Blog

In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws. (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy. ) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-five states have anti-SLAPP laws.

The Illinois case, Jaeger et al. v. Okon, involved bloggers Joy and Tom Okon, operators of North Center Neighbors, a blog that covers happenings in the North Center neighborhood of Chicago. In May 2007, the Okons were sued by James Jaeger and his development company for defamation. Jaeger's complaint alleges that the Okons defamed him by posting statements on their blog (and sending emails) that implied that he had bribed government officials and engaged in dishonest business practices.   read more »

Ars Technica reminds us that the copyright squabble between the Legislative Counsel Committee of the State of Oregon (the "Committee") and Justia and Public.Resource.Org is still going on, and it may erupt into a full-on legal battle soon. That would be fine, in my view, because we could use a strong court decision putting to rest the argument that the "arrangement and display" of state statutes are copyrightable. For details on this argument, see my previous post.

After a rather feisty beginning, Carl Malamud from Public.Resource.Org and Tim Stanley from Justia participated in a conference call with Committee representatives in late April, during which they discussed the possibility of a mutually acceptable licensing solution. As part of this negotiation, Oregon proposed a "public license" that would allow Justia and Public.Resource.Org to continue to post the Oregon Revised Statutes. I haven't been able to get a copy of the proposed license itself, but it sounds like it was complicated and restrictive. In a subsequent letter sent to the Committee, Malamud referred to it as the "so-called 'public' license," complained about its lengthiness, and called it "incompatible with how public domain data is distributed."  read more »

Yesterday, a California appellate court struck down a brazenly unconstitutional preliminary injunction prohibiting two defendants from making "false and defamatory statements" about, or publishing the "confidential personal information" of, Thomas Evans, a deputy sheriff in San Diego. The case, Evans v. Evans, 2008 WL 2009669 (Cal. Ct. App. May 12, 2008), involves a nasty post-divorce dispute between Thomas Evans and his former wife, Linda Evans, and her mother, Shirley Preddy. Linda and Preddy allegedly posted false statements about Thomas on various websites, filed complaints about him with his employer, and published confidential information from his medical and financial records on the Internet. The lower court granted Thomas a broad preliminary injunction against their alleged misconduct, without specifying any particular forbidden statements or defining what "confidential personal information" means.

The appellate court held that the preliminary injunction was an unconstitutional prior restraint on speech, and that it was unconstitutionally vague because it failed to alert Linda and Preddy as to what conduct would violate the court's order. The case itself is relatively prosaic; it is interesting largely because it demonstrates yet again just how unfamiliar many lower court judges are with basic First Amendment principles. Beyond that, it tells us two important things about California law relating to prior restraints:   read more »

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.

Copyright Overview

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.   read more »

Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled "The Demise of Newspapers: Economics, Copyright, Free Speech." Netanel, who has written extensively on copyright issues, posits that part of the reason for the decline in newspapers stems from Internet competitors that build on the content and value that newspapers create. He suggests that imposing a statutory license or levy on commercial Internet service providers and news aggregators might be a workable solution for ensuring that newspapers receive compensation for their investment in quality reporting.

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.   read more »

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.   read more »

We will be giving a talk today at the Berkman Center at 12:30pm about the Citizen Media Law Project. We'll discuss the project’s accomplishments over its first year, including the creation of a legal guide for citizen media creators, the development of a database of legal threats directed at online expression, and recent litigation efforts on behalf of Wikileaks.org and others. We will also provide a first look at the threats in our database, which include lawsuits, subpoenas, cease-and-desist letters, and other legal threats directed at bloggers, website operators, and others. As an added bonus, we'll highlight a few of the more interesting entries, including the recent lawsuit against iBrattleboro.com, a community journalism site in Brattleboro VT, and the copyright lawsuit against the Council on American-Islamic Relations.

The discussion will conclude with recent trends and preliminary thoughts on the legal climate for online publishers. We are hoping the talk will elicit suggestions and feedback on how we can best analyze the data in the database, improve user participation in the project, and generally how to open up the process of content creation.

The talk begins at 12:30pm. If you are in the Cambridge area, please drop by. If you can't make it in person, you can watch a live webcast here.

This weekend, the Boston Globe published a thoughtful op-ed by Robert Ambrogi on efforts to reform the Massachusetts open meetings law. Ambrogi points out that the current open meetings law does not provide for civil or criminal penalties against government officials who violate the law. The current law enables a court to impose a penalty on an entire board or commission when it violates the law, but taxpayers -- not the individual wrongdoers -- end up paying.

Recently, Democratic Representative Antonio F.D. Cabral of New Bedford introduced a bill that would have given courts the power to impose a civil penalty of up to $500 on individual officials who violate the open meetings law, and Attorney General Martha Coakley also drafted a bill incorporating penalties for individual officials. Oddly, a compromise bill drafted in committee in mid-April eliminated individual penalties and even weakened current law by making it harder to impose a penalty on a full board or commission.

This change is disappointing and difficult to defend. Ambrogi writes:   read more »

Back in January, we began rolling out the Citizen Media Law Project's Legal Guide. So far, we've published major sections of the guide covering Forming a Business and Getting Online, Dealing with Online Legal Risks, Newsgathering and Privacy, and Access to Government Information. This week we are excited to announce that we've published the section on Intellectual Property, which explains various intellectual property concepts, including copyright, trademark, and trade secrets, and provides practical advice about how to use the intellectual property of others and protect your own work from exploitation.

To give you a feel for what the Intellectual Property section contains, we've pasted the Trademark overview below:   read more »

The Hawaii legislature passed a reporters' shield bill Tuesday that will protect both traditional and non-traditional journalists from compelled disclosure of their confidential sources and information and materials obtained or prepared during the newsgathering process. In one sense, this shield bill is a positive step forward, as it expressly contemplates that online publishers carrying out journalistic functions will take advantage of its protections. On the other hand, the bill places too many limitations on the ability of non-traditional journalists to invoke its protection.

Section 621(b) of the bill allows anyone to claim the protection afforded to traditional journalists if that individual can show that:
  read more »

Floyd Abrams published an op-ed today in the Wall Street Journal that highlights the impact of foreign law, especially English libel law, on speech in the United States. Abrams notes:   read more »

This is the eighth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Access to Courts and Court Records, which provides an overview of federal and state laws that grant you the right to access federal and state court records and court proceedings. We also provide some practical tips for getting useful information out of your local courthouse.

If you’re hunting for information, consider a visit to the courthouse, where you can sift through resource-rich court records or attend (sometimes colorful) court proceedings.

Courts are centers for dispute resolution. They are public forums in which societal norms and values, as reflected in laws, are used to address and correct wrongs. While a number of laws govern the court system, none is so deeply-ingrained as the presumption that court proceedings should be open to the public.

If you are wondering how attending court proceedings or combing through court records might be valuable to you, here are several great reasons to consider acquiring -- and publishing -- information available from the courts:   read more »

After four months, the Saudi Arabian government has released popular Saudi blogger Fouad Ahmad Al-Farhan without charge. Authorities arrested Fouad in December after warning him about posts supporting an activist group on his blog at فؤاد أحمد الفرحان. From the time of his arrest, Interior Ministry officials were evasive about the reason for his detention, explaining only that it was not related to state security. Bloggers, journalists, and human rights groups around the world rallied around Fouad, denouncing his detention and calling for his release. Spearheading the effort, the Free Fouad site provided updates, collected press coverage, and offered "Free Fouad" badges for placement on supporters' blogs and websites. In February, protesters demonstrated against the arrest in front of the Saudi embassy in Washington, according to the Washington Post. It's great to hear that Fouad's been released, but chilling to consider the vulnerability of journalists and dissidents under the Saudi regime.

There's lots of coverage out there if you want further details:   read more »

Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on Eclipse Aviation Critic NG, a blog that Google hosts on its Blogger service.

The subpoena, which includes a colorful list of pseudonyms such as "Turn-and-Burn," "Bill E. Goat," and "Niner Zulu," does not state why the information is necessary. AINonline, an aviation news site, gives us a bit more insight:   read more »

Bill McGeveran, a University of Minnesota law professor and friend of the CMLP, has published his article, "Four Free Speech Goals for Trademark Law" in the Media & Entertainment Law Journal, volume 18 (available at SSRN). The article makes a compelling case that, while courts in trademark cases ultimately tend to reach results that protect free speech against trademark overreaching, they do so in a muddled way that makes it hard to resolve cases quickly and cheaply and leaves speakers vulnerable to bullying through cease-and-desist letters.

We've had a copy of this article for a while, and I've been using it to get my head around how trademark law might affect the speech activities of bloggers, citizen media creators, and other online publishers. We are launching the intellectual property sections of our legal guide at the end of this month, and a number of the new sections take up the intersection between trademark law and freedom of speech. Professor McGeveran's article has been extremely useful, but also -- um -- slightly disheartening:   read more »

Last Friday, Maine enacted a state shield law to protect journalists from disclosing the identity of a confidential source or source material that the journalist obtained or received during the newsgathering process. See 16 Me. Rev. Stat. §61 (click on the "webpage" link under the "Final Disposition" section). However, the law does not give journalists an absolute privilege against disclosing this type of information. A court may order disclosure of covered information if a party seeking disclosure as part of a civil or criminal case can show the following things:

• the information is "material and relevant" to the case;
• the information is "critical or necessary" to the party's claim or defense;
• the information cannot be obtained from "any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights"; and
• disclosure satisfies an "overriding public interest.

Unfortunately the law left out language that appeared in an earlier version of the bill (click on the "Bill Text" link), which defined the term "journalist" to include non-traditional journalists and (potentially) other online publishers. The newly enacted law leaves out this definition "to allow the court to determine on a case-by-case basis whether a person claiming the protection from compelled disclosure is eligible for such protection." We'll have to wait for the courts to determine who is entitled to the shield law's protections.

The Society for Professional Journalists is hosting a series of one-day "Citizen Journalism Academy" workshops in Chicago (May 17), Greensboro, North Carolina (June 7), and Los Angeles (June 28). The idea is to provide training and information for citizen media creators on topics ranging from media ethics, to standard journalistic practices, to law. From SPJ:

The Society of Professional Journalists believes the world benefits from more news coverage, not less. Through its Citizen Journalism Academy, which takes place May 17 in Chicago, SPJ seeks to help everyone wanting to practice journalism to do so accurately, ethically and fairly. The Society aims to help participants understand how responsible practices could increase their reach and help them have strong journalistic reputations within their communities and around the world.

Two sessions look especially useful from our point of view: one on the basics of media law and another on access to public meetings and records. These day-long workshops cost $25. (I applaud the SPJ for not pricing its intended audience out of the market.) For more details and registration information, see the event page on the SPJ website.

Here at the Citizen Media Law Project we recently finished the fourth major section of our Legal Guide on Access to Government Information. As we were researching the various freedom of information laws, we came across Pennsylvania’s recently enacted Right-To-Know Law which goes into effect on January 1, 2009, and wanted to again applaud its arrival (we initially noted the Governor's signing of the law back in February).

The Better Government Association watchdog group ranks Pennsylvania’s current open records law near the bottom (48th of the 50 states) for quality of public access. The law itself dates back to 1957 and seemed fairly ensconced until a recent spate of highly publicized government scandals triggered its reassessment. The notorious attempt by the Pennsylvania Higher Education Assistance Authority’s to cover up the hundreds of thousands of dollars it spent on resort trips for board members and staff over a five year period, and the Democratic caucus’ infamous secret payment of legislative bonuses totaling 1.9 million dollars to staff members were among the more egregious news stories and resulted in public outcry demanding greater government transparency.   read more »

Just last week, I was ruminating on the viability of state claims of copyright in government records. At the time, I was pretty confident that a state wouldn't be crazy enough to claim copyright in its own statutes, both because caselaw suggests this would be legally invalid and because it would be shoddy public policy. Now, the Legislative Counsel Committee of the State of Oregon has sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee's claim is not as outlandish as it initially sounds, but it is still quite problematic.

The Committee is not claiming copyright in the text of the law itself. Smart thinking -- Tim Armstrong at Info/Law does a better job than I could marshalling the cases suggesting that any copyright claim to the text would be doomed. (The most exciting of these cases is Veeck v. Southern Building Code Congress Int'l, 293 F.3d 791 (5th Cir. 2002) (en banc), if only because it's from this century.) Instead, the Committee claims copyright in   read more »

The New York Times just ran a fascinating article on The Smoking Gun, a website dedicated to providing "documents--cool, confidential, quirky--that can't be found elsewhere on the Web." The three-person investigative shop in mid-town Manhattan consistently finds -- and publishes -- court documents, government records, and other esoterica that it finds through Freedom of Information requests, court files, and good old-fashioned investigative journalism. As we explain in our legal guide, you don't need the resources of a big media organization to use these information gathering tools effectively.

According to the Times:

The Smoking Gun has demonstrated that if you obey the metabolism of the Web, not the journalist, you can land with significant impact in a hurry.

“I think one of the keys is that we are three people,” said Mr. Bastone, who founded the site with Daniel Green, another Voice alumnus who has since moved on to truTV at Turner, and Barbara Glauber, Mr. Bastone’s wife and the designer of the site. . . .

“Their secret sauce is the ability to source documents that no one else can get,” said Steve Koonin, president of Turner Entertainment Networks, which inherited the site when it bought Court TV. “It’s not a big business, but it’s profitable, and one of the things we are diligent about is the care and feeding of brands. Young people respond to this brand on TV and on the Web.”   read more »