Law X.0

Online Media Law: The Basics for Bloggers and Other Online Publishers

The Poynter Institute's NewsU has launched a free online learning course that offers legal guidance on copyright, defamation and privacy for anyone who publishes content online. [Press Release] The course was developed in partnership with the Media Bloggers Association with contributions from the Citizen Media Law Project, which is jointly affiliated with Harvard Law School's Berkman Center for Internet & Society and the Center for Citizen Media; City University of New York's Graduate School of Journalism and Baruch College; and Media/Professional Insurance. Additional information including registration here.

Hat tip to Mitchell Rubinstein, Adjunct Law Prof Blog. [JH]

Would Publius Be a Spammer?

The Virginia Supreme Court has struck down the state’s anti-spam law for violating the First Amendment because it bars anonymous transmission of political, religious and other speech protected by the First Amendment and fails to limit its restrictions to fraudulent or commercial e-mail or to unprotected speech such as defamation or obscenity. [Text of opinion] Writing for the court, Justice G. Steven Agee observed, "were the Federalist Papers just being published today via e-mail, that transmission by 'Publius' would violate the statute" because it bars anonymous transmissions. [JH]

Judge Slaps Lawyer for Messing with Librarian Blogger

Judge sanctions lawyer for "breathtakingly broad" subpoena that was clearly nothing more than a fishing expedition designed to intimidate Kathleen Seidel, a librarian who publishes articles she and others have written on her website and blog. Details on Law Librarian Blog at Don't Mess with Librarian Bloggers. [JH]

International Arrests of Citizen Bloggers More Than Triple

The number of citizen bloggers jailed in 2007 has drastically risen from 2006, according to researchers at the University of Washington.  "Last year, 2007, was a record year for blogger arrests, with three times as many as in 2006. Egypt, Iran and China are the most dangerous places to blog about political life, accounting for more than half of all arrests since blogging became big," said Phil Howard, an assistant professor of communication. With his students, Howard prepared the World Information Access Report, which documents sources and consequences of social inequality in the information age.

• View Text Table Summarizing Global Blogger Arrests, 2003-2008

• View Color Graphic Summarizing Global Blogger Arrests, 2003-2008

• Download Full Dataset of Incidents

[RJ]

Does Defamation Law Favor Bloggers?

Hat tip to Mitchell Rubinstein for calling attention to Julie Hilden's article Defamation and the Internet: How the Law Effectively Allows Bloggers to Take Risks Big Media Companies Can't, and How Companies Can Work to Level the Playing Field. Check out what Rubinstein has to say on Adjunct Law Prof Blog. [JH]

British Businessman Wins Libel Case Over False Facebook Profile

In a test case the managing director of Applause Store Productions, Mathew Firsht, won a libel case last Thursday at High Court in London over false claims posted about him on Facebook. According to The Guardian, here's the facts of the case:

After Grant Raphael had a row with his old school friend Mathew Firsht, he wanted revenge. He disseminated a web of lies via Facebook, to cause Firsht stress and humiliation.

Yesterday Raphael was ordered by the high court in London to pay £22,000 damages to Firsht, after the freelance television cameraman created fake, malicious entries about the businessman.

Confidential details about Firsht's whereabouts, activities and birthday were "laid bare" on the social networking website for 16 days after Raphael posted the false profiles.

Firsht, managing director of Applause Store Productions, had his sexual orientation and political views misrepresented by Raphael, who also created a company profile called "Has Mathew Firsht lied to you?", from a computer at the flat where Raphael was living in Hampstead, north-west London, in June last year.

The UK court awarded Firsht £15,000 (about $30,000) and his television company, Applause Store Productions, £5,000 ($10,000) in libel damages. [JH]

The Child Online Protection Act Ruled Unconstitutional

The Third U.S. Circuit Court of Appeals [opinion] upheld a lower court ruling striking down the Child Online Protection Act (COPA) which required Web operators to restrict access to large amounts of constitutionally protected speech. In its ruling the court said COPA "cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional." Hat tip to Mark Giangrande (DePaul), Tech Law Prof Blog. [JH]

AOL Spammer Gets 30 Months

U.S. District Judge Denny Chin in Manhattan sentenced Adam Vitale to 30 months in prison, to be followed by three years supervised release. He also was ordered to pay restitution of more than $183,000 to AOL. Vitale plead to conspiracy and two counts of violating anti-spam laws last year for sending unsolicited "spam" emails to about 1.2 million AOL subscribers. 

Meanwhile, "spam king" Robert Soloway awaits sentencing in Seattle. The government is asking for 14 years. The sentence may be handed down on July 22. Details here. On Sentencing Law & Policy, criminal law prof, Douglas Berman (OSU), asks You be the judge: what sentence should "Spam King" get? [JH]

Code of Best Practices in Fair Use for Online Video

American University’s Glushko-Samuelson Intellectual Property Clinic and the Center for Social Media have released a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. [Press release] The code of practices is organized around six very common situations (listed below) that come up for online video makers.

• Commenting on or critiquing of copyrighted material
• Using copyrighted material for illustration or example
• Capturing copyrighted material incidentally or accidentally
• Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
• Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
• Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

Hat tip to Alex Curtis, Public Knowledge's Policy Blog. [JH]

Google Ordered to Disclose YouTube User Data

A federal judge in New York has ordered Google to turn over to Viacom a database that links users to every video they've watched on YouTube by login name and IP address. In this NPR podcast, Jennifer Urban, director of the USC Intellectual Property and Technology Law Clinic, discusses the implications this ruling has for online privacy. Additional information at Law Librarian Blog. [JH]

Iran Blocks Access to Women's Issues and Human Rights Websites

Iran's Ministry of Islamic Guidance and Culture's supervisory board for the media has decided to block access to several websites related to women's issues and human rights. Iranian Internet service providers were notified last week about the new restrictions. The Washington Post is reporting that Iranian bloggers and activists on Tuesday condemned the move as unlawful censorship. [JH]

Drew Indicted for Computer Fraud and Abuse Act Violation

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. Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl. Each of the four counts carries a maximum possible penalty of five years in prison.  Text of Indictment (pdf), Computer Fraud and Abuse Act

On the merits, see posts by Daniel Solove and Orin Kerr. Hat tip to the Citizen Media Law Project. [JH]

Trademark Metadata Can Violate Lanham Act When Used By Competitors

Mark Giangrande (DePaul), editor of Tech Law Prof Blog reports:

The 11th Circuit Court of Appeals has ruled that a company who uses meta-tags of their competitor's trademarks in their web site violates the Lanham Act.  The case is North American Medical Corp. v. Axiom Worldwide, Inc., ___F.3d___, 2008 WL 918411 (CA 11, April 7, 2008).  The case involves multiple issues, including false claims Axiom allegedly made about North American Medical products.  The use of trademarks, however, is the more interesting issue.  The District Court found that Axiom's use of North American Medical trademarks as meta-tags violated 15 USC §1114(1)(a) by using them "in commerce" and causing a likelihood of confusion.

Read more about it on Tech Law Prof Blog. Here's the text of the opinion (pdf). My initial reaction: people are still using metadata! [JH}

What Can You (Legally) Take From the Web?

Interesting post from IEEE Spectrum describing how copyright applies to bloggers and webmasters. Check it out! [RJ]

Student Speech Rights in the Digital Age

In Student Speech Rights in the Digital Age (SSRN) Mary-Rose Papandrea (Boston College Law School) takes a close look at all of the various justifications for limiting juvenile speech rights and concludes that none of them supports granting schools broad authority to limiting student speech in the digital media, even with respect to violent or harassing expression. She argues the tests that most courts and commentators have applied to determine whether student speech falls within a school's authority to act grant schools far too much authority to restrict juvenile speech rights in general. Papandrea's article concludes the primary approach that schools should take to most digital speech is not to punish or restrict such expression, but instead to educate their students about how to use digital media responsibly. [JH]

Internet Crime Report: The Top Scams of 2007

New report from the Federal Bureau of Investigation:

"According to the 2007 Internet Crime Report, the Internet Crime Complaint Center (IC3) received 206,884 complaints of crimes perpetrated over the Internet during 2007. Of the complaints received, more than 90,000 were referred to law enforcement around the nation, amounting to nearly $240 million in reported losses. This represents a $40 million increase in reported losses from complaints referred to law enforcement in 2006. All complaints received by IC3 are accessible to federal, state, and local law enforcement to support active investigations, trend analysis, and public outreach and awareness efforts." 

[RJ]

Citizen Media Law Project Launches Legal Guide

Here's the Citizen Media Law Project's announcement about its Legal Guide project. While a work-in-progress, the Legal Guide already provides useful information in its fairly detailed articles. You can browse the Legal Guide section-by-section or search it. [JH]

Internet Library of Law and Court Decisions

Updated regularly, the Internet Library of Law and Court Decisions is one of the web's foremost case digests, providing in-depth analysis of over 470 court decisions affecting those who do business on the Internet.

Court decisions are organized by subject matter.  Within each subject, cases are organized alphabetically by case name.  There, you will find a brief synopsis of the court's decision.  If the case is of interest, click on the case name, and you will be taken to a more thorough analysis.  In most cases, we also provide the full text of the court's decision, either via a downloadable pdf, or via a link to a location at which it can be found on the Internet. 

A free electronic newsletter, Internet Law Update, is available to provide you with the latest cases added to the Library.  A full text search engine is also available to assist in utilizing the Library's resources.

The Internet Law Library has analyzed cases covering a broad array of topics, including trademark and copyright infringement, dilution, use of meta tags, links, thumbnails and framing, browse wrap, click wrap and shrink wrap agreements, domain name disputes, internet service provider liability, subpoenas, online defamation, gripe sites, the Digital Millennium Copyright Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, jurisdiction, the legality of gambling on the Internet, search engine advertising, licensing requirements for the operation of an online pharmacy and automobile distributorship, the legality of keying and cookies, use of e-mail in the work place, spam, the legality of pop-up ads and spyware, and First Amendment issues arising out of governmental regulation of the Internet, among others.

Hat tip to Tech Law Prof Blog. [JH]

Access to Digital Media as a First Amendment Right

Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right by FIU law prof Hannibal Travis has been published by Hofstra Law Review. The work is also available from SSRN. Here's the abstract for this very interesting article.

In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.

This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.

Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.

Hat tip to Media Law Prof Blog. [JH]

User-Generated Content and the Open Source/Creative Common Movements

Franklin Pierce law professor Mary Wai San Wong's User-Generated Content & the Open Source/Creative Common Movements: Has the Time Come for Users' Rights? is now available on SSRN. Here's the abstract:

This paper, written for the 4th Asian IP Law & Policy Day co-organized by the IP Academy of Singapore (Singapore) and Fordham Law School (USA) in conjunction with the annual Fordham Conference on International IP Law & Policy, traces the development of the free software/open source (FOSS) and creative commons (CC) movements and the rise of user-generated content (UGC). In light of existing international treaty standards for copyright protection, growing global Internet penetration and various case law developments, the article considers whether the combined phenomena of FOSS, CC and UGC provide sufficient basis for a re-tilting of the copyright balance toward the user rather than the original copyright owner. Finally, the article examines whether the philosophy, rhetoric and experiences of the FOSS and CC movements make them appropriate models for copyright protection for UGC.

[JH]