CMLP Staff's blog

This is the tenth 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 trade secrets, which describes the limitations imposed on publishers who rely on or publish certain confidential business information and offers practical advice to citizen media creators on how to avoid liability for publishing trade secrets.

Trade Secrets

A trade secret is a form of intellectual property that applies to business secrets. If a company or other organization creates or compiles information that gives it an economic advantage over its competitors, it can protect that information as a trade secret -- in a sense becoming the "owner" of the trade secret. To do so, however, a business must take reasonable precautions to keep the information secret, and it loses its property right when competitors or the public at large uncover the secret. Trade secrets law is governed by state law. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. For state-specific information, please see the State Law: Trade Secrets section of this guide.
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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 »

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 »

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 »

We've been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project's Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech.

Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs, Lisa and Seth Sykes, seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent."

Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents. Seidel summarizes the subpoena's demands as follows:   read more »

This is the seventh 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 Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording equipment in specific private and semi-public settings. We also provide some practical tips for using recording devices, which should help you steer clear of legal trouble.

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.   read more »

This is the sixth in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we began publishing in January. This past month, we rolled out the sections on Newsgathering and Privacy, which address the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information.

In this post, we highlight the section on Protecting Sources and Source Material, which discusses the legal challenges in maintaining the confidentiality of sources and source material and outlines the federal and state laws that may protect you from forced disclosure of your newsgathering materials. We also provide several practical tips for protecting your sources and source material.

The ability to protect your sources and newsgathering materials is often critical to your being able to gather information and inform the public. In the course of assembling information for an article, post, podcast, or other work, you may obtain information that, for a number of reasons, you do not wish to make available to the public.

Ironically, confidentiality may be an essential part of bringing information to the public's attention because as a publisher, you may only be able to gather the information if you promise not to reveal the information's source. For example, reporting that involves the criticism of government and exposure of government and corporate wrongdoing often depends on the use of confidential sources.
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This is the fifth in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we began publishing in January. This past month we rolled out the sections on Newsgathering and Privacy, which address the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information.

In this post, we highlight the section on Gathering Private Information, which outlines various privacy laws that may limit your ability to gather private information or otherwise intrude into another person's private space.

Gathering Private Information

If you physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other other way intrude into a person's privacy (by, for example, opening the person's mail), you could be liable for a violation of what is called "intrusion upon seclusion." If you collect certain personal data, this can also intrude into a person's private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion if the method you use meets the four general elements for an intrusion claim.   read more »

This is the fourth in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we published in January. As we roll out new sections of the guide each month, we will highlight some of the more important topics in blog posts.

In the first three posts we discussed choosing a business form for your online activities, the issues associated with selecting a platform for online speech, and deciding whether and how to be anonymous when publishing online. In this post we highlight the importance of insurance and help you evaluate whether your existing coverage is sufficient.

Even frivolous lawsuits dismissed at a relatively early stage of the litigation can be expensive to defend, and the cost skyrockets the longer the litigation continues, particularly if judgment is rendered against you. While most lawsuits never get to trial, if you lack the money to carry out a vigorous defense, the only option available to you may be to settle (perhaps even to take down the allegedly offending content or even your entire site) regardless of the merits of your defense.   read more »

This is the third in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we published in January. As we roll out new sections of the guide each month, we will highlight some of the more important topics in blog posts.

In the first two posts we discussed choosing a business form for your online activities and the issues associated with selecting a platform for online speech. In this post we discuss the legal and practical issues you should consider if you wish to engage in anonymous speech online.

Putting aside the possible legal challenges to anonymity for the time being, there are some practical considerations that you should think about before deciding to carry out your online publishing activities anonymously or pseudonymously.   read more »

This is the second in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we took up was choosing a business form for your online publishing activities. In this post we discuss the various issues, both legal and practical, that arise when you select a platform for your online speech.

So you've decided that you want to publish online. There is a wide range of platforms you can use to get your words, video, and other content out to the world.

Of course, the easiest way for you to get online is to simply go to a website that allows user comments or forum posts and add your two cents to the mix. If you want a more permanent home -- and one you can control to some degree yourself -- you will want to consider whether to join a service such as Blogger, TypePad, Livejournal, or even MySpace (yes, we know it's a social networking site), that will host and manage your content for you or whether you want to create your own, independent website. Each option has its advantages and disadvantages. Here are some of the things you might want to think about in deciding which platform -- or platforms -- you will use:   read more »

This is the first in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we'll take up is choosing a business form for online publishing activities. There is increasing awareness that, especially if you publish content in collaboration with others, it may not be smart to simply leave the relationship "natural" or informal. But this realization raises other questions: What are my options? What are the benefits of legal formality? Will it be expensive to obtain these benefits? Will I have to sacrifice control?

Below is an excerpt from the legal guide giving a brief introduction to some of the most commonly adopted business structures and pointing out some of their most salient advantages and disadvantages. This page in the guide is just a jumping-off point for in-depth discussions on each of the business forms that you can find in the guide. In the end, the choice between business forms is a personal one. Our hope is that the legal guide will help you understand the issues and make a better-informed decision.   read more »

Sam Bayard blogged previously about James Goodale's article on CDA 230 and the highly publicized AutoAdmit case. In the article, Goodale argues that CDA 230, the federal law that shields providers of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, should be amended to impose liability in cases where a website operator "knowingly causes defamation by refusing to take down libelous posts."

On Sunday, on his show "Digital Age," Goodale moderated a discussion between Michael Fertik, the CEO of ReputationDefender.com, and Beth Simone Noveck, a professor at New York Law School, about CDA 230, anonymity, and the AutoAdmit case.

You can also watch it on Google Video.

(Note: James Goodale is on the board of advisors for the CMLP.)

As a lead up to the launch of the Citizen Media Law Project's Legal Guide later this month, we are putting up longer, substantive blog posts on various subjects covered in the guide. This post is the second in our series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act. In this post we discuss copyright and fair use in the context of citizen media.

I. COPYRIGHT PROTECTION AND FAIR USE

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Citizen media creators who use the works of others need to be careful that they do not open themselves to copyright liability when doing so.

Fortunately, there are several circumstances in which the work of others may be used without liability. Bare facts and ideas, government documents, and items in the public domain are not subject to copyright, and some materials may be published under a Creative Commons license or other license that permits reuse. In addition, the doctrine of fair use provides that copyrighted materials may be used without the consent of the original owner in certain situations, such as when using excerpts for criticism or news reporting.
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CNET collaborated with Fred von Lohmann of the Electronic Frontier Foundation to come up with the helpful list 9 Fun Ways Web 2.o Startups Can Commit Legal Suicide. It includes some important pointers about managing users' private data, a reminder to startups to designate a copyright agent for DMCA takedown notices, and a word of caution for websites about expanding into print:

Thanks to Section 230 of the Communications Decency Act, you're protected from libel suits filed against you if your users write disparaging comments about other people or services on your site. That's how ZocDoc, a new Yelp-like service for finding doctors, can exist without being sued into the ground. But if you print out your user reviews, this no longer applies. So be careful if your customers or users ask for it.

We will be addressing many of the issues covered in the CNET piece in our forthcoming Legal Guide, and in the future we hope to take on cases involving some of these novel legal issues.

In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.

It is not clear whether YouTube has already complied with the subpoena, but YouTube's policy, as taken from parent company Google's privacy policy, is to "comply with valid legal process, such as search warrants, court orders or subpoenas seeking personal information" and it has historically turned over this type of information without much of a fight. However, as Wired News reports, YouTube generally notifies users when it receives civil subpoenas seeking their identity, so perhaps we will see the anonymous user intervene as a "John Doe" to quash the subpoena.

What is alarming about this case is that Volkswagen appears to have used the controversial "administrative subpoena" provision of the Digital Millenium Copyright Act (DMCA) to force YouTube to reveal the identity of its user. Under this provision of the DMCA, a copyright owner can request from the clerk of any U.S. district court that a subpoena be issued to a "service provider" for identification of an alleged infringer. See 17 U.S.C. 512(h)(1). If the copyright owner supplies the necessary paperwork and signed avowals, the clerk must "expeditiously issue" the subpoena.  read more »