Citizen Media Law Project

The 'Mugshot Racket' II: A Commercial Purpose Exemption?

Justin Silverman — Mon, 14 May 2012 18:08:14 +0000

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. "I have since learned better," he said.

What bothered Donnelly wasn't the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. "I am all for having a completely open government," he said, "but something needs to make this online shaming device stop." Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many CMLP readers weighed in with their own take on what David Kravets described in Wired as a "racket." According to Kravets's article, self-described "reputation companies" are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.

"This is not a ‘mugshot business' or ‘mugshot industry'," wrote one reader. "This is extortion... The demand: Pay up or it stays up." Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: "They're not a ‘news organization' by any stretch of the imagination," that reader wrote. "They have zero/zilch bona fide news media credentials... [They] break every accountable, professional, bona fide news media/news-reporting 'code of ethics' out there."

Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for "commercial purposes." Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state's FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.

At first blush, such an exemption seems conceptually absurd. Public records are considered such because the information they provide is of value to the community and necessary to maintain an informed citizenry. The information itself does not change based on the purpose and intent of the party distributing that information. The public is informed regardless and the objective of FOI law is met. There is also the issue of news media having commercial purposes, and so a commercial exemption could result in potential First Amendment conflicts. Further, if the intent of such a proposal is to distinguish journalists from mere profit-seekers such as the aforementioned reputation companies, then legislators would be marching into an ongoing battle over the definition of "journalist."

Despite these immediate concerns, however, what Donnelly proposed is already being practiced. Indiana, for example, allows its agencies and "political subdivisions" to prohibit the release of public information in electronic form, if that information is to be used for commercial purposes. Ind. Code. § 5-14-3-3. This bar to public information does not apply to the "publication of news," but as shown by one state official's explanation, the distinction can be a difficult one to make. In a dispute last year over a website's access to digital mugshot photos, Indiana's Public Access Counselor, Andrew J. Kossack, wrote the following:

...if a newspaper received the type of records sought in the request at issue here, it could publish a story about some aspect of the arrest process generally or about the particular arrestees specifically... [But] the same newspaper could be restricted from establishing a for-profit, fee-based database on its website that used the information to "sell, advertise, or solicit the purchase of merchandise, goods, or services."

So, it appears that an Indiana publication can safely publish a mugshot in its newspaper, but if that same mugshot is aggregated with others in a database for which access costs a fee, then there could be a violation. In both scenarios, the same information is being provided. Assuming it is not a free newspaper, both instances involve payment for that information. The difference under Indiana FOI regulations, is that once a mugshot becomes part of a database, it is no longer "news" but a commodity, as if there is no news value in the information that database provides. Many, including myself, would argue otherwise. Further, if that fee is removed to comply with the law, then with that fee will go any incentive to create the database in the first place. As most government agencies are lax in centralizing public records online, there should be more incentive for third parties to step in, not less.

The U.S. District Court in Rhode Island addressed the issue of "commercial purpose" exemptions in 1999, declaring a similar law partly unconstitutional. Rhode Island's public records law states that "no person or business entity shall use information obtained from public records" to "solicit for commercial purposes. . . ." R.I. Gen. Laws § 38-2-6. Those doing so face a fine of up to $500 and imprisonment for up to a year. Id. The Rhode Island Association of Realtors, however, wanted to use public records to identify new or recent real estate licensees in the state to recruit new members. Rhode Island Assoc. of Realtors v. Whitehouse, 51 F.Supp.2d 107 (D.R.I. 1999), aff'd 199 F.3d 26 (1st Cir. 1999). Fearful that the statute prevented it from doing so, the association sought a declaratory judgment that the law violated its First Amendment rights. Rhode Island Assoc. of Realtors, 51 F.Supp.2d at 109. Using the Central Hudson test, the court found the statute was not narrowly tailored to address the state's interest in protecting the privacy of its citizens. Id. at 114. That interest could instead be protected by excluding certain information from the statute's scope, rather than creating distinctions based on the intent of the requestor. Id.

If privacy is the goal, a law that discloses private information to some requestors but not others fails to offer protection. The information is still disclosed. Ultimately, I believe this is where such "commercial purpose" exemptions falter. Even if a statute could adequately distinguish between bona fide news organizations (whatever that means) and those dealing in the mugshot trade (however that's defined), the photo can still be released and the arrestee's privacy vanquished.

The frustration of those like Donnelly is understandable. Because there is no central repository for public records, mugshot websites can exploit state FOI laws and profit from what seems like a shady practice. The practice seems shady because there's a degree of unfairness when a private company plays gatekeeper to embarrassing information and then charges a heavy toll to keep it quiet. Though I may not agree with many of the proposed responses to this practice, I can certainly empathize with those whom are caught up in it and compelled to pay.

But as I told Donnelly, context is everything. Rather than making it more difficult to obtain information, it is almost always preferable to simply provide more. Having been arrested myself years ago — cuffed by an overzealous cop when I refused to leave a valid press area while working as a journalist — I remember the feeling of panic when a Google search of my name brought up reports of the arrest. To combat the misconceptions I believed existed, I took every opportunity to fill in the gaps left by those stories. By challenging what he perceives as a deceptive practice, Donnelly is sharing more about himself and creating a new impression, one that will eventually overshadow his previous indiscretions. The saying "fight speech with more speech" applies to not just speech, but all information — even if only that contained in a mugshot.

Justin is an attorney based in Newton, Mass. You can contact him through his website, www.justinsilverman.com, and follow him on Twitter at @justinsilverman.

(Screenprint of mugshots courtesy of Flickr user angus mcdiarmid licensed under a Creative Commons BY-NC license.)

How Should We Measure Damages for Defamation Over Social Media?

Jeffrey P. Hermes — Thu, 10 May 2012 19:08:17 +0000

On April 24, 2012, a Texas jury awarded $13.78 million to a married couple in a case based upon an extended campaign of defamation on the website Topix.com - to be specific, more than 1,700 separate statements accusing the plaintiffs of a wide array of criminal activity and, shall we say, unusual sexual practices, among other misconduct. The husband was awarded $5.1 million from one defendant and $1.7 million each from two others. The wife was separately awarded $3.168 million from the first defendant (the less-than-round number reflecting in part the value of the wife's business, which she allegedly lost as a result of the defamation).

A brief review of the 733-page complaint is enough to make one's skin crawl, and if the allegations are to be believed – as clearly the jury did – the size of the verdict becomes more understandable from a gut perspective. That said, the core of a defamation action is injury to reputation; i.e., the impairment of the plaintiffs' good name in the view of their community or a respectable part thereof. The sheer size this verdict begs the question of whether the jury was actually attempting to compensate for reputational injury, or was simply trying to smack the defendants with as large a number as they could rationalize.

Even when not confronted with conduct as disturbing and provocative as that alleged by the plaintiffs in this case, juries face difficult questions when evaluating damage to reputation caused by false statements on social media. For example:

As a practical matter, are 100 negative posts worse than 10? Are 1,000?
Would a reasonable audience get the point after a few posts, ignore the next several as repetitive, and after that begin to suspect that they're reading material written by a nut or someone with a serious grudge?
Does it matter how the posts are spread out over time?
How does audience reaction change if there are (or at least appear to be) multiple authors? What if there are only a few?
If the first page of search results for a plaintiff's name are all negative, do negative statements lower in the search rankings have a significant impact on reputation?

All of these questions go to the underlying issue of how and when an audience on a social media network forms an impression of the object of an online rant, and whether cumulative defamatory content eventually loses impact or even, counter-intuitively, undercuts the effect of earlier content. These are just part of a much wider range of variables, of course, including how articulate the posts are, the reputation of the poster, the forum(s) for the posts (including whether the forum is frequented by those who know and/or interact with the plaintiff), and any number of other items that render particular content effective or believable – even if false.

Figuring out how juries calculate awards for damage to reputation in Internet cases is further complicated by the fact that most jurisdictions allow a plaintiff to recover emotional distress damages as a part of an award for defamation. Reputation is an objective matter, dependent on the perceptions of third parties; emotional distress, in contrast, is subjective psychological harm that a plaintiff suffers as a result of the negative exposure. By their nature, damages from emotional distress are ill-suited to precise calculation, and the disconnect between reputational injury and emotional distress is particularly acute in social media defamation cases. Plaintiffs often express increased distress at the thought that "everyone in the world can see the libel," when in fact it is rare that anyone outside of the plaintiff's own community notices, remembers, or cares about an online statement. As a result, unless a jury is carefully instructed, the emotional distress component of an award can bear little relation to the actual injury to reputation that is the basis for the claim.

Moreover, emotional distress damages can disguise an effort to punish a defendant rather than compensate a plaintiff. This in turn can lead to judicial second-guessing, where a court must determine – based upon nothing more than a dollar figure – whether an award is compensatory or punitive in nature, and if so, whether an award of punitive damages is supported by the evidence. (Some states, such as Massachusetts, do not permit punitive damage awards in defamation cases; in those states which do allow punitive damages, the U.S. Supreme Court's ruling in Gertz v. Robert Welch, Inc. requires proof of constitutional "actual malice" before such damages can be awarded (at least where the statements involve a statement on a matter of public interest); and some of the states that allow punitive damages also require proof of additional elements such as common law malice, or proof of constitutional actual malice even in cases involving statements on matters of private interest.)

So was the $13.78 million verdict in Texas justified? We know that the jury's award was intended to compensate for damage to reputation and business losses, as well as some degree of mental anguish. We do not know how the jury answered the tough questions about damage caused by online statements or how they divided damages between reputational injury and emotional distress. The jury must also have been struggling with their own emotional reaction to the case, which could result in the conscious or subconscious enhancement of damages to punish the defendants.

The only thing that is clear, unfortunately, is that the already difficult process of evaluating damages in defamation cases is made more complex when it must take into account online social behavior that is poorly understood. More research is clearly needed; at the very least, judges should beware of unsupported arguments that speech causes more harm simply because it is on the Internet and the potential punitive aspect that can creep into verdicts as a result.

Jeff Hermes is the Director of the Citizen Media Law Project.

(Image courtesy of Flickr user 401K licensed under CC BY-SA 2.0 license)

The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Jeffrey P. Hermes — Tue, 08 May 2012 22:19:55 +0000

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)

Background

The Alvarez case arose out of a "police accountability program" planned by the ACLU of Illinois, which would involve openly making audiovisual recordings of Chicago police officers going about their duties in public. However, the ACLU was concerned that its videographers would be subject to prosecution and imprisonment for a felony under Illinois' expansive eavesdropping law, which prohibits electronic recording of conversations without the consent of all parties. Most troublesome is the definition of "conversation" under the law:

For the purposes of this Article, the term conversation means any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.

720 ILCS 5/14-1(d) (emphasis added). In other words, the law applies regardless of whether the conversation at issue was intended or could even reasonably be expected to be private. Furthermore, as the Seventh Circuit notes, "[t]he offense is normally a class 4 felony but is elevated to a class 1 felony-with a possible prison term of four to fifteen years if one of the recorded individuals is performing duties as a law-enforcement officer."

Yikes.

Rather than waiting to see if the Chicago police would gently tolerate this public oversight of their activities, as police have in so many other instances, the ACLU filed a federal lawsuit seeking to enjoin the enforcement of the law against them in connection with the "police accountability program." Specifically, the ACLU claimed that the First Amendment protects the right to record the police openly in public, and that the eavesdropping law was unconstitutional.

After a few go-rounds in federal district court over the issue of whether the ACLU was facing a real threat of prosecution, the district court denied the ACLU's request for a preliminary injunction and dismissed the case on the basis that the First Amendment "does not protect a right to audio record." The district court framed its constitutional analysis in terms of the "willing speaker" doctrine, holding that the ACLU's rights when recording were limited to the rights of a listener, and were therefore dependent upon the police officers they might record being willing speakers. Because the eavesdropping law only prohibited recording of those unwilling to be taped, it did not, in the district court's opinion, reach any situation in which the ACLU might have a right to record.

A Right to Record Audio

The U.S. Court for the Seventh Circuit, in a 2-1 split decision, reversed and remanded the case to the district court with an order to grant the preliminary injunction sought by the ACLU. Skipping past some of the procedural discussion, the Seventh Circuit first rejected the district court's reliance upon the "willing speaker" doctrine:

The district court's reliance on the "willing speaker" principle gets the doctrine right but its application wrong. ... [T]his is not a third-party "right to receive" case. The ACLU does not claim to be an intended recipient of police (or police-civilian) communications or to have a reciprocal right to receive the officers' speech as a corollary of the officers' right to speak.

Rather, the court held, the ACLU planned to record information for the purpose of sharing that information with the public -- i.e., to facilitate its own speech. From there, it was a short step to finding that the "expansive reach of [the eavesdropping] statute is hard to reconcile with basic speech and press freedoms."

The Seventh Circuit's analysis is less exuberant in its support of a First Amendment right to record than the First Circuit's decision in Glik (possibly because Alvarez did not arise from an actual arrest and the attendant outrage at police officers who should have known better), but it has other important virtues. It is thorough, logical and solid, spending significant time examining the role that recording plays in the exercise of freedom of speech and why protecting recording of the police is fully consistent with the traditions and principles of the First Amendment.

Let's walk through it.

The court started from the principle that disseminating audio and video is an act protected by the First Amendment:

Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are "included within the free speech and free press guaranty of the First and Fourteenth Amendments."

But, the court held, you can't exercise the right to broadcast audio if the state could simply prohibit you from making audio recordings:

The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State's Attorney insists. ... [T]he eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.

Thus, the First Amendment must protect creation of audio recordings as well:

Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast -- whether to the general public or to a single family member or friend -- and thus burdens First Amendment rights. If, as the State's Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise. Audio recording is entitled to First Amendment protection.

The ACLU's argument in favor of First Amendment protection for audio recordings is further buttressed, in the Seventh Circuit's view, by the fact that the Supreme Court has recognized that newsgathering is, to some degree, protected by the First Amendment. The court then reached back to Thomas Gordon and Thomas Cooley to explain the particular importance of newsgathering about public officials. Check out this language from Gordon:

[T]o do publick Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech. ... so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publickly scann'd.

And uploaded after scanning, hopefully.

(Sorry, couldn't resist.)

Ahem. In any event, the court ties up the analysis neatly:

In short, the eavesdropping statute restricts a medium of expression -- the use of a common instrument of communication -- and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.

Then, with a tip of the hat to the Glik decision, and a side note that it doesn't matter whether the eavesdropping law is a "law of generally applicability" because it imposes a "far from incidental" burden on First Amendment rights, the court goes on to consider whether the law can survive the scrutiny leveled at statutes that restrict speech.

First Amendment Scrutiny

Ah, but what level of scrutiny? The famously difficult-to-beat "strict" scrutiny imposed on regulations that target speech based upon its content or viewpoint? Or the lesser "intermediate" scrutiny used to evaluate content-neutral restrictions on speech?

Well, the court wasn't convinced that the eavesdropping law discriminated on the basis of content. This was despite the fact that there are exceptions in the law for the police making their own recordings (the ACLU justifiably asked why it was okay for the cops to record citizens, but not for citizens to record the cops, but the Seventh Circuit said that wasn't the kind of discrimination that required strict scrutiny) and for the media when incidentally recording ambient sound at public events (which gave the court greater pause).

Ultimately, though, the court punted on the question by saying that it didn't matter whether the law was content-neutral or not, because the eavesdropping law was unlikely to survive even "intermediate" scrutiny.

To survive intermediate scrutiny, the court held that the eavesdropping law must satisfy three requirements:

(1) content neutrality (content-based regulations are presumptively invalid); (2) an important public-interest justification for the challenged regulation; and (3) a reasonably close fit between the law's means and its ends. This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important gov- ernmental interest at stake.

For the purposes of discussion, the Seventh Circuit assumed (1), and held that the state satisfied (2). According to the court, "The State's Attorney defends the law as necessary to protect conversational privacy. This is easily an important governmental interest." However, the court found that the eavesdropping law fell flat on (3), because the statute prohibited recording without regard to the privacy interests that allegedly justified the law:

Simply put, these privacy interests are not at issue here. The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any "reasonable expectation of privacy" for purposes of the Fourth Amendment. ... [D]issemination of these communications would not be actionable in tort.

...

Of course, the First Amendment does not prevent the Illinois General Assembly from enacting greater protection for conversational privacy than the common- law tort remedy provides. Nor is the legislature limited to using the Fourth Amendment "reasonable expectation of privacy" doctrine as a benchmark. But by legislating this broadly -- by making it a crime to audio record any conversation, even those that are not in fact private -- the State has severed the link between the eavesdropping statute's means and its end.

Driving home that point was the fact that the State conceded that there would be no prohibition against recording police officer conversations by non-electronic means (paper and pencil, for example), taking pictures, and then reconstructing the dialogue later. Although the court noted the difference in accuracy and immediacy of audio recordings, it found that these differences were insignificant in terms of the State's asserted privacy interests.

Because the State could not articulate an important state interest actually served by applying the statute to the ACLU's planned activity, the Seventh Circuit held that the statute was likely to fail intermediate scrutiny. Accordingly, it held that the district court erred in denying the ACLU the preliminary injunction that it sought, and remanded with instructions to grant that injunction.

A Long-Expected Dissent

That's not quite the whole story. As many observers of this case anticipated after his statements during oral argument, Judge Posner dissented from the court's opinion. I am going to skip over his suggestion that the majority opinion is a short step from legalizing, among other things, child pornography and copyright infringement (good to know you've got the MPAA's back, your Honor, but I think judges can tell the difference). Rather, I want to look at how the majority responded to his concerns about people who intend to speak privately even when in public, and private citizens who might be deterred from approaching the police in public if someone is recording.

With respect to the first concern, the majority noted that ACLU was planning to record openly, so those who wanted to speak privately would know to move away. Because the case at hand did not involve secretly-made recordings, the majority unfortunately did not resolve the question of whether such recordings would be protected by the First Amendment, at least where those recorded did not have a reasonable expectation of privacy in their conversations. Rather, the court simply dropped a footnote stating that secret recordings might be balanced differently against the State's asserted privacy interests.

With respect to the second, the majority said that "anyone who wishes to speak to police officers in confidence can do so; private police-civilian communications are outside the scope of this case." That one, to be fair to Judge Posner, is a bit murkier. A police officer might find themselves in conversation with a civilian at any time, and it is unclear from the majority's comment what the ACLU is supposed to do if a member of the public approaches an officer for help. Similarly troubling is this statement by the majority:

It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. While an officer surely cannot issue a "move on" order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs.

Unfortunately, I suspect it won't be long before another judge inserts a "merely" before the phrase "because he is recording." It would then only remain to be seen how broadly police and judges in Illinois will interpret "legitimate law enforcement needs."

Conclusion

I don't want these minor reservations to put a damper on an exceptionally well-reasoned and supported opinion. The Seventh Circuit, like the First Circuit before it, has strongly affirmed the right of citizens to record the activities of law enforcement, and that makes this a good day.

Jeff Hermes is the Director of the Citizen Media Law Project, and will sleep soundly tonight.

(Photo courtesy Flickr user Pandaposse under a Creative Commons license.)

U.S. Marine Faces Uphill Battle in First Amendment Challenge

Arthur Bright — Mon, 07 May 2012 20:44:32 +0000

What happens when the First Amendment collides with military decorum and respect for chain of command?

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead.

Stein got drummed out of the Corps with an other-than-honorable discharge late last month, and his lawyer promised to pursue all his options in administrative proceedings and federal court. But does Stein really have a case?

Well, he's already in trouble when it comes to one of the preeminent government-employer/free-speech cases, Pickering v. Board of Education. In Pickering, a teacher was fired by his public school employer after he wrote a letter to the local newspaper complaining about the school board regarding a particular matter of public importance. The Supreme Court ruled the firing a violation of the teacher's First Amendment rights, saying that the teacher's speech rights outweighed the school's interests as an employer, given that the teacher's complaint had little to do with the fact of the teacher's employment.

Stein's hurdle with Pickering is that his employment was not incidental to the subject at issue. Stein wrote "Screw Obama and I will not follow all orders from him," thereby threatening his ability to function within the Marines' heirarchy. His employment becomes the crux of the debate, rather than being "tangentially and insubstantially involved in the subject matter of the public communication." That cleanly distinguishes Stein's issue from Pickering. (I should add that Stein later said what he meant was he would not follow illegal orders from Obama, though I don't believe that will significantly change the analysis.)

And Pickering was about a teacher; the First Amendment rights of a member of the military while in the service are a very different matter. The conflict between the First Amendment and military regulations governing conduct and the chain of command have popped up in the Supreme Court a couple times, most relevantly to Stein's case in Parker v. Levy, a 1974 decision.

In Parker, an Army doctor refused to train Special Forces personnel, slammed the Special Forces, and urged black soldiers to refuse to go to Vietnam if ordered. The doctor was courtmartialed for wilfully disobeying a superior officer, for "conduct unbecoming an officer or gentleman," and for "disorders and neglects to the prejudice of good order and discipline in the armed forces." The doctor, Parker, challenged the courtmartial in federal court, arguing the regulations were overbroad in violation of the First Amendment.

The Supreme Court was not receptive to Parker's argument. Unlike civilian life, the court wrote, "the different character of the military community and of the military mission requires a different application" of the First Amendment. "The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it." As such, conduct like that of the officer "was unprotected under the most expansive notions of the First Amendment," and the regulations at issue "may constitutionally prohibit that conduct" without risk of overbreadth.

Unfortunately for Stein, Parker puts him in a pretty deep hole.

According to Stein's complaint, he ran afoul of Article 134 of the Uniform Code of Military Justice, one of the same regulations that Parker violated. And one could argue that he violated that regulation in a similar fashion too. Though not quite as on the nose as Parker's discouragement of soldiers from obeying orders, "Screw Obama and I will not follow all orders from him" is at least in the same ballpark. Thus it will be hard to make those words out to be more protected than Parker's speech.

More importantly, the balance between Stein's speech rights and the military's interest in discipline weigh far more heavily in favor of the military. The military has a strong, almost untoppable interest in the chain of command being followed and troops following the orders of their superior officers. As such, Stein's refusal to "follow all orders from" Obama, the military's ultimate authority, threatens the basic functionality of the Marines and other armed forces. It's hard to think of a value more paramount to the military's purpose. I'd say that's a pretty big thumb on the scale in favor of the military's position.

It's also worth noting that both Pickering and Parker came down amid and just after the draft era. Draftees, who made up a substantial portion of the military at the time, were put under the restrictions of being a soldier by force of law. They didn't choose to waive their First Amendment rights, among many others, by entering service. Parker himself was a "draft-induced volunteer," meaning that he was forced to serve, able only to control when he entered service by "volunteering."

Today, however, our military is all-volunteer – soldiers have a choice whether to sign up or not. As such, they are voluntarily submitting to all limitations that come with being a soldier, including limitations on free speech. Stein cannot legitimately argue that the military's regulations are forcing him into silence about his opinion of the president. He chose to join the Marines, and thus he chose all that goes with it.

I think that this puts Stein in an even bigger hole. If the Supreme Court when evaluating soldiers' free speech was unwilling to consider the military's coercive powers during the draft era, why would it change course now when the military's coercion is at its nadir? Stein voluntarily took on all the obligations of being a Marine, and that includes not challenging the authority of your commanding officer, even when you did get to vote for (or in this case, against) him. (And it's not like the regs were a secret; as the Parker court notes, "the military makes an effort to advise its personnel of the contents of the Uniform Code.")

On the whole, I think Stein's looking at a legal loss on his First Amendment argument. And even with my general bias in favor of all things free speech, I'm okay with Stein's speech rights being outweighed here. Even a bleeding-heart pacifist like me can see that if the military is to function properly, it needs to have an utterly reliable chain of command. Stein's personal views don't get to trump that, particularly where he's under no obligation to serve in the military.

Stein doesn't have to like Obama, but if he wants to be a Marine, he has to obey his orders. Otherwise, he can quit. It's too bad he didn't figure that out, and so the Marines had to make the choice for him.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image courtesy of Flickr user MamboDan licensed under a CC BY-ND 2.0 license.)

Jenzabar v. Long Bow: Oral Argument Focuses on Initial Interest Confusion and Search Engine Results

Andrew F. Sellars — Thu, 03 May 2012 23:37:01 +0000

This morning Jeff and I had the pleasure of watching the Massachusetts Appeals Court argument in Jenzabar, Inc. v. Long Bow Group, Inc. As we mentioned once before on this blog, the CMLP filed an amicus brief in this case with the assistance of Harvard Law School's Cyberlaw Clinic. (And thanks again to HLS students Mike Hoven and Andrew Pearson for their help!)

The case concerns a documentary film company that released a film concerning the Tiananmen Square protests, called The Gate of Heavenly Peace. The film profiles many of the figures surrounding the protest, and is critical of a student protester named Ling Chai. Chai later moved to Boston and co-founded an educational software and service company named Jenzabar. The film company, Long Bow, created a website related to the film, which, among other things, criticized Chai on a webpage. Long Bow titled the page "Jenzabar," and included terms related to Jenzabar in the metadata.

After the website was published, Jenzabar sued Long Bow for various trademark claims, as well as for defamation and trade libel. The case took about five years to reach the Appeals Court, after the defamation and trade libel claims were dismissed and summary judgment was granted in favor of Long Bow on the remaining trademark claims. On appeal the parties and two amici (the CMLP and the Boston Patent Law Association) focused their arguments on two particular issues in trademark: (1) whether the trademark law doctrine of "initial interest confusion" should apply to online behavior, and (2) whether forcing Long Bow to remove metatags and change the title of the page is a violation of Long Bow's free speech rights.

In our amicus brief, the CMLP (under its new name, the Digital Media Law Project) expressed serious concerns about the theories pursued by the plaintiff in this case. The CMLP argued that applying trademark analysis does not make sense when the defendant is using the plaintiff's trademark to say something critical about the plaintiff. Trademark doctrines are ill-equipped to handle these cases; trying to shoehorn expressive uses into a standard "likelihood of confusion" analysis only results in tortured interpretations of the relevant factors, while creating protracted and costly fights that lead to unnecessary self-censorship.

The CMLP also argued that the defendant has a First Amendment right to use the metadata of a website to increase the website's public accessibility, noting that the public has a constitutional right to receive such information. Finally, the CMLP noted that modern Internet realities make the "initial interest confusion" doctrine wholly inappropriate in cases like this one, where search engines have actively developed algorithms and mechanisms to avoid third-party "gaming," and Internet users expect and employ search engines to find all relevant information about a party, not just the party's own website or approved material.

At oral argument, Justice Jancie Berry sat as the chief of the very active panel, along with Justices James Milkey and Mary Sullivan. Joshua M. Dalton from Bingham McCutchen argued on behalf of Jenzabar, and Paul Alan Levy of Public Citizen argued for Long Bow.

Jenzabar sharply focused its oral argument regarding infringement on the Google search results for the term "Jenzabar" as reflected in a screen capture submitted in Jenzabar's brief. According to Jenzabar, Long Bow's website appeared as the third search result, with the title of "Jenzabar" and the description:

The information on these pages about Chai Ling and Jenzabar, the software company she runs with her husband Robert Maginn, contains excerpts from and links to...

Google cuts off the description at that point. According to Jenzabar, it is that rank, title, and description that are the basis of liability; Jenzabar alleged that Long Bow engaged in "metatag stuffing" to achieve its rank and that its use of "Jenzabar," standing alone, for the title was confusing. Notably, Jenzabar's counsel conceded that it would have been fine if Long Bow had titled its page "Jenzabar lies" or "Jenzabar sucks" instead. If Long Bow is allowed to use "Jenzabar," Jenzabar argued, using "Jenzabar Official" would also be okay, and then search engines would quickly become a lawless domain fraught with confusion.

During Jenzabar's argument, the court focused for a good deal of time on whether the record indicated any intent by Long Bow to deceive the public, or whether Long Bow even had the ability to influence their Google search results. Justice Sullivan also picked up on an analogy the CMLP made in its amicus brief: Browsing on the Internet is not like shopping in a grocery store aisle – one expects to find all sorts of information related to a query, not just the subject's own website. Justice Berry pushed back directly on the suggestion that a likelihood of confusion analysis could apply to compare the "Jenzabar" trademark with Long Bow's nominative use of "Jenzabar."

Long Bow's argument focused on the applicability of "initial interest confusion" to Internet activity. Long Bow noted that web searches are often designed to get the "plusses with the minuses" -- i.e., not just official or authorized content -- and that search engines return many sites from countless different sources. Justice Milkey queried whether Long Bow's argument rested on disputing prima facie infringement or on a fair use defense, and Justice Sullivan asked whether the existence of a likelihood of confusion is inherently a question for a jury. Long Bow responded by arguing that the court should adopt the Rogers v. Grimaldi balancing test for infringement, allowing use of another's name in an expressive context unless there is a clear intent to deceive the public, and provided a series of examples of cases where likelihood of confusion was resolved through summary judgment. The court almost launched into a discussion of the Streisand Effect, before Long Bow's time expired.

On rebuttal, Jenzabar's counsel took issue with Rogers as the test, claiming that Rogers is limited to artistic works and that the website here was a "piece of marketing." Jenzabar also attempted to analogize this case to the restaurant pamphlets in SMJ Group v. 417 Lafayette Restaurant LLC. In response, Justice Milkey picked up on a distinguishing characteristic that we noted in our amicus brief -- namely, that in SMJ Group the parties stipulated to there being confusion.

Naturally, we'll post an update when the case is decided. For more on the case, visit our threat entry and the briefs linked therein.

Andy Sellars is a staff attorney at the Digital Media Law Project and an employee fellow at the Berkman Center for Internet & Society. He wants to thank Sharkey's Twins for allowing the Red Sox to sweep at least one series this year.

Legal Guide Expanded to Include Arizona

Arthur Bright — Thu, 03 May 2012 20:10:22 +0000

We are pleased to announce the expansion of the CMLP Legal Guide to cover the state of Arizona! You may have noticed our Arizona section growing over the past several months. Our legal guide now includes several sections on Arizona defamation law, intrusion law, open meetings and public records law, and more.

This new portion of the CMLP Legal Guide would not be possible without the help of Caitlin Vogus, who graciously offered her time and effort to help us. Caitlin is a Harvard Law School graduate and a clerk on the Virginia Court of Appeals. We are very appreciative of her help, and look forward to her continued assistance!

Please note that our Arizona section is still a work in progress, as we are still adding to it so as to parallel the coverage of our other state sections. But we hope that you find the new sections useful now. As always, if you have suggested updates or additions for our Legal Guide, please contact us.

(Image of vintage Arizona billboard used courtesy of flickr user Roadsidepictures under a CC BY-NC 2.0 license.)

Is 'Liking' on Facebook Protected Speech?

Arthur Bright — Mon, 30 Apr 2012 20:37:56 +0000

Venkat Balasubramani and Eric Goldman, over on Eric's blog, have highlighted a rather interesting if fundamentally flawed decision from the Eastern District of Virginia.

The case is Bland v. Roberts, and involves six plaintiffs who were civilian employees of the defendant, a sheriff in Hampton, Virginia. Apparently the plaintiffs were in favor of someone new sitting in the sheriff's seat, and when the election came around, they expressed public support for the sheriff's opponent through a variety of means including "liking" the opponent's Facebook page. Unfortunately for the employees, the sheriff won reelection, and soon after he fired the six of them.

What's interesting about the case, and what caught Venkat and Eric's eyes, is that in granting summary judgment for the defendant sheriff, the court ruled that "liking" something on Facebook is not constitutionally protected speech.

Let me repeat that to drive the point home. The court ruled that clicking Facebook's "Like" button – which thereby expresses one's opinion to at least one's friends if not the whole world – is, as Judge Raymond Jackson writes, "insufficient speech to merit constitutional protection."

I'm sure Judge Jackson is a wise man, but I think he whiffed on this one.

Judge Jackson writes that "in cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record" – i.e. people wrote something on Facebook too. The judge goes on to cite a pair of cases involving firing of employees in response to Facebook comments, and writes:

These illustrative cases differ markedly from the case at hand in one crucial way: Both . . . involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the plaintiff]'s posts from one click of a button on [the] Facebook page [of the sheriff's opponent].

But Judge Jackson leaves out a rather important piece of information about the current situation: There are no cases involving the consitutional protections for "likes," "pokes," "+1's," or any of those other one-click denotations of approval. As Eric points out, "a Westlaw ALLCASES search for "facebook /s poke" yields no results...yet." I wasn't able to find any cases involving Facebook "likes" on Lexis either. All this makes the issue smell like an issue of first impression.

And if it really is an issue of first impression (or even just effectively so - some other trial court may have weighed in, but clearly higher courts have not), then Judge Jackson is punting on the hard questions. By his logic, one could have concluded that websites aren't publications because they are not books or newspapers, or that cars are not vehicles because they are not bicycles or horse-drawn carriages.

I suspect that Judge Jackson is getting lost in the formalities of the act of "liking," rather than the substance thereof; after all, he writes that he won't try to infer "from one click of a button." I take that to mean that the judge isn't willing to hang constitutional protections from a single, atomic (in the classic, indivisible sense) action. I suspect that he'd be much more willing to do so if, instead of "liking," the plaintiff typed "I like the sheriff's opponent" on the Facebook page – it involves more steps, more time, and is thus more reliable as a formal expression of the plaintiff's "like" of the sheriff's opponent.

But looking at formalities is the wrong way to think about "liking." After all, modern technology is all about reducing complex tasks to simple acts – to dismiss the simple as unconvincing is to dismiss the end towards which all technology moves.

Better instead to look at whether the message behind the act is one deserving of constitutional protection. In this case, surely the "one-click" act is equivalent to the text "I like ____." Is that statement of opinion protected? Surely it is. If the typed text and the single click convey the same message, then how can they earn different levels of constitutional protection?

Consider signing an online petition or wearing a black armband: Both acts are very simple, amounting to typing a couple words or putting on a piece of cloth respectively. But each represent a more complex message, be it endorsement of potentially pages of carefully reasoned argument or expression of a heartfelt loss. Surely no one would challenge the expressiveness of the acts due solely to the ease with which the expressor can communicate their message.

Another important thing to note: Facebook's business model, and that of many publications, relies on "liking" as substantive expression. For Facebook, that click of a "like" button means publication of that "like" to tens, if not hundreds or thousands, of "friends" of that clicker. It also means publication of that "like" on the clicker's personal page – which could be seen by tens, hundreds, thousands more. Further, it means a positive return for an advertiser when a user "likes" their product, as it will result in the product appearing on new pages. And it drives traffic to the "liked" page – a hugely critical fact in the online media's click-reliant business model.

Admittedly, this fact is of little legal consequence, but surely it shows that "liking" is not just "one click." If it were, and were not substantive expression, surely so much money would not hinge on such a small act.

I'll be curious to see whether the plaintiffs appeal the summary judgment order. There are a lot of other moving parts to the decision, such that this one little piece about "likes" may get lost in the shuffle. But I certainly hope the judge's hyper-formalism gets overruled. That kind of approach is anathema to the progress of science and technology, and does no one any good.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image courtesy of Flickr user toodlepip licensed under a CC BY-NC 2.0 license.)

The Wasted Effort of Connecticut's Feeble Cop-Recording Bill

Arthur Bright — Thu, 26 Apr 2012 20:48:16 +0000

Connecticut, like most states these days it seems, has been having a problem with cops interfering with people photographing or filming them. Members of the Connecticut legislature are concerned about citizens being harassed for filming cops, and are working on passing a bill, No. 245, aka "An Act Concerning the Recording of Police Activity by the Public," to address the issue. This is a good thing.

Unfortunately, the whole thing falls apart when you read the bill and discover it has almost no teeth.

To be fair to the bill's sponsors, their hearts are in the right place. According to a press release from Sen. Majority Leader Martin M. Looney (D) of New Haven, the event that inspired the bill was the false arrest of Father James Manship, a New Haven pastor, after he recorded several East Haven cops who apparently were harassing Latino business owners. The FBI subsequently arrested four East Haven cops on charges of false arrest and obstruction, among others. So the sponsors seem to have been trying to crack down on abusive cops – a commendable goal.

But the bill rather neatly establishes the right of the public to film cops before punching that right full of so many holes as to be unable to hold any water. Consider the bill's section 1(b):

A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer's duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.

On its face, and knowing that the specific sections cited are merely indemnity provisions for public officials, this all sounds pretty good. Sure, it's vague on the details of what such liability might look like, but in lieu of a Glik v. Cunniffe-like decision in the Second Circuit, it's a step forward for Connecticut's watchers of the watchmen.

The problem is section 1(c).

(c) A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.

In other words, as Reason's Mike Riggs puts it, citizens are allowed to record police officers "so long as the police officers in question don’t object to being recorded."

The 1(c) exceptions are so broad as to render the 1(b) right meaningless. Police officers rarely seem to lack for belief that laws against resisting arrest, interfering with an investigation, and even loitering apply to instances when they were filmed by members of the public. And someone's privacy is almost always involved when cops are doing their job, be it the victim's or the accused's – or even the cop's own, as Riggs notes. To merely require the cop have "reasonable grounds" to invoke the liability exception, particularly without defining "reasonable grounds," leaves 1(b) toothless.

Consider this particularly outrageous instance of cops responding to being filmed, coincidentally from within the Second Circuit in which Connecticut also lies, of a woman being arrested in her own front yard after she recorded a traffic stop in front of her house. The cop claimed he didn't feel "safe" with her recording him, asked her to stop, and arrested her when she did not.

Were this fact pattern under Connecticut jurisdiction, the cop could say that what he really meant was that he felt she was endangering the investigation somehow – a 1(c)(3) exception – or that somehow public safety was at risk, a 1(c)(2) exception. Does he have "reasonable grounds" for such beliefs? Hard to say without further guidance, guidance that the bill does not give. But I can see cops winning such an argument, despite it seeming the wrong outcome.

Now, as I said before, I think the bill's sponsors mean well. I'm further convinced of the sponsors' good intentions by some of the amendments they torpedoed: an amendment that would have explicitly excepted persons who "intended to inconvenience . . . any police officer" by recording the cop; an amendment that would create a presumption that the cop was in the right and put the burden on the plaintiff to prove otherwise; and an exemption for state capitol cops. All of these would have made the bill even more toothless, so kudos to the senate for shooting them down.

But the exceptions that remain still overwhelm the right that Bill 245 aims to establish. What the Connecticut legislature really should do, if they want to protect the public's right to film cops, is to codify the Glik decision. The First Circuit's reasoning is just as sound when applied to the Second Circuit, and frankly has been spending much more time considering such matters than the Connecticut legislature has as of late.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image of Hartford police courtesy of Flickr user rbglasson licensed under a CC BY-NC-SA 2.0 license.)

Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

John Sharkey — Mon, 23 Apr 2012 17:11:20 +0000

I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen. And really, the Court of Appeals' opinion (DMLP threat entry on the case here; .pdf of the opinion here) in Viacom v. YouTube is pretty decent on most of what I care about. But my focus today is on one particular spot in the opinion that turns out to be a bit squishy: the meaning of the statutory phrase "right and ability to control [infringing] activity." The parties presented two clear – albeit diametrically opposed – interpretations of the phrase, and the Second Circuit settled on... neither one. It's an unfortunate bit of fogginess in what could have been a seriously clarifying opinon. (After all, when the Second Circuit speaks on copyright, other courts tend to notice.)

A quick DMCA refresher, if you're rusty: The statute sets up a system to shield online service providers from copyright liability based on their users' activity. So in the YouTube case, the fight is over whether YouTube (and now its corporate daddy Google) can be held liable for infringing videos posted by users. If YouTube qualifies for the DMCA "safe harbor," it's in the clear. If not, there's pain on the horizon.

Sparing you full explication of all of the safe-harbor subtleties, it's enough to know that there are a few bad things that can disqualify a site like YouTube from protection – mines floating in the safe harbor, if you will. (And I hope you will.) The one I'm worried about today is at 17 U.S.C. § 512(c)(1)(B), and it's worth laying out the language. To keep its safe-harbor protection, a site like YouTube must:

not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.

You can see the two fights that can arise: (1) Is YouTube making money "directly attributable" to users' copyright infringement? (2) Does YouTube have "the right and ability to control" those users' behavior? The Second Circuit didn't deal with the "directly attributable" question (which is interesting in its own right), but it did have something to say about the second question: What does it mean for a website like YouTube to have "the right and ability to control"?

YouTube's lawyers had an answer: To have the ability to control an infringing video, we need to know exactly where it is. (So, something like a URL for the infringing video.) The idea here is that if YouTube doesn't know a particular video is sitting on its server, it can't be expected to take it down. And Viacom, of course, offered the reverse: YouTube can delete any video whenever it wants, so it has the "right and ability to control," period. But the Second Circuit didn't take to either suggestion.

At first glance, YouTube's argument seems reasonable enough – you have to know about something to "control" it. But another one of the mines-in-the-safe-harbor, § 512(c)(1)(A), already deals with this kind of "actual knowledge." (There was a big fight about this point, too, but the Second Circuit mostly sided with Google on the interpretation of (c)(1)(A).) Google's suggested interpretation of (c)(1)(B) runs the risk of making it redundant with (c)(1)(A), and courts don't like to do that. So, Google's suggestion is out.

Viacom's argument that the mere ability to delete is control, on the other hand, would swallow up the safe harbor completely, unless a service provider was constantly vigilant against any possibly-infringing material. And the whole point of the safe harbor is to take that load off of the Internet companies by giving them cover if they comply with some less-intrusive requirements. Thus, Viacom's interpretation was dead on arrival.

So that left the Second Circuit in a bit of a bind. If (c)(1)(B) doesn't require actual knowledge of the infringing activity, but does require something more than the bare technical ability to take down user-posted content, then what is that "something more"? Here, the Court of Appeals fudges, and that's what makes me a bit nervous. It's not that what they say is bad; it's just vague enough that we can't really know how lower courts will handle it.

The Second Circuit points to two other cases to help illuminate the "something more" problem, and we can use those cases to at least get a sense of what the Court of Appeals is going for. The first is a 2002 California district court case, Perfect 10 v. Cybernet Ventures. The facts are a bit convoluted, but in the end the district court granted the plaintiff's motion for a preliminary injunction because the defendant, Cybernet, was so closely involved in its member-sites' activities, it was likely likely to fail the (c)(1)(B) test. Basically, Cybernet sort-of-oversaw (if I may fudge some language myself) a network of adult-picture sites by operating an age verification service. As part of their operations, Cybernet enforced a bunch of rules on member sites: what kind of pictures they could post, how often different sites could repeat the same pictures, and so on. Because Cybernet was so closely involved in its member-sites' activities, the court ruled, it was likely to fail the (c)(1)(B) test. So in citing Cybernet, the Second Circuit is suggesting that if you're too hands on about what your users post, you might be on the hook if you let copyrighted material through.

The other case mentioned in the Viacom opinion is a bit more tangential: MGM v. Grokster, the Supreme Court case about the post-Napster file sharing services. It's a trickier fit, since Grokster isn't a DMCA case, but the Supreme Court's opinion ultimately turned on the fact that the Grokster defendants were… well, sort of shady. As the court put it, the Grokster defendants "clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement." Without getting too far into the facts, the Supreme Court dropped the hammer on the Grokster defendants for too openly courting copyright infringement (by, for example, trying to vacuum up former Napster users).

Like I said, Grokster isn't a DMCA case, but you can see what the Second Circuit is getting at by mentioning it: If you create a file-sharing site called UploadPiratedFamilyGuyEpisodesHere.com, that sort of conduct can land you in hot water when it comes to the "something more" part of "right and ability to control." Even though you might not know when specific infringing clips are uploaded, you're pushing users to act in a way that you probably shouldn't be.

The Second Circuit sums up the point like so: "Both of these examples involve a service provider exerting substantial influence on the activities of users, without necessarily – or even frequently – acquiring knowledge of specific infringing activity." That sounds suspiciously like a legal standard – "exerting substantial influence" – but the court doesn't quite say outright that it's the test lower courts should use.

And that's what's frustrating. My initial impression of a "substantial influence" test is that it's not all that bad. If a website is creating an open forum for users to post what they will, the website is in the clear. If the website is pushing users to post specific content, and/or actively monitoring its quality and frequently vetoing substandard submissions, then it's in the danger zone.

But for whatever reason, the Second Circuit wasn't that firm. The key paragraph (in the middle of page 28) is cautious, equivocal, tentative; basically, just a vague suggestion of how this "something more" could work. I suppose the Court of Appeals wants to kick it down to the district court first, have the trial judge take the first crack at formulating a "something more" test, then re-evaluate if/when another appeal comes up, but that really sticks in my craw.

The Second Circuit is (along with the Ninth) the most influential court in the country when it comes to copyright issues (at least among courts that don't have an Antonin on them). And because so many cases settle, there's no way to know when another case that raises the (c)(1)(B) issue so squarely will make it back to the Court of Appeals. (I wouldn't be the least bit surprised if the YouTube/Viacom case settled at this point.) That leaves lower courts, and other, less copyright-inclined circuits, to keep making stuff up when it comes to the "something more." So while my best guess, based on the Cybernet and Grokster citations, seems like it could work pretty well, we've got no guarantees that other courts will see it that way. And I have full faith in the judicial system's ability to come up with something a lot worse.

Joystick image courtesy Flickr user QwirkSilver, used under a CC BY-NC-SA 2.0 license.

John Sharkey is a CMLP blogger in his second year at Harvard Law School. He told you Josh Willingham was going to mash.

Is It a Prior Restraint for Police to Delete Video of Their Conduct?

Lauren Campbell — Thu, 19 Apr 2012 18:45:50 +0000

A pedicab driver was arrested in D.C. recently for pretending to record police arresting one of his passengers. He wasn’t actually filming anything – apparently he wasn’t even sure how to operate his new camera.

One would think that with all the attention this issue has received lately, we’d have seen a decrease in incidents of police arresting those filming their actions. But police officers continue to arrest journalists and other citizens for lawfully recording incidents of police activity. It happened to CMLP friend Carlos Miller (for the third time) while he was covering an Occupy Miami evacuation in February. And, as Carlos reported, to a San Diego videographer in January. And to others in Boston, Austin, and Memphis. And many other places.

It’s not like the right to record the police is a big secret anymore. The Obama Administration has stated that Baltimore city police officers infringed on an individual’s (non-journalist) First, Fourth, and Fourteenth Amendment rights when they seized his cell phone and deleted its contents (he was recording the officers arresting his friend). An Oregon jury came to the same conclusion regarding the seizure of an environmentalist’s video camera. And the First Circuit unanimously ruled in Glik v. Cunniffe that filming officers in a public space is a clearly established First Amendment right. The New York police should also understand that they are not to interfere with lawful recording: Their patrolmen’s guide explicitly states that “[m]embers of the media will not be arrested for criminal trespass unless an owner expressly indicates … that the press is not to be permitted.”

And the people who have had run-ins with the police are beginning to fight back. Simon Glik filed suit against Boston police, which resulted in the First Circuit opinion mentioned above and a $170,000 settlement with the City of Boston. Videographer Phil Datz just sued the Suffolk County (NY) Police Department for a similar incident. Carlos Miller is also fighting his most recent arrest.

Most of the lawsuits that have arisen out of these incidents are based on 42 U.S.C. § 1983, which grants individuals the right to relief when actors, acting pursuant to state authority, violate the person’s constitutional rights. (The Supreme Court established a similar cause of action against federal actors in Bivens v. Six Unknown Named Agents, 403 U.S. 338 (1971).) The First Amendment grants the right to film events occurring in a public space, as some Courts of Appeals, such as the First, Ninth and Eleventh Circuits, recognize. The Fourth Amendment protects individuals’ private property (like a camera or its contents) from seizure without a warrant or probable cause. The Fourteenth Amendment requires due process before state and local officials can seize and destroy someone’s property.

What the courts and the administration haven’t addressed is whether a police offer who deletes video commits a separate violation of the First Amendment by imposing a prior restraint on distribution of the video. I would argue that deleting content from a recording device does indeed constitute a prior restraint on speech.

What is a Prior Restraint?

Prior restraint is an elusive thing. Although the Supreme Court has called it “the most serious and least tolerable infringement on First Amendment rights,” Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), it has not set the parameters for what constitutes a prior restraint. Alexander v. United States, quoting Melville Nimmer, offers one useful definition: “The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” 509 U.S. 544, 550 (1990).

This appears to put prior restraints into two categories: administrative orders and judicial orders. The Court’s jurisprudence generally follows this categorization, addressing cases in which courts issue injunctions (judicial orders), or in which administrative bodies require a license in order for speech to occur (administrative orders). Police officers’ recent habit of deleting video recordings on their own initiative doesn’t fit neatly into either of these categories.

I haven’t been able to find prior restraint case law that deals with action by state agents that was not specifically authorized or directed by a court or administrative body. But the Supreme Court has noted that “seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where ... there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Heller v. New York, 413 U.S. 483, 492 (1973). In the news reporting context, this strongly indicates that if a state actor were to seize all copies of a specific newspaper, preventing them from being distributed, it would clearly be a prior restraint. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 950 (3d ed. 2006). Deleting a video recording directly from the recording device appears to be a similar act of state censorship.

What Can We Learn from Obscenity?

When you think of obscenity and the Supreme Court, videos documenting incidents of arrest probably don’t jump to mind. The obscenity cases involve publications that allegedly compromise the morality of our society—lewd novels, pornographic magazines, and the like.

But cases dealing with the seizure of material claimed to be obscene have a lot in common with these situations in which police confiscate recording devices and delete their content. Here are a few examples:

Marcus v. Search Warrant of Property at 104 East Tenth Street, 367 U.S. 717 (1961): A Missouri statute authorized the search and seizure of allegedly obscene publications if police could provide enough probable cause to support a search warrant for the seizure. Although the property owner was not entitled to a pre-seizure hearing, the judge issuing the warrant was required to set a hearing date after the seizure, to determine whether the material was actually obscene. If so, the judge would order it publicly destroyed; if not, the materials would be returned to their owner.

A Missouri court subsequently issued a warrant authorizing the search and seizure of materials at a distributor’s place of business and five newsstands. The warrant did not specify which publications were to be seized, and the officer executing the warrant used their own discretion to confiscate approximately 11,000 copies of 280 publications. The Court held that the seizure was unconstitutional, because it prevented the distribution of the materials at issue prior to any judicial determination of whether they were obscene and therefore lacked the due process required to safeguard materials protected under the First Amendment.

Quantity of Copies of Books v. Kansas, 375 U.S. 206 (1964): A similar statute in Kansas authorized the seizure of allegedly obscene publications without a pre-seizure hearing as to their obscenity. A post-seizure hearing would be held to determine whether the publications were actually obscene. If so, they would be destroyed; if not, they would be returned to their owner.

Here, after an extended ex parte hearing, a judge issued a valid search warrant for specific publications at P-K News Service. Although the executive officers only found certain of the publications when they executed the warrant, they seized all copies of each (1,715 books total). A plurality of the Court found that the procedure violated the First Amendment, because P-K News Service was never given an opportunity for an adversary hearing regarding the publications in question.

United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971): When the claimant was returning from Europe, customs officials seized thirty-seven photographs from his luggage as obscene pursuant to the Tariff Act of 1930. A US attorney instituted forfeiture proceedings in a US district court approximately two weeks after the seizure. The claimant challenged the constitutionality of the statute as applied to him and demanded that a court issue an injunction in his favor. The lower court found the statute invalid on procedural grounds and ordered the injunction.

The Supreme Court reversed finding that the claimant’s due process rights were not violated, because the government timely initiated adversarial hearings to determine whether the materials should be forfeited. The Court acknowledged, however, that unduly long administrative procedures or the lack of an opportunity to be heard had been held to invalidate statutes and administrative determinations in previous cases.

From Obscenity to Recording the Police

In the obscenity cases, at least, there was a valid question as to whether the publications at issue were constitutionally protected. The Supreme Court held in Roth v. United States, 354 U.S. 476 (1957), that obscenity falls outside the safeguards of the First Amendment. In the case of Carlos Miller (and many others whose content has been deleted), it’s clear that the content itself is protected by the First Amendment. Since the police could not support an argument that the content is unprotected, the individuals shouldn’t even bear the burden of appearing at hearing.

This, of course, is the big difference between obscenity cases and deletion of lawful material. Where content is allegedly criminal and of dubious constitutional value, it may be necessary to seize and preserve one copy of a work to use as evidence. Here, there’s no need to seize the content for evidence, because the constitutional protection is unquestioned and no crime has been committed.

There is also a strong argument that mere seizure of the only existing copy of such a video itself constitutes a prior restraint, even if the police do not delete the video. If the police officers’ intent is to prevent distribution, as opposed to preserving content for evidentiary purposes, that act may be unconstitutional. The Supreme Court has stated that:

Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint[.]

Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Nor is it a defense that publication might only be delayed; Justice Black, in particular, believed that delays in publication are as bad as permanent bans. N.Y. Times Co. v. United States, 403 U.S. 713, 714-15 (1971) (Black, J., concurring).

If there’s one thing I’ve learned in law school, it’s that piling on is a very useful strategy in litigation. So here’s one more cause of action to add to your list.

Conclusion

Deleting the only copy of a video before it is distributed is a permanent harm that prevents publication of content protected by the First Amendment. As Justice Brennan wrote in Marcus v. Search Warrant: “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.” The doctrine of prior restraint was established to safeguard against government censorship of information. Seizing and deleting lawfully recorded video is exactly the type of suppression barred by the doctrine.

Lauren Campbell is a CMLP intern and a 3L at Boston College Law School.

(Image of Carlos Miller posing with statue of Thomas Jefferson wearing a "Got Liberty?" hat used courtesy of Jeff Hermes.)

Privacy v. Public Access in the Emerald City

Bryce Newell — Mon, 16 Apr 2012 19:06:10 +0000

For the past few years here in Seattle, a fascinating debate has been brewing about the balance between government transparency and citizens' privacy, particularly at the intersection of the state Public Records Act and the state Privacy Act.

The current controversy involves a lawsuit for declaratory relief filed in January by the City of Seattle against local attorney James Egan, after he submitted a public records request for 36 Seattle Police Department dash-cam videos (see the complaint here). Egan requested the videos from the SPD under the Washington Public Records Act in relation to his representation of clients with misconduct claims against the police. (Egan has publicly posted prior videos that he received from the SPD under earlier Public Records Act. The 36 videos at issue in the new request don’t necessarily relate to police interactions with Egan’s clients, but rather to the officers involved in the earlier incidents.)

The city refused to produce the videos, citing a potential conflict with the state’s Privacy Act and the department's concerns over potential liability for turning over videos that might violate the privacy of the individuals depicted in the footage. Days later, Egan filed a second request for the video footage, this time requesting the visual footage only, without audio, which was also rejected. He has also moved to strike the City’s claims under the state anti-SLAPP statute.

This whole controversy is especially interesting to me as a researcher interested in government transparency and as a supporter of proper policing. A close reading of the statutes at issue is enlightening.

Washington's Public Records Act heavily favors public disclosure, but City Attorney Pete Holmes is concerned that one provision of the Privacy Act, RCW 9.73.090(1)(c), limits the city’s ability to disclose the videos to anyone except the individuals involved in the recorded incidents. (Holmes recently posted his thoughtful take on the issues here, and I applaud his willingness to discuss the matter publicly.) The provision of the Privacy Act that most concerns the city reads in part:

No sound or video recording made under this subsection [which allows police to record dash-cam video] may be duplicated and made available to the public by a law enforcement agency subject to this section until final disposition of any criminal or civil litigation which arises from the event or events which were recorded. (emphasis added)

The city also claims that the Privacy Act allows them to keep the dash-cam videos sealed from the public for three years. Reportedly, this is also the timeframe for when Egan says the videos are "slated for deletion" from the SPD’s electronic video system. If true and the Privacy Act does bar the SPD from releasing the videos, it would appear that SPD dash-cam videos would be effectively exempted from public records requests in the future.

Interestingly, another lawsuit has also addressed whether the SPD may retain dash-cam videos under the Privacy Act, and a decision on April 11 may give a glimpse into the future of Egan's case. Last year, Seattle-based KOMO 4 News also filed a lawsuit against the city for refusing to release dash-cam videos to the station’s investigators, after allegations that the city was routinely denying all public records requests for dash-cam footage. On Wednesday, KOMO News announced that a King County judge had ruled in their case that the SPD could legitimately withhold the video for three years, but fined the city for not producing log and database information. As a result, despite reports that indicate that the SPD does maintain videos related to pending or on-going litigation, the decision in the KOMO v. Seattle case fuels Egan's worries that the SPD dash-cam video can be deleted from the department's system before it is ever subject to a public records request.

The Privacy Act provision on its face does appear to explicitly limit the SPD’s ability to release the footage. However, the conflict of laws provision of the Public Records Act makes broad and sweeping claims to trump conflicting laws (including, presumably, the Privacy Act). That provision, RCW 42.56.030, states:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.... This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern. (emphasis added)

The conflict between the Public Records Act and the Privacy Act is particularly alarming because the United States Department of Justice recently concluded that the SPD has, over the past few years, engaged in “a pattern or practice of constitutional violations regarding the use of force that result from structural problems, as well as serious concerns about biased policing.” The DOJ report, released on Dec. 16, 2011, is available here.

Interestingly, as mentioned above, the Egan and Komo cases aren’t the only recent cases where the SPD has attempted to withhold dash-camera video under this interpretation of the Privacy Act – although it has also continued to release footage in some instances (including the prior requests by Egan himself, noted above), displaying some inconsistency in enforcing the laws at issue. It’s also interesting to note that similar efforts to restrict access to police footage have been cropping up in other states as well. The Ohio legislature is currently considering Senate Bill 226 (official analysis here), which would exempt visual recordings that depict the killing of a police officer from public records requests. This bill is aimed at only a very narrow swath of all police footage, but it presents another attempt by state governments to limit the availability of police video from citizen review on privacy grounds.

These developments demonstrate some of the potential conflicts that exist between open government ideals and law enforcement concerns for public policing. This conflict has also shown its face in the context of public agencies attempting to prohibit citizens from recording police conduct in public. Citizen video as a tool for oversight of police activity in public is a frequent topic on this blog (see here, here, and here for examples).

The ever expanding range of issues associated with recording police in public, or requesting such videos under various public record acts, has generated some quite fascinating developments. In one such case that has received quite a bit of attention, Glik v. Cunniffe, 655 F.3d 78 (2011), also see posts by Jeffrey Hermes here and Timothy Lamoureux here, the City of Boston has recently agreed to pay Simon Glik $170,000 in settlement of his civil rights case after the First Circuit’s strongly worded decision in favor the First Amendment right to film police officers in public spaces last summer. Apparently, the City of Boston has now also produced a training video that instructs officers to refrain from arresting citizens openly recording them in public. It will be fascinating to see how the First Circuit decision will be treated in other circuits moving forward.

Despite the decision in Glik, recording officers in public remains potentially prohibited in some parts of the country by local eavesdropping and wiretapping statutes and, surprisingly, filing a public records request in Seattle might get you on the receiving end of a lawsuit. We are in for an interesting ride over the next few months as we see how Seattle v. Egan gets decided and watch the fallout from the Glik v. Cunniffe decision around the country.

Bryce Newell is currently a Ph.D. student at the University of Washington's Information School and a Graduate Fellow of the Comparative Law & Society Studies (CLASS) Center. He is also a member of the California State Bar (inactive) and is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border. He is a graduate of UC Davis School of Law. Nothing in this post should be construed as legal advice, but merely as the thoughts of a budding academic researcher.

(Image of Seattle Police car used courtesy of Wikimedia Commons user Mrkoww under a CC BY 3.0 license.)

Introducing Guest Blogger Bryce Newell

Arthur Bright — Mon, 16 Apr 2012 17:45:28 +0000

I am excited to welcome Bryce Newell as a guest blogger!

Bryce Newell is currently a Ph.D. student at the University of Washington's Information School and a Graduate Fellow of the Comparative Law & Society Studies (CLASS) Center. He is also a graduate of the University of California, Davis School of Law and is a member of the California State Bar (inactive). Bryce is engaged in conducting both doctrinal and socio-legal research that investigates the role of intellectual property, privacy, and information technology law and policy in society, both domestically and globally. Years as a photographer, videographer, and filmmaker have instilled in him a soft spot for photographer rights and an interest in citizen journalism. Prior to obtaining his J.D., Bryce worked in television, film, and video production as a producer, cinematographer, editor, and motion graphics artist. He is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border. In his spare time, he enjoys the occasional round of disc golf or a game of Ultimate Frisbee.

Please join me in welcoming Bryce to the CMLP blogroll!

Louis Vuitton v. Hyundai: Deconstruction of a Bad Trademark Decision

Andrew F. Sellars — Thu, 12 Apr 2012 20:37:57 +0000

From the ever-growing file of trademark cases that are bad for free speech, Eric Goldman and Techdirt bring us an interesting case concerning a recent Hyundai ad. The ad is a series of brief vignettes conveying luxurious items in non-luxury settings: a yacht parked next to a small suburban ranch house, cops in a squad car snacking on caviar, chandeliers for streetlights, lobsters and roast pigs in what looks like an office breakroom, and – most importantly for our purposes – a group of people playing basketball with a ball that appears to have what Louis Vuitton calls its "Toile Monogram" pattern on it. Baroque music plays throughout, and a sonorous voice asks the audience, "What if we made luxury available to everyone? Would it still be called luxury? Or maybe we'd need a word for it. Oh, here's one: 'Hyundai.' The all new Hyundai Sonata."

Get it? The ad asks us to ponder whether luxury is defined by its exclusivity to an upper caste, or whether we can all experience the creature comforts of "luxury" regardless of social strata, when a vendor makes high-quality goods at a convenient price point. (Also, buy our car.)

As this blog noted as recently as last month, Louis Vuitton is notoriously aggressive in trademark enforcement. This was no exception. The company brought suit in the United States District Court for the Southern District of New York, alleging a variety of trademark violations.

Last July, Louis Vuitton moved for summary judgment as to Hyundai's liability under state and federal trademark dilution law. Trademark dilution is different from standard trademark infringement. Dilution grants a superior exclusive right to owners of "famous" marks to control its use in all commerce. This right is intended, in part, to protect the single meaning that famous marks have globally. For example, an average consumer will know when they see Kodak-brand sneakers that the camera company didn't make the sneakers, but now when the consumer hears the word "Kodak," they won't know if the speaker is referring to cameras or sneakers. That extra step is the harm that dilution law seeks to remedy. (If you're unfamiliar with trademark you may want to review the CMLP legal guide posts on the topic.)

Trademark dilution as a theory is controversial, to say the least. It's no accident that the doctrine was first proposed in the United States in a 1927 law review article and not enacted federally until 1995. A common worry is that giving broad protection to prevent uses of marks when there is no evidence of consumer confusion will lead to censorship of any unauthorized communication bearing the mark of a famous company. (Goldman quite rightly borrows Lessig's term of "permission culture" to articulate this fear in the context of this case.) But Congress was careful when it enacted dilution federally to be sure it would not be used as a tool to silence expressive uses of others' trademarks. The law specifically states at 15 U.S.C. § 1125(c)(3) that:

The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person’s own goods or services, including use in connection with—

(i) advertising or promotion that permits consumers to compare goods or services; or
(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

(B) All forms of news reporting and news commentary.
(C) Any noncommercial use of a mark.

That's a surprisingly direct carveout in a section of law that is normally frustratingly silent on expressive uses. Note its open phrasing. The statute protects "any fair use … including use in connection with" comparison and comment or parody, adopting all of the standard free speech defenses in trademark law, and then further protects all news reporting and all noncommercial uses (which, as the CMLP recently articulated in an amicus brief on the topic, rarely should be governed by trademark law, even under the traditional infringement framework).

Looking at this in a vacuum, the case for Hyundai seems pretty easy: The use of the Toile Monogram was nominative fair use – Hyundai sure looks like it is referring to Louis Vuitton to me. Louis Vuitton is a brand associated with luxury, so putting the brand on a basketball was achieving the same ends as putting the yacht next to the ranch house: it juxtaposed symbols of luxury with symbols of everyday life.

So it may surprise you to learn that Southern District granted Louis Vuitton's motion for summary judgment, even in the face of this broad exclusion for expressive uses. How did this happen?

For starters, Hyundai did not embrace the fact that they were referring to Louis Vuitton directly, as I mentioned above. Instead, they tried to avoid that association by arguing that their design (which slightly differed in small respects) worked to "genericize" the Louis Vuitton logo, as if any old brown-and-gold monogram would convey luxury. This, sadly, seems to be an illustration of the chilling effect that occurs when content creators (falsely) believe they have to get permission for any direct use of a trademark. Hyundai appears to be afraid of the consequences of saying that they copied Louis Vuitton's design, so their marketing executives and ad managers claimed that they were not trying to directly evoke Louis Vuitton or comment on them specifically. Judge Castel then, quite understandably, used their words against them when Hyundai later attempted to claim that their use was protected by the exception for parody, criticism, and comment under § 1125(c)(3)(A)(ii).

Even so, I do not think this is the right result in this case. The court is improperly myopic when it comes to interpreting § 1125(c)(3). Rather than looking at any fair use defense, including a parody or comment of the original, the court seems to read in the "parodying, criticizing, or commenting" limitation into 1125(c)(3) as a whole. This limits the scope of nominative fair use rather substantially. Nominative fair use can arise whenever the defendant is using the plaintiff's marks to refer to the plaintiff; they do not need to lob commentary or criticism in the process. This would also prohibit a defense for all descriptive fair use, as that doctrine always concerns use of a trademark in a way that does not discuss the markowner, let alone parody, criticize, or comment on them.

The court also notes that this is more of a "satire" than a "parody," and thus not a fair use. If this "parody/satire" analysis sounds familiar, it's because of its use as a common heuristic to analyze fair use in copyright. But fair use in trademark and fair use in copyright start from different positions, and a court should not use one to color the other.

In copyright, a defendant claiming fair use is arguing that even though they are causing the harm that copyright seeks to prevent – i.e., engaging in an unauthorized use of another's work – public interest and the greater purposes of copyright law command that we tolerate this harm. In this context, courts have held that a "parody" (a work that makes fun of the original work or its creator) has greater social utility than a "satire" (a work that employs a work to make fun of something else entirely).

Trademark fair use starts from a very different position. A judge finds fair use in trademark when the nature of the use does not cause the injury that trademark law is designed to prevent. Nominative fair use does not cause confusion or dilution because it is understood that the defendant is speaking about the plaintiff and the plaintiff's goods. Descriptive fair use does not cause confusion or dilution because the defendant is clearly not – they are using words for their plain English meaning.

Given this, the "parody/satire" distinction makes no difference. Either way, the use would be a nominative fair use, understood to refer to the mark's owner directly. As the Fourth Circuit noted in another recent case concerning Louis Vuitton and trademark dilution, "[e]ven as [a defendant's] parody mimics the famous mark, it communicates simultaneously that it is not the famous mark, but is only satirizing it."

(This approach, by the way, is not entirely the Southern District's fault. The Second Circuit in Harley Davidson v. Grottanelli adopted the "parody/satire" analysis for trademark, citing the copyright case of Campbell v. Acuff-Rose and the widely-panned trademark case Deere & Co. v. MTD Products, Inc.)

The effect here is rather profound. Louis Vuitton can penalize Hyundai for using their mark in an ad, even when confusion is absent and actual damage is unlikely. Talk about luxury.

Andy Sellars is a staff attorney at the Citizen Media Law Project and a fellow at the Berkman Center for Internet & Society.

(Image of car, which is not a Hyundai, courtesy of Flickr user Sterin licensed under a CC BY-NC-ND 2.0 license.)

Judge Explains His Decision on Blogger to the Chicken Littles

Eric P. Robinson — Mon, 09 Apr 2012 18:34:34 +0000

Federal Judge Marco A. Hernandez got a lot of attention and cyberchatter late last year when he held that blogger Crystal Cox was not protected by Oregon's reporters' shield law, leading to a $2.5 million defamation verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011).

A lot of the online commentary focused on Judge Hernandez's statements that, as a blogger, Cox did not fit into any of the categories of journalists specified in Oregon's reporters' shield law, Ore. Rev. Stat. 44.520(1). He also declined to apply precedents holding that plaintiffs in libel lawsuits against media entities must show that the defendant(s) acted with at least negligence, writing that:

Defendant cites no cases indicating that a self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.

These statements led to a lot of commentary – and criticism – online. But, as I pointed out, the sky was not falling: that was not the primary reason why Judge Hernandez held that the shield law did not apply. Instead, he reached this conclusion because Cox tried to use the shield law to refuse to reveal her source, while at the same time trying to argue that since she had a source (who she would not identify), the libel lawsuit should be dismissed. This is specifically prohibited by Oregon's shield law statute. See Ore. Rev. Stat. 44.530(3).

That nuance was lost in most of the online posts decrying the decision.

Now, Judge Hernandez has issued a new opinion, denying Cox's motion for a new trial. But the ruling also addressed some of the more extreme posts in reaction to his decision, which described it as an attack on all bloggers.

In my discussion, I did not state that a person who "blogs" could never be considered "media." I also did not state that to be considered "media," one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the "media."

In justifying this decision, Judge Hernandez pointed to Cox's offer of "public relations" services – including removal of her blog posts – to the defendants after they complained about the posts. "The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee," Hernandez wrote. "This feature, along with the absence of other media features, led me to conclude that defendant was not media."

Judge Hernandez also rejected an argument by the Electronic Frontier Foundation, which appeared as amicus in support of the new trial motion, that Cox was covered by the Oregon shield law's provision that

"Medium of communication” has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

Ore. Rev. Stat. 44.510(2).

"[E]ven assuming that the Oregon Legislature's purpose in passing the retraction statute was to protect statements made in a broad range of media outlets existing at that time," Hernandez wrote in response to this argument, "I cannot discern from this purpose that today's Oregon Legislature would expand the statute's protection to all statements published on the Internet."

Given the breadth of the fora available on the Internet, one cannot presume that today's Oregon Legislature would amend the retraction statute to include all statements made there. Determining what statements made on the Internet deserve protection under the retraction statute involves a social policy discussion which is a function belonging solely to the legislature. This is not an issue for the courts.

Throughout the decision, Judge Hernandez pointed out that Cox – who acted as her own attorney at trial – did not object to prior rulings and jury instructions, and that in arguing the new trial motion her newly-retained attorney and EFF made new arguments that had not been made a trial.

Cox could appeal to the 9th Circuit Court of Appeals. But in 2006, that court held that blogger Josh Wolf was not a journalist for purposes of California's reporters' shield law. See In re: Granmd Jury Subpeona, Joshua Wolf v. United States, 201 Fed. Appx. 430 (9th Cir. 2006). (Wolf, who was jailed for failing to provide video of a protest, was eventually freed after he posted the video sought by prosecutors online.)

But if the decision stands, it must be limited to its specific facts: a defendant writing on blogs, whose behavior may show that she was acting in a role other than that of a journalist. It's important to recognize that bloggers can be journalists, with all the legal consequences of that classification, but that not all bloggers are journalists.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.

(Image of courtesy of Flickr user cskk under CC BY-NC-ND 2.0 license.)

Are Retweets Endorsements?: Disclaimers and Social Media

Andrew Mirsky — Thu, 05 Apr 2012 17:13:16 +0000

“RTs do not = endorsements.”

We’ve all seen it on Twitter bios, usually bios belonging to members of the media.

These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough. Last fall, the Associated Press introduced an updated social media policy for its reporters and editors. As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

Members of the media might want to be careful, however, that statements like “No comment” or “without comment” before tweets do not take on meanings of their own. Often, retweeting something “without comment” can indicate an unwillingness to comment due to an either enthusiastic support for or disapproval of the content of the original tweet.

Take, for instance, this example, where a user named @ProgressiveMich, whose bio indicates that he (or she) is against corporate money and for progressive politics for Michigan, retweeted “without comment” a tweet by conservative political commentator Dick Morris (@DickMorrisTweet) that said, “To gain the younger vote I think Republican candidates need to pick up Cain’s 9-9-9 plan.” In retweeting “without comment,” @ProgressiveMich might be saying (who knows?) that the content of the tweet is not worth commenting on. Rather than using “without comment” to avoid expressing an opinion, the retweet-er is in fact expressing an opinion.

A Broader Perspective

This may be just the application of an old-school standard to a new medium. Just because you throw up a vanilla disclaimer of “nonendorsement” on your website or in the fine print, that may not cut it as effectively communicating nonendorsement.

In consumer protection law, this is the analogous problem with buried, “fine print” legal disclaimers, which have generated a whole rash of regulatory responses requiring “clear and conspicuous” disclosures. So, for example, California’s recently amended security breach notification law requires disclosures be made via “conspicuous posting” of breach information “written in plain language”.

Various state attorneys general have initiated legal actions against consumer websites, magazines, and other subscription-type services, claiming deceptive practices from insufficient disclosure of billing practices, particularly automatic credit card renewal billing of subscriptions and other service purchases. American Journalism Review reported in 2002 on Florida’s attorney general looking into Time Inc.’s re-enrollment practices that often forced subscribers to re-subscribe without their knowledge.

And perhaps most directly on point, the Federal Trade Commission (FTC) last year issued extensive rules requiring more prominent disclosures of commercial endorsements and affiliations by bloggers and other social media endorsers of commercial products. The FTC’s blogger rules make clear the Commission’s view that the inadequacy of prior disclosures wasn’t limited to misleading or insufficient disclosure statements, but equally so the common practice of burying disclosures.

Big Pharma is quite familiar with this problem, which is why you find such seemingly awkward disclaimers (i.e. taking this drug may put you at risk of death!”) blithely stated by wistful lovers at the ends of Viagra and other sexual performance drug ads. The US Food and Drug Administration requires “clear, conspicuous and neutral” presentation of risk information in pharmaceutical advertisements. And not leaving things to chance, the FDA has published highly detailed commentary on these practices, with examples such as this:

A seven-page sales ad devotes the first six pages to effectiveness claims, which are prominently presented with colorful graphics, abundant white space, and large, colorful headers. Three of these pages also include a footnote referring readers to “Important Information on page 7.” The seventh page summarizes some risk information from the PI in single-spaced paragraph format without headers or other presentation elements to emphasize to the reader that it is important risk information. Such a presentation creates problems regarding the adequate presentation of risk. The important risk information about the drug should instead be integrated into the piece and presented with similar prominence to the effectiveness claims.

Back to RTs

Does a catch-all “RTs and Links aren’t endorsements” (per Brian Stelter of The New York Times) really make the case? In my post last year about the FTC blogger guidelines (“FTC Blogger Rules: Why Not Disclose Advertising?”), I noted that the guidelines limit disclosure requirements to cases where the sponsorship relationship is not “reasonably expected by the audience.” And perhaps followers on Twitter should really know better than to assume a RT is an endorsement. But in that sense, the AP’s guidelines are quite reasonable, especially for professional writers for whom care is assumed to have been taken with choice words.

Andrew Mirsky is an attorney and Principal of Mirsky & Company, PLLC, a law firm with particular emphasis in new media, intellectual property, technology, corporate and nonprofits. Andrew has 17 years’ experience as a business and commercial lawyer, including 5 years’ experience in company management of media and technology enterprises.

Kate Tummarello, a Research and Social Media Intern with Mirsky & Company, contributed to this post.

(Image courtesy of Flickr user Rosaura Ochoa licensed under a Creative Commons BY 2.0 license.)

A New Guide for Non-Profit Journalism

Jeffrey P. Hermes — Mon, 02 Apr 2012 14:08:27 +0000

As you might have seen from our home page, the Digital Media Law Project [FN] today released our Guide to the Internal Revenue Service Decision-Making Process under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations. The Guide is intended to demystify the standards applied by the IRS in determining whether a journalism-oriented non-profit is entitled to a federal tax exemption.

Many new journalism ventures consider forming as non-profit corporations. This should come as no surprise in the current market, where making a profit in the news business remains a dubious proposition even for mainstream outlets. As of December 2011, the number of clients who had contacted our legal referral service, the Online Media Legal Network, for help forming non-profit organizations was about twice the number looking to form traditional for-profit businesses.

For that reason, it was disturbing when a trend began to emerge last year in how the IRS was responding to applications from journalism-related non-profits for a federal tax exemption. Many non-profits count on receiving tax exempt status under Section 501(c)(3) of the Internal Revenue Code, not only to avoid federal taxes but to enable them to receive tax deductible donations from foundations and individual donors. But a growing number of journalism non-profits found themselves waiting for a year, eighteen months, or even two years or more for an IRS determination on their applications -- all the while struggling to stay afloat with little to no funding. (Many thanks to our friends at the Investigative News Network for first calling this trend to our attention.)

Our further discussions with journalism applicants in the process indicated that the IRS was setting these applications aside for special consideration. The exact reason for this special treatment remains unknown; although it is not unheard of for the IRS to strive for consistency in handling a series of similar applications by bundling the applications for coordinated treatment, the length of the delays in this instance is unusual. It did become clear to us, however, that there is substantial confusion over the standards that the IRS applies in determining whether a news non-profit is tax exempt.

Among the questions that we heard from journalism applicants were:

Why is the IRS telling us we can't mention journalism in our description of our organization's purpose?

Why is the IRS talking about us proving we're an "educational" organization? Don't they recognize that journalism is by definition educational?

Why is the IRS telling us we can't have advertising revenue at all, when they have rules stating that 501(c)(3) organizations have to pay taxes on advertising income?

Why is the IRS so concerned about our reporting on political issues?

Why did organization X receive its tax exemption when we're having such difficulty?

and, most often,

Does the IRS just hate journalism?

When we first started hearing these and other questions, we didn't know the answers (although we had our doubts about that last one). We started digging, and found more than fifty years of IRS history dealing with journalism and publishing organizations, and a byzantine maze of standards developed, amended, rejected and restated over that time. It became obvious that much of the confusion and concern among journalism applicants derives from the difficulty of understanding the rules by which the IRS operates.

So, we set out to make sense out of the IRS's standards, and along the way learned the answers to many questions like those above. The Guide represents the end result of this effort. We hope that it will provide the answers that others seek as well.

You can start using the Guide here.

(Image courtesy Flickr user S.E.B., used pursuant to a Creative Commons Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0) license)

[FN] Also known as the Citizen Media Law Project -- we're working now on the last few tweaks to our new website with our new name.

Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

John Sharkey — Mon, 26 Mar 2012 19:12:10 +0000

So this case slipped by me when it first came down in January, but it raises my ire enough to come back to a bit late. It's Sandholm v. Kuecker, the Illinois Supreme Court's attempt to make sense of the state's anti-SLAPP statute, and it's an impressively terrible piece of work. In it, the Court introduced what amounts to a mind-reader approach: If the plaintiff has a pure heart and really believes he's been wronged, then the anti-SLAPP law won't stand in the way.

The facts in Sandholm are pretty basic. A bunch of parents were dissatisfied with the local high school basketball coach/athletic director, so they spent a couple of months mounting a campaign to get him fired. Once the dust settled, the embattled coach brought this defamation case.

It gets interesting for my purposes because the defendant-parents brought Illinois' anti-SLAPP law into play. The Illinois statute, 735 Ill. Comp. Stat. 110/15, in the universe of all anti-SLAPP laws, is already on the narrower side, limited to some kind of broadly-defined government-participation speech. According to the statute, speech/petition/etc. activities are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."

One can already see where the problem creeps in. The best anti-SLAPP statutes like Texas, California, Washington, and so on, don't hand out blanket immunities. They don't say, "as long as you're talking about a public interest-type issue, nobody can ever sue you for anything." Instead, they set a higher bar for the plaintiff to clear to advance her claim. California's is the classic two-step setup since copied by other states. First, the defendant shows that he's being sued over some protected speech. Then, the plaintiff has to show the specific facts that support each element of her claim. The idea, of course, is that meritorious plaintiffs will be able to make the necessary showing, and plaintiffs just looking to intimidate and punish won't.

So back to Illinois, where the statute (on its face) doesn't work that way. The lower courts in Sandholm read it to say what it apparently says: As long as you, the defendant, were speaking to get the government to take some kind of action, you're immune from all lawsuits. That's a hell of a change, basically abolishing all intentional torts as long as the defendant sincerely wanted to cause some government action. No two-step, plaintiff-prove-your-case system: just flat immunity.

We could fight over whether or not that kind of blanket immunity is a good idea. But the point is that the Illinois Supreme Court was (understandably) unnerved by such a major change. (See ¶ 50 of the decision for an example of the Court's suspicion.) At that point, the Court can do one of two things: the classic textualist "enforce the statute literally and embarrass the legislature into changing it" move, or the "read in something to mitigate the damage" move. The Illinois Court took the latter path; I'm no textualist, so you'll hear no complaints from me on that score. It's what they did once they decided to stretch the text that boggles my sad little law-student mind.

The Sandholm Court zeroed in on this language in the statute: The anti-SLAPP law applies if a lawsuit "is based on, relates to, or is in response to" protected speech/petition/etc. Normal humans see that language as putting the focus on the defendant's conduct: They did something to get sued, and if that something was an attempt to participate in government, the statute protects them. The Illinois Court, instead of reviewing whether the plaintiff's claim had merit, decided that the statute required them to divine the plaintiff's subjective intent. According to the opinion, the anti-SLAPP statute will not apply "[i]f a plaintiff's complaint genuinely seeks redress from defamation or other intentional torts." (¶ 53.)

The most obvious question is, how are courts supposed to… know this? Which plaintiffs are twirling a waxed mustache, thinking of dastardly ways to suppress speech, and which plaintiffs feel genuinely wronged? We don't live in a world where SLAPPing villains are so easy to spot. Spending time analyzing the plaintiff's intent takes the focus off of the important anti-SLAPP concern: protecting valuable speech from chilling effects, wherever those effects come from.

A sincerely offended plaintiff bringing a SLAPP is no less a threat than a nefarious one. And a malicious plaintiff can still have a valid defamation claim. That's why the first step of the good anti-SLAPP statutes asks whether the defendant's speech/conduct is the sort of thing we want to protect. The second step – where the plaintiff has to prove his case – is a way to separate out the meritorious claims from the frivolous ones, using criteria courts know how to handle (how legally strong is this claim?), not ones they don't (asking a Magic 8 Ball whether the plaintiff is a nice guy).

If the Illinois Court was so troubled by the apparent blanket immunity the statute offered, it easily could have read in some kind of strength-of-claim test. The move is familiar to anyone with basic First-Amendment arguments under their belt:

The statute protects acts in furtherance of the right to petition, speak, etc.;
Those rights don't include the right to defame;
Has the plaintiff shown that the defendant's conduct fell outside of those rights?;
If so, the case moves forward; if not, the case is tossed.

Ta-da! You've got a normal "plaintiff, prove your case" anti-SLAPP statute, in steps no less plausible than "look into their hearts." Instead, the Illinois anti-SLAPP law is a shell, circumventable by any plaintiff with a shred of self-awareness. (JUDGE: "Plaintiff, are you being a bad boy?" PLAINTIFF: "No, your honor. I'm a very good boy.") Good job, everyone.

John Sharkey is a CMLP blogger in his second year at Harvard Law School. He believes in Josh Willingham.

(Image courtesy Flickr user @10 licensed under a CC BY-NC-SA 2.0 license.)

Will the Fifth Time be the Charm for Britain's IP Policy Reviews?

Lauren Campbell — Thu, 22 Mar 2012 21:56:39 +0000

The All-Party Intellectual Property Group (APIP) in the United Kingdom recently announced that it is taking on an arduous task: “conduct[ing] an inquiry into the role of government in protecting and promoting intellectual property.”

The APIP is soliciting thoughts on the UK’s current IP policy by asking organizations to respond to six topical, but broad questions, like "What should the objective of IP policy be?" and "What changes to the machinery of government do you believe would deliver better IP policy outcomes?" Most importantly for our purposes, it also addresses the issue of digital media: “There have been numerous attempts to update the IP framework in the light of changes brought about by the digital environment. How successful have these been and what lessons can be learnt form these for policy developments?"

The end goal of the APIP’s inquiry appears to focus less on what the UK's IP policy is and more on how it is shaped - where and how the government creates and refines the administration of IP in Britain. The APIP’s chair, MP John Whittingdale, notes in the announcement that “[t]here have been numerous reviews of IP policy in the last ten years but little examination has taken place of how Government itself promotes and develops the protection of Intellectual Property Rights.”

But reviewing IP policy has become something of a habit in Britain. In fact, the UK Parliament has published four government-commissioned reports on IP policy within six years, which are strikingly repetitive in their recommended policy changes.

The latest report, published in May 2011, was commissioned when Parliament began considering legislation that would allow Internet service providers (ISPs) to disconnect users believed to be violating the rights of copyright holders. Known as the Hargreaves Report, the reviewing committee (led by Cardiff University Professor Ian Hargreaves) recommended an overhaul of UK IP laws, copyright in particular, to address changes in the intellectual property landscape brought about by digital media. Among the changes promoted was “allowing people to copy music and video from their CDs and DVDs to their portable media players. . . .”

Hargreaves noted in the study that “IP law must adapt to change. . . . Digital communications technology involves routine copying of text, images and data, meaning that copyright law has started to act as a barrier to the creation of certain kinds of new, internet-based businesses. . . .”

Although Parliament dropped the legislation shortly before the review was finished due to strong opposition from media organizations, Parliament began yet another inquiry into IP policy, focusing on the recommendations made in the Hargreaves Report.

Sound familiar?

The likelihood that the APIP’s inquiry will result in usable information that will, in turn, be put into practice seems slim. The UK has already commissioned and been delivered four reports on intellectual property policy, which recommend similar changes to current law. What, exactly, do they expect a fifth to bring?

Lauren Campbell is a CMLP intern and a 3L at Boston College Law School.

(Image of Baroness Wilcox, Parliamentary Under Secretary of State, Business, Innovation and Skills, with Wallace and Gromit at the Intellectual Property Office’s (IPO) Wallace & Gromit Cracking Ideas Awards ceremony used courtesy of Flickr user bisgovuk under a Creative Commons BY-ND 2.0 license.)

Mexico Takes a Big Step Forward in Protecting Professional and Citizen Journalists

Arthur Bright — Mon, 19 Mar 2012 17:51:08 +0000

Thanks to its ongoing war against the drug cartels, Mexico is one of the most dangerous places in the world for a journalist to work.

Reporters are routinely threatened, attacked, and killed if they report on crime. Local law enforcement is often in the cartels' pockets, leaving journalists with little protection. Over the past three years, Mexico has climbed to number 8 on the Committee to Protect Journalists' 2011 "Impunity Index," which tallies the unsolved murders of journalists around the world. And that's to say nothing of those who are murdered after commenting on crime via social media – an alarming trend in recent years. Is it any surprise that the local press often ignores crime reporting entirely, for fear of reprisal from the cartels?

Thus, last week saw some excellent news: The Mexican Senate on Tuesday approved a constitutional amendment that would federalize criminal attacks on journalists. McClatchy reports that under the amendment, journalists would no longer be at the mercy of quite possibly corrupt local cops, but could instead turn to the federal authorities, who have a much better reputation re: corruption, for law enforcement.

Even better, the amendment is written in such a way that it may protect citizen journalists and social media users as well. The News, an English-language daily in Mexico City, reports that in relevant part the amendment reads:

Federal authorities may also take cognizance of crimes in general jurisdiction, when these crimes are related to federal crimes or crimes against journalists, persons, or installations that damage, limit, or impair the right to information or the freedom of expression, or the press.

Assuming this is an accurate translation, the amendment could prove to have a truly broad scope. While "journalists" offers no guidance as to whether it includes citizen journalists, as is too often the case in federal legislation, be it Mexican or closer to home, the rest of the clause sends what looks to be a clear signal: Crimes that "impair the right to information or freedom of expression" are covered.

This could be a major step forward, as such users became a target of the cartels after the media was cowed. Last fall saw four people killed, including a crime forum moderator and crime bloggers, in relation to their online activities. These people were all in the unofficial business of passing along information about crime to others, and it was in relation to that business that they were killed. I would guess that these sorts of crimes are meant to be covered by the amendment.

Now, don't rush across the border and start reporting on the Zetas and the Sinaloa cartel just yet. Much like the U.S. system, congressional approval is just the first step of amending the Mexican constitution. The amendment must still be approved by more than half of Mexico's 31 state legislatures before it becomes law. And while the amendment's scope is excellent, the devil is in the details of its execution – just how will the federales enforce it? The amendment itself offers no guidance.

Still, the CPJ is certainly pleased; CPJ executive director Joel Simon called it "a legislative milestone that has been years in the making." And McClatchy reports that press advocates believe the states' approval is forthcoming, perhaps bouyed by President Felipe Calderon's apparent effort to establish his legacy (his term ends in July, and Mexican presidents cannot run for re-election). If so, the amendment should bring a little more light – and safety – to Mexico's journalists, be they professional or simply little guys speaking truth to power.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image of Mexican journalists' 2010 street protest courtesy of Flickr user Knight Foundation licensed under a CC BY-SA 2.0 license.)

Righthaven is no more! It has ceased to be! It's expired and gone to meet its maker!

Arthur Bright — Thu, 15 Mar 2012 20:37:25 +0000

If there is a polar opposite to organizations like ours, it is the intellectual property troll. And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model. If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

So it is with no small amount of glee I pass along the news that Righthaven appears to have finally run down the curtain and joined the choir invisible.

On Tuesday, Judge Phillip Pro of the U.S. District Court for the District of Nevada signed an order transferring all of Righthaven's intellectual property – some 278 copyright registrations – to a court-appointed receiver, who will auction them off to pay the fees that Righthaven owes its creditors, including defendants who defeated Righthaven in court. Righthaven owes $186,680 in debts, reports the Las Vegas Sun, but it claims it has no cash to repay them.

Now, it seems dubious that these registrations will be able to offset all of Righthaven's financial obligations. The general trend in Righthaven's cases is that the purported transfers of copyrights in Las Vegas Review-Journal and Denver Post articles are shams; the Sun notes that eight federal judges in three states have ruled that the newspapers still hold the copyrights and that Righthaven received nothing in the "transfers." Thus, the registrations may not even be worth the paper they're printed on. Still, they are nifty pieces of memorabilia from a scourge of copyright law – surely it's worth a few bucks to post one on the wall, like the head of a fearsome beast brought low?

(Friend of the DMLP and "First Amendment fetishist" Marc Randazza, whose firm represented several clients sued by Righthaven, also mentioned to Wired and Ars Technica that "Perhaps those who buy the copyrights could issue DMCA notices to the Review-Journal stopping them from redistributing them?" I have to say, that would be funny as all get out.)

And it's not just the receivership order that's raining on Righthaven's parade. Last Friday, Judge Roger Hunt of Las Vegas federal court issued a declaratory judgment in the Democratic Underground's case against Righthaven that the posting of five sentences of a Las Vegas Review-Journal article on the DU website was fair use. The judgment thereby entitles DU's attorneys, the esteemable folks from EFF, to $119,488 in fees that EFF attorney Kurt Opsahl told MediaPost that they would indeed seek – perhaps even from Stephens Media, the owner of the Review-Journal that greenlit its involvement with Righthaven.

So, in the span of a week, Righthaven both lost all of the "property" it used to fuel its business plan, and racked up yet another significant debt to the lawyers aligned against it. Given how its been missing deadlines to file or appear in court, this looks to be just about it for America's favorite copyright "enforcer." Barring a miracle or a successful appeal, Righthaven is an ex-parrot.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image of ex-parrot courtesy of Flickr user katie cowden licensed under a CC BY-NC-ND 2.0 license.)