regulation of the digital economy.

Romney’s pro-big-telecomm stance against net neutrality should be very concerning for bloggers. I’ve explained why net neutrality is important for bloggers. (In fact, I’ve written about it a lot.)

On that basis, Blog Law Blog officially endorses Barack Obama for president of the United States. (Just to be completely clear, that’s coming from the Blog Law Blog Editorial Board, which is me, and does not necessarily reflect contributor viewpoint.)

So go and vote. And beginning tomorrow, I will provide you with some of America’s least comprehensive election coverage. (But, hey, it is likely be America’s only election coverage solely devoted to blog law issues!)

Court Ruling Seems to Overlook the Online Fact v. Opinion Question

Thursday, November 1st, 2012

From contributing blogger John S. Merculief II –

Recently I posted about Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012). It dealt a strong victory for free speech rights, but in my opinion, the California appellate court turned something of a blind eye to the issue of the relative legitimacy of internet postings.

The court reached its decision largely on the basis that the online statements at issue were incapable of being defamatory because they were merely nonactionable opinions. In doing so, however, I think the courts are overlooking the reality that many users of such internet forums actually treat postings they read as fact.

The case principally involved the online postings of Wendy Mateo regarding her daughter Nicole’s ex-husband, Darren Chaker. Here are the key facts:

  1. Nicole Mateo and Chaker had a contentious custody battle over their child.
  2. Wendy Mateo posted degrading comments about Chaker in online forums.
  3. Chaker sued for defamation.
  4. Wendy Mateo filed an anti-SLAPP suit and won.
  5. The appellate court affirmed that she was merely exercising her First Amendment free speech rights in the matter.

The Chaker court points out that “the context in which the statements are made” is an extremely important aspect of the “totality of the circumstances” examination of whether a statement is actionable. “This contextual analysis demands that the courts look at the nature and full content of the audience to whom the publication was directed.”

The two online sites where Wendy Mateo posted her comments were:

  • Ripoff Report, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile.

In arriving at its findings, the court acknowledges and openly joins a trend I see as sad and disturbing: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

By giving credence to the idea that internet forums generally yield nonactionable opinions, I think the courts are overlooking the reality that many users of such forums actually treat postings they read as fact.

It is true that, around the watercooler, someone making a claim he knows to be unsupported by fact, will add, “I saw it on the internet, so it must be true,” as a sarcastic verbal signal that he knows his point is a weak one – even if he is not willing to yield it.

But the thing is, for many people, “I saw it on the internet, so it must be true” is not a sarcastic expression, but rather words to live by.

Does that make such a user legally “unreasonable”? That appears to be the judgment in recent cases. But if courts truly are to look at the “nature … of the audience to whom the publication was directed,” perhaps a better way to articulate the standard is “reasonable when viewed from the perspective of a typical user of an internet forum.”

To be sure, the Chaker court does not actually use the term “reasonable person” nor even the word “reasonable” in its roughly 10-page opinion. But I believe what it’s saying, in joining the internet-forum-as-opinion trend, is that a reasonable person would not go to those sites expecting facts.

And I don’t know whether that makes sense, given actual usage behaviors regarding visitors to internet forums.

Internet forums admittedly are often places for “outrageous claims” where some (the Chaker court says “most”) “visitors are completely aware of the unreliable nature of these posts.” And that seems to tilt the needle toward unactionable opinion.

But if a goodly number of those visitors treats those same claims as hard, verified (or at least verifiable) fact, doesn’t that tilt the needle into the realm of actionable statement of fact?