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We're pleased to announce that the Citizen Media Law Project at Harvard's Berkman Center for Internet & Society and the Center for Sustainable Journalism at Kennesaw State University are co‐hosting a conference on September 25, 2010 entitled "Media Law in the Digital Age: The Rules Have Changed, Have You?" in Atlanta, Georgia.

Designed for journalists, bloggers, and lawyers who work with media clients, the conference will be an opportunity to learn first‐hand the latest legal developments and to get your questions answered byexperts in the field.

The program will bring together legal practitioners, journalists, and academics to discuss the latest legal issues facing online media ventures. Topics will include: libel law, copyright law, newsgathering law, and advertising law, as well as the legal issues arising from news aggregation, managing online communities, and business law considerations for start‐up online media organizations. Small‐group workshops will focus on strategies for accessing government information and understanding legal terms in content licenses, freelancer contracts, and website terms of service and privacy policies.

If you need personalized legal assistance before or after the conference, contact the Online Media Legal Network, a legal referral network for independent online media administered by the Citizen Media Law Project at the Berkman Center.  read more »

As anyone who has been following the debate regarding the "future of journalism" knows, there have been a lot of ink (and bytes) spilled arguing over the role news aggregators are playing in the "decline" of traditional journalistic models.  Rupert Murdoch has labeled the practice of news aggregation by entities like Google News "theft," and a professor from the Wharton Business School recently called on lawmakers to amend the copyright laws to prevent aggregators from posting any portion of news stories for a full 24 hours after their initial publication. Even the FTC has gotten in on the act, listing "Additional Intellectual Property Rights to Support Claims against News Aggregators" as the first policy proposal in the Staff Discussion Draft recently released in connection with its workshop series on "How Will Journalism Survive the Internet Age?" (To which Google had a thoughtful reply.)   read more »

The Federal Trade Commission has reached a second settlement with a marketer over apparent violations of the Commission's rules requiring disclosure of compensated endorsements, particularly on blogs and social media, as well as other contexts in which the compensation (which may include free samples or discounts) is not "reasonably expected by the audience."

Back in April, the Commission sent a letter to Ann Taylor LOFT raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns. The Commision declined to undertake any enforcement action in that case because it was the firm's first apparent violation, only a very small number of bloggers posted content as a result of the promotion, and the company adopted a written policy in February 2010 stating that it would not issue any gifts to bloggers without first telling the bloggers that the gift must be disclosed.

Now, the Commission has reached a settlement with Reverb Communications, a public relations firm, which the FTC alleged had employees and interns post positive reviews on Apple's iTunes store for games produced by Reverb clients.  According to the FTC complaint,  read more »

I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money. Sadly, this episode has not aged terribly well: the obscenity of modern three-strikes Internet laws takes any sting out of the twist ending.   read more »

GateHouse Media, Inc., a publisher of local newspapers is suing That's Great News, LLC (TGN) in Illinois federal district court, claiming breach of contract and copyright infringement. (See our threat database entry for more background information on the case.) In the complaint, GateHouse alleged that TGN was selling plaques emblazoned with unauthorized reprints of GateHouse newspaper articles in violation of their Creative Commons licenses. As you may have guessed, TGN is in the business of selling fancy plaques displaying really "great news" about the people and companies featured in the local papers.

This isn't the first time GateHouse has been in a squabble over its Creative Commons-licensed content. The current case has spurred some speculation on why a plaintiff would want to sue under a theory of copyright infringement as well as one for breach of contract.   read more »

I love reading Shel Silverstein’s The Giving Tree, but it always makes me a little bit sad. Commenting on need, devotion, and mortality, the story revolves around a tree that gives up everything to please a boy. I’ve always kept my eye out for a similar book. So imagine my delight when I discovered that the administration wanted to write the sequel: The Giving ISP.  It goes a little something like this:

"Once there was an ISP. . ."

The FBI wants access to the Internet records of various individuals. And for this purpose, the government uses National Security Letters (NSL).  NSLs allow the FBI to demand user information from ISP’s AND to insist that the ISP keep this demand secret. All this is done without the pesky need for a warrant, provided that the FBI decides the information might be relevant to preventing or investigating terrorism.   read more »

The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements.

As I've explained in detail in prior posts, the Commission revised the guidelines last year for the first time since 1980, with a particular emphasis on endorsements by bloggers and other online citizen journalists who do not disclose that the products or services they review were provided to them for free or at a discount. Despite a number of questionable incidents since the FTC issued its revised guidelines, it has taken only one public action under the revised rules: sending a letter in April to Ann Taylor Loft raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns.

The FTC's new factsheet states that "since the FTC issued the revised Guides, advertisers, ad agencies, bloggers, and others have sent questions to endorsements@ftc.gov," and offers what it says are "answers to some of the most frequently asked questions." But the factsheet also seems to be responding to criticims of the rules, by myself and others.   read more »

"Man goes to doctor. Says he's depressed. Says life seems harsh and cruel. Says he feels all alone in a threatening world where what lies ahead is vague and uncertain. Doctor says 'Treatment is simple. Great clown Pagliacci is in town tonight. Go and see him. That should pick you up.' Man bursts into tears. Says 'But, doctor...I am Pagliacci.'" - Rorchach's Journal, Oct. 16th, 1985. 

It seems terribly cruel to debate the potential malignancy of a mole located on a severed hand. At present, two camps are arguing over the rapidity of the spread of broadband, while ignoring a nationwide rollback of potential Internet access for the nation's poorest communities. This would be funny if only it weren't so sad.    read more »

The Ninth Circuit Court of Appeals issued a decision last Monday in In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010), a case that could be influential for future courts deciding whether to order the identification of anonymous or pseudonymous Internet speakers.  In the course of a primarily procedural ruling, the appellate court suggested in dicta that an expansive category of "commercial speech" is entitled to reduced protection in anonymity cases.  As explained below, the decision could have negative consequences for consumers' ability to remain anonymous while speaking critically about products and services online.

The case is part of a long-standing business dispute between Quixtar, Inc., successor to the Amway Corporation (which has since returned to that name), and Signature Management TEAM, LLC, which sells books, seminars, and motivational speaker appearances to the Independent Business Operators ("IBOs") that sell Quixtar's products.  In this action, Quixtar sued TEAM for tortious interference with contracts and business relations, premised on the allegation that TEAM carried out an online "smear campaign" aimed at inducing IBOs to terminate their contracts with Quixtar.   read more »

The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago. Before we delve into the more troublesome elements of the agreement, let’s take a few moments to ponder how sad it is that our government continues to craft this agreement in secret.

I have spilt much digital ink over the stupidity of overt secrecy. When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.   read more »

A federal appellate court has issued a swift ruling, in a high profile reporter's privilege case, that requires a filmmaker to surrender some of his unpublished footage to a powerful oil company.

Last week I wrote about a brewing court battle between filmmaker Joe Berlinger and the oil company Chevron over 600 hours of outtakes from his documentary, “Crude: The Real Price of Oil” (“Crude”).  Chevron and its attorneys had argued in federal district court in the Southern District of New York that they wanted the footage because it might be useful to them in their pending lawsuits in Ecuador, which arose out of charges of widespread oil pollution in the country. Crude covers the underlying class-action civil lawsuit against Chevron.   read more »

It is a good thing to want to protect children from the vulgarity of the world. Accordingly, states have adopted prohibitions on exhibiting or selling harmful material to minors. These laws make sense, in that we usually don’t want sex shops selling pornography to kids. But occasionally the legislature goes a bit insane and decides that, in order to fully protect the children, we need to criminalize or block off whole sections of the Internet.

Massachusetts recently changed its “harmful to minors” law (Mass. Gen. Laws ch. 272, § 31) to include information hosted on the Internet:
  read more »

The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.

One of the problems with the law is that it does not do a great job of preventing jackassery. Talking in the theatre will not result in hard time (though it will result in burning in a special hell). It is not that we as citizens want to endure boorish behavior, it's just that we don’t know how to criminalize rudeness without chilling all other aspects of public interaction.  It is in these situations that we rely on a socially enforced notion of decorum. This system works fine when we can see the loutish perpetrator; but we don’t quite know what to do when the little twit is invisible. See Plato, The Republic, 2.359a – 2.360d (recounting the rapid moral decay of an invisible man); cf. South Park, Mystery of the Urinal Deuce (detailing the difficulty of discovering which boy "la[id] out a big fudge dragon [in the boys' room urinal] for all the world to see").   read more »

An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).

According to prosecutors, William White's overthrow.com site (archived here) featured racist and anti-Semitic articles, and promoted the American National Socialist Workers Party, which billed itself as "America's only organization advocating for the interests of the white working class."

Among the topics discussed on overthrow.com was the trial of leader of the white supremacist organization World Church of the Creator Matt Hale, who was convicted in 2005 and received a 40-year prison sentence for soliciting the murder of a federal judge in 2003.   read more »

A North Carolina trial court recently ordered the editor of the local community blog Home in Henderson to turn over the names and addresses of six pseudonymous commenters who allegedly defamed former Vance County commissioner Thomas S. Hester, Jr. As the Reporters' Committee for Freedom of the Press noted, the court used a lower standard in determining whether to order disclosure than is common in cases of this kind. In a June 28 order, Superior Court Judge Howard E. Manning, Jr. determined that six of out of twenty anonymous comments about Hester were actionable and therefore concluded that Hester's interest in proceeding with the case overcame those commenters' qualified First Amendment right to speak anonymously.   read more »

A filmmaker's fight against an oil company seeking his raw documentary footage has spurred a national debate on the reporter's privilege, pitting media organizations and filmmakers against powerful corporations and criminal defense attorneys.  At stake is the breadth of the protection given to unpublished newsgathering materials and, ultimately, the basic trust between journalists and their sources.

On July 14, lawyers for filmmaker Joe Berlinger will go before the Second Circuit Court of Appeals in New York to appeal an order requiring Berlinger to turn over to the Chevron Corporation 600 hours of footage collected for his 2009 film, "Crude: The Real Price of Oil" ("Crude"). Chevron sought disclosure of the footage in connection with an ongoing class action suit against it in an Ecuadorian court. The lawsuit revolves around oil pollution in the Ecuadorian Amazon, allegedly caused in the 1970s and 80s by Texaco. Chevron absorbed the legal liabilities of Texaco after it merged with the company in 2001. The oil company believes the Crude footage will shed light on a corrupt legal process in Ecuador and help in the defense of two of its lawyers facing related criminal charges.   read more »

Earlier this spring, Public Engines, Inc. sued ReportSee, Inc. in federal district court in Utah. Both companies maintain websites that publish local crime statistics and information gathered from law enforcement agencies. Public Engines gathers crime data by contracting with law enforcement agencies across the country to provide software and data management services. In contrast, ReportSee primarily gathers its information from public data feeds, police departments and, according to allegations in Public Engine's complaint, by scraping Public Engine's CrimeReports.com website. The complaint alleges breach of contract because scraping violates the terms of service of the website and hot news misappropriation, among other claims. (Techdirt has a good outline of the claims in the complaint and our legal threats database entry on this case has more background along with links to the complaint and other legal documents.)

This strange case got another wrinkle on June 24, 2010, when both parties stipulated to a preliminary injunction that bars ReportSee from any further scraping activity, making any commercial use of crime report data from Public Engines websites, and from contacting or communicating with law enforcement agencies for the purpose of obtaining Public Engines' data feed.  read more »

Last week I discussed recent news stories highlighting the dangers of online retaliation. At worst, this form of retaliation chills speech and threatens critical reporting. But short of that, it can harm journalists in a number of ways, including third-party harassment (in the case that your personal information is published) and reputational damage (through fraudulent profiles, posts, defamatory comments, etc.).

The fear of retaliation should never prevent you from covering a story. By taking some precautionary measures, you can significantly reduce the chance that the subject of your criticism will harm you online. I have compiled some practical tips to help you avoid online retaliation(please feel free to contribute your own tips in the comments section below):   read more »

Earlier this week, we received the good news that travel blogger extraordinaire Christopher Elliott sucessfully resolved the defamation lawsuit brought against him by Palm Coast Travel. Chris found a top-notch lawyer to help with his case through our Online Media Legal Network (OMLN)  (thanks for the shout out to the network, Chris!).

Huge props go to Gregory Herbert and his team at Greenberg Traurig for answering the Bat-Signal and bringing the matter to a successful resolution.  It's dedicated professionals like Greg that make OMLN work.   read more »

Last week YouTube won a landmark victory against Viacom in NY federal court. YouTube successfully argued that it was protected from Viacom's copyright infringement claims by the "safe harbor" provision of the Digital Millennium Copyright Act (DMCA). As the New York Times noted, Google's subsidiary was entitled to a complete defense because it had removed about 100,000 infringing videos from its web site as soon as Viacom requested that it do so.

Viacom v. YouTube shows that Congress granted online service providers far-reaching immunity from copyright claims. No DMCA "safe harbor" corollary exists in the offline world, however. This discrepancy leads to some counter-intuitive results.

Take the case of YouTube Play, a well-publicized joint project between YouTube and the Solomon R. Guggenheim Foundation. The organizers' goal is to seek out and display the most creative videos made in the past two years around the world. As of June 14, participants in YouTube Play are already submitting their works by uploading them on www.youtube.com/play. A panel of Guggenheim experts will then review the submissions and select about 200 pieces to be displayed on the YouTube Play Channel online. On October 21, the Guggenheim will screen a final selection of roughly 20 exceptionally artistic works in its New York, Berlin, Bilbao, and Venice locations simultaneously.   read more »