A good article by my friend Troy Wolverton of the San Jose Mercury News about federal regulators’ approval of a joint venture by Verizon and multiple cable operators:
Such deals may make accessing the internet more difficult and more expensive.
A good article by my friend Troy Wolverton of the San Jose Mercury News about federal regulators’ approval of a joint venture by Verizon and multiple cable operators:
Such deals may make accessing the internet more difficult and more expensive.
I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.
Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.
“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.
Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.
For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.
John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.
It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.
“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”
With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.
Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.
Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.
Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.
The Citizen Media Law Project has announced that its Digital Media Law Project, along with the International News Safety Institute and an organization called “Free Press,” will be hosting live web chats about legal issues involved in doing reporting/blogging at protests of the Republican and Democratic national conventions. The talks will be tomorrow, August 16 at 7 p.m. (I’m guessing that means Eastern Time), and then again next Thursday, August 23 at 8 p.m.
CMLP notes that almost 90 people have been arrested in the United State while doing reporting at protests. The webcasts will include journalists relaying their personal experiences, presented along with legal analysis.
It’s free and there’s no advance signup necessary. Go to the Free Press website to participate.
Jennifer Granick at the Stanford Center for Internet and Society has a good post on the Cybersecurity Act, now pending in the U.S. Senate, authored by Sen. Joseph Lieberman (D-Conn.), Sen. Dianne Feinstein (D-Calif.), Sen. Jay Rockefeller (D-W.Va.) and Sen. Susan Collins (R-Maine).
Jennifer also includes a link to her annotated version ([pdf]) of the bill. The bill is 211 pages. So any annotations are very helpful.
Jennifer says that the bill is “a step forward for those who see government implementation of state of the art security practices lagging behind.” But she emphasizes that the legislation “needs work,” especially to narrow the amount of government cyberspying the bill permits.
The bill already reflects some work by privacy advocates. Amendments that have been inserted to the bill to curtail government civil-liberties incursions are explained by Michelle Richardson in a post on the ACLU’s Washington Markup blog.
The bill, in its current form, does not weigh heavily on private industry, since it offers only “guidelines” for non-government actors, not regulations. But, as Jennifer notes, a report on national cybersecurity issues concludes that voluntary efforts on the part of industry “will be inadequate against advanced nation-state opponents.” In other words, the wisdom is that we will need government regs to keep the power company safe from North Korea.
I was pleased yesterday to get a call from Almostinnocentbystander, the anonymous blog commenter from Idaho who has drawn the ire of Republican-party county-level committee member Tina Jacobson.
Unfortunately, the newspaper that runs the Huckleberries Online blog where Almostinnocentbystander left her comments, is no Twitter. The Spokesman-Review decided to not try too hard to resist giving up Almostinnocentbystander’s identity and, instead of appealing a trial court order, decided simply to hand over the requested information. It’s sad to see a newspaper cave like that.
Resigned to being unmasked, Ms. Cook decided to control the manner of her outing and sent an opinion piece yesterday to another Idaho news outlet, which published it with her real name, Linda Cook.
There’s more background on the case in an L.A. Times piece.
More on my conversation with Linda later.
Stacked desks and chairs in Fisk Hall, Medill School of Journalism, Northwestern University. Photo by me.
I wanted to follow up about one particularly interesting comment Turner had:
Web forums, which often function as a sort of blotter for the communal subconscious; comment sections tell us what people are really thinking, even the things they’d be afraid to say under their own names. There is a certain value in that — putting on a mask sometimes frees us to unmask our true feelings. This only causes problems when people treat these anonymous posts with more seriousness than they deserve.
Turner’s quote is a funny take on something I learned in freshman year of journalism school back in 1991 at Northwestern University. A professor told us that one way to define a newspaper is, “A community talking to itself.”
I really liked that definition. And as I took it – as I think the professor intended it – as a glorious compliment to newspapers. It upholds a gives the newspaper a singular and transcendent place in society.
But what are the implications of that 1991 doctrine in the world of 2012?
If a newspaper is supposed to be a community talking to itself, then, in this day and age, when compared with the interactive web, newspapers are just really bad, inefficient newspapers.
After all, how can a mostly monolithic, once-a-day, information bottleneck of a newspaper be a better incarnation of a community talking to itself than a community actually talking to itself?
The fact is, thanks to the web, we see what it really looks like when a community talks to itself. And it’s not real pretty. It lacks the majestic specialness of the grand ol’ newspaper. It’s a garish, sprawling, ungrammatical, hyperbolic, font-impoverished, spectacle of gaucheness. Even in the words of a staunch defender, it is witheringly described as having “a certain value.”
Also, here are some more excerpts from the opinion.
More to my point that the judge was not a fan of TechnoBuffalo, thus indicating that the decision in TechnoBuffalo’s favor wasn’t results-driven judging:
Reviewing the [TechnoBuffalo] website is disconcerting. The website makes it clear that TechnoBuffalo is inviting conduct which may or may not be legal and is very likely actionable. They solicit employees of tech companies to be “super secret ninjas” to “discover something top secret in your store’s inventory” and handover “inside information” to TechnoBuffalo who then disseminates it for their own purposes and who will “take your name to the grave.”
These solicitations are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed. … Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct, the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.
By the way, I do not buy that these solicitations are detrimental to the industry. Also, I don’t think it is accurate to say that Motorola is in “the intellectual property industry.” Moreover, an “intellectual property industry,” as such, tends not to be heavily reliant on employee confidentiality precisely because of intellectual property laws. Much of this line of argument comes from distorted ideas of what constitutes a “trade secret.” But, anyway, it goes to show that this decision was made on the law, not, as we say in the lawyering business, the “atmospherics.”
One more excerpt, in which we see what the court made of Johns-Byrne’s argument that what TechnoBuffalo peddles is not news but “hype”:
JBC asserts that the content of the article at issue, or moreover, any of the content posted on the TechnoBuffalo website, does not amount to legitimate news but is rather mere “commercial hype” and “entertainment.” However, these concepts or terms of art are nowhere to be found in the Illinois Act. The Act nowhere states that certain content is news and other content, like the “hype” or “entertainment” asserted by JBS, is not news. The content of the “news” simply is not discussed and is not a factor in determining the application of the privilege under the current language of the Act. … TechnoBuffalo’s article falls under the broad, plain meaning of “news.” Therefore, JBC’s attempt to distinguish “hype” from actual news is unavailing.
Jon Rettinger, the founder and editor of gadget blog TechnoBuffalo, e-mailed me to let me know that they have won in their attempt to shield the source of leaked images of a yet-to-be-released cell phone.
Judge Michael R. Panter of the Cook County Circuit Court granted TechnoBuffalo’s motion for reconsideration, thus denying plaintiff Johns-Byrne Company, a commercial printer who made the packaging for the phones, the ability to find who in their company leaked the photos.
This is a substantial legal victory for the blogosphere, because it puts blogs on a potentially equal footing with mainstream news media when it comes to the special legal privileges that allow journalists to keep sources anonymous.
Whether blogging will inherit the privileged legal status of the traditional news media is, in my mind, the biggest question in blog law. This case strongly suggests the answer should be “yes.”
The key issue in applying the Illinois law was whether a blog would count as a “news medium.” Judge Panter decided it did, applying the law straightforwardly:
The issue of whether a blog/news site such as TechnoBuffalo is to be treated as a “news medium” is novel and has seldom been dealt with by other states containing shield laws. … “News” is defined by wwww.merriam-webster.com as “a report of recent events” and “previously unknown information.” Similarly Dictinary.com [sic] defines “news” as “a report of recent events.” Under the ordinary meaning of “news,” the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo’s article falls under the broad, plain meaning of “news.” … In sum, withing the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.
I applaud Judge Panter’s decision not only because it was, in my judgment, the right one, but even more so because it wasn’t results-driven jurisprudence. Judge Panter made it clear was was not love-struck with the scoop-savvy blog, which solicits anonymous tipsters:
Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious. It may weaken the very industry that TechnoBuffalo depends upon. It may itself be actionable under the statutes and authorities JBC cites. However, as of this writing, it cannot be excluded from the extremely broad protection of the journalistic privilege.
That’s an excellent example of good judging.
Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.
Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.
Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:
“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”
To punctuate his argument, he dares the fourth wall.
“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”
Hmmm. No one bit. Just four comments, all of them tré civil.
A while ago I blogged about a page footer I noticed on internet-radio/jukebox sitePandora with a link to “Your CA Privacy Rights,” advising California residents of California Civil Code §1798.83 and entreating them, pursuant to that law, to “request and obtain from us once a year, free of charge, a list of the third parties to whom we disclosed their personal information (if any) for direct marketing purposes in the preceding calendar year and the categories of personal information disclosed to those third parties.”
I wrote Pandora and made this request just to see what would turn up. As I disclosed to Pandora in the request, I am not, and was not during the past year, a California resident. I asked them if they would honor the request nonetheless. Josh M at Pandora responded the same day to say:
Pandora Media, Inc. has not disclosed your personal information to any third party for the third party’s direct marketing purposes within the immediately preceding year.
Hope that helps and thanks again for writing.
PANDORA® internet radio
Need help? http://help.pandora.com
Interesting. I would have imagined they had.
I wrote in some detail about §1798.83 in my previous post last month.
Sina Weibo – China’s Twitter-like microblogging site – has created a new point system to extend Chinese government influence over what is and is not deemed “true.” New guidelines forbid communicating content considered “untrue,” or which is deemed to “harm national unity,” or “destroy societal stability.”
This sort of speech has long been illegal in China. But with Sina Weibo’s burgeoning 300 million users, website policy may have more reach than the criminal law.
When creating an account on the site, which is also known as Weibo.com, a user gets 80 points of credibility, or 100 points if the user plugs in a government-assigned ID number to create the account and links to a cellphone. Then, whenever the Sina Weibo user communicates something deemed “untrue,” points are deducted. The more people to whom the “falsehood” is communicated, the more points are deducted. For instance, spreading a “falsehood” to more than a thousand other users results in a deduction of 10 points and a 15-day account suspension. Users can gain points by staying in compliance with government censorship policies. Once the points fall below 60, the user is deemed “low credit.” Once the points get to zero, the account is closed.
Sina Weibo has been a key means of the dissemination of information about disasters and government scandals that the Chinese government has tried to play down, deny, or bury. This new point system will presumably cause Weibo users to self-censor to avoid account closure, helping to allow the Chinese government to bring social media to heel.
It’s not often we get visitors up here in Grand Forks. It’s even less often that we get visitors who blog about the law of blogging. Actually, Eric writes the only other blog out there, so far as I know, that is focused primarily on blog law: Blog Law Online. So, I’m grandiosely calling our meeting over coffee a “summit.”
Speaking of Blog Law Online, I definitely recommend Eric’s recent post on the Sixth CIrcuit’s decision in the Jones v. TheDirty.com case which includes a concise explanation of the factual and legal context of what may turn out to be an important precedent-setting case.
Happy trails, Eric.
Google’s latest biannual Transparency Report discloses an increase in government requests for user data and take downs. In the last half of 2011, government agencies requested the removal of 6,192 items posted on Google sites and asked for information from 12,243 Google user accounts.
Google senior policy analyst Dorothy Chou blogged some analysis of the data in the report:
Unfortunately, what we’ve seen over the past couple years has been troubling, and today is no different. When we started releasing this data in 2010, we also added annotations with some of the more interesting stories behind the numbers. We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.
Chou noted that it’s not just the countries you would expect asking for the takedowns.
Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.
Google did, however, comply partially or fully with 42 percent of the “requests,” which includes court orders as well as more informal asks. The majority of requests related to criminal investigations.
Amanda Simmons at the Reporters Committee for Freedom of the Press: Google report: Government agency requests for content removal and user data rise globally and in U.S.
The ABA Journal has an interview of Lori Andrews, law professor at IIT’s Chicago-Kent and author of the new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy.
I tend to agree with what she says. For instance, she calls it “ludicrous” that courts do not consider e-mails to be presumptively private. I completely agree with that.
I’ve just ordered the book off Amazon.
I’m particularly eager to hear more of Andrews’s social-media horror stories, some of which she relays in the interview, including the “red cup” cases, where institutions have assumed that a red cup in a posted photo contains an alcoholic beverage.
[Note to underage partiers: The grown-ups now know about the red cups! You guys were safe when it was just you and the cool kids like Avril Lavigne (pictured at left, from Rihanna's "Cheers (Drink to That)" video). But that's no longer the situation. The PTA crowd undoubtedly picked this up from country singer Toby Keith latest bar anthem, "Red Solo Cup." Or maybe they heard the cover version done by the Glee Cast. At any rate, in my professional opinion as a legal scholar, once a meme goes through Toby Keith and Glee, it's too late to recall it. Your best bet now is the blue solo cup, available from all fine cup retailers everywhere.]
UPDATE: My apologies for saying “Red Solo Cup” is Toby Keith’s “latest” bar anthem. It turns out he has released another since then. Blog Law Blog regrets the error.
Also in the interview, Professor Andrews provides her views on how the law is coming up short in dealing with social media. There’s also an interesting excerpt she reads in which she talks about the importance of the judges clothing and the ambiance of the courtroom. Interesting observations. Sounds like it will be a good read.
UPDATE TO THE UPDATE: Sorry about this. It turns out that since I started drafting this post, Toby Keith has released yet another bar anthem. So, that means “Red Solo Cup” would be his third most recent … wait here comes another …
Facebook’s falling stock. (Image: Nasdaq)
Facebook and its investment bankers are being sued over an IPO that didn’t “pop” the way so many investors were hoping. After debuting at an issue price of $38, Facebook’s stock has fallen to a low of $30.94. As I write this, it’s trading at a little over $32.
On Friday, I did a post about the law of IPOs. I talked about how much paperwork you have to file with the SEC in order to do a public offering, including a long, boring document called an S-1. So tedious, almost no one will read it. Almost. As I said:
You know who reads S-1s? Other lawyers. In particular, litigators. Lawyers who are looking for some misstatement or some unmentioned fact that will serve as a basis for a lawsuit based on federal securities law. And then it’s off to the courthouse!
Ahem. That didn’t take long. According an Associated Press story published yesterday:
One suit, filed in U.S. District Court in New York, claims Facebook’s IPO documents contained untrue statements and omitted important facts, such as a “severe reduction in revenue growth” that Facebook was experiencing at the time of the offering.
AnnaMaria Andriotis at SmartMoney adds an interesting footnote to this whole story about a trend of declining payouts in securities class-actions. That means the Facebook lawsuits may be just as disappointing to investors as the IPO.
In the coming weeks and months I’m going to try to follow up on some of the many blog lawsuits that I’ve covered on Blog Law Blog.
Yesterday I started this effort with a post on TechnoBuffalo defense of a suit brought by a commercial printer trying to get to the source of a corporate leak.
Do you have a story you want me to follow up on? E-mail me and let me know about it – I’ll do my best.
If you were involved in a dispute covered on Blog Law Blog (and I know my readership includes blogger-litigants!) I’d love to hear from you with updates, postscripts, rants, or reflections.
Just noticed this on Pandora: The page footer contains a link to “Your CA Privacy Rights,” which takes you to this:
California Civil Code Section 1798.83 permits users who are California residents to request and obtain from us once a year, free of charge, a list of the third parties to whom we disclosed their personal information (if any) for direct marketing purposes in the preceding calendar year and the categories of personal information disclosed to those third parties. If you wish to make such a request or have any questions about Pandora’s information sharing practices, you may contact us by sending us an email at email@example.com or write to us at Pandora Media, Inc., 2101 Webster Street, Suite 1650 Oakland, CA 94612, Attn: Listener Support.
As the text discloses, this is the fruit of California Civil Code § 1793.83. It’s an internet era law, dating back to 2005, that puts obligations on businesses who disclose personal customer data to third parties that then use that data for direct marketing.
When I start to read the statute, I get that feeling I so often get when I read California statutes, of wanting to spite my eyeballs for what they are seeing. It’s not only confusing, it’s not even clearly confusing. Which is to say it’s confusing in a confusing way. After I read it, I’m not even clear on how I’m confused. So I really don’t want to try to explain to you what the statute requires because I’m not sure what it requires, and I’m not even sure I could be sure if I spent a lot of time on it.
A business required to comply with this section shall, at its election, do at least one of the following:
(A) Notify all agents and managers who directly supervise employees who regularly have contact with customers of the designated addresses or numbers or the means to obtain those addresses or numbers and instruct those employees that customers who inquire about the business’s privacy practices or the business’s compliance with this section shall be informed of the designated addresses or numbers or the means to obtain the addresses or numbers.
(C) Make the designated addresses or numbers, or means to obtain the designated addresses or numbers, readily available upon request of a customer at every place of business in California where the business or its agents regularly have contact with customers.
Really, do they just go with their first draft of these things? Because I’m not sure most people could write such a confusing first draft. They must draft a first draft and then do some undrafting work on it to walk it back.
At any rate, I note that Pandora is saying “Your CA Privacy Rights” rather than “Your Privacy Rights” or “Your California Privacy Rights.” Risky, I guess. Or not. Hard to tell.
Anyway, I e-mailed Pandora to ask for a disclosure under the law – and I disclosed that I am not a California resident, but I’d appreciate it all the same if they would honor it – and I’ll post a follow-up here.
In the case of Johns-Bryne Co. v. TechnoBuffalo, a commercial printer is suing a venerable gadget blog to find out who leaked photos of some new cell phone packaging the printer was producing for Motorola. When I last blogged about this in January, an Illinois state trial-level court had just rebuffed TechnoBuffalo’s attempt to use Illinois’s reporter’s privilege law to prevent having to turn over information about the leak. The court said TechnoBuffalo wasn’t a “news medium,” and its bloggers aren’t “reporters.” TechnoBuffalo turned around and asked the court to reconsider the ruling and vowed to appeal if necessary.
I contacted TechnoBuffalo’s CEO Jon Rettinger (heroic Twitter profile pic above left) to ask for an update. We talked on the phone. I was impressed with his sense of conviction – he is working hard to protect the blog’s source.
The motion for reconsideration is, at this point, still pending. On reconsideration, TechnoBuffalo has sought to put more support behind the notion that blogs are real news outlets. To beef-up bloggery bona-fides, TechnoBuffalo pointed out that a blog (HuffPo) recently won a Pulitzer. They also pointed out that TechnoBuffalo is syndicated word-for-word on more traditional news outlets, such as Business Insider, and that TechnoBuffalo bloggers are commonly tapped to make appearances on the cable news channels.
This will continue to be an interesting case to watch as it gets right at the heart of the matter the most salient question of blog law: To what extent the law will blogging inherit the privileged legal status of heritage journalism?
There’s a cool conference going on right now in Washington D.C. It’s called Freedom to Connect.
It’s pricey at $595. But there’s a great line up of big-name speakers, including Vint Cerf, Larry Lessig, Michael Copps, and Rebecca MacKinnon. It’s a more polished affair than the logo at right would lead one to believe.
If you aren’t in D.C. or don’t have that kind of disposable cash, you can follow the action at hashtag #F2C.
A judge in Oregon is set today to hear the anti-SLAPP motion in the case of Pastor Charles O’Neal of the Beaverton Grace Bible Church, who is suing former church member Julie Anne Smith for defamation, seeking $500,000 in damages.
Smith’s blog, Beaverton Grace Bible Church Survivors, documents a cultish, creepy church. One commenter recounts a call for closet-raids to rid female church-goers of skimpy clothing.
An anti-SLAPP motion is a special kind of procedural device that allows the early summary dismissal of a lawsuit that is aimed at shutting down someone’s exercise of their First Amendment rights.
My bet is that Smith will win the anti-SLAPP motion, thus ending the lawsuit.
The best quick rundown of the fact’s is Smith’s own statement on her blog:
I began this blog in Feb. 2012 after noticing that the Google reviews I had posted of my former church were being removed. Days after the commencement of this blog, I received a legal summons suing me and three others for defamation to the tune of $500,000. The story of spiritual abuse needs to be told. People are being hurt emotionally and spiritually by pastors who use bully tactics and we need a place to learn, to talk freely, and to heal. I will not be silenced.
For me, the best evidece of Pastor Charles O’Neal’s sky-high creepster-factor is his own words, quoted by Smith on the blog, as he rails against her in a weird rant with frequent crazy-person use of ALL CAPS.
Nicely put is Smith’s February 25, 2012 response:
I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.
I talk about the lawyering behind Facebook’s IPO on the Stanford CIS blog.
The Office of the U.S. Trade Representative is conducting closed-door negotiations for a new trade deal involving intellectual property – the Trans-Pacific Partnership Agreement. Big Hollywood and Big Pharma are involved and are allowed to see negotiation documents. The public is not. Once the deal is concluded, it could bind Congress to change IP law and restrict free-speech, fair-use, and access-to-information rights.
In a brash move snubbing the lobbyist-challenged public, the Office of the U.S. Trade Representative decided to cancel a very limited opportunity for people to voice their concerns at a “stakeholder” meeting.
The following is an abridged version of a letter to the signed by many legal academics to the U.S. Trade Representative, Ambassador Ron Kirk.
The letter was written by law professors David S. Levine of Elon, Christopher Jon Sprigman of UVA, and Sean Flynn of American U.
Dear Ambassador Kirk:
We write as legal academics from the US and current or potential future Trans-Pacific Partnership Agreement (TPP) member countries to express our profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP). We are particularly and specifically concerned that the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.
At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.
Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. …
Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. …
Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e. publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. …
The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. …
All of the above makes the most recent further withdrawal from the TPP negotiation of a limited participation venue particularly disturbing. … While far from ideal for all involved, including the USTR and its ITAC advisors, this mechanism at least allowed for some exchange, even if that exchange was fundamentally flawed and artificially limited in value because of the information-disparity problems discussed above. In the place of these full day open forums in Dallas, USTR has channeled stakeholder input into a 4-hour mid-day (10:30am-2:30pm, i.e. over the lunch hour) exhibit hall for stakeholder tables. There will be no opportunity, as in the past, to speak to assembled negotiators through presentations. …
The Seventh U.S. Circuit Court of Appeals stood up for the public’s right to be informed about the actions of public officials Tuesday when it declared unconstitutional provisions in the Illinois wiretapping law that prohibits audio recording of police activity in public places.
The Reporters Committee for Freedom of the Press had argued in a friend-of-the-court brief to the Chicago-based court that the overbroad law was a danger to journalists’ and the public’s First Amendment rights.
“This decision is a First Amendment slam-dunk. The court could not have been clearer about the importance of protecting the public’s right to observe and record the actions of public officials in public places,” said Reporters Committee Executive Director Lucy A. Dalglish. “Although Chicago police had indicated they would not enforce the law during the NATO Summit later this month – which we all expect will be accompanied by protests and police activity – it’s nice to have the force of the court’s decision on the right to record those events.”
“The notion that audio recording police activity in a public place, where there is no expectation of privacy, constitutes a felony is absurd and advances absolutely no government interest,” Dalglish added. “We are delighted that the appeals court agreed.”
One little nit: I don’t understand where they get “Seventh U.S. Circuit Court of Appeals” from. The full name is the United States Court of Appeals for the Seventh Circuit. So you can shorten it to the U.S. Seventh Circuit Court of Appeals, if you like, but it makes no sense to put the “U.S.” between “Seventh” and “Circuit.” It’s kind of like putting something between “United” and “States.” Okay, I guess it’s not that bad. But it’s wrong.
Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts
This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.
This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.
As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”
The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:
The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.
The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …
Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.
What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.