David Ardia's blog

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 »

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.

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 »

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 »

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 »

Wikileaks, which purports to provide an "uncensorable Wikipedia for untraceable mass document leaking and analysis," is back in the news as it faces a new legal threat from the Church of Scientology. On March 26, Wikileaks published what it describes as a full unedited version of the Church of Scientology's Operating Thetan documents. It says that while some portions of the "bibles" of Scientology have been previously leaked, this is the first time the entire 612-page document had been made public.

On March 28, 2008, a lawyer for the Religious Technology Center (RTC), the entity that holds the copyright in the Church's writings and religious materials, sent an email to Wikileaks alleging copyright infringement. The email complained that an unknown Wikileaks user had posted certain "Advanced Technology" works belonging to the Church on the Wikileaks site. It demanded that Wikileaks remove the allegedly infringing material and requested that the website "preserve any and all documents pertaining to this matter and this customer, including . . . logs, data entry sheets, applications . . ., registrations, forms, billing statements or invoices, computer print-outs, disks, hard drives, etc."   read more »

Earlier this week, Perez Hilton sued fellow gossip-blogger Jonathan Jaxson for libel, slander, invasion of privacy, harassment, and intentional infliction of emotional distress. Jaxson, the former publicist for the Backstreet Boys whose real name is Jonathan Wayne Lewandowski, operates a blog called JJ's Dirt that feeds the public's apparently unlimited hunger for celebrity gossip.

The complaint, which Hilton filed in Los Angeles Superior Court, alleges that Jaxson slandered him by stating that Hilton had solicited sexual favors from Jaxson in exchange for help promoting Jaxson’s website. The complaint specifically refers to a February 28 article in the New York Post in which Jaxson stated that Hilton encouraged him to send sex tapes of himself. "He would tell me he would give me stories for my blog," Jaxson told the Post. "He used me."

Hilton also claims that statements Jaxson made to ABC News, Popcrunch.com, and HollywoodCrap.com, were defamatory. According to ABC News.com and allegations in Hilton's complaint:   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, and Newsgathering and Privacy. This week we published the section on Access to Government Information, which highlights the extensive amount of information available through government sources and explains how both traditional and non-traditional journalists can use various public access laws to gather and make effective use of this information.

To whet your appetite, I've pasted the overview to this new section below:

Access to Government Information   read more »

In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.   read more »

The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.

A Vermont judge has dismissed the libel lawsuit filed against Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed community journalism site based in Brattleboro, Vermont, ruling that Grotke and LePage are immune from liability under section 230 of the Communications Decency Act ("CDA 230").

The lawsuit, which was filed by Effie Mayhew on November 16, 2007, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site. While Mayhew's complaint didn't make any allegations that Grotke or LePage authored the allegedly defamatory statements, her lawyer (as well as several commentators in Vermont) asserted that iBrattleboro.com should be liable because the site admins failed to edit or remove Dunn's comment.   read more »

Earlier this week, the Oklahoma Supreme Court adopted new rules governing public access to court records, cutting off all public access to court records via the Internet and limiting public access to other information that has been available in the past.

When the rules go into effect on June 10, online access to court documents in the Oklahoma Supreme Court and district courts would be limited to court dockets only and parties will be required to redact certain personal information before submitting a filing to the court clerk.

According to the order signed by Chief Justice James Winchester and four other justices, "individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the Internet." The order, released on March 11, describes the new rules as an effort to balance the rights of privacy of individuals and public access.

"What I disagree with is the instantaneous restriction of public access to current public court documents on line," Justice Yvonne Kaugerin wrote in a separate opinion concurring in part and dissenting in part from the new rules. Kauger went on to note:   read more »

Earlier this week, the Citizen Media Law Project joined 28 of the country's leading news organizations, press associations, and nonprofits dedicated to preserving free speech rights in filing a brief in the United States Court of Appeals for the District of Columbia Circuit opposing the contempt citation issued against Toni Locy, a former reporter for USA Today. Locy, who wrote several articles back in 2003 about the FBI's investigation into the mailing of anthrax tainted letters, was one of five reporters Steven Hatfill subpoenaed while trying to uncover the anonymous government sources who had identified him as a "person of interest" in the investigation into the 2001 anthrax attacks.   read more »

As an avid baseball fan, I should have been paying closer attention to the recent dispute over Major League Baseball's new restrictions on credentialing journalists who cover MLB games. A nice summary of the dispute on the Reporters Committee for Freedom of the Press' Sidebar Blog awoke me from my slumber.

In a repeat of past efforts by MLB to limit the use of photographs and play-by-play coverage of games, the new 2008 press credentials:

• Limit to seven the number of photographs from each game that may be displayed online;


• Prohibit the use of game photographs as part of a photo gallery;


• Require prior written notice of the intention to display non-text accounts of games;


• Restrict the recording of audio and video from 45 minutes prior to a scheduled game until that game has concluded; and


• Restrict the length of time certain content may be made available or archived online.

Thankfully, the Online News Association, National Press Photographers Association, and others are fighting back. David Ledford, President of the Associated Press Managing Editors Association, took MLB Commissioner Bud Selig to task over the new restrictions:   read more »

As if the order by Judge White vacating the injunctions in the Wikileaks case weren't enough, the Banks that brought the case have now filed a notice of dismissal seeking to voluntarily dismiss the entire case. It's a short filing, so I've quoted it in its entirety below:

PLEASE TAKE NOTICE that Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD (“Plaintiffs”) hereby voluntarily dismisses, without prejudice, the above captioned action in its entirety,whereby Plaintiffs may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue.

Pursuant to Fed. Rules of Civil Proc., Rule 41(a)(1)(i), Plaintiffs have the absolute right to dismiss the action “without order of the court” by filing a notice of dismissal “at any time before service by the adverse party of an answer or of a motion for summary judgment” Id.; See Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc. (9th Cir. 1999) 193 F.3d 1074, 1077.

Query whether this case should be dismissed with prejudice. Clearly the Banks don't think so -- their notice of dismissal is without prejudice -- but that is worth looking into. Note also that the Banks have stated that they "may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue." I don't think we've seen the last of this dispute.

Other CMLP blog posts on the Wikileaks case:   read more »

Back in January, we announced the launch of the first two major sections of the Citizen Media Law Project's Legal Guide covering Forming a Business and Getting Online and Dealing with Online Legal Risks. This past month we began rolling out the section on Newsgathering and Privacy, which addresses the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information. Here is a quick rundown of the sections we've just published:   read more »

We've just received word that the judge in the Wikileaks case, Jeffrey White, has vacated the Permanent Injunction that ordered Wikileaks' domain name registrar, Dynadot, to disable the entire Wikileaks.org domain name and remove all DNS hosting records. The judge also refused to renew the Temporary Restraining Order that enjoined Wikileaks from publishing or distributing copies of purported bank documents and tentatively denied the plaintiffs' motion for a preliminary injunction, indicating that he would issue an order addressing the motion in the near future.

For now, the only official record from the hearing is a one-page "Minute Order" issued by the clerk. CNET News has also just posted an update on the hearing. As we get more information, we'll update this post.   read more »

Yesterday, a coalition of organizations dedicated to preserving free speech rights on the Internet, including the Citizen Media Law Project, Reporters Committee for Freedom of the Press, Los Angeles Times, Gannett, Associated Press, and Society of Professional Journalists, filed a "friend of the court" brief in the Wikileaks case. If you haven't been following the case, a federal judge in San Francisco issued a stunningly broad injunction on February 15 that brought down Wikileaks.org, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis."   read more »

Now that the Wikileaks storm has started to subside, it's time for us to catch up on some items that deserve attention (but haven't been getting it from the CMLP lately).

Last week, Pennsylvania Governor Ed Rendell signed a bill that significantly reforms the state's open records law, previously regarded as one of the worst in the country.

The new law, which doesn't take effect until January 2009, reforms the state's Right-to-Know Law that was enacted in 1957. It took lawmakers 13 months to agree on a final version, which passed the state House of Representatives on February 11 and the state Senate the following day.

Under the new law, all records are presumed open, unless explicitly included on a list of exceptions. The law also shifts the burden to the government to prove why a record should remain private. Under the old version, the responsibility fell to citizens to show why they should be given information.

In addition, the legislation will establish a central state government office to set policies and deal with disputes about what should be released. Penalties will be stiffer for agencies that violate the law and they are required to respond faster to records requests.

Commentary on the bill has been lukewarm at best. "Is it a perfect bill? No. Is it a good bill? Absolutely. Is it a step on the road to reform? Without a doubt," Rendell is quoted as saying when he signed the legislation.

Compared to what Pennsylvanians have had to live with for more than half-a-century, this is a major accomplishment.   read more »

Yesterday, I reported that a federal judge in San Francisco had issued a stunningly broad injunction that brought down Wikileaks.org, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis." (I'll let the prescience of that statement sink in on its own.)

The plaintiffs in the case, a Cayman Islands bank and its Swiss parent company, probably thought they could slip into court in California right before a holiday weekend and silently silence a critic that had made them and their customers look bad. So much for that plan.

First, the banks overreached. They worked out what appears to be a sweetheart deal with Wikileaks' domain name registrar, Dynadot. Even though Dynadot appears to bear no liability for the material at issue, the banks added Dynadot as a defendant in the case. No doubt thinking they had come up with a legal "silver bullet," the banks and Dynadot signed a joint stipulation in which Dynadot agreed to, among other things, "lock" and "disable the wikileaks.org domain name" in exchange for being dismissed from the case (a case in which, it appears, Dynadot bore no liability). To give their stipulation the force of law, the banks slipped an order to the judge, which he promptly signed.   read more »

Last Friday, a federal district court judge in San Francisco issued a stunningly broad injunction that brought down Wikileaks, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis."

The case was initiated earlier in the week by Julius Baer Bank and Trust Company, a Cayman Islands banking entity, which along with its Swiss parent company filed an ex parte application for a temporary restraining order seeking to enjoin Wikileaks from publishing or distributing copies of documents the plaintiffs claim contain "stolen or otherwise wrongfully obtained confidential and protected bank files and records."

On February 15, 2008, the court issued what it captioned as an "Order Granting Permanent Injunction." This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks' domain name registrar and web host, required that Dynadot immediately disable the entire Wikileaks.org domain name and account and remove all DNS hosting records.   read more »