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First Amendment juggernaut Marc Randazza is having a very good week.  On Wednesday, Professor Donald Marvin Jones a/k/a the "Nutty Professor" voluntarily dismissed his invasion of privacy lawsuit against Randazza's client Above the Law.  Today, word comes that WIPO Arbitration Panelist Frederick M. Abbot has denied Glenn Beck's UDRP complaint against another Randazza client, Isaac Eiland-Hall, the man behind glennbeckrapedandmurdereda younggirlin1990.com.  (See our previous posts here and here.)

In the decision (pdf), Panelist Abbot ruled that Eiland-Hall's domain name was a "legitimate noncommercial or fair use of [Beck's] mark,"  dooming Beck's claim:   read more »

On Monday, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Fustolo v.Hollander, No. SJC-10485.  As you may recall, last month the Citizen Media Law Project (CMLP) joined the American Civil Liberties Union of Massachusetts (ACLUM) and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief urging the SJC to reverse a lower court's decision interpreting the state’s anti-SLAPP legislation.  Representing CMLP, Harvard Law School’s Cyberlaw Clinic co-authored the brief.   read more »

What do Tommy Hilfiger, MasterCard, the World Wrestling Federation, and Tom "Scopes monkey trial" Donohue, the President of the U.S. Chamber of Commerce, have in common? Apparently, none of them has a sense of humor when it comes to their respective brands.    read more »

On Friday, Senators Arlen Specter (D-PA) and Charles E. Schumer (D-NY) released a revised version of the proposed federal shield bill (S. 448), which expands the bill's coverage to bloggers and other amateur journalists publishing on the Internet. This version departs from a previous one, announced in September, which limited protection to "salaried employee[s]" and independent contractors for established news media organizations. The new language reads:

(2) COVERED PERSON.—The term "covered person"—

(A) means a person who—

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—   read more »

It's tough being a publisher these days.  Of course, no one is having much fun in the current economic downturn, but publishers were up against it even before the slowdown.  Circulations have been down across the board for years now, which in turn has slashed the advertising revenues that print publications have always relied upon to survive.  It's just a bad time to be publishing newspapers and magazines, at least while using the classical publishing business model.

Well, Germany's recently formed government believes they may have a solution to the woes of German publishers: a new kind of copyright.  The New York Times reports that the incoming German government has proposed a new kind of "neighboring right" (i.e., "ancillary copyright" or Leistungsschutzrecht), along the lines of those already enjoyed by movie and music publishers in Europe, to stymie the unauthorized use of published works by for-profit websites:

Details of how the proposal would work have not been spelled out, but publishing executives say one possibility would be to require a license for any commercial use of published material online. That might include Web sites that post articles from other sources, assuming they sell advertising.

A new agency, modeled on the music and book industries’ royalty collection societies, could be created to gather and distribute the fees, publishing executives add.   read more »

"How do I get media liability insurance?"  It's a question we hear a lot here at CMLP. 

A lot has been written about why bloggers and other citizen journalists should consider obtaining insurance to protect themselves against liability for their online activities. But comprehensive, impartial information on the issue remains scattered and hard to find. 

As a service to you, our dear readers, CMLP has attempted to remedy this problem by updating our Legal Guide content on insurance for online journalism ventures.  In the guide, you will find sections on Finding Insurance, Homeowners and Renters Insurance Coverage, Evaluating Homeowners and Renters Insurance Policies, Insurance Exclusions for Business Pursuits, and Media Liability Insurance.   

We've also added a brand-new feature: an Interactive Question Tool for Evaluating Your Insurance Needs.  The tool takes you through a series of questions to help you determine whether your activities are covered by your existing homeowner's or renter's policy, whether separate media liability insurance is right for you, and what issues you should consider when shopping for media liability insurance.  read more »

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections.  In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legalizing same-sex marriage.  Sure, it's an off-year for Congress and it doesn't have the historic dimensions of the last election, but there are still plenty of reasons for ordinary voters and journalists alike to document the day and gather news at the polls, including to root out fraud and other problems in election procedures. 

To help out, the Citizen Media Law Project has updated its legal guide pages on laws regulating recording activities in and around polling places on Election Day.  Our specific focus is on the laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places.   read more »

Last week was a tough one for Internet users worldwide. On the foreign front, the French (as predicted) reinstituted a due-process-shattering law that allows ISPs to kick suspected file-sharers off the Internet.  On the domestic side, a district court refused to lift a government gag order, preventing ISPs from discussing the FBI’s Internet snooping. Separately, each of these events is a bummer, but taken together they threaten the Internet as we know it by inviting abuse from both private industry and government.

As you may recall, the French government (with a little encouragement from the entertainment industry) has previously attempted to do away with the entire notion of due process vis-à-vis the Internet. The HADOPI law would have allowed ISP’s to strip Internet access from users who were accused of file sharing. The French Socialist party challenged the law, arguing that access to the Internet was a basic right that could not be violated without judicial oversight. The Conseil Constitutionnel agreed and declared the banning provision unconstitutional.   read more »

As social media become more popular, it is inevitable that enterprising politicians will use it promote themselves, connect with constituents, and garner votes.  The White House has a blog, several Senators and House members tweet, and elected officials and candidates at all levels of government are using social media to get out their messages.

But just as use of social media by voters is coming into conflict with existing election laws, some politicians are discovering that their use of social media may clash  — or at least create possible problems — with existing campaign and government disclosure laws.   read more »

I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act (“Section 230”).  Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material.  And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings.  Seriously, there are loads of these cases, and they almost always fail — why do plaintiffs keep bringing them?   read more »

A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity.   read more »

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28.  (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA."  After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.   read more »

A lot of ink and pixels have been spilled on predictions about how technology and social media will change the world.  But the new technologies still have their skeptics (with some even going so far as to compare Twitter to the Macarena).  Last week in Mexico City, the Alliance of Youth Movements convened a group of international activists, government officials, academics, journalists, and representatives of new media companies for three days of discussions seeking to prove the skeptics wrong.

The Second Annual Alliance of Youth Movements Summit sought "to explore ways to advance grassroots movements seeking positive social change through 21st century technology and tools." A quick glance at the list of conference sponsors reads a bit like a Who's Who of old-media meets new-media: the U.S. Department of State, Facebook, Hi5, Google, MySpace, Gen Next, Howcast Media, MTV, PepsiCo, Mobile Behavior, Univisión, Interactive Media, Inc., Causecast.org, WordPress.com, Edelman, and YouTube.  read more »

Between sparkling vampires and slobbering zombies, the Undead have found new life at the box office these days. So it makes sense that the MPAA, inspired by the success of the long deceased, has decided to resurrect the odorous, oft-defeated idea of “selectable output control.” We can only hope and pray that the FCC will shoot this idiotic (but dangerous) idea in the head, and grant consumers a brief respite (before the inevitable sequel). For those of you who are unaware of the movie industry’s idiotic plan to castrate and consume your DVR, allow me to shine a light on the lumbering terror.   read more »

On the broad grade-school spectrum of the bullies and the bullied, I tended to fall closer to the bullied side of things.  Fortunately, I quickly proved taller than average — thus harder to intimidate — and smarter than average — thus more useful as a source for homework help than as a target for abuse — so the bullies moved on to other targets.  Still, although not subjected to it much myself, I got to see a fair amount of bullying in my youth.

That's why I'm surprised that I can't think of a similar, non-Internet parallel for this Wired story about a new case of cyberbullying in Missouri.  Apparently a ninth-grade girl at the Troy Buchanan Ninth Grade Center put together a "disparaging" website attacking a fellow student, posting photos of her and calling her a "slut," among other "very troublesome" things.  The site creator even went so far as to register a domain name, which Wired writes, "included the target’s name and 'cunt.com.'"  (I suspect that an "isa" appeared between the two.)  

Naturally, this is the sort of thing that schools crack down on.  Unfortunately for the spiteful girl in question here, it's now also the sort of thing that Missouri district attorneys crack down on — she was arrested by the local sheriff's department.  According to Wired, her case has been turned over to juvenile court prosecutors who will determine whether she will be charged with a crime.   read more »

In a closely watched case that challenged (at least in Massachusetts) our long held understanding that truth is an absolute defense to a defamation claim, the jury has returned a verdict for the defendant, finding that it acted without actual malice when it sent an email to its employees stating -- truthfully -- that one of its salesman had been terminated because he violated the company's travel and expense policies.

The case, Noonan v. Staples, Inc., D. Mass, No. 06-10716, involved Staples, the office supply chain, and one of its former employees, Alan Noonan.  Back in February, we reported that the U.S. Court of Appeals for the First Circuit had held that Noonan could hold Staples liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan's termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will."  Not surprisingly, the First Circuit's decision sent shock waves through the media defense bar, with Robert Ambrogi, Executive Director of the Massachusetts Newspaper Publishers Association, characterizing it as "the most dangerous libel decision in decades."   read more »

While a number of businesses and organizations are initiating public service campaigns to combat cyberbullying, governments are realizing the utility of online shaming.

In response to a rash of recent suicides, the French Labor Minister, Xavier Darcos, has directed over two thousand French firms to craft anti-stress strategies with the aid of unions by 2010.  Companies who do not have a plan in place by the deadline will be named publicly on a dedicated government website.

Now right off the bat, let’s acknowledge that this approach to suicide is fairly awesome. First, the government is aggressively addressing an insidious problem. Second, a public listing seems to be the only sanction for those companies that fail to comply.  We’re bringin’ shaming back!   read more »

File this one under DMCA don'ts:

Last month, the folks at Photoshop Disasters and Boing Boing noticed that Ralph Lauren had done some rather horrific photoshopping of a fashion model in one of its ads (on right).  Both sites mocked the horribleness with brief, but clearly critical, comments. 

"Make her head bigger than her pelvis! Do it!" wrote Photoshop Disasters.

"Dude, her head's bigger than her pelvis," gasped Boing Boing.

Naturally, both blogs saw a torrent of comments of people laughing, pointing, and noting that this kind of photoshopping is exactly the sort of thing that drives women's self-esteem down the tubes.  But that was about as much publicity as the posts got.

Enter an apparently cranky Ralph Lauren.  Claiming that the blogs infringed on its copyright in the hideously doctored photo (and presumably also fearing that the label would see a backlash for promoting emaciation chic even more blatantly than the fashion industry's norm), Ralph Lauren sent DMCA takedown notices to the hosts of both blogs.  (You can see a copy of the notice sent to Boing Boing at the Berkman Center's own Chilling Effects Clearinghouse.)   read more »

Digital technologies have allowed people to share music in unprecedented ways, and earlier this week recording artists, music industry leaders, and policymakers gathered at George Washington University in Washington, D.C. for the Future of Music Policy Summit sponsored by the Future of Music Coalition to talk about their impact on the music community. Also on the agenda were panels on how recording artists can use digital technology and social media to share and promote their work. Unfortunately, some of our intuitions of what kinds of sharing are okay don't always square with the law of copyright. The result has been confusion about the boundaries for legal conduct. For instance, we recently received this inquiry from a reader: "Can I post a mix tape on my blog to highlight a new recording artist? Can I allow visitors to download my mix tape?"   read more »

On October 5, the Federal Trade Commission issued new guidelines (large pdf) on advertising involving endorsements and testimonials. The guidelines, which are due to go into effect on December 1, have caused a stir among bloggers, journalists, and new media types because they appear to place significant requirements and restrictions on blogs and social media.  Most notably, they suggest that bloggers or other consumers who "endorse" a product or service online may be liable for civil penalties if they make false or unsubstantiated claims about a product or fail to disclose "material connections" between themselves and an advertiser. (Although Richard Cleland, assistant director of the FTC's  division of advertising practices, told Fast Company that the Commission will focus on warnings and cease-and-desist orders, rather than monetary fines, and told PRNewser that the Commission will target advertisers for violations, not bloggers. Another FTC official reiterated this.)   read more »