Kimberley Isbell's blog

Last week, the Practicing Law Institute hosted its annual program on Communications Law in the Digital Age.

Up for discussion were a lot of topics near and dear to CMLP's heart: trends in First Amendment jurisprudence (including prognostications in US v. Stevens), the federal reporters' shield bill, the protection of anonymous commenters, libel tourism, the application of the single publication rule to the Internet, what the hell Congress meant by "copyright management information" in 17 U.S.C. § 1202(c), the future of misappropriation and the "hot news" doctrine, and legal developments related to FOIA and government sunshine laws. 

As anyone who was watching the CMLP Twitter feed probably noticed (you are following us on Twitter, aren't you?), some of the more interesting panelist exchanges centered on privacy issues and the pending federal reporters' shield law.   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 »

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 »

Twitter has been awash today in the typical gnashing of teeth and rending of clothes that accompanies any Gmail outage, no matter how short the duration.  If yesterday's court ruling holds, however, one unlucky Gmail user may wake up one morning soon to an even worse fate.

According to MediaPost, it all started a little over a month ago, when an employee of Rocky Mountain Bank in Wilson, Wyoming, inadvertently sent a file containing the names, addresses, social security numbers, and loan information for more than 1,300 customers to a Gmail address.  When the account holder failed to respond to a subsequent email from the bank asking him or her to please, please, please destroy the file, Rocky Mountian Bank asked Google to provide information about the Gmail account holder.  Google, per its privacy policy, told Rocky Mountain Bank that it needed  a court order to obtain the information.    read more »

I have an article in the newest issue of World Trademark Review.  Entitled "Updating the Lanham Act for the Internet Age," the article looks at four areas for reform of the Lanham Act: fair use, use in commerce, adoption of statutory safe harbors, and the famous marks doctrine.

Below is an excerpt.  You can read the full article here.

The rise of the Internet has facilitated an increasingly interconnected world, allowing for the widespread dissemination of information, and giving unprecedented access to the ideas and experiences of people across the globe -- as when a student in New York can follow in real time the dispatches of a demonstrator in Tehran. In the years since the introduction of Netscape Navigator, a host of third-party intermediaries have arisen to facilitate, catalog and archive this explosion of information on the Internet, including the likes of Blogger, its parent company Google, Twitter, and the Internet Archive.   read more »

It's that time of year again. 

After a productive summer (thanks, summer interns!), things are starting to pick up around CMLP world headquarters.  After several days of dodging overstuffed minivans and new students wandering lost around campus, we're moving full steam ahead into a new school year.

We've got exciting things coming up (some of which will remain under wraps for a little while longer).  But we need some help.    read more »

If you've spent any time in front of a television screen during the last year, you've seen the ads. Even Ed McMahon and MC Hammer got in on the act.  Since 2007, the recession phenomena Cash4Gold has spurred a cottage industry of Internet-age pawnshops, poping up on television screens and in mall kiosks across the land.   read more »

Much has been written on the proliferation of the so-called "clearance culture" and the threat that overly aggressive intellectual property enforcement poses to creativity. Last week brought news of the clearance culture's most recent victim: Spinal Tap.

It all started in 2007, when a 14 year old decided to pay homage to the Spinal Tap (cough) "classic" "Tonight I'm Gonna Rock You Tonight." Coleman Hickey created a video for the song using stop-action animation and Lego® figures.   read more »

The recent economic downturn has been hard on lawyers.  Inhouse legal departments are downsizing. Firms are conducting layoffs and cancelling summer programs. Even law schools are getting in on the act, encouraging incoming 1Ls to defer admission for a year (or more).

There has been no shortage of advice to help lawyers navigate these treacherous career waters. Everyone seems to have an opinion. The August issue of the Journal of the American Bar Association weighs in, identifying seven practice areas that remain busy despite the overall legal slowdown. 

So, as a public service to you, our dear readers, I'm going to channel my inner Mr. McGuire and say just two words: Employment Law.   read more »

(And was it the same person who put the bomp in the bomp-a-bomp-a-bomp?)

Back in May, Eric Robinson explained why it's always a good idea to know your audience before setting pen to paper. But in the networked online world, how do you determine who your audience is?

As Jonathan Zittrain has noted, the history of the Internet is riddled with examples of content gone viral, spreading to the four corners of the Internet in the blink of an eye. Unfortunately, international humiliation is not the only risk when the Internet's eyes all turn towards you.

Most online publishers welcome the idea of having their content viewed by millions of people around the world. After all, if a post goes up on the Internet but nobody reads it, does it make a sound? Yet more than one American company has had occasion to lament the "world" in the "world wide web."   read more »

Tony La Russa's lawsuit against Twitter, which we first published in the Legal Threats Database back on May 29, seems to have hit the mainstream over the past week. Following the path of the case through the Internet and into the mainstream media provides a fascinating case study in the the possibilities of Twitter and other social media platforms for disseminating and amplifying a message. (And indicates that I should revise my previous Cluetrain addendums to include sports managers.)

It all started back on May 21st, when this client alert from law firm Howard Rice caught the attention of those of us in the CMLP offices. (The alert may, in fact, have been sparked by this post over at SFGate, which seems to have flown under the radar when first posted.) By the end of the following week, the Legal Threats entry on La Russa v. Twitter, Inc. was live on the CMLP website. That same day, Twitter user @socialmediainfo sent out a tweet about the case, with a link back to our entry. This was soon followed by tweets from @Jenn822 and @FO_Brooks relaying information about the case.   read more »

Since my Wikipedia post on Monday, I've been giving more thought to the question of who gets to be heard on the Internet, especially with the rising ubiquity of different social networking platforms.  These thoughts were sparked in large part by two occurrences around the Harvard-verse yesterday:  the release by the Harvard Business School of a recent study of Twitter usage, and yesterday's installment of the Berkman Luncheon Series, presented by Berkman Fellow Lokman Tsui.   read more »

The Blogosphere and the MSM have been abuzz recently with news of a decision handed down last week by Wikipedia's Arbitration Committee. Already the subject of law review articles and deep thoughts by Berkmanite Jonathan Zittrain, Wikipedia finds itself again in the spotlight for a decision that, on the surface, seems contrary to the Wikipedian ethos:  Wikipedia, the "free encyclopedia that anyone can edit," has declared edits by the Church of Scientology to be unwelcome, permanently blocking contributions originating from IP addresses owned or operated by the Church or its associates.   read more »

So this comment to my latest blog post got me thinking. Congress has (admirably) made an effort to clarify the legal liability faced by Internet service providers for content posted by users in some areas (see, e.g., Section 230 of the Communications Decency Act, and Section 512 of the Digital Millennium Copyright Act). Yet the so-called "innocent infringer" provisions of the Lanham Act, codified in Section 32  (which was last amended in 1988), still stop woefully short of providing a sufficient safeharbor for online service providers like Twitter, Google or the Internet Archive. (For the purposes of this post, I'm addressing only Google's search engine services, not its AdWords or AdSense businesses.)

Specifically, Section 32 provides that:

(2) Notwithstanding any other provision of this Act, the remedies given to the owner of a right infringed under this Act or to a person bringing an action under section 43(a) or (d) [15 USC 1125(a) or (d)] shall be limited as follows:   read more »

Courtesy of counsel for Newt Gingrich and Saul Anuzis.

1.  Demonstrate a complete failure to understand how the relevant technology works.

The whole dustup started when a Twitter user going by the handle EFCANOW tweeted the following tweet:  "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition at http://action.americanright... WSJ." 

As most Twitter users know, use of the "@" symbol followed by someone's Twitter username is a means of directing a particular comment or reply to that user. This feature enables a Twitter user to draw third parties into the conversation. 

In a clear case of "be careful what you wish for," EFCANOW's tweet not only brought Gingrich and Anuzis into the conversation, but also raised the ire of the pair's lawyer. One week after the original tweet, the pair's lawyer fired off a cease and desist letter directed to the owner of the website linked to in EFCANOW's tweet, as well as Tucows, the registrar of the associated domain name.  In a sign of the, um, "creative lawyering" to come, the letter starts off by demanding the removal of the tweet, "which falsely purports to be written by our clients."  Technology 1, Lawyer 0.

2. Demonstrate a complete lack of knowledge regarding Section 230.     read more »

The Sports Journalists' Association is reporting that the International Olympic Committee has issued guidelines for athlete bloggers at the 2010 Vancouver Winter Games.

For those of you that have been following this space, many of the restrictions on athletes' speech will seem familiar from the IOC's previous guidelines, issued during the 2008 Games in Beijing. These include prohibitions on the posting of any sound or video (or "still pictures . . . reproduced in a sequential manner, so as to simulate, in any way, moving images") recorded while on the Olympic grounds and the posting of any photos depicting "any sporting action of the Games or the Opening, Closing or Medal Ceremonies," as well as requirements that any material posted "should at all times conform to the Olympic spirit and the fundamental principles of Olympism . . . and be dignified and in good taste." New on the list: athletes will be prohibited from using the iconic Olympic rings on their sites. But, in a boon for local newspapers, the IOC has lifted the restriction on athletes posting on third-party websites, thus allowing local readers to follow the Olympic experiences of their hometown heroes.   read more »

"Where do we go from here?"

In the wake of the demise of local papers like the Rocky Mountain News and the well-publicized battle between the New York Times Co. and the Boston Globe's unions, this question has increasingly been on the lips of media professionals and those interested in the future of journalism in the Internet age. This past week, lawmakers, professional journalists, and representatives of some of the most successful Internet ventures all weighed in with their own predictions and prescriptions.

Turning a spotlight on recent developments in the media, Senator John Kerry on Wednesday convened a hearing of the Senate Subcommittee on Communications, Technology, and the Internet to investigate "The Future of Journalism." In his opening remarks, Kerry painted a grim picture of shuttered newsrooms and falling stock prices, while issuing a call to action in order to "preserve the core societal function that is served by an independent and diverse news media."   read more »