Matt C. Sanchez's blog

A federal judge yesterday tentatively acquitted Lori Drew, the Missouri woman convicted for her involvement in a MySpace “cyberbullying” hoax that allegedly resulted in a young girl’s suicide.  If it sticks, the acquittal will help reverse the momentous change in online liability that Drew’s earlier guilty verdict threatened to set in motion.

Last November, a jury convicted Drew of three misdemeanor violations of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, which is essentially an anti-hacking law.  Commentors widely criticized the convictions, as the case’s logic seemed to criminalize any violation of a website’s Terms of Service (see Marc’s Satyricon post, CMLP, Threat Level, and numerous links therein).

As Judge George Wu pointed out in announcing his tenative decision, such a result is probably unconstitutional.  Terms of Service include an infinite variety of provisions — most of which have little bearing on criminal acts — and few web users ever read them.   read more »

In a nice cautionary tale for government agents who refuse to take public records requests seriously, Washington state political blogger Stefan Sharkansky won a $225,000 settlement last week from a county government that took two years to comply with his request for information.  The settlement ended Sharkansky's lawsuit against King County over officials' improper delay in producing documents related to the state's 2004 gubernatorial election.

Sadly, the victory is bittersweet.  Sharkansky says the documents reveal that King County officials counted hundreds of ineligible ballots in an election decided by 133 votes.  If Sharkansky is right, timely production of the records could have had a significant impact on an election that took two recounts and a trial to settle.

Nonetheless, Sharkansky's story is a great example of how bloggers can contribute to the public dialogue.  Sharkansky saw a hole in news coverage of an important event and took it upon himself to fill it.  Doing so didn't require any specialized journalistic knowledge, save for a few basics on freedom of information that one can easily acquire in a quick glance at CMLP's Legal Guide.   read more »

Celebrities and popular artists, like other public figures, face a tough road if they want to sue someone for making fun of them.  Many know that fair use places a high legal burden on authors and artists who bring copyright claims against those who parody them or their work.  Lesser known -- but equally important -- is that parodies receive strong protection against trademark claims as well.

The New York Times has an excellent recent example of a weak trademark claim that probably will result in nothing other than wider dissemination of the parody.  Last week Danyelle Freeman, an author and restaurant critic for the New York Daily News who runs the Restaurant Girl Blog, had her lawyers send a cease-and-desist letter to the operator of an unflattering parody blog and Twitter feed.

Adam Robb Rucinsky writes the Gourmet Glossary Blog and Restaurantgirl Twitter feed in the guise of a faux-Freeman, lampooning both her conversational writing style and her (alleged) lack of expertise.  In Rucinsky's words, the character is “a sweet but inept restaurant critic who loves food but has no idea how to express it.”   read more »

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as "fair use" help to ensure protection of both intellectual property rights while promoting creative expression, they can't replace a simple concept we all learned in kindergarten:  "treat others the way you’d like them to treat you."

A couple of days ago, New York TV news station CW 11 convinced YouTube to take down a video from prank group Improv Everywhere that copied part of a CW 11 newscast.  The twist as that the CW 11 newscast itself copied an earlier Improv video to unintentionally hilarious effect.

In the original Improv video, the troupe hijacked a staged funeral as an April Fools Day prank on viewers and passers-by.  CW 11 reported the hijacking as a real prank on real funeral-goers that might have gone too far.  The newscasters missed the fact that the prank wasn't on the fake funeral-goers but, instead, on those who believed the video was real.

Judged solely on the legal merits, CW 11 might have the (slight) upper hand on the competing questions of infringement.  CW 11 used only snippets of the Improv video and added news commentary, while Improv seems to have simply lifted a portion of CW 11 broadcast and uploaded it as is.  Its arguable whether Improv has a fair use argument:  the group does have in its favor that the use was noncommercial and it put the clip in wildly different context -- that is, exposing CW 11's blunder.   read more »

Online speakers are attracting more attention than ever from governments across the world, for good or for ill. According to the Committee to Protect Journalists (CPJ), more online journalists are currently imprisoned for their speech than journalists in print, broadcast, or other media.  The CPJ identified 125 journalists currently serving prison sentences, 45 percent of whom are bloggers, Web-based reporters, or online editors.

This tells us that people recognize more and more that online speakers are a powerful part of the public dialogue -- that what they say can have significant effect on society.  It also tells us that some state actors are afraid of what will happen if free and open online speech continues to grow.  Let's hope this is one category in which online journalists won't continue to lead in the future.

Hat tip to Slashdot for linking to the CPJ story.

(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Aerosmith singer and generally-uber-famous-person Steven Tyler filed a lawsuit Wednesday against anonymous bloggers who allegedly impersonated him and his girlfriend Erin Brady. Tyler's complaint includes claims for false light invasion of privacy, publication of private facts, and misappropriation of likeness (a.k.a. right of publicity).  It requests damages and an injunction prohibiting the defendants from further misappropriating Tyler's name or likeness or implying that they speak for him.

The defendants allegedly created a pair of Blogspot blogs that purported to be the personal musings of Tyler and his girlfriend.  The blog tylers849021.blogspot.com (now removed, but still accessible via Google Cache) included photos of Tyler along with largely G-rated accounts of Tyler and Brady's relationship. The blogger or bloggers posted under the name "STEVEN" and signed each post "ST."  A similar blog -- shelikespurple.blogspot.com (also removed but accessible through Google) -- operated the same way but offered Brady's perspective.  read more »

Earlier this month, the District Attorney for Bronx County, New York, withdrew a subpoena seeking the identities of anonymous posters on political blog Room Eight. The posters had criticized local politicians and Bronx Republican Party officials in blog posts and comments. District Attorney Robert T. Johnson also freed Room Eight operators Gur Tsabar and Ben Smith from the subpoena's demand that they not reveal the subpoena's existence to anyone - including the anonymous posters. (See our Legal Threats Database entry regarding the subpoena for more background.)

While the D.A.'s withdrawal of the subpoena and non-disclosure demand is great news for the anonymous posters, it is disappointing that the court didn't have a chance to issue a decision on Room Eight's motion to quash the subpoena. This would have been a great opportunity to establish precedent on a couple of important First Amendment issues of concern to citizen media.   read more »

The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year. Among other changes, the bills would increase electronic access to government records, prevent agencies from denying voluminous records requests, and make it easier for citizens who successfully challenge an open meetings violation to win awards of legal costs and attorneys' fees. The bills await consideration by Governor David A. Paterson before becoming law.

S962, perhaps the most interesting update to the state's open records law, requires an agency to produce a record in the medium requested by the person seeking information, so long as the agency can "reasonably" provide the record in the requested medium or hire an outside service to do it. This reform will make it possible to request more records in electronic -- rather than paper -- format, making it easier for citizens to use electronic means of searching, organizing, and analyzing information.   read more »

After passing state bill H7422 last week, Rhode Island is set to join the growing list of states – including Tennessee, Pennsylvania, Nevada, and Oregon – that have strengthened their freedom of information laws in the past year. The bill, which contains several reforms of the state's open records practices, awaits only Governor Don Carcieri's signature before it will come into law.

From a citizen media perspective, the bill's most useful upgrade of Rhode Island's existing FOI law is that it will bar agencies from requiring that requestors provide personally identifiable information or specific reasons for their request. If passed, these provisions will help prevent agencies from denying open records requests based upon the characteristics of the individual requestor. For instance, it would be more difficult for an agency to refuse an open records request from a citizen speaker who has been known to criticize the state government.

The bill offers several other reforms, including:   read more »

In a rare Freedom of Information Act (FOIA) decision, the Supreme Court recently held in Taylor v. Sturgell that an individual's failed FOIA request does not preclude similar requests from related individuals. In doing so, the court rejected the legal doctrine of "virtual representation," which would have prevented a FOIA requestor from seeking judicial relief if he had a "close relationship" with a party who had previously litigated the same FOIA request.   read more »

In an interesting counterpoint to Prince’s latest takedown exploits – see Sam’s recent posts – rock band Metallica recently “ear spanked” its management for demanding that websites take down reviews of unreleased Metallica songs. While the reviews are back online after the short downtime, the dispute raises copyright issues worth further discussion.

Last Wednesday, June 4, Metallica representatives hosted an invitation-only listening party in London for U.K. music writers, previewing six of the band’s new songs. Several attendees promptly posted their impressions about the new songs online. QPrime, Metallica’s management company, just as promptly told at least four sites – Metal Hammer, Rock Sound, Classic Rock, and The Quietus – to remove the reviews. The sites complied.   read more »

Tennessee Governor Phil Bredesen is expected to sign into law a recently passed bill that would provide a much-needed overhaul of the state's open records practices. The bill, SB3280, corrects a number of deficiencies in the current Tennessee Open Records Act.

Key provisions of the bill include:   read more »

The Hawaii legislature passed a reporters' shield bill Tuesday that will protect both traditional and non-traditional journalists from compelled disclosure of their confidential sources and information and materials obtained or prepared during the newsgathering process. In one sense, this shield bill is a positive step forward, as it expressly contemplates that online publishers carrying out journalistic functions will take advantage of its protections. On the other hand, the bill places too many limitations on the ability of non-traditional journalists to invoke its protection.

Section 621(b) of the bill allows anyone to claim the protection afforded to traditional journalists if that individual can show that:
  read more »

Earlier this month, some of the most creative and entertaining parody videos on the Web were pulled from YouTube over dubious copyright claims. The disputed works, known as the “shred” videos, are a series of parodies in which Finnish media artist Santeri Ojala overdubs performances of legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. Ojala replaces the audio tracks of the guitarists' performances with his own (intentionally) bad guitar playing.

Because Ojala is a skilled guitar player himself, the horrific sounds match closely with the guitar hero's hand and finger movements, which makes the videos that much more surreal. Other rock stars unwary enough to enter the screen during the guitarists' performances get similar treatment – in one notable clip, Ozzy Osbourne's clapping to the beat is reduced to a rhythmless patter that wouldn't have cut it in a backyard birthday celebration, much less a rock show.   read more »

Pocket Part, the Yale Law Journal's online companion, recently published an article proposing a take-down procedure for content it describes as "cyberbullying" -- essentially, online speech believed to be defamatory or harassing. The procedure would operate similarly to the DMCA takedown procedure (because that has worked so well), as ISPs would remove the content at issue after receiving a notice of its allegedly cyberbullying nature. In cases where ISPs were so warned, this proposal would strip the providers of their CDA 230 immunity from liability relating to third party content. As has been the case under the DMCA, this likely would lead providers to exercise caution by taking material down without question -- erasing valuable speech from the public dialogue.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Reprinting content from other information sources is one of the trickiest areas of communications law -- especially for bloggers and other publishers on the Internet, where the legal framework has yet to be established. InfoMean blog has a useful set of pointers to help publishers avoid infringement lawsuits when reprinting information.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)