Would Bloggers Be Covered By a Federal Shield Law?

May 17th, 2013 by Eric E. Johnson

Since the news of the Justice Department getting their hands on phone records of the Associated Press – without the AP’s cooperation – there has been new talk of a federal shield law.

But how broad would the shield law be? To cut to the chase: Would if cover bloggers?

The issue was nicely teed up in a PandoDaily post yesterday by Adam L. Penenberg:

[W]hen you’re trying to craft laws to protect journalists from having to disclose the identities of confidential sources, the first thing you must do is define what a journalist is. Unfortunately, that’s not so easy, because, well, what is a journalist? I’ve been working as one for almost 20 years, and I couldn’t give you a definition. What’s more, I don’t know anyone who could. More to the point, how do you cover everyone who should be covered in this day, when everybody can be his or her own publisher but not cover those who shouldn’t be protected?

Mr. Penenberg’s post does a nice job of exploring the range of possible ways to deal with that question in surveying some of the many state shield laws in the U.S. and giving some of the history of how false starts on a federal shield law in recent years have dealt with the blogger question.

Of course, there’s also the separate scope question of a national-security exception. With such an exception, the question of who counts as a journalist may often be academic.

Famed Media Lawyer James C. Goodale Calls Out Obama on Press Freedom

May 16th, 2013 by Eric E. Johnson

Daily Beast logoFamous media lawyer James C. Goodale (who I was lucky enough to meet when I was a summer associate at his law firm in New York in 1999), has written a provocative piece for the Daily Beast that I think is worth a read: Is Obama Worse For Press Freedom Than Nixon?

Goodale argues that Barack Obama’s campaign to stamp out leaks is trampling on the freedom of the press. He notes that the Obama administration has obtained more indictments of leakers – a total of six – than any other American president. (That’s a factoid I found somewhat surprising.)

To avoid making bad history, Goodale urges the Obama administration to drop any effort to prosecute Wikileaks founder Julian Assange under a theory that the conspired with the Army’s Bradley Manning to violate the Espionage Act. Doing so would breathe life into a legal theory that Goodale calls “extremely dangerous to freedom of the press.”

Such a prosecution, Goodale explains, “would only require that Manning agreed with Assange to leak information. This would be far easier to prove than trying to prove Assange, in fact, violated the Espionage Act.” Going there would “put in jeopardy the gathering of national security information by any reporter and so criminalize the newsgathering process.”

New Booklet on Citizen Journalism Law in Massachusetts

May 15th, 2013 by Eric E. Johnson

Newsgathering in Massachusetts coverHarvard Law School’s Digital Media Law Project and Cyberlaw Clinic have released a booklet called Newsgathering in Massachusetts, available as free-to-download pdf.

It’s an information-packed reference tailor-made for citizen journalists, and it includes coverage of
open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.

Massachusetts is an especially interesting state for this area of the law. The Boston-born case of Glik v. Cunniffe, discussed in the booklet, is one of the most important citizen-journalist cases to come down the turnpike in the digital era. In that case, a Simon Glik was arrested in Boston Common for filming the police making an arrest of a homeless man. With the help of the ACLU, he got the U.S. First Circuit Court of Appeals to recognize a First Amendment right to videotape in public places.

Kudos to DMLP and the Cyberlaw Clinic for putting this together.

The Citizen Media Law Project Has Changed its Name to the Digital Media Law Project

May 14th, 2013 by Eric E. Johnson

Harvard Law School’s Citizen Media Law Project

CMLP logo

has changed it’s name. It’s now the Digital Media Law Project.

Digital Media Law Project logo

The change was effective March 1, 2013.

I know this change has been in the works for quite sometime. I remember talking to David Ardia, the program’s founder, about this in March of 2011.

I was a fan of “Citizen Media Law Project” as a name, but I like the new name too. Whether you use the word “citizen” or “digital,” the point is that this goes beyond a “media law project” in that it’s focused on the new reporting opportunities and legal threats that have been created and revealed by the democratization of the news media as fueled by computers and the internet.

I guess you could call it the “Non-Traditional Media Law Project,” but that’s pretty awkward. Even worse, it makes it sound like it’s the project that’s non-traditional, rather than the media. Any good copyeditor – even a non-traditional one – would see the problem with that.

So Digital Media Law Project it is. And the change is more than a change in name. There’s also a change in mission.

As project of Harvard’s Berkman Center for Internet & Society, the Citizen Media Law Project was launched in 2007 “to support the vibrant online culture of citizen media and independent journalism by providing free legal advice and information on a wide range of media law, intellectual property and business law issues,” as is explained on the project’s homepage.

With the change to “digital,” the project is acknowledging that reporters with their bona fides – that is, people who can be called “professional journalists” – are now increasingly working online and outside of a traditional media entity. They too face a uniquely challenging legal environment.

“Citizen journalists continue to do excellent work,” wrote Jeffrey P. Hermes, the project’s director, in a blog post about the change, “but professional journalists who believe in the potential of online speech have launched numerous independent ventures as well.”

So DMLP is broadening its focus. Hermes wrote, “Our project is no longer limited to addressing the narrow challenges faced by new and inexperienced entrants into the journalism market, but innovating to provide a comprehensive and mutually supporting set of resources to assist digital journalism as a whole.”

Best wishes to DMLP on their rechristening!

Tatyana Dumova on the Future of Blogging

May 13th, 2013 by Eric E. Johnson

Point Park University sealTatyana Dumova of Pittsburgh’s Point Park University has posted Social Interaction Technologies and the Future of Blogging to SSRN. It is published in Blogging in the Global Society: Cultural, Political and Geographical Aspects, pp. 249-274, T. Dumova & R. Fiordo, eds.(Information Science Reference 2012). Here is the abstract:

In an age of user-generated content, multimedia sharing sites, and customized news aggregators, an assortment of Internet-based social interaction technologies transforms the Web and its users. A quintessential embodiment of social interaction technologies, blogs are widely used by people across diverse geographies to locate information, create and share content, initiate conversations, and collaborate and interact with others in various settings. This chapter surveys the global blogosphere landscape for the latest trends and developments in order to evaluate the overall direction that blogging might take in the future. The author posits that network-based peer production and social media convergence are the driving forces behind the current transformation of blogs. The participatory and inclusive nature of social interaction technologies makes blogging a medium of choice for disseminating user-driven content and particularly suitable for bottom-up grassroots initiatives, creativity, and innovation.

Fighting to Protect Anonymous Yelpers in Virginia

May 10th, 2013 by Eric E. Johnson

White van with Hadeed carpet cleaning liveryIn an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

The amicus brief ([pdf]) argues, in part:

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

(Photo: joehadeed.com. Used without permission.)

Aurora Town Council Apologizes for Suing Bloggers

May 9th, 2013 by Eric E. Johnson

Train station in Aurora. (Photo: Secondarywaltz)

The town council of Aurora, Ontario has voted to make a formal apology to bloggers who were on the receiving side of a meritless defamation lawsuit brought by then-mayor Phyllis Morris in her official capacity.

The council’s motion, which passed 6-2, provided:

THAT the Mayor on behalf of Council, be authorized to issue a formal apology to those named in the action and to the community at large stating our commitment to freedom of speech and our regret that the Town of Aurora was ever associated with a SLAPP action … (Town Council Minutes [pdf])

Kudos to the members of the town council who voted in favor of the apology to bloggers Bill Hogg, Richard Johnson, and Elizabeth Bishhenden.

Councillor Michael Thompson, who, made the motion, explained his concept of responsibility: “There will be some who will say we are not the ones who should apologise because we did not create it, but this Council is now the ones who are responsible and accountable to this Town. Whether we create or inherit an issue, it is our role to act upon, if needed. In this case, I believe in the simple principle when you are wrong, do the right thing, admit it, and make amends where possible.”

One of the no votes was one of the people who had reason to take direct responsibility. Councillor John Gallo was one of the original votes on September 14, 2010 to hire outside council to pursue the bloggers. And Gallo was the lone vote against the council’s action to stop funding the legal campaign after the rest of the town council came to their senses.

Coverage:

Prior coverage on Blog Law Blog:

Thanks to vindicated blogger/defendant Richard Johnson for sending in the tip on this.

“Diabetes Warrior” Challenges North Carolina Licensing Board’s Attempt to Restrict his Blogging

April 22nd, 2013 by Eric E. Johnson
Steve Cooksey's before-and-after photos.

Steve Cooksey's before-and-after photos. (From his blog.)

A North Carolina diabetic blogger’s lawsuit may help answer the question of when occupational licensing laws can be used to restrict speech.

The blogger, Steve Cooksey, runs Diabetes Warrior, which answers questions sent in my readers about how to manage their disease.

It’s not surprising that Cooksey has raised eyebrows. His advice is decidedly anti-establishment.

“[Y]ou know that we have been lied to by Big Food, Big Pharma and the medical industry,” he tells his readers, “including doctors, diabetes educators, dietitians and nutritionists.”

Cooksey’s slogan is, “Diabetes Management from a Paleolithic Perspective.” Instead of insulin treatment, Cooksey advocates a “primal” diet – one patterned after what humans from the Stone Age would have eaten. His chief claim to expertise on the matter is his own experience as a diabetic. He blogs, “I have not taken a drug since March 2009. I have weaned off drugs and insulin completely… and I have normal blood sugar.”

A month after starting his blog in 2011, the North Carolina Board of Dietetics/Nutrition informed him he was engaging in the unlicensed practice of dietetics. As his public-interest law firm, The Institute for Justice, explains it:

[T]he State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service. The State Board went through Steve’s writings with a red pen, indicating what he may and may not say without a government-issued license.

So Cooksey sued to vindicate a free-speech right to blog as he sees fit.

He was dealt an early blow when a federal district court dismissed his case for lack of an injury. But the case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. Cooksey quotes his attorney, Jeff Rowes, as saying:

Under the First Amendment, a citizen is injured by the mere existence of a statute that regulates speech. And there are literally dozens of Supreme Court and federal appellate cases saying that you have standing when the government actually tells you that your speech is illegal. The courts have a very relaxed standard for bringing a First Amendment case because the right to free speech is considered to be so important.

Once the court of appeals recognizes that this is a First Amendment case, we expect it to rule that we have standing and send the case back to the district court to be litigated as a free-speech case.

I think occupational licensing, in general, is okay. It is sometimes badly needed to protect consumers from rank incompetence. But such statutes can conflict with free speech. And in this case, it seems to me that the North Carolina licensing authority has indeed gone beyond regulating a profession and has entered into the business of censorship.

(Another case along the same lines is that of Horace Hunter, an attorney in Virginia.)

Sadly, CISPA Passes U.S. House

April 18th, 2013 by Eric E. Johnson

U.S. Capitol dome in daytimeToday, sadly, the U.S. House of Representatives passed CISPA, the Cyber Intelligence Sharing and Protection Act (roll call).

The EFF, TechDirt, and the ACLU have explained why CISPA is bad. Basically, it tramples on civil liberties to give government the all clear to go spelunking through your personal data without a warrant.

CISPA now goes to the Senate. Please consider taking a moment to contact your senators to urge them to vote no on CISPA.

Law-student Writing Contest for Tech Law Papers

March 19th, 2013 by Eric E. Johnson

Marquee law firm Foley & Lardner and techlaw-news website IT-Lex is sponsoring a writing contest for law students which would, as I read it, welcome papers about blog law. Here’s the deets:

THE FOLEY & LARDNER / IT-LEX TECHNOLOGY LAW WRITING CONTEST

CASH PRIZES AND MORE!

IT-Lex, a technology law educational and literary not-for-profit, is
seeking submissions for its inaugural writing competition, sponsored
by the law firm of Foley & Lardner! Write about any issue within the
areas of electronic discovery, privacy, social media, security, or wherever
your technology interests lie. Your 10-15 journal page (approximately
5,000-7,500 word) papers will be read by a distinguished panel of
articles editors, and the top three entries are guaranteed publication
in the IT-Lex Journal, though other meritorious papers may also be
published. Entries must be submitted online at our website (URL
below) by May 1, 2013.

Oh, and did we mention the cash prizes? First place will receive
$5,000.00, second place $1,000.00 and third place $500.00. Plus, the
winners will receive invitations to become Members of IT-Lex and to
join the IT-Lex Law Review. Head over to http://www.it-lex.org, sign
up to be our Friend – it’s free – and check out the full rules and
requirements at http://it-lex.org/writing-contest/.

Duke Drops Subpoenas Ahead of Ruling

March 7th, 2013 by Eric E. Johnson

Duke University has withdrawn its subpoenas directed at blogger and academic KC Johnson, who has written extensively about the Duke lacrosse case from 2006. The move comes ahead of an anticipated ruling by federal district court in Maine on whether to quash the subpoenas.

More:

Revising the Computer Fraud and Abuse Act in the Wake of Aaron Swartz’s Death

February 15th, 2013 by Eric E. Johnson

Headshot of Rep. Zoe Lofgren

Rep. Zoe Lofgren (D-Calif.)

Movements are afoot to revise the law that was being used to prosecute good-guy hacker Aaron Swartz, who committed suicide last month under the threat of decades in jail.

It’s a crazy world when violating a website’s terms of service can potentially subject you to more prison time than murdering someone. But that’s what the Computer Fraud and Abuse Act, in its current form, allows.

Rep. Zoe Lofgren, Democrat from Silicon Valley, sought comment on Reddit on her plan to introduce Aaron’s Law. She has now posted a revised draft of the bill [pdf].

TechCruch has some news on how the proposal is developing.

The most illuminating piece on the Aaron Swartz case and federal prosecutors’ overreaching is by Jennifer Granick, Aaron’s friend and a former federal defender. It’s broken into two parts. I really can’t recommend Jennifer’s post enough – it’s the best blogging I’ve read in many months.

Related:

Blog Law Blog: Aaron Swartz, Champion of Online Freedom, Dead at 26

PrawfsBlawg: JSTOR: What is it Good For?

Andrew F. Sellars, Citizen Media Law Project: The Impact of “Aaron’s Law” on Aaron Swartz’s Case

Snowed Over by a Driving Ban?

February 10th, 2013 by Eric E. Johnson

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Blizzard of Blog Law

February 8th, 2013 by Eric E. Johnson

As the 2012 superblizzard hits New England, Massachusetts Governor Deval Patrick has issued an executive order banning motor vehicle traffic in the state.

But among the exceptions – along with the police, firefighters, healthcare workers – is the “news media.”

So, does that mean bloggers and citizen journalists can drive right now in Massachusetts? Are they news media?

The executive order – No. 543 [pdf with signature] – does not define “news media.” So should we interpret that to include only newspaper, television, and radio, or bloggers and independent journalists as well? The stakes are high. The Milford Daily News reports that violations of the ban can be punished with a year in jail.

By the way, the order raises a general constitutional question regarding the unenumerated, but court-recognized, right to travel. I am sure that the Commonwealth of Massachusetts would argue that preventing accidents during Snowmaggedon is a compelling government interest and the travel ban is narrowly tailored to serve those ends, so the order would survive whatever constitutional scrutiny put to it.

But I am not so sure. If the travel ban were held to require strict-scrutiny analysis, then a state-wide ban of indefinite duration seems to me not to be narrowly tailored.

When you scrutinize the details, the order seems not to make a lot of sense. Here is the full list of exemptions under the order. Notice anything odd?

  • public safety vehicles and public safety workers, including contract personnel
  • public works vehicles and public works workers, including contract personnel; government officials conducting official business
  • utility company vehicles and utility workers
  • healthcare workers who must travel to and from work in order to provide essential health services
  • news media
  • travel necessary to maintain and deliver critical private sector services such as energy, fuel supplies and delivery, financial systems and the delivery of critical commodities
  • travel to support business operations that provide critical services to the public, including gasoline stations, food stores and hardware stores

Why is travel allowed for gas-station workers if almost no one will need gas since nearly all vehicles are banned?

And the hardware store thing is strange as well. So, hardware stores will be able to have the employees they need to stay open – but no one can drive to the hardware stores. Granted, a few people might be within walking distance of one. But then, what kind of hardware do you need in the middle of a blizzard? I get that there’s a need for plywood before a hurricane hits, but what do you need with hardware during a blizzard?

Finally, I have to say I find it a bit funny that the web-version of the order refers to Governor Patrick as “His Excellency.” I didn’t know anyone in the U.S. used that title. To be fair, Massachusetts has a constitution older than the U.S. Constitution. But still, “His Excellency” seems a little needlessly eccentric.

Blogger Hal Turner Pursues §1983 Case After Acquittal on Threats Charges

February 5th, 2013 by Eric E. Johnson

Blogger Hal Turner of North Bergen, N.J. is currently pursuing a federal civil-rights lawsuit against the Connecticut State Capitol Police. The cause of action is under 42 U.S.C. §1983 – the general civil-rights statute that allows lawsuits against state officials acting in violation of the federal Constitution.

Last year, Turner was arrested for comments he made on his blog that were interpreted by as a threat against Connecticut state legislators. He wrote, “TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. … It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.” (Blog Law Blog, Oct. 21, 2011: State v. Turner: Incitement to Violence and Jurisdictional Questions)

Turner ended up winning an acquittal. Now he is seeking $50 million in his civil suit.

Most recently, Turner is proclaiming a victory of sorts in that suit because the State of Connecticut has retained outside counsel. His statement says, “On Friday, January 25, 2013, a Partner from the mega law firm McCarter & English, LLP filed his appearance in the case and asked the US District Court in New Jersey for an extension of time to answer Turner’s lawsuit. This represents a significant change from the state’s prior decision to utilize its own Attorney General’s Office, which assigned Assistant Attorney General Philip Miller to the case.”

I’m not sure what it means that the state has obtained outside counsel. McCarter & English is a large regional law firm, although I don’t think it is accurate to call them a “mega firm.”

Turner is something of a self-employed First-Amendment tester. He apparently started out as a frequent caller to conservative talk radio shows, then branched out into blogging and webcasting. He currently operates the Turner Radio Network, which bears no relation to media tycoon Ted Turner. (And I can’t figure out why neither Ted Turner, nor his merger-partner Time Warner, hasn’t shut down Hal Turner’s use of “Turner Radio Network” name on trademark grounds.)

No matter how much you like the First Amendment, Hal Turner is one of those people who is hard to root for. His varied causes have included Holocaust denial, white-supremecist causes, and threatening judges.

While involved with white-supremecist groups, Turner was a paid informant on those groups to the FBI. But any effort on his part to work against those groups can contextualize only so much of his ranting.

In June 2009, angered about a case upholding municipal handgun ordinances, Turner blogged that federal judges of the Seventh Circuit Court of Appeals “deserve to be killed” and, referencing a Thomas Jefferson quote, wrote that “their blood will replenish the tree of liberty.”

Those comments got him a conviction in 2010 with a 33-month federal sentence. He was released from prison in 2012 to serve out the remainder of his sentence from a halfway house in New Jersey.

Some Blog Law for Super Bowl Sunday

February 3rd, 2013 by Eric E. Johnson

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Sense of Personal Betrayal at Root of Real Housewives Star Suit Against Blog Commenter

January 31st, 2013 by Eric E. Johnson

Reality-television star Lisa Hochstein is suing a blog commenter for saying Hochstein “was an escort who also did soft porn in Vegas.”

Hochstein, who is an ensemble case member of Bravo’s The Real Housewives of Miami, says the defendant, Jessica Lederman, has been to Hochstein’s house. And that’s apparently what spurred her to sue.

“This person is an acquaintance we’ve invited in our home and who has smiled in our faces. She had no shame in saying these horrible things,” Hochstein told the Miami Herald. “The fact that she knows me and I’ve seen her in my home, well, it just sits the wrong way . I’m not going to go after every blogger and commenter out there. Trust me, I’ve been called way worse. I have thick skin as part of this whole show, but this really struck a chord.”

The legal claims appear to be intentional infliction of emotional distress and defamation with a prayer for $15,000.

Hochstein says she didn’t file the lawsuit for publicity reasons. Instead, it’s personal.

“I didn’t want it to get out of hand and I’m all for freedom of speech, but when you know someone personally and act like you’re friendly with them and then go making an accusation like that, it’s a big deal. What have I done to her?”

More:

Miami Herald: #RHOM’s Lisa Hochstein speaks out on controversial blog commenter lawsuit

TMZ.com: ‘REAL HOUSEWIVES’ STAR Sues Internet Commenter Over Call Girl Remarks

Sunshine Week 2013 Set for Mid-March

January 30th, 2013 by Eric E. Johnson

Sunshine Week – Your Right to KnowSunshine Week, a journalist-created annual event to raise awareness about open government, will be held March 10–16, 2013. The initiative is being coordinated by the Reporters Committee for Freedom of the Press and the American Society of News Editors.

A schedule of events, many of which will be in Washington, D.C., has been put up at the event’s website.

Sunshine Week is sponsored annually by the John S. and James L. Knight Foundation. Corporate mass-media firm Bloomberg LP has kicked in a grant for 2013.

What is now Sunshine Week was started as Sunshine Sunday in 2002 by the Florida Society of Newspaper Editors. The group launched the event in response to efforts afoot in the Florida legislature to add several exemptions to the state’s public-records law. FSNE credits its initiative with leading to the defeat of around 300 exemptions proposed in the Sunshine State legislature.

Blog Law Blog can’t help but wonder if the Florida-born Sunshine Week is meant to correspond with Spring Break in Daytona Beach. The timing sure is peculiar. And, when you think about it, open-records laws and in-mouth margarita mixing can both lead to exposures of a type. Yikes. Well, here’s to hoping for more being revealed by governments than drunk college students this spring.

Aaron Swartz, Champion of Online Freedom, Dead at 26

January 15th, 2013 by Eric E. Johnson

Aaron Swartz, a computer programmer who helped create RSS – the open blog syndication standard – and who helped launch Reddit, took his own life on Friday.

His funeral is today in Highland Park, Illinois.

Swartz was facing the prospect of a very long time in prison because of his alleged attempt to download the JSTOR academic archive database, ostensibly to make it available for free.

Swartz was very much a good guy. His prosecution is an example of what happens when the justice system loses its moral compass. He will be very much missed.

A memorial website has been set up.

More:

How to Stop Annoying Notifications on Your Phone

January 9th, 2013 by Eric E. Johnson

Does your phone give you a peppy little notification sound, but then not give you any indication of what it was notifying you about, even after you thought you turned all the notifications off in all your apps?

Would you like to set an alarm on your phone that vibrates silently, without forcing you to choose some sound to play?

If your answer to either of these questions is yes, then I have the simplest hack in the world for you: Silence.

Here you can download an mp3 file consisting of one second of silence:

[right click to download]

Put this little block of silence on your phone like you would a song.

To get rid of all default sound notifications across all apps, select the block of silence as your default notification sound. If you want a specific app to actually be able to notify you with a sound, then if the app allows you to select a different notification sound, then do so for that app.

To have a silent vibrating alarm, then, with your clock or alarm app, select this as the alarm sound, then optionally select vibrate.

You could also choose silence as the personalized ringtone for someone – if that suits your purposes.

The block of silence – or several of them together – is also a way to add spacers between songs in your iTunes playlist (or Banshee, Amarok, Clementine, or other music player software).

Why did I choose to put this up on the blog today? Well, you guessed it, my phone just made a little notification sound and it left no trace of why.

I like my little phone most of the time, but I’m tired of it acting like everything it does is the MOST IMPORTANT thing in my life.

DING! I JUST UPDATED YOUR AIRLINE APP!! Gee, thanks for letting me know that while I’m getting cut off in a construction zone during a rainstorm. And if your battery level gets too low for your comfort, why don’t you let me know that, too, and I’ll just pull over on the side of this bridge and try to flag down a trucker so I can take care of that for you.

After decades of advancement in electronics, we have somehow circled back to the equivalent of the blinking 12:00 from VCRs of the 1980s.

Maybe technology really is cyclical.

Intellectual Property and Social Media (Part 1)

January 6th, 2013 by Eric E. Johnson

Right now at the American Association of Law School’s annual conference, the Section on Intellectual Property is about to present a panel called “Intellectual Property and Social Media.” It’s another on-point topic for Blog Law Blog

The abstract/write-up is below. I’ll blog some realtime coverage on Twitter @tweetlawtweets with a follow-up posted here later.

Social media, such as Facebook, Twitter, Pinterest, and 23andMe, have changed the ways we communicate, create, innovate, and advertise. As the components of creation and brand- ing become more social, collaborative, instantaneous, and atomistic, various legal doctrines that have long governed copyright, patent, and trademark law may need to be rethought. Social media are being used to further genetic research, change how content is made, and draw users into the innovative process. This panel considers the challenges raised by social media to traditional intellectual property law, and explores the doctrinal implications of those challenges.

Politics and the Media, Old & New (Part 1)

January 5th, 2013 by Eric E. Johnson

Right now at the American Association of Law School’s annual conference, the Section on Internet and Computer Law and the Section on Mass Communication Law are about to have a panel on a great topic: “Politics and the Media, New and Old”.

The abstract/write-up is below. (It’s very on-point for Blog Law Blog.) I’ll blog some coverage live once we start up, both here and on Twitter @tweetlawtweets.

As the Supreme Court recognized in ACLU v. Reno, “the Internet is ‘a unique and wholly new medium of worldwide human communication’.” Among its unique features is that the Internet democratizes the opportunity to engage in political speech by offering ready access to any speaker with an Internet connection to large potential audiences at the local, state, national or global levels. This program assesses the impact the Internet has had to date on the relationship between the media and public officials or political candidates. Traditional newspapers are struggling to find a sustainable business model and appear to be losing some influence over the policy agenda or public officials’ conduct. Internet-only publications and other forms of political speech on the Internet have a complicated relationship with traditional media organizations, which, of course, also rely on the Internet to interact with their audiences. To what extent are these changes fostering or inhibiting democracy? Is law reform necessary in response to these changes?

Negligence’s X Factor

December 29th, 2012 by Eric E. Johnson

Cardozo Law Review de novo logoCardozo Law Review de novo just published a very short article of mine: Negligence’s X Factor, 2012 Cardozo L. Rev. de novo 318 [pdf download]. It’s just 4 pages.

Law students are familiar with the Hand Formula from Torts:

B < PL

Judge Richard Posner, working off an opinion by Judge Learned Hand, offered that this is a way of defining negligence: a precaution should be undertaken where the burden of doing so (B) is less than the probability of something going wrong (P) multiplied by the loss that would result (L).

My article reworks this inequality into an equation:

Bx = PL

Then I discuss what may follow from calculating the value of x.

I am very appreciative to the editors at Cardozo Law Review for their help this this.

The New Blawg 100

December 20th, 2012 by Eric E. Johnson

ABA Journal December 2012 coverThe ABA’s 2012 Blawg 100 is out, and, though Blog Law Blog made the list last year, this year it was not to be.

But plenty of great blogs are on the list. And through tomorrow, you can vote for the readers’ choice favorites by going to the page.

You really, actually, should vote. Why? Extremely low voter turnout is making this one election where you can really make a difference. Did your vote for president last month really matter? But your vote here might literally make the difference. Blogs that are really crushing it might have a couple hundred votes. Meanwhile, there are super-deserving blogs just barely in the double-digits. So vote!

Here’s Blog Law Blog’s suggestions for who deserves your ballot, and who’ve already gotten mine:

  • Technology & Marketing Law Blog by Eric Goldman and Venkat Balasubramani. This is the best blog out there closest to the subject matter covered on Blog Law Blog. And maybe the only honor better than Blog Law Blog’s making the Blawg 100 last year was that the description included a quote from Eric G. himself with a complement. So vote for T&M Law Blog.
  • The Volokh Conspiracy by Eugene Volokh and others. This is an old-line prestige blog, dating all the way back to January 4, 2004. It’s still one of the best.
  • SCOTUSblog. I agree with the fan quoted in the ABA Journal who called SCOTUSblog “extraordinary.” But I’ve got to strongly disagree as that admirer goes on to say SCOTUSblog “sets the gold standard to which all blawgs should aspire.” That’s insane. For most bloggers, aspiring to do what SCOTUSblog does would just make you go crazy. Not even aspiring, but just thinking about aspiring makes me exhausted.
  • 43(B)log by Rebecca Tushnet. Rebecca’s prolificness also exhausts me – maybe even more so than SCOTUSblog, since Rebecca’s blog is a solo effort. One of my favorite features is the play-by-play coverage of academic conferences. (And yes, her coverage goes well beyond Section 43(b) of the Lanham Act – banning importation trademark-infringing goods – but she does keep a germanely close eye on trademark law.
  • Wall Street Journal’s Law Blog. I’m getting the shout out to these folks despite their generic name. “Law Blog” is really uninspired and too close to “Blog Law Blog” for my taste. But this is still a great blog.

Also, vote for these Blawg 100 honorees from colleagues of mine at Texas Tech. They’re not on subjects close to Blog Law Blog’s usual fare, but they are great blogs nonetheless:

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

November 20th, 2012 by John S. Merculief II

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.