Arthur Bright's blog

A bit of good news for those of us keen on open government: The Senate Judiciary Committee today voted 11 to 7 to allow television cameras into the Supreme Court.

The text of Senate Bill 1945 is short and sweet. It would insert into the U.S. Code the following line:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

Simple, and it could solve the gross misbalance in the importance-to-access ratio of the court. The Supreme Court is all but actively hostile to permanent fixations of its proceedings: no cameras, no television.  Audio only became readily available in 2010.  But it's also the court with the largest pool of potentially interested citizens - its rulings can affect every man, woman, and child in the country.  So why is it easier to film a minor civil trial of no account in the Midwest than it is to record an earthshaking case in the Supreme Court of the United States?   read more »

Last Thursday, Twitter announced that it would start censoring tweets by denying access to specific tweets in countries where those tweets would be illegal.  Naturally, this has caused a lot of concern online. 

Some see the announcement as a first step towards expanding into China in Twitter by complying with Beijing's compulsory, rigorous state censorship.  (Twitter's general counsel has denied this, saying the announcement “has nothing to do with China.”)

Others fear that it is somehow tied to the recent $300 million investment in Twitter by Saudi Prince Al-Waleed, and that he was flexing his capital muscle to quiet Twitter, which helped facilitate the Arab Spring and continues to threaten the stability of the region's authoritarian governments. (But take this theory with a grain of salt: Waleed owns less than four percent of Twitter, hardly enough to wield the kind of influence needed to implement censorship.)   read more »

The day of protest against the now (hopefully) infamous "Stop Online Piracy Act" (SOPA) and "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (PROTECT IP Act, or PIPA) has ended.  Baffled students can once again access Wikipedia to do their homework; the Google doodle is no longer blacked out; and Jon Stewart can return to lampooning Republican presidential candidates rather than obtuse copyright bills.

Mission accomplished, right?

Actually, no.  It's only just begun.

To be sure, the protest was incredibly successful at drawing attention to the threat that SOPA and PIPA pose to online speech. Google News tracked nearly ten thousand stories on the bills – a number far, far above average for a single news event. Wikipedia's users were shocked into awareness of SOPA and PIPA, thanks to the site's 24-hour blackout. And the tallies on ProPublica's snazzy SOPA Opera page, which tracks Congressional support and opposition for the bills, literally reversed overnight, as members of Congress stampeded from the pro-SOPA/PIPA camp to the anti- side.   read more »

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v. Cox case.  That's the case where an Oregon federal judge rejected blogger Crystal Cox's contention that she was a member of the media, thus clearing the way for a $2.5 million verdict against her for defaming the plaintiffs. 

The story resulted in much hooting and hollering online, particularly from bloggers outraged that the judge ruled that they were not protected under Oregon's shield law.  Though as CMLP guest blogger Eric Robinson pointed out, the shield law issue was a sideshow to a much bigger problem in the ruling: that Judge Marco A. Hernandez had ruled that the Supreme Court's decision in Gertz v. Robert Welch, Inc. does not apply to Cox because she is not "media." 

Gertz stands for the proposition that plaintiffs in a defamation case cannot recover any damages without proof that the defendant was at least negligent, and may not recovered presumed damages without proof of the defendant's "actual malice." In Cox, the judge ruled that Gertz only applies to media entities, and – using a rather arbitrary list of what defines the media – determined that Cox was not a member of the protected class.  This in spite of several cases (of which the judge took no notice and Cox, acting pro se, did not cite) that state just the opposite.   read more »

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven. 

When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn (who is represented by friend of the CMLP Marc Randazza). Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its trolling business.

It's certainly been eventful since then.

After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net.  Among the highlights (as well documented by Steve Green of the Las Vegas Sun):

● In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: righthaven.com itself.  And it's being auctioned right now!  Yes, the domain name of the country's self-described "pre-eminent copyright enforcer" can be yours!  (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.)  But hurry, the bidding closes on Jan. 6, just a few days away!   read more »

I am excited to welcome Victoria Smith Ekstrand as a guest blogger! 

Victoria Smith Ekstrand is an associate professor at Bowling Green State University, where she teaches media law, public relations, and graduate courses in legal theory and pedagogy. She has an affiliate appointment with BGSU's Department of American Culture Studies. She studies the tensions between intellectual property and First Amendment law and is the author of News Piracy and the Hot News Doctrine: Origins in Law and Implications for the Digital Age (2005).

Before attending the University of North Carolina - Chapel Hill for her doctorate, she was Director of Corporate Communications for The Associated Press in New York City, where she handled media relations and employee and marketing communications for the news service. She worked for the AP for nine years, and before that worked for the Arbitron Company and for radio stations in upstate New York, New York City, and Long Island.

Please join me in welcoming Victoria to the CMLP blogroll! 

The United States is something of an outlier in the world when it comes to hate speech.  Whereas laws prohibiting hate speech in the U.S. are simply unconstitutional (barring the various unprotected exceptions like obscenity, incitement, etc.), the majority of Western countries ban hate speech outright.  Of course, those same countries also generally protect freedom of speech.  The natural tension between hate speech bans and free speech rights can make for some interesting cases, one of which is now playing out in Canada.

Yesterday, Canada's Supreme Court heard arguments in the case of William Whatcott, an "anti-gay activist" in Saskatchewan, who in 2005 was found guilty of promoting hate by the  Saskatchewan Human Rights Tribunal and ordered to pay the complainants $17,500.  The Saskatchewan Court of Appeal overturned the ruling in 2010, and the Canadian Supreme Court agreed to hear the case.

Now, Whatcott does not appear to be a particularly pleasant fellow.  As he described himself to the Montreal Gazette, he is a reformed drug addict who once traded sexual favors to his (male) drug dealer to feed his addiction.  He notes to the Gazette that "It's a little inaccurate to say I was gay"; rather, he claims, "if you have no moral boundaries, you can try anything."     read more »

Last week the Online News Association's annual conference came to Boston.  Naturally, many prominent news organizations showed up, tchotchkes in tow, to woo attendees – including Reuters, MSNBC, NPR, and CNN among many others.

But of all the exhibitors attending the conference, I'd like to drop a bit of praise on Al Jazeera, and not just because they were giving away really nice keychains.  While poking around their site and materials at the conference, I discovered that Al Jazeera has been offering up video, photographs, and even full-fledged blog articles for public use under Creative Commons ("CC") licenses since January 2009.

This is a truly excellent thing.   read more »

I am excited to welcome Timothy Cornell as a guest blogger. 

Timothy is Of Counsel at Perry, Krumsiek & Jack LLP in Boston and takes on a range of internet-related issues, from intellectual property to litigation to startup advice.  He has worked for David Boies and for the U.S. Securities and Exchange Commission.  Timothy earned his bachelors degree from the University of Chicago.  Before he went to law school, Timothy worked as a journalist at the Boston Herald, the Philadelphia Inquirer and other papers. As a former receiver of prepublication review of his articles for libel issues, Timothy now returns the favor to current writers.

He graduated from Cornell Law School cum laude, and was editor-in-chief of the Cornell International Law Journal.

Please join me in welcoming Timothy to the CMLP blogroll!

I'd like to welcome Itai Maytal as a CMLP guest blogger!

Itai Maytal is an associate attorney of the New York-based firm Miller Korzenik Sommers LLP. The firm counsels clients on media, intellectual property, entertainment and art law, and has litigated these matters and a broader spectrum of business and commercial concerns for over twenty years.

Prior to joining the firm, Itai was the First Amendment Fellow at The New York Times Company, where he defended libel actions; litigated access to courts and freedom of information issues; counseled the company's newspaper and Internet clients on intellectual property matters and agreements; provided prepublication review; and worked with its journalists on a variety of matters.

In addition to his responsibilities at the firm, Itai also serves as an assistant professor at the Columbia University Graduate School of Journalism, where he provides teaching support to mid-career students in the school's 10-week "Journalism and the Law" course. He also serves as an assistant instructor at The Benjamin N. Cardozo School of Law for the Entertainment and Media Law course.

Before becoming a lawyer, Itai worked as a journalist in a newspaper in upstate New York and for various publications in New York City. He graduated from Yale College. He received a master's degree in journalism from Columbia University and his law degree from the Benjamin N. Cardozo School of Law at Yeshiva University.

Please join me in welcoming Itai to the blogroll!

Imagine you live in a country where criminal attacks on civilians are alarmingly familiar, and reliable reporting from the local media is regrettably unfamiliar.  You hear about an attack on your local school, so you take to the Internet to spread the word on Facebook and Twitter to warn people before it's too late.  Mercifully, the report you heard was mistaken, and everything's okay...

...Until the local government comes and arrests you on charges of terrorism.

Welcome to the situation in which Gilberto Martinez Vera and Maria de Jesus Bravo Pagola find themselves in their home state of Veracruz, Mexico.

According to the Los Angeles Times report on the incident, on August 25, 2011, Mr. Martinez, a teacher, and Ms. Bravo, a journalist, heard rumors of an attack and kidnapping by a drug gang at a primary school in the port city of Veracruz (which is located in the state of Veracruz).  Considering the city had already seen a grenade attack at an aquarium that killed a man and injured a woman and two children just days before, it's not unreasonable that they thought these new rumors might be true, and so they tweeted about it.

Naturally, the rumors caused a great deal of panic and confusion among parents - a Veracruz official said that many rushed to school to pull their kids out of classes, and that the chaos led to more than two dozen car accidents.  Fortunately, the rumors were untrue, and all the kids were safe.    read more »

Strategic lawsuits against public participation, or SLAPPs, are one of the most bullying types of litigation out there.  But while the majority of US states have enacted special anti-SLAPP statutes to discourage them, Texas - certainly known for doing things big - is currently considering what could be the strongest anti-SLAPP measure yet.

In simple terms, SLAPPs are used by rich, powerful parties to bully those who publicly criticize them into silence by filing frivolous lawsuits that the critics can't afford to litigate.  Hence, the term "strategic lawsuit against public participation," or SLAPP.  More can be found about SLAPPs in the CMLP legal guide.

A classic example is a frivolous lawsuit brought by a wealthy land developer against a poor environmental advocate critical of the project.  The lawsuit may be utterly without merit and the advocate's criticism may be protected under the First Amendment, but because the advocate lacks the money to fight the developer in court, she's forced to stop her otherwise legitimate speech for financial reasons.     read more »

I've been writing about impending British libel reform for almost two years now, putting a post together every time something happens to bring the United Kingdom closer to fixing its quite-literally-backwards defamation laws.  "Ooo, the High Court has tossed a textbook libel tourism case," I cheered in November 2009.  "Aah, the justice minister has publicly endorsed libel reform," I applauded in March 2010.

But now it really looks like libel reform is happening in the United Kingdom.  Finally, FINALLY, the British government has put pen to paper and written a draft defamation bill that addresses at least some of the glaring flaws in the British defamation tort that have earned London the (not-so) honorific of "libel capital of the world."   read more »

I'm excited to welcome Joel Sage as a guest blogger. 

Joel is a Massachusetts attorney and recent graduate of the Boston University School of Law with a deep interest in intellectual property issues.  He has served as a research assistant to noted copyright scholar Wendy Gordon and to syndicated legal analyst and Massachusetts lawyer Neil Chayet of CBS Radio's "Looking at the Law".  Joel was also the executive editor of the BU Journal of Science and Technology Law, which published his note Revenue Streams and Safe Harbors: How Water Law Suggests a Solution to Copyright's Orphan Works Problem.

Joel earned his undergraduate degree from Wheaton College in Illinois.  In addition to his posts here, Joel also writes for his own commentary blog, Legally Sociable, as well as taking photos for his self-titled photography blog.

Please join me in welcoming Joel!

After enacting a colossally backward law in recent weeks that undermined Utah's open records law, the Utah government is now considering a repeal of the bill that earned Utah the Society of Professional Journalists' inaugural Black Hole Award, which goes to "the most heinous violations of the public's right to know."

It's an odd situation.  Just two weeks after he signed HB477 into law, Governor Gary Herbert came out with a commentary in The Salt Lake Tribune calling for the bill's repeal, and promising a special session of the legislature to do so.  The Utah House has endorsed the special session idea, according to the Cache Valley Daily.  And the Utah Senate, where the bill passed twice before in votes of 21 and 23 senators out of 29 in favor, now appears to be close to voting for its repeal.  The Deseret News reports 12 senators have said they will vote for repeal, with 15 needed to make a majority.  Considering just two weeks ago these bodies were enthusiastic in affirming HB477, we're looking at quite the turnaround.   read more »

We received a request not long ago from one of the lawyers in our Online Media Legal Network who is looking for legal resources on a couple different issues tied to software development, particularly open source software development.  And frankly, they're the sorts of resources that we expect more and more lawyers will have need for.  Thus, we're reposting the requests here - along with my first stab at researching them - in the hopes of drumming up a bit of crowdsourcing to find the answers.

The first request was for best practices, procedures, and policies relating to management of the software development function. Of particular concern is situations where developers are writing original code, licensing commercial code, and using open source code in developing software that is redistributed to nonprofits.  What recommendations are out there for such best practices in complying with the various licenses?

I found three possible resources for this, each with a somewhat different focus.  The first, an IBM article on software development best practices, is mostly for the techie set.  It's also a little old - apparently last updated in 2006 - so it's likely missing newer innovations in the field.

The next is an article from Lullabot.com on open source software development - closer to what the lawyer is looking for, I think.  But it's still on the techie, rather than legal, side, and a few years old to boot.   read more »

The United States Supreme Court is, when it comes to technology, almost completely ignorant.

Not exactly a news flash, I know. After all, much was made in the days of Justice Sonia Sotomayor's nomination process about her high level of tech-savvy as compared to her predecessor, Justice Souter, whom Popular Science called a "famous Luddite." But before reading a post on the DC Dicta blog on Monday, I'd always sort of thought that SCOTUS's collective ignorance of common tech was limited to the visibly ancient Justices, like the retiring John Paul Stevens.

Not so, sadly. Judging from the expertise the Court displayed during oral arguments for City of Ontario v. Quon, the majority of the Court appears to be but mewling infants when it comes to technology. From the DC Dicta account:

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.   read more »

The reform of British libel law has been something of a will o' the wisp in recent years.  Every few months it seems, the issue jumps to the fore, either through international pressure, a judicial decision, or a domestic campaign.  But just as quickly, it disappears back into the legal morass.

But finally, it looks like Britain's legal heavy hitters are getting involved.  Last week, British Justice Minister Jack Straw rolled out the Labour government's outline for a long-needed libel reform bill.  The Independent reports:

Mr Straw said ministers were now "convinced" that reform of the law in England and Wales was necessary, amid concerns that existing legislation was having a "chilling effect" on freedom of expression. . . .

"On the basis of all the views that have been submitted, the Government is convinced that reform of the law on libel is needed, and that action should be taken on a number of aspects and procedures," Mr Straw said.   read more »

Anyone who followed the Green Movement protests in Iran is well aware of the importance of social media to the protesters.  Without Twitter, photo sharing, and other key information-sharing technologies, it's hard to believe that the protests would ever have materialized, let alone in such numbers that the Iranian government couldn't discretely crush them.  (By the way, if you're interested in seeing the social media at work in the protests, I'd highly recommend checking out Andrew Sullivan's blog The Daily Dish at The Atlantic.  Whatever your opinion of Sullivan and his politics, he and his staff have done an excellent job of aggregating the protesters' Tweets, posts, and what have you.)

With the Iran protests in mind, the Treasury Department's decision this week to loosen export restrictions on social media services to Iran, Cuba, and Sudan is really no surprise.  Indeed, The New York Times writes that the regulatory change has been in the works for a while.

The decision, which had been expected, underscores the complexity of dealing with politically repressive governments in the digital age: even as the Obama administration is opening up trade in Internet services to Iran, it is shaping harsh new sanctions that would crack down on Iranian access to financing and technology that could help Iran’s nuclear and missile programs.

Critics have said these sanctions are leaky and ineffective, and some say it makes more sense to spread digital technology, which makes it harder for governments to restrict the flow of information within societies, and to prevent their people from contact with the outside world.   read more »

I've no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court's conviction last week of three Google executives for invasion of privacy of an Italian teenager. 

(In case you missed the story, here it is in short: the teenager (who either suffered from Down's syndrome or autism; reports differ) was filmed by four other teens who were bullying him, and the bullies posted the video on YouTube.  Google promptly removed the video after receiving a formal complaint. Italian authorities then criminally prosecuted four Google execs for defamation and invasion of privacy.  Last week, the Italian court found three of the execs guilty of invasion of privacy; the defamation charges were dropped against all four.  More back-story can be found in my 2008 post when the possibility of charges was first announced.)

Of course, Google is apoplectic. Much of the rest of the media world is too: Mathew Ingram of gigaom.com rounds up:   read more »