Legal Threat

Bronx D.A. Withdraws Subpoena Seeking Identity of Anonymous Room Eight Posters

Matt C. Sanchez — Thu, 17 Jul 2008 17:38:54 -0400

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.

First, this is a rare example of a criminal grand jury subpoena - as opposed to a subpoena issued in a civil lawsuit - seeking to reveal the identity of anonymous online speakers. It is an open question whether the government must comply with the same protections for anonymous speech in the criminal context as do parties in civil litigation seeking the indentity of anonymous speakers. Room Eight's motion to quash the subpoena, which was filed by the Public Citizen Litigation Group, does a great job of explaining this issue -- it should be required reading for anyone interested in online anonymity.

Second, the controversy around the subpoena raises the question of whether it is constitutional for the government to preclude a subpoena recipient from disclosing the subpoena -- or, more narrowly, whether the government can preclude disclosure when doing so would make it impossible for an anonymous user to protect his First Amendment right to speak anonymously. Over at Volokh Conspiracy, Orin Kerr posited that the government might not have the power to prevent subpoena recipients from discussing a subpoena. The resulting discussion is worth a read. It's unfortunate that the court didn't have the chance to consider this issue, because my intuition is that the implications for the right to speak anonymously would almost always trump the government's need to suppress discussion surrounding an investigation.

In any case, this situation provides another example of how attempts to impose legal consequences upon speakers can bring far more attention to their speech than the speech ever could have achieved on its own. In addition to warranting a New York Times article and a nod at Volokh Conspiracy, the controversy drove visitors to Room Eight in such high numbers that the site has been inaccessible for long stretches of time since word of the subpoena got out. And while some or all of the disputed postings were deleted from the site, they are now part of the public record and easily accessible to anyone who has become interested.

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

Miami Judge Drops Hammer on Photojournalist Who Took Cops' Picture

Arthur Bright — Thu, 03 Jul 2008 08:27:16 -0400

“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog. Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street. As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months probation the prosecutor had been seeking.

Miller was arrested on February 20, 2007, after he saw the police questioning a man "in a gravel construction area between the road and the sidewalk," according to a post Miller made a few days later on Democratic Underground, a liberal online forum. (The post does not indicate how the construction affected traffic along the street.) When Miller, who was also standing in the gravel area, started to photograph the police, they told Miller to move along. Miller said he refused, arguing that it was a public street, and continued to shoot photos of the police. The police then escorted him across the street and, according to Miller, forcibly arrested him.

In contrast, the police said that Miller began taking pictures of them while standing in the street blocking traffic, according to an officer’s report which Miller has posted online. The officer wrote that the five police present told Miller to cross to the other side of the street, but Miller refused and continued to take pictures. When the police attempted to escort Miller across the street, the report said that he resisted, so they arrested him. (Contrary to the police report, however, the photos that Miller took of the police, one of which appears at the top of his blog indicate that he was not in the street.)

The police initially charged Miller with nine counts, but they were later reduced to four: disobeying a police officer, disorderly conduct, resisting arrest without violence, and obstructing traffic. The jury found Miller not guilty of disobeying a police officer and disorderly conduct.

The original incident prompted Miller to start blogging, and as the name of his blog makes plain, photographers' rights are his main subject. “I started this blog to document my trial,” he wrote in the About section, “but as it languished, I began documenting First Amendment violations against other photographers throughout the country, which occur on a shockingly regular basis.” In particular, he focuses on violations committed by law enforcement; his blog entries feature incidents all over the U.S. of cops confronting people taking pictures or recording videos. He also covered his trial's progress, with which Judge Fernandez expressed irritation during Miller's sentencing.

The verdict against Miller drew "disappointment and concern" from the Society of Professional Journalists ("SPJ"), according to an SPJ press release.

“The fact that Mr. Miller was arrested for taking pictures in a public place was the first violation of his First Amendment rights,” SPJ President Clint Brewer said. “Those rights were violated again when Mr. Miller’s statements in his blog became factors in Fernandez’s sentence. The Society fully defends Mr. Miller’s right to speak freely in his blog.”

The SPJ also took the opportunity to post a guide advising reporters how to avoid confrontations with police while gathering information.

Miller is appealing his conviction for resisting arrest, according to a post on Miller's blog by his trial attorney, though it appears that Miller will have new counsel on appeal.

Unfortunately, it's hard to see how Miller can show that the trial court erred in finding him guilty of resisting arrest without violence. Of the elements of the crime listed in Fla. Stat. § 843.02, the one most susceptible to challenge would appear to be the requirement that the officers were acting "in the lawful execution of any legal duty." If Miller could show that the officers' arrest for obstruction of traffic was bogus, that would topple the charge of resisting arrest. But looking at the little evidence available online, the case appears to be Miller's word against the officers' word, and the jury evidently felt the officers' word was sufficient to prove obstruction of traffic. Without any more evidence, it's difficult to see grounds for overturning the criminal conviction.

But even if Miller's arrest was legal, his sentencing is problematic and merits appeal. According to another post on Miller's blog, Judge Fernandez seems to have taken personal exception to Miller's lack of remorse, saying that it "appall[ed]" him. While Judge Fernandez is welcome to his personal opinion about Miller, under Florida law, he cannot use Miller's lack of remorse to impose a harsher sentence.

While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.

Ritter v. State, 885 So.2d 413, 414 (Fla. App. 2004) (citations removed). Considering the rather stunning discrepancy between the sentence that the prosecutor sought and the sentence that Judge Fernandez gave, it sure looks like the judge let his feelings about Miller's lack of remorse color his sentencing. In Ritter, the Florida District Court of Appeal overturned a sex offender's sentence, which went above and beyond that the prosecutor asked for, because the trial judge took umbrage at the offender's continued claims of innocence. Miller's case seems directly on point with Ritter, and if so, Miller's sentence should be vacated and remanded to a new judge.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Update:

Carlos Miller contacted us and clarified that it was Judge Fernandez who found him guilty of obstructing traffic, as that charge was a traffic infraction, not a misdemeanor. The jury was only responsible for the verdict on the charge of resisting arrest.

WIA Releases Report on Arrests of Bloggers, Does It Overcount?

Arthur Bright — Tue, 24 Jun 2008 12:25:41 -0400

According to a new report by the World Information Access (“WIA”) Project, 64 independent bloggers have been arrested since 2003, suggesting governments around the world are growing more aware of blogs and more likely to act to silence bloggers.

In the report, WIA researchers write that they used Google and LexisNexis to find arrests of bloggers who were unaffiliated with news organizations. The researchers found that the number of reported arrests appeared to increase over the years, with just five arrests during 2003, but totaling 36 in 2007. Arrests were most frequent in China (11), Egypt (13), and Iran (8), and overall Asia and the Middle East accounted for the lion’s share of WIA’s data. But western nations were not blameless – researchers recorded a blogger arrest in each of Britain, Canada, and France, and three arrests in the U.S. as well (Josh Wolf, Jack McClellan, and Daniel Aljughaifi). On the whole, WIA reports that the arrested bloggers tended to be males between the ages of 21 and 45, and the durations of their arrests ranged from a few hours to eight years.

The researchers observe that blogger arrests seem to increase during “times of political uncertainty,” noting for example that most of Egypt’s arrests took place during its 2007 elections. The researchers predict that 2008 will likely see a further increase in the arrests of bloggers, as China, Iran, and Pakistan all have elections this year.

The researchers also acknowledge that there are likely more arrests than they’ve managed to include in the report, noting for example that according to a list kept by the Committee to Protect Bloggers (“CPB”), 344 Burmese have been arrested, and some of those may be bloggers. (The CPB wrote after the WIA report’s release that it is indeed likely that some of the 344 are bloggers, though certainly not all of them.)

Unfortunately, while acknowledging the survey’s undercounting of arrested bloggers, the researchers appear to have inadvertently overcounted the arrests instead. Despite the report’s stated intent to “record[] only bloggers who were arrested for using electronic media . . . to discuss or record political issues and events,” it often seems to fudge the distinction between arrests for blogging, the survey’s purported goal, and arrests of bloggers, where blogging was not itself the grounds for arrest. I counted at least 13 instances where, from the articles cited in their data, it was either unclear or unlikely that the blogger’s online activities directly related to his or her arrest.

Take blogger Alaa Abd El-Fatah, one of the report’s data points. Fatah was one of some ten people arrested for taking part in a peaceful demonstration. Judging by the article cited by the report, Fatah is a prominent Egyptian blogger. It is likely that his arrest will chill the speech of other Egyptian bloggers. But is his blogging relevant to his arrest? From the article’s description, it doesn’t appear to be. Rather, his arrest seems to stem directly from participating in the protest.

Similarly, two of the three U.S. blogger arrests that the report cites seem loosely tied to the bloggers' online activities. Jack McClellan, a self-proclaimed pedophile who posted photos of children he had taken in public places on his blog, was arrested for violating a restraining order against coming within 30 feet of any child in California. Daniel Aljughaifi was arrested for undergoing terrorist training in Africa and for conspiring to use a destructive device. Of the three U.S. bloggers' arrests, only that of Josh Wolf, arrested for refusing to turn over to a federal grand jury footage he filmed and posted of a burning police car, seems directly tied to blogging. The fact that McClellan and Aljughaifi have blogs appears coincidental, not causal, to their arrests.

Is it helpful to include arrests like those of Fatah, McClellan, and Aljughaifi in the WIA survey? I’d argue no. While it is commendable to analyze the efforts of governments around the world to muzzle bloggers, it is the repression of free speech that is the concern. By including the arrests of those who happen to be bloggers in their count, the WIA researchers diminish the impact of their report, because they blur the value of that which they mean to defend.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Judge Sanctions Lawyer for Issuing Subpoena to Blogger Kathleen Seidel

David Ardia — Mon, 23 Jun 2008 19:25:37 -0400

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. 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 sought to link exposure to mercury to their son's autism. (For more on her statements about the lawsuit, see my previous post: Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation.)

On March 24, 2008, Shoemaker, an attorney for the Sykes, served Seidel with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demanded that Seidel appear for a deposition on April 30, 2008, and that she produce a shockingly broad collection of information, including her bank statements, tax returns, communications with religious organizations, and personal correspondence with other bloggers.

On April 21, magistrate judge Muirhead granted Seidel's well argued motion to quash the subpoena. The judge also ordered Shoemaker to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11 for issuing the subpoena. In response, Shoemaker filed a rambling opposition to potential sanctions in which he asserted that Seidel was engaged in a conspiracy with Bayer and others to harass him, his client, and various witnesses. (With the help of Paul Levy from Public Citizen, Seidel filed a restrained response that made Shoemaker's outlandish claims seem all the more, well, outlandish.)

Not surprisingly, the judge didn't buy any of Shoemaker's conspiracy theories and in a strongly worded opinion, made it clear that the subpoena was an abuse of the legal process:

Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.

In the end, the judge didn't order Shoemaker to pay a monetary sanction, but he did order the Virginia lawyer to attend ethics training and directed his court clerk to notify the Virginia State Bar so that it could consider disciplinary action on its own.

Shoemaker and his client have a right to disagree with Seidel and, if they think they've been the victims of a conspiracy, to sue her. But they don't have a right to misuse the legal system to coerce a critic to "shut up." As I've noted before, we all lose when we allow that to happen.

(You can read more about the case in our Legal Threats Database entry: Sykes v. Seidel.)

U.S. Blogger Facing Criminal Libel Charges in Singapore

Arthur Bright — Wed, 18 Jun 2008 12:54:50 -0400

Singapore officials Monday amended the charge against blogger Gopalan Nair, a U.S. citizen who blogs from Fremont, California, accusing him of insulting a public official for his criticism of Singaporean Judge Belinda Ang that he published in his blog, Singapore Dissident, last month. The original charge had asserted that Nair insulted Ang in an email.

In late May 2008, Nair, a former Singaporean lawyer before he emigrated to the U.S., attended a sentencing hearing in the defamation trial of two members of the opposition Singapore Democratic Party. The defendants had been found guilty of libeling former Prime Minister Lee Kuan Yew and current Prime Minister Lee Hsien Loong, Lee Kuan Yew’s son. Lee Kuan Yew, whom Nair frequently criticized in his blog, testified at the hearing.

In his May 29, 2008 blog entry, Nair wrote that Ang, who presided over the hearing, "prostitut[ed] herself during the entire proceedings, by being nothing more than an employee of Mr. Lee Kuan Yew and his son and carrying out their orders." In another blog entry, Nair challenged Lee Kuan Yew to charge him with defamation, writing "I am now within your jurisdiction.... What are you going to do about it?" On the evening of May 31, Singaporean police arrested Nair in his hotel and put him in solitary confinement until he was released on bail on June 5.

In addition to the amended charge filed Monday, Nair was also charged with contempt of court based on an email he allegedly sent to Singaporean Judge Lai Siu Chiu in March 2006. TODAYonline, a Singapore newspaper, wrote that "[a]ccording to the charge filed in the Subrodinate [sic] Court yesterday, Nair had accused Justice Lai of having 'no shame'. He also accused other judges of 'selling their souls (and) their conscience for money'. He charged: 'Your Singapore judges including Lai are corrupt judges.'"

With the original charge amended, Nair faces two counts under Section 228 of Singapore's Penal Code. Section 228 states:

Whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The Strait Times reported that the charges will be heard by Singapore’s High Court. The original, unamended charge against Nair had been filed under Section 13D (1)(a) of the Miscellaneous Offences (Public Order & Nuisance) Act, which would have been heard in the lower Subordinate Courts. As a condition of his bail, Nair must report to the police daily until July 14, when his trial date is expected to be set.

Nair’s arrest was swiftly condemned by journalistic freedom groups. The Committee to Protect Journalists wrote in a press release:

Singapore’s media is tightly controlled, according to CPJ research, and is kept in line in large part due to the government’s aggressive use of libel laws.

“Singapore’s detention of Gopalan Nair for public comments about such a highly politicized case is completely unwarranted,” said CPJ Asia Program Coordinator Bob Dietz. “Freedom to criticize the judiciary is fundamental to a modern society. This case illustrates the Singapore government’s ongoing commitment to silencing opposition voices both in print and online.”

Reporters Without Borders also criticized the decision, calling the trial that Nair initially criticized “a farce.” “This charge is improper and will add to the intimidation of bloggers and Internet users who express themselves about Singapore’s political life,” the organization added.

Despite the charges, Nair has not removed the offending blog entry from his site. He also has been updating his blog regularly with accounts of his legal proceedings. In addition, Nair’s lawyer, Chia Ti Lik, offers his view of the case on his own blog.

Reuters reported that Nair has run afoul of Singapore’s law before. In 1991, he was found guilty of contempt of court for comments he made during a political speech, and was charged 21,000 Singapore dollars in fines and legal fees. Reuters added that the U.S. embassy said that it is monitoring Nair’s case.

You can follow further developments in Singapore's dealings with Nair in our Legal Threats Database entry: Singapore v. Nair.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Associated Press Sends DMCA Takedown to Drudge Retort, Backpedals, and Now Seeks to Define Fair Use for Bloggers

David Ardia — Mon, 16 Jun 2008 17:57:04 -0400

Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles. Today, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear, however, that AP is continuing to pursue its "hot news" claim against Drudge Retort, and for good reason. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

Accordingly, to succeed with a "hot news" misappropriation claim, AP would have to prove not only that Drudge Retort is a direct competitor to AP, but also that its headlines and text were time-sensitive and Retort's use of this content would so harm the 1,500 member news cooperative that the continued publication would threaten AP's existence.

Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.

I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.

Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.

UPDATE: On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute. The six posts in question, however, remain inaccessible on the Drudge Retort.

(You can follow further developments in the AP's dealings with Drudge Retort in our Legal Threats Database entry: Associated Press v. Drudge Retort.)

Metallica's Management Suppresses Reviews, Metallica Puts Them Back Up

Matt C. Sanchez — Fri, 13 Jun 2008 10:07:37 -0400

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.

At first glance, it seems the reviewers shouldn't have had anything to be afraid of. The most obvious claim against the reviewers would have been breach of a non-disclosure agreement, a standard procedure for leaks coming from such clandestine screenings. However, The Quietus editor Luke Turner said the band's representatives didn’t ask attendees to sign any such agreement, negating any contract claims.

Criticism of the songs typically would have posed no copyright issues either. Because the reviewers quoted lyrics from the unpublished songs, however, they may have opened themselves up to a copyright infringement claim. U.S. and U.K. law protect quotes used in the course of criticism under the doctrines of fair use and fair dealing, respectively, but both condition this protection to some extent on whether the content had already been made available to the public.

Absent the public availability issue, the reviewers would have had a relatively straightforward fair use defense under U.S. copyright law. In fair use cases involving criticism, the purpose of the use – the first factor in the fair use balancing test – tends to weigh in favor of fair use. Criticism is a core First Amendment pursuit and is well-protected by the law, so this factor outweighs most concerns raised by the other three factors involved in a fair use analysis.

Because the copyrighted work here was not yet available to the public, the fourth factor – the effect on the market for the original work – takes on a larger role in the analysis. Courts in some cases restrain uses of copyrighted content that otherwise would constitute fair use on the theory that advance availability of the content could effect the market for the original. See Publaw’s discussion of Harper & Row v. Nation Enterprises. Metallica could argue that the reviewers’ advance use of the lyrics would harm the market for the album by weakening the "new-ness" of the experience. Still, this is a weak argument under U.S. law given that this aspect of a fair use analysis primarily is concerned with uses that could “take over” the market for the original work, and a critique of an album is hardly a replacement for the album itself.

The outlook in the U.K. is bleaker, and since the situation has so many U.K. ties it's possible Metallica would have pursued claims under U.K. law. While fair dealing is similar to U.S. fair use in its favored treatment of criticism, it explicitly denies any protection to copying of works that have not yet “been made available to the public.” For more on U.K. copyright law and fair dealing, see JISC Legal and Wikipedia.

It isn’t clear what satisfies the “made available” standard – the requirement did not exist until a 2003 amendment – but it’s unlikely that Metallica's invitation-only event would cut it. The reviewers could say Metallica made the content available by screening it for music writers without having them sign non-disclosure agreements – basically, that “made available to the public” fairly should imply “made available to someone you know is going to make it available to the public.” Alternatively, the reviewers could argue that the private screening constituted a “public performance,” but this would be a difficult argument given the restricted, invitation-only access to the event.

To add one more wrinkle to the analysis, U.S. and U.K. cases involving prepublication use tend to involve cases where the user didn’t have permission to access the unreleased material. Permission to access isn’t the same as permission to copy, but it’d be interesting to see if Metallica’s screening of the songs would affect the analysis.

Taking all of that into consideration, my intuition is that the reviewers would have a strong fair use argument under U.S. law but probably would not under U.K. law. Either way, they would have had plenty of cause for concern if Metallica had filed a copyright infringement lawsuit.

To follow further developments in this matter, see the legal threat entry Metallica v. The Quietus in our database.

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

Lori Drew Indicted For Misuse of MySpace in Megan Meier Suicide Case

David Ardia — Fri, 16 May 2008 14:54:01 -0400

Lori Drew was indicted on Thursday for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006 after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, who pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter.

I've blogged about this tragic story several times and noted in January that the Los Angeles Times was reporting that a federal grand jury in Los Angeles had begun issuing subpoenas in the case. The grand jury has now charged Drew with conspiracy and three counts of accessing protected computers without authorization in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The indictment charges that

[o]n or about the following dates, defendant DREW, using a computer in O'Fallon, Missouri, intentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Meier].

The Associated Press provides a bit more background on the indictment, noting that Drew has denied creating the account or sending messages to Meier:

Drew will be arraigned in St. Louis and then moved to Los Angeles for trial.

The indictment says MySpace members agree to abide by terms of service that include, among other things, not promoting information they know to be false or misleading; soliciting personal information from anyone under age 18 and not using information gathered from the Web site to "harass, abuse or harm other people."

Drew and others who were not named conspired to violate the service terms from about September 2006 to mid-October that year, according to the indictment. It alleges they registered as a MySpace member under a phony name and used the account to obtain information on the girl.

Drew and her coconspirators "used the information obtained over the MySpace computer system to torment, harass, humiliate, and embarrass the juvenile MySpace member," the indictment charged.

The United States Attorney prosecuting the case, Thomas P. O'Brien, has said this is the first time the CFAA, which is normally used to address hacking, has been applied in a social-networking case. Not surprisingly, there is some doubt as to whether the CFAA even applies to the conduct Drew is alleged to have engaged in.

Orin Kerr and Daniel Solove at Volokh Conspiracy and Concurring Opinions, respectively, have parsed the language in the CFAA and concluded that while Drew's alleged conduct is reprehensible, it is not illegal. Both Kerr and Solove argue that to predicate a criminal prosecution on the violation of a site's terms of service is a big stretch.

While the CFAA generally prohibits accessing a computer "without authorization" or "exceeding authorized access," it takes a pretty broad reading of the Act to conclude that it encompasses a violation of a site's terms of service. If a website's terms of service require civility, for example, is it a crime to behave rudely? Moreover, as Kerr points out,

there is no evidence that Drew even read the TOS [terms of service]. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally.

Case Testing Illinois' New Anti-SLAPP Law Settles Before Court Can Clarify Reach of Citizen Participation Act

David Ardia — Thu, 15 May 2008 01:03:35 -0400

In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws. (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy. ) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-five states have anti-SLAPP laws.

The Illinois case, Jaeger et al. v. Okon, involved bloggers Joy and Tom Okon, operators of North Center Neighbors, a blog that covers happenings in the North Center neighborhood of Chicago. In May 2007, the Okons were sued by James Jaeger and his development company for defamation. Jaeger's complaint alleges that the Okons defamed him by posting statements on their blog (and sending emails) that implied that he had bribed government officials and engaged in dishonest business practices.

The dispute arose in the context of a controversial building project led by Jaeger's company in the North Center neighborhood. Tom Okon, voicing his frustration with the development project, organized community opposition to the project and published several blog posts in May 2007 that were critical of Jaeger. According to Jaeger's amended complaint, Okon made the following false and defamatory statements on the blog:

Our meeting with the chamber that we thought would be friendly and amicable turned out to be a sham. Based on prior meetings and statements, I thought we had support from key members of the Chamber. That support now appears to be non—existent. The Chamber seems to have swallowed Jim Jaegers [sic] BS hook line and sinker. I guess the large $3,500 donation he gave them really did the trick.

Well it seems [the Chamber of Commerce] only care about how much money and power they have. Perhaps Mr. Jaeger also personally wrote them each a check... who knows for sure...

This comes down now to business against residents. The businesses want more density and more people on Irving Park Road so they can line their pockets. They care nothing about our safety or quality of life. They would be happy to see Irving Park Road so crowded you can not even walk down it, as long as those people are waiting in line to patronize the businesses. [...] This developer is one of the worst offender’s [sic] of that practice.

In July 2007, the Okons filed a motion to dismiss on the basis that their statements were matters of opinion protected by the First Amendment and therefore not actionable as defamation. On October 5, 2007, the judge denied the motion to dismiss without explanation and ordered the parties to proceed to discovery. After a limited period of discovery, the Okons filed a second motion to dismiss under Illinois' newly enacted Citizen Participation Act (CPA), 735 Ill. Comp. Stat. 110 (2007).

The CPA, the first law of its kind in Illinois, provides immunity for speech related to certain matters of government and public concern. The preamble to the CPA leaves little doubt as to the legislature's purpose in passing the Act:

[I]t is declared to be the public policy of the State of Illinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy. The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rights of petition, speech, association, and government participation.

To effectuate this policy, the CPA allows a party who has been sued as a result of the exercise of the aforementioned rights to file a motion to dispose of the lawsuit which a court must grant unless it finds "that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act." 735 Ill. Comp. Stat. 110/20. Under the CPA, all actions "in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome." 735 Ill. Comp. Stat. 110/15. The Act also requires that all discovery must be suspended pending a decision on a motion under the CPA, and that the movants are entitled to attorney’s fees and costs if they prevail.

So how would Jaeger's lawsuit against the Okons fare under the CPA? Not well, I should think. Unfortunately, we won't get the chance to find out. While the Okons' motion was pending, the case settled. According to a report in the Chicago Journal, the parties settled sometime in April 2008:

[Tom Okon] said he learned on Saturday that the case had been settled out of court in an agreement reached by both his and Jaeger's attorneys. The details, of course, "are confidential," Okon said. He added, though that "it only cost me $20,000." The original lawsuit, according to the Okons, demanded $100,000 from them.

Nevertheless, based on the clear language in the CPA, its legislative history, and the allegations in Jaeger's complaint, it would appear that the lawsuit against the Okons should have been dismissed under the CPA.

First, the statements at issue were directed at arousing community interest in the development project and influencing the local zoning board's decision on Jaeger's request for a zoning variance. Indeed, the footer under each page of the blog makes this quite clear:

We were founded in April of 2007 to make everyone aware of a proposed zoning change that would have allowed construction of a mammoth 7-story building at 1820-42 W. Irving Park Road. A small group decided that there was an urgent need for us to band together and help the North Center community speak as one voice. . . .

Second, this type of speech -- petitioning against a zoning change -- is precisely the type of speech the CPA was intended to immunize. According to Illinois state senator John Cullerton, the CPA was passed in order to provide immunity to community residents in situations where they are being sued by a "landowner" for statements they make in connection with opposing "a zoning change." 2007 Legis. Bill Hist., IL S.B. 1434, Senate Presentation, April 20, 2007.

Finally, although Illinois' courts have not yet interpreted the CPA, courts in jurisdictions with similar legislation have been consistent in dismissing lawsuits based on speech like that at issue in the Okon case. For example, in Melius v. Keiffer, the owner of neighborhood bar sued two members of a neighborhood association in New Orleans that had opposed the construction of a new bar across the street. The defendants in the case spoke out on the group’s website, Maple Area Residents, Inc., at city council meetings, in letters to officials, and in an appeal to the Board of Zoning Adjustments.

As a result of the neighborhood association's efforts opposing the construction of the bar, the bar's owner filed suit claiming, among other things, defamation based on the defendants’ statements that he "had received special treatment from the City[,] had made a ‘backroom deal’ with City officials," and "had broken various promises." Melius v. Keiffer, 2008 WL 659582 at *2-3 (La. App. 4 Cir., March 12, 2008). In throwing out the lawsuit, the Louisiana Court of Appeal affirmed the trial court’s grant of the defendants' motion to dismiss pursuant to Louisiana’s anti-SLAPP statute, La. C.C.P. art. 971, finding that the defendants' statements "fall under the purview of protected free speech [regarding a public issue]." Id. at *4.

Illinois' Citizen Participation Act would seem to mandate the same result for the Okons. Unfortunately, we will just have to wait for an Illinois court to provide its take on the CPA. With the growing number of lawsuits being filed against citizen media, I don't think we will have to wait long.

(Thanks to J.B. for alerting us to the Okon case.)

Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Sam Bayard — Wed, 07 May 2008 22:49:31 -0400

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.

The trouble began when Nick Welsh, an editor with the Independent, posted a copy of an unpublished News-Press article (obtained from an unknown source) on the Independent's website. The draft article, written by former News-Press reporter Scott Hadley, provided a fact-based account of the resignations of several key News-Press staffers. When the News-Press declined to publish Hadley's article and instead published a "note to readers" from Wendy McCaw, Hadley resigned in protest. Approximately a week later, the draft article showed up mysteriously at the Independent's office, and Nick Welsh used it to write a critical blost post -- Angry Poodle: The Poodle Barks Again. The post commented on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Welsh included a hyperlink in the post that led to a scanned PDF copy of the entire Hadley draft hosted on the Independent site. According to Welsh, he posted the draft in order to expose and criticize what he saw as the censorship of an unflattering article.

Ampersand Publishing sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. The complaint included other legal claims, including a crazy theory that the Independent had misappropriated the News-Press's trade secrets by acquiring and publishing the draft article. For details on the lawsuit and links to court documents, see our database entry, Ampersand Publishing v. Santa Barbara Independent. The most interesting legal issue in the case is fair use, and the Independent asked the court back in September to grant it summary judgment on that ground. At the same time, the News-Press moved for summary judgment as well, arguing that Welsh's use was not fair as a matter of law. Despite the newsworthiness of the very existence of the draft article itself, and the clearly critical bent of Welsh's use of it, the court held in a November 2007 decision that it was not fair use, essentially handing a victory to the News-Press on its copyright claim. I would have blogged about this decision earlier if I had known about it, but I just found it today, so here goes.

On the first fair use factor -- the purpose and character of the use -- the court found that the Independent's use of the draft article for purposes of criticism was "transformative," but found that it used more of the article than was necessary to achieve its critical purpose. The court noted that another local paper, the Santa Barbara Nexus, had also published an account of the resignations relying on the draft article, but had only summarized the article's contents and selected a few quotes, without publishing it in its entirety. The court's reasoning, while not wholly unreasonable, disregards the fact that Welsh's objective in using the article may have been different from that of the Nexus. He wasn't simply reporting on the resignations. He was criticizing the paper for publishing "defensive editorializing" (his lawyers' words) rather than Hadley's unflattering factual account. If we credit the Independent's argument, as the court was obliged to do on a motion for summary judgment, Welsh used the article to set up a contrast between two drastically different accounts, and it is not clear that he could have achieved this contrast effectively without using the entire Hadley draft. At least in this author's view, it is dangerous to have a court taking such a narrow view of what is and is not necessary for successful criticism. The court's conclusion on this first factor also poisoined its analysis of the third fair use factor -- the amount and substantiality of the portion used.

Perhaps the greater blunder was the court's analysis of the fourth fair use factor -- the effect of the use upon the potential market for or value of the copyrighted work. Here, it is hard to get past the obvious conclusion that the Independent's use could not have harmed the market for the draft article because there was not, and never could be, a market for a draft article that the News-Press had decided not to publish. Moreover, the news content in the draft article was stale -- the local and national press had already covered the events referred to in it. And, because of its critical character, Welsh's use of the draft did not function as a substitute for the original work, which is the type of economic harm that copyright law protects against. The court danced around these issues, relying on what looks to me like formalist reasoning wholly divorced from the actual economic realities at stake.

Admittedly, other courts have held that a plaintiff's decision not to publish a work does not mean there is no harm to the "potential market" for it, and the Supreme Court has indicated that fair use has a narrower scope when it comes to unpublished works. But those cases involved unpublished works that possess great economic potential (e.g., J.D. Salinger's unpublished letters, which would go for millions) or works on their way to publication (like Time's interview with President Ford). Here, even if the News-Press changed its mind and decided to publish Hadley's draft article, it would be worthless from an economic standpoint (and was already largely worthless at the time Hersh posted it). This case looks more like Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), where the court held that Internet posting of unpublished Diebold emails was fair use, in part because of the critical purpose of the use and in part because there was no conceivable market for the emails. In addition, in this case, as in Diebold, it is apparent that the reason the copyright owner was asserting copyright was to suppress criticism and commentary, not to protect its economic interests from a substitive use.

So, the lawsuit is over and the newspapers can go back to their business. But, because there will be no appeal to the Ninth Circuit on the fair use ruling, we're left with what I fear may be a dangerous precedent for cases involving critical uses of copyrighted materials on the Internet. Maybe the facts are too unique to make this case cause for much concern. I don't know, I'm still digesting it.