Citizen Media Law Project -

Is Britain Putting an End to Libel Tourism?

Arthur Bright — Fri, 20 Nov 2009 15:30:28 -0500

Could Britain finally be moving to shed its unflattering title of "libel capital of the world"?

We can only hope, of course, but it does appear to be edging that way, thanks to a recent High Court decision to toss a textbook "libel tourism" case. In the case, Out-law.com reports that Mr. Justice Tugendhat threw out the claims brought by Zimbabwe-oriented investment firm LonZim and two executives against Andrew Sprague, who criticized the company on the website of a South African magazine in May 2009. The plaintiffs alleged that Sprague's article false accused them of "cynically and greedily indulg[ing] in self-enrichment at the expense of, and contrary to the interests of, shareholders."

LonZim argued that "a significant proportion" of the South African magazine's traffic was from England and Wales, the High Court's jurisdiction. But in a departure from some of the more objectionable British libel decisions — like the case against Dr. Rachel Ehrenfeld, which founded jurisdiction on 23 copies sold in the UK on Amazon — Tugendhat held LonZim's feet to the fire and required it to prove that this was the case. And LonZim couldn't make the requisite showing:

Sprague presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.

"It is not possible to say whether these visits included more than one visit by the same person," noted Mr Justice Tugendhat. "Nor is it possible to say in which jurisdiction the visitors were located."

The publishers did say that on average approximately 6.79% of visits to their website are made by users of the internet based in the UK. "If the average percentage of 6.79% is applied to the 65 visits, the result is that about 4 visits might have been made by one or more visitors based in the UK," said the judgment. (Source)

Tugendhat noted that even those four visits may not have been within the court's jurisidiction. Were the visits made from Scotland or Northern Ireland — both of which are in the UK but outside the High Court's jurisdiction — they wouldn't count for LonZim's purposes. "London is not the only important financial centre in the UK," the judge noted. "Edinburgh is another." Thus, the plaintiffs failed to show a "significant" number of English and Welsh readers of the article, undermining their claim of reputational damage.

Nigel Hanson of British firm Foot Anstey writes that Tugendhat was following the lead of the case of Dow Jones v. Jameel, which held that a plaintiff pursuing a libel claim must show that a "real and substantial tort had been committed in this jurisdiction," as measured by both the extent of the publication within the jurisdiction and the amount of harm that the plaintiff's reputation suffered. Certainly, such a requirement like this ought to decrease the number of weak libel lawsuits imported into Britain. With the web logging technology available out there, it ought to be relatively easy to distinguish legitimate claims from frivolous ones.

Still, Hanson writes, foreign publishers are justifiably wary of English libel law, despite these "sensible and pragmatic rulings":

Some American newspapers and magazines, for example, are said to be considering whether it is still worth the risk of supplying the 200-odd copies they make available for sale in this country for subscribers and hotels, because London is still regarded as the libel capital of the world.

Foreign publishers are also reported to be considering blocking access to their websites in this country for fear of being sued for libel here.

Media organisations including The Boston Globe, The New York Times, and the Los Angeles Times recently sent a Memorandum to the House of Commons, outlining their concerns about English libel law's 'chilling effect' on freedom of expression.

And pressure groups Index on Censorship and English PEN recently issued a report calling for radical reform of our libel law to facilitate the free exchange of ideas and information. Their report makes 10 key recommendations, such as capping damages at £10,000, expanding Fair Comment and Public Interest defences, and curtailing the right of corporations to sue for libel. (Source)

Hanson argues that the English judges enforcing this standard deserve credit. And he's right, they do. This is an admirable step. Still, the rulings of a High Court judge and one Court of Appeals panel do not permanent British law make. Until the British Supreme Court or Parliament weighs in on the matter, there's no guarantee that either of these cases will hold up. And that being the case, foreign publishers are wise to keep the pressure on. Britain hasn't shed its libel title just yet. But hopefully it will soon.

Meanwhile, let's hope Congress takes action on the Free Speech Protection Act 2009, which is designed to combat libel tourism. For details, see CPJ Blog's article from earlier this week.

(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)

Photo courtesy of Flickr user Jerome Briot (http://www.flickr.com/photos/briot/), licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0 Generic license (CC BY-NC-ND 2.0).

Citizen Media Law Project Launches Legal Assistance Network for Online Journalists

CMLP Staff — Thu, 19 Nov 2009 08:48:09 -0500

We are delighted to announce the public launch of the Berkman Center's Online Media Legal Network (OMLN), a new pro bono (i.e., free!) initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.

The idea for OMLN came out of CMLP's work over the last 3 years helping online journalists understand their legal rights and responsibilities. During this time period, we've published and updated our legal guide and legal threats database, blogged on topics of interest to online publishers, partnered with like-minded organizations on a variety of educational projects, and filed amicus briefs in cases with significant implications for online speech. While we are proud of the impact we've made and the success of the CMLP website, we also recognize that many online journalists and bloggers need more than generally applicable legal information—they need their own lawyers to tackle their own individualized legal issues.

From the press release:

"Unlike established media organizations that have the resources to pursue important reporting in the face of legal challenges, many online ventures lack the expertise and financial resources to protect themselves and thrive in an uncertain legal environment," said David Ardia, director and co-founder of the CMLP. "In order for these new media ventures to survive and flourish, they need a legal safety net, and OMLN aims to provide that safety net with the help of lawyers interested in promoting a vibrant online media environment," Ardia added. Jay Rosen, a blogger, professor of journalism at New York University, and CMLP advisory board member, concurs: "This network is trying to level the playing field for independent online producers. That's why it matters. That's why I support it."

OMLN will make it as easy as possible for participating lawyers and law school clinics to identify appropriate clients. OMLN staff will pre-screen prospective clients and prepare matter summaries so that network lawyers can quickly decide whether they are interested in taking on a question, case, or transaction. These summaries will be sent out to network lawyers via a bi-weekly email newsletter and will be available at any time on the password-protected OMLN website (beta), where members can search and filter client and case information based on client location, type of assistance needed, and legal expertise required. For more information on how the network matches lawyers and clients, see the How OMLN Works page.

OMLN received its initial funding from the John S. and James L. Knight Foundation, and the first corpus of clients is made up of journalism projects that have received grants through the Knight News Challenge. These Knight grantees include some of the most promising ventures and innovative thinkers in online and digital media, ranging from local community blogs to multi-national news aggregators.

With today's public launch, OMLN is accepting applications for legal assistance from online publishers and media creators who meet the network's criteria of viability, adherence to journalistic standards, innovation, independence, original reporting, and public interest. For details, see the OMLN FAQ.

“We are proud to launch OMLN and look forward to collaborating with lawyers and journalists to help ensure that journalism thrives on the Internet,” Ardia commented.

CMLP would like to extend thanks to all the law firms, lawyers, and law school clinics that already have generously agreed to contribute their time and expertise to OMLN. If you're a lawyer, pro bono coordinator, or clinic director interested in participating, please submit a membership application, available here.

We would also like to thank Dan Collis-Puro and Anita Patel, the keyboard jockeys at the Berkman Center who built the OMLN site (and spent way too many hours dealing with our nit-picking). Dan, in particular, was instrumental in developing the lawyer matching functionality that makes the entire network run. Thank you both!

CMLP Gets Lectured

Kimberley Isbell — Wed, 18 Nov 2009 18:51:17 -0500

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

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

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

While discussing the libel tourism bills currently under consideration in the U.S. Congress, Sandra Baron, Executive Director of the Media Law Resource Center, noted that claims based on invasion of privacy weren't covered. As Google has repeatedly learned the hard way, European privacy standards (and the penalties for violating them) are noticeably stricter than those in the United States. In fact, MLRC has already started seeing complaints out of the UK based on photographs taken on U.S. soil. Baron also noted that the usefulness of libel tourism bills is likely to be further limited by the fact that many major American media outlets have assets subject to seizure in the European Union.

Some have advocated an industry-wide deployment of a nuclear option (geofiltering) to protect against runaway UK courts. But least one PLI panelist (Robin Bierstedt, VP and Deputy General Counsel of Time Inc.) worried that the widespread deployment of geographic filtering would be the digital equivalent of the Munich Agreement, effectively conceding that libel claims to be indefensible on the grounds of truth.

Also up for discussion were the merits of the pending federal reporter shield law, which goes before the Senate Judiciary Committee this Thursday. The culmination of years of lobbying on the Hill by media groups, the bill finally appears poised for passage. (If you're wondering why this is a big deal, just read up on some of the lovely precedent coming out of the Sixth Circuit.)

The PLI panelists were quick to point out, however, that as with most things that have made their way through the Congressional sausage-making process, the resulting bill is far from ideal. Barbara Wall, VP and Senior Associate General Counsel of Gannett Co., pointed out that reporters' notes, which many journalists have come to view as inviolate, aren't covered by the statute. But as another panelist noted, while the bill is estimated to cover only about 15% of the subpoenas currently directed towards media outlets, that 15% represents those requests that journalists are most concerned about.

Of course, we here at CMLP will continue to keep you up-to-date on these and other legal developments affecting digital media (and we won't even charge you $1500!). What can we say? We're givers.

(And watch this space for a big announcement tomorrow morning!)

The MPAA Lottery: Town of Coshocton Draws the Black Spot

Andrew Moshirnia — Mon, 16 Nov 2009 10:43:02 -0500

“’It isn’t fair, it isn’t right,' Mrs. Hutchinson screamed, and then they were upon her.”
- The Lottery, Shirley Jackson

In The Lottery, Shirley Jackson explored the interplay of the banal and the barbaric. She described a town’s old-fashioned agrarian ritual: an individual who has drawn a slip marked with a black spot is stoned to death in order to ensure a good harvest. While many filmmakers have attempted to update the story, their efforts were ultimately unnecessary – we bear witness to a similarly atavistic ritual.

The entertainment industry is a superstitious animal. Since I can remember, it has held a lottery: selecting at random file sharers to pelt to death with stones marked TORT and BREACH. Though the human sacrifice doesn’t seem to do much, the industry has continued the practice year after year. This is how it had always been. Though peculiar, this practice seems to elicit only mild revulsion in outsiders. That is, until last week, when the lottery suddenly changed . . .

The MPAA ended up sacrificing an entire city block. The town of Coshocton, Ohio shut down the municipal WiFi around its courthouse because a single user had drawn the black spot and downloaded a copyrighted movie. The MPAA sent a “breach notice” to OneCommunity (the local ISP), which in turn notified the county’s Technology Department. And a short time later, the Muni WiFi was gone.

This whole story is interesting for several reasons:

the twitterverse and blogosphere churned out “MPAA SHUTS DOWN FREE WIFI” stories;
the chances of finding the anonymous user are incredibly small, leading some to wonder why Coshocton folded so easily;
the matter seemed to have just a dash of collective punishment, a big no-no in terms of fairness/justice/etc.

I’d like to touch on these points briefly, but I think the more important implication of this story is that it highlights the way businesses and governments can use the excuse of breach notices to eliminate or curtail public access to the Internet.

So first off:

The MPAA did not shut down the town’s WiFi. As I said earlier, the industry's MO (or at least its previous MO) is to bludgeon the sacrificial user with tort damages or ISP warning letters, not to yank the user’s Internet connection (though I think that approach is coming to these shores soon). The ISP was spooked and passed along the threat to the government, which was even more terrified, and thus the Interwebz went bye-bye.
The chances of locating the user were essentially nil. I suppose you might be able to track down the culprit using a MAC address, but these can be spoofed etc. I also assume that the town takes some reasonable measures to prevent piracy (and by reasonable I mean a terms of service agreement that makes users promise to be good). There does not seem to be a good reason to pull down the network, save to avoid a time and money-consuming (but ultimately very weak) lawsuit.
The matter does have some aspects of collective punishment, but the withdrawal of service was the town’s action, not the MPAA’s. Of course, if you are bothered by the idea of severing Internet connections in an indiscriminate way, you should worry that the US may be agreeing to just such a regime in ACTA.

While all of this is interesting, I’m more worried how the providers of free Internet service (think coffee shops, libraries, and muni WiFi) could use threats like those from the MPAA lottery, to pull down or severely limit access.

The very fact that Coshocton had any sort of Muni WiFi is interesting. The last of the big Muni WiFi projects ended in 2008. These projects cost quite a bit of money and just didn’t make sense for cash-strapped cities. At the same time, coffee shops have explored ways to limit Internet use, either by covering up electrical plugs or by turning baristas into “use cops.” This may be the one time I actually prefer Starbucks.

Against that backdrop, don’t MPAA threat letters provide entities with the perfect cover (political and economic) to pull down, cripple, or wall off their networks? While I believe Coshocton wanted to keep its WiFi, it would not surprise me to discover that the service was costing the government more money than it was willing to shell out. Now the service is gone and the entire Internet is blaming the MPAA.

The United States already suffers from an abysmal lack of public Internet access. Our tolerance for the MPAA lottery (a ritual that many commentators feel serves little to no purpose) could force/encourage our few public providers to eliminate or throttle Internet access. Though we enjoy the whimsical concept of putting someone in the Wicker Man for downloading The Wicker Man, perhaps its time to abandon the old ways.

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He was disappointed to learn that The Lottery has no clues on winning the lottery at all but is in fact a chilling tale of conformity gone mad.)

Fox News DMCA-Bombs News1News on YouTube

Arthur Bright — Fri, 13 Nov 2009 16:08:04 -0500

Like many former newspaper employees, I hate the 24-hour "news" networks. Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful. The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead). Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Reillys, Dobbses, and Olbermenn.

That dreck fuels a great deal of the blogosphere, of course. Any number of political websites out there take the most offensive, ridiculous samples of bloviation and criticize/herald it in time-honored First Amendment tradition. Indeed, the political blogosphere thrives on clips from these news channel programs. Which makes Fox News' recent DCMA-bombing of one of the key left-wing YouTube channels serving up such clips so interesting.

According to Gawker, Fox issued some 150 DMCA takedowns to the News1News channel, which high-profile lefty blogs — such as the Huffington Post, Mediaite, Truthdig, and indeed Gawker itself — use as a source for the Beck/O'Reilly snippets that they want to ridicule. As a result, YouTube, which has a three-strikes DMCA policy, shut down the News1News channel completely, leaving pinko blogs everywhere at a loss. Although not for long, Gawker notes. News1News relaunched under a new name, but apparently has already received a new round of takedowns from Fox. Fox miraculously spared various conservative YouTube channels from its DMCA assault, despite their posting of the same or similar content.

What I find most interesting in this case is not Fox's barefaced attempt to shut up its critics. Who didn't expect that? And Fox is arguably within its rights to assert copyright infringement against News1News. But what I find interesting is how News1News' video-clipping "service" squares with fair use.

Generally speaking, many cases of fair use involve a single entity publishing both an excerpt of someone else's work and some sort of criticism or commentary on that work. Certainly, this is how it tends to happen in print or traditional audiovisual media. Take, for example, Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130 (D.C.N.Y. 1968), in which fair use protected the publisher of a book containing stills from the Zapruder film of President Kennedy's assassination from a copyright infringement suit brought by Time Inc., which owned the rights in the film. As is inherent for printed material, the book contained both the copyrighted content and the commentary upon that content. The publisher was the single source of the publication, if you will.

Fair use publication on the Internet can also follow such a single-source model. It happened a few weeks ago when Boing Boing reposted a photo of a freakishly photoshopped Ralph Lauren model and noted just how freakishly photoshopped she was. Both the photo and the webpage containing the commentary upon the photo are hosted by the Boing Boing server: thus, they were published from a single source.

What's interesting about the News1News situation is that the channel posting the Fox excerpts is not the party commenting on them (the liberal bloggers fulfill that role). This makes it more difficult to say whether News1News has a good fair use defense.

Now, the blogs using News1News clips are perfectly safe from copyright claims, because they do not reproduce or distribute the clips themselves (they're just using the embed code). Even if Fox were somehow able to make out an infringement claim (but see Perfect 10 v. Google Inc.), their commentary on the clips would likely make the whole affair a fair use.

But as far as I'm aware, News1News did not itself include any sort of commentary along with the clips it hosted. But, it also appears that the videos had no purpose other than to be fodder for commentary by others. Thus, News1News appears to be encouraging a dual-source publication of fair use commentary: it would provide the clips to be commented upon, and tacitly invited bloggers to supply the comments needed to create a single, whole fair use publication.

As a result, I wonder: if the issue goes to court, can News1News successfully invoke fair use? I'd think that News1News would have a reasonable, though novel argument in this regard. While News1News did not create any critical commentary itself, it clearly intended its clips to provide raw materials for such commentary. And while I'm sure Fox News doesn't see it this way, News1News' clips arguably further copyright's core purpose to "promote the Progress of Science and useful Arts" by encouraging commentary.

It's an interesting situation, and one quite peculiar to the Internet. Nowhere else could you separate the source of copyrighted material from the source of commentary in the same way. I'm not aware of anything quite like it being litigated before. With Fox going after the new News1News account, maybe we can look forward to a legal showdown on this question in the future.

(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)

Hipcheck16 Is No Turk 182 - But Anonymous Political Speech Is Sacred

Marc Randazza — Wed, 11 Nov 2009 08:32:47 -0500

This one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official's 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate -- in particular, getting into a flame war with "Hipcheck16".

At one point, the teen asked to know the poster's identity and challenged him to debate the issues in person.

Declining an invitation to pay a visit, Hipcheck16 posted a response that said, according to court documents, "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"

The post then continues with references to the boy's "mommy," saying that statements made by her son may cause her political problems after her election, according to court records. (source)

Stone sought Hipcheck16’s identity, ~~apparently~~ through a pre-suit subpoena. Stone claimed, “a comment was posted on this public forum by Hipcheck16 directed to the minor Petitioner that was defamatory.” (source). The judge ruled that Hipcheck16’s identity could be revealed to Stone if she decided to take legal action.

Stone calls this case about "protection on the internet." (source)

Piecing together the story from the above-quoted news account and this story, this seems less about "protection on the internet," and more like abuse of power mated with mama drama and a judge who got the law entirely wrong.

Anonymous Speech

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). This is especially so when the speech is of the political variety. The judge had a duty to evaluate whether the statements were actionable, and then, if he found them to be so, Hipcheck16's identity should have been revealed. So far, I can't find a statement made by Hipcheck16 that a reasonable judge should find to be defamatory.

Although the law is a patchwork, the consensus view of courts across the country is this: In order to unmask an anonymous speaker on the Internet, a plaintiff must demonstrate "a substantial legal and factual showing that the claims have merit." See Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger. See also Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Defamation of Public Figures

In order to show that there is any merit at all to her case, Ms. Stone would need to show that there was an actionable legal wrong -- and that wrong was visited upon her son. That seems, as a matter of law, to be an impossibility.

Ms. Stone's son may have been a public figure before the controversy started. I know of at least one case (from Florida) in which the husband of a lawmaker was deemed to be a public figure. See Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Even if he was not a public figure before the debate started, Stone's son certainly became a limited purpose public figure when he voluntarily entered the debate. I might feel differently about him, had he simply remained silent while anonymous critics made caustic and degrading remarks about him. But the boy jumped in the ring -- he shouldn't be a crybaby about it when he gets hit (especially when he seems to have won the fight).

As a public figure, in order to prevail in a defamation case, Stone must prove the “actual malice” on Hipcheck16's part. While Stone probably thinks that the statements were "malicious" (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See New York Times v. Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Vitriol is Protected

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass'n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can't take it," Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: "Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are." Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of an anonymous coward.

This analysis is followed in Illinois. Posner has written that rhetorical hyperbole "is a well recognized category of, as it were, privileged defamation." Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int'l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) ("Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable."). "The Illinois Supreme Court considers several nonexclusive factors in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement's literary or social context signals that it has factual content." Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. Ill. 2008) citing J. Maki Constr. Co. v. Chicago Reg'l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008) (citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121).

The "accusation" is clear -- that young Mr. Stone has sexual liaisons with older men after invitations are exchanged over the Internet. The accusation is presumably false, and would be defamatory -- in a vacuum. However, in the context of a flame war on a blog, it would be clear to any reader except the most bleeding-cerebrum imbecile that the statement was not lobbed as a statement of fact, but a mere insult. As such, this would be correctly described as "imaginative expression," which is not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Context is everything, and in the context of the online exchange, anyone who thinks that the statements to be false statements of fact that could support a defamation action is not qualified to hold the remote control to the television, let alone elected office or a judge's gavel. Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552 (N.D. Ill. 1987) ("A reader of criticism expects rhetorical hyperbole and vivid metaphor, so the use of lively language is understood as hyperbole and metaphor, not as fact"), aff'd by 841 F.2d 1309 (7th Cir. 1988).

Hipcheck16 still sucks - and Jed Stone kicked his ass - but I still reluctantly side with Hipcheck16

This is not to defend Hipcheck16's statements. In fact, I find them to be juvenile (and if I find something juvenile...), stupid, unnecessary, and a sign that Hipcheck16 is probably a weak and unintelligent person. Lets face it, Jed Stone is a 15 year old kid. If the best counter-argument that you can chuck at a 15 year old kid is a stupid sexual innuendo, then it is clear that Jed Stone kicked Hipcheck16's ass in the debate already. It sounds like Jed can take care of himself. Sadly, his mother is capitalizing on drama, presumably to ride the "what about teh childrens on teh internets" wave.

Hipcheck16's statements are stupid, unimaginative, and not worthy of anyone taking them seriously. Lisa Stone, on the other hand, is even worse. She is lashing out like a crazy-white-lady mom, and cares nothing for the damage that her actions could cause to political debate. She should let her son stand up for himself - he's obviously capable of doing so. She's taken his victory away from him by bringing this action, and the judge really needs a remedial course in Constitutional law.

Michael Furlong, Hipcheck16's attorney, stated that his client was pondering an appeal. Let us hope, for the First Amendment's sake, that he doesn't back down from the challenge.

H/T to Ari Cohn for the pleading.

The Cartman Technique: How a Fraud Exception will Mine the ISP Safe Harbor

Andrew Moshirnia — Tue, 10 Nov 2009 12:06:27 -0500

[A]ll it takes to kill a show forever, is to get one episode pulled. If we convince the network to pull this episode for the sake of Muslims, then the Catholics can demand a show they don't like get pulled . . . and so on and so on, until Family Guy is no more - it's exactly what happened to Laverne & Shirley.- Eric Cartman, South Park , Cartoon Wars I

It doesn’t take much to whittle away a law. One need only use the Cartman technique – ask for one exception and wait for others to follow. It is death by a thousand cuts on the legal stage.

After being manhandled by the housing market and countless Ponzi schemes, investors are tired of being victimized. In an effort to hobble unscrupulous economic predators, the House is considering the Investor Protection Act of 2009, which generally bolsters SEC oversight. This is a good thing. However, the Act also carves out a Fraud exception from Section 230 of the Communication Decency Act, which protects ISPs from liability for the actions of third-party users. And that’s where the trouble lies.

It is difficult for ISP’s to know exactly what their customers are doing. Much like the Post Office, ISP’s do not inspect every piece of mail that finds its way to their series of tubes. In order to make sure that ISP’s do not have to routinely violate the privacy of their customers, and in order to allow the Internet Forum to exist sans Prior Restraint, we immunize ISP’s from the uncivil, jackassery perpetrated on the Internet. So if a website defames you, you sue the defamer and not the webhost. The same is true of web scams, mutatis mutandis.

But that will no longer be true if and when the Investor Protection Act of 2009 passes. Section 508 of that law will hold ISPs liable for the actions of scam artists passing themselves off as members of the Securities Investor Protection Corporation (a quasi-governmental entity that provides funds to investors who have lost assets in financially troubled brokerage firms):

‘‘(2) INTERNET SERVICE PROVIDERS.—Any Internet service provider that, on or through a system or network controlled or operated by the Internet service provider, transmits, routes, provides connections for, or stores any material containing any misrepresentation of the kind prohibited in paragraph (1) shall be liable for any damages caused thereby, including damages suffered by SIPC, if the Internet service provider—
‘‘(A) has actual knowledge that the material contains a misrepresentation of the kind prohibited in paragraph (1), or
‘‘(B) in the absence of actual knowledge, is aware of facts or circumstances from which it is apparent that the material contains a misrepresentation of the kind prohibited in paragraph (1), and upon obtaining such knowledge or awareness, fails to act expeditiously to remove, or disable access to, the material.

Several other commentators have already pointed out that the act is vague and that blocking fake SIPC sites will be impossible. Critics have pointed out that SIPC-related takedown notices will become the new tool of choice for entities looking to pull down web content or silence their online critics (alongside bogus DMCA actions). While these are important concerns, I am more concerned with the wider system effects of carving out individual exceptions to §230.

Granting a fraud exception invites other deserving groups to tear holes in §230’s protections. The parents of abused children have repeatedly sued social networking sites such as MySpace, claiming that these sites negligently facilitate the molestation and sexual assault of minors. Surely if we except fraud, we can except actions that lead to rape. Or how about cyber-bullying? The Lori Drew case certainly focused attention on the problem. In the wake of Megan Meier’s suicide, numerous states have passed tough anti-cyber-bullying laws. Why not make ISP’s liable for transmitting these harmful (and sometimes fatal) taunts?

If you don’t believe that this ripple effect will likely follow a simple fraud exception, I point you towards the Federal Rules of Civil Procedure. Rule 8 establishes a broad pleading standard, meaning that a plaintiff can plead a case without knowing all the facts (after all, facts are supposed to be revealed during discovery). But there is a very narrow exception, the heightened specificity standard of Rule 9(b), which attaches in cases alleging fraud. Complaints falling under 9(b) must lay out the particulars of fraud with a much greater level of detail than other claims.

While 9(b) was supposed to apply only to fraud, courts soon began expanding it to all sorts of litigation: for example, in Cash Energy, Inc. v. Weiner, 768 F. Supp. 892 (D. Mass. 1991) the court expanded Rule 9(b) to cover CERCLA (an environmental protection statute). This sort of expansion has been so rampant that the Supreme Court has twice needed to remind everyone that the fraud exception applies only to fraud, not civil rights abuses, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), and not employment discrimination, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

So yes, the Cartman technique is alive and well. To grant a special exception from §230 for a particular type of fraud is to order a slow evisceration of the entire shield. I am sympathetic to defrauded investors, but their protection should not come at the cost of §230. Perhaps the act should require SIPC to maintain a list of all its endorsed websites. Or to widely publicize (just as in the early days of AOL) that it will never approach individual users with amazing deals that require their banking passwords and social security numbers. The death by a thousand Cartmans is a sorry sight. We should do what we can to prevent it.

(Andrew Moshirnia is a second-year law student at Harvard Law School. He loves cheesy poofs. If he didn't eat cheesy poofs he'd be lame.)

"I Know It When I See It." The View from Where?

Eric P. Robinson — Mon, 09 Nov 2009 16:00:26 -0500

Jeffrey A. Kilbride and James Robert Schaffer are spammers. They sent millions of unsolicited e-mails advertising pornographic web sites, and were paid a fee whenever a recipient of their e-mails purchased a subscription to one of the sites, earning a total of $1.1 million.

In 2007, Kilbride and Schaffer were convicted of violating the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM Act) by using falsified headers and domain names in their e-mails, conspiracy, fraud, money laundering, and various obscenity charges, and sentenced to 72 and 63 months in prison, respectively. They were also fined $100,000 and ordered to pay $77,500 in restitution to AOL and to forfeit the proceeds from their spamming operation.

Kilbride and Schaffer appealed, leading to an important decision on how the Supreme Court's standards for obscenity apply on the Internet. U.S. v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009).

Miller's "Community Standards" Test

In the 1950s and '60s, film was a primary medium for distribution of pornography. And in a series of cases, the U.S. Supreme Court and lower courts struggled to draw the line at which pornography, which is protected under the First Amendment, becomes obscenity, which is not.

This led to Justice Potter Stewart's complaint that the Court was "trying to define what may be indefinable," and his famous conclusion that "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

In their book on the inner workings of the Supreme Court in the late 1960s and early '70s, Bob Woodward and Scott Armstrong describe the Court's screenings of films alleged to be obscene:

Movie day was the humorous highpoint of most terms. Year after year, several of the justices and most of the clerks went into either a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.

Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court 239 (1979).

Finally, in 1973, the Supreme Court established a three-part test for determining whether material is obscene:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct [or excretory functions] specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (citations omitted; "excretory functions" is used elsewhere in the opinion as an example of material that could be regulated under prong (b) of the test).

Backing away from its earlier decisions applying a single, national standard (see Jacobellis, supra, at 194), in Miller the Court ruled that the applicable "community" in the first and second prongs of the test is the local community where the case is adjudicated, Miller at 30-34. But the evaluation of a work's "literary, artistic, political, or scientific value" is determined using a national standard. Pope v. Illinois, 481 U.S. 497, 500-01 (1987).

This creates a major issue: what is the scope of the relevant "community" for the first two prongs of the Miller test? If the "community" is a physical domain, is it a single community, a state, the region of the country, or the nation as a whole? Or, can a "community" be a group of individuals that, although geographically dispersed, share a common set of values?

In subsequent cases, the Court has discussed "community" as a physical place:

The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion "the average person, applying contemporary community standards" would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that "community" upon which the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.

Hamling v. United States, 418 U.S. 87, 105-06 (1974) (holding that jury in prosecution under federal obscenity statute could use a national standard, where defendants were convicted prior to the decision in the Miller case and their convictions were on direct appeal at the time Miller was decided).

"Community Standards" on the Internet

But the definition of "community standards" in Miller presents a dilemma when dealing with material on the Internet, which is not bound by geographical or jurisdictional divisions.

The Supreme Court struggled with this in Ashcroft v. ACLU, 535 U.S. 564 (2002). While a majority of the court agreed that the Child Online Privacy Act's "reliance on community standards [to define obscenity on the Internet] . . . does not by itself render the statute substantially overbroad for purposes of the First Amendment," Ashcroft at 585, the Court splintered on the rationale for this ruling.

Justice Thomas' majority opinion found that the possibility of different standards in courts across the country was not a constitutional problem because of the limited scope of the Act, Ashcroft at 577; but only two other Justices — Chief Justice Rehnquist and Justice Scalia — concurred with this reasoning. Justices O'Connor and Breyer, in separate concurrences, wrote that the statute should be interpreted using a single, national standard. Ashcroft at 587 (O'Connor) and 590 (Breyer). Justice Kennedy, joined in his concurrence by Justices Souter and Ginsburg, recognized the problem, but supported remanding for a full examination of the specific application of a local standard under the statute. And Justice Stevens, in dissent, argued that it was impossible to impose any particular community or national standard to the Internet.

(The court's 2002 ruling in Ashcroft, was just one round in a long litigation challenging the Child Online Privacy Act, which was eventually struck down as unconstitutional. See ACLU v. Mukasey, 534 F.3d 181 (3d Cir. July 22, 2008), cert. denied, 129 S. Ct. 1032, 173 L. Ed. 2d 293 (Jan. 21, 2009).)

The Ninth Circuit's New "Community Standard"

In the appeal of their convictions, Kilbride and Schaffer argued to the Ninth Circuit Court of Appeals that the trial court's instructions to the jury regarding "community standards" for obscenity were erroneous.

The jury instructions defined community standards as "what is in fact accepted in the community as a whole; that is to say by society at large, or people in general," and told jurors that "[t]he 'community' you should consider in deciding these questions is not defined by a precise geographic area. You should consider evidence of standards existing in places outside this particular district." In fact, the prosecution's case included testimony from eight witnesses from Massachusetts, Texas, Iowa, California and Arizona who received the pornographic e-mails.

The Ninth Circuit found no problem with these instructions:

The portion of the instruction stating that the relevant community lacks a precise geographic definition follows directly from Hamling’s holding that the relevant community is not to be geographically defined in federal obscenity prosecutions, permitting the jury to apply their own sense of what contemporary community standards are, based on their own community. . . . Similarly, the challenged portion of the instruction explicitly and implicitly allowing jurors to consider evidence of standards existing in places outside of the district is clearly permitted under Hamling.

U.S. v. Kilbride, No. 07-10528, slip op., at 14481, 14483 (9th Cir. Oct. 28, 2009).

The court then went further, agreeing with the defendants' contention that a national standard, rather than a local standard, should apply to e-mail. After parsing the various opinions in the 2002 Ashcroft decision, supra, the Ninth Circuit in Kilbride held that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email."

[F]ive Justices concurring in the judgment [in Ashcroft], as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling. Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.

Id. at 14491-92.

This ruling led the Ninth Circuit to conclude that, while the jury instructions at Kilbride and Schaffer's trial were erroneous, the error did not warrant reversal of their convictions because it was not "plain error" in light of the muddled state of the law. Id. at 14494.

What a National Standard Means

The government appears to be preparing a motion asking the Ninth Circuit to rehear the case, so the October 28 decision may not be the last word on this issue.

But, if the decision holds (David Johnson of Digital Media Lawyer Blog thinks it may be overturned by the Supreme Court), and is adopted by other courts, what will be the impact of a national community standard for obscenity prosecutions involving the Internet? Professor Eric Goldman says not much, arguing that national and local views about whether a work "appeals to the prurient interests" are similar in all but marginal cases. Pat Trueman, special counsel for the Alliance Defense Fund, fears that the decision will make convictions more difficult because the national standard will be harder for juries to pinpoint.

At the very least, the Ninth Circuit opinion likely will make prosecutors think twice before proceeding with obscenity charges in the Internet content. And, with the Internet forming new social norms of sex and privacy, they also are probably less likely to succeed.

Glenn Beck's UDRP Complaint Gets The Smack Down

Sam Bayard — Fri, 06 Nov 2009 14:50:23 -0500

First Amendment juggernaut Marc Randazza is having a very good week. On Wednesday, Professor Donald Marvin Jones a/k/a the "Nutty Professor" voluntarily dismissed his invasion of privacy lawsuit against Randazza's client Above the Law. Today, word comes that WIPO Arbitration Panelist Frederick M. Abbot has denied Glenn Beck's UDRP complaint against another Randazza client, Isaac Eiland-Hall, the man behind glennbeckrapedandmurdereda younggirlin1990.com. (See our previous posts here and here.)

In the decision (pdf), Panelist Abbot ruled that Eiland-Hall's domain name was a "legitimate noncommercial or fair use of [Beck's] mark," dooming Beck's claim:

In the present context, this Panel considers that if Internet users view the disputed domain name in combination with a visit to Respondent’s website, the “total effect” is that of political commentary by Respondent, capable of protection as political speech by the First Amendment under the Hustler Magazine standard. Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy. It equally appears that Respondent is making nominative fair use of Complainant's mark in the sense of using it to identify a well-known public figure (in a manner that does not use more of the mark than is necessary and does not create confusion as to Complainant’s sponsorship of Respondent’s activities). In making such findings, the Panel makes no assumptions as to the potentially defamatory nature of any of the content on Respondent’s website, which is beyond the scope of the present Policy proceeding.

Bravo Panelist Abbot! It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution.

Congratulations to Marc for this big victory and for his innovative brief that not only won the case, but also brought "spock ate my balls" into the legal lexicon.

Update: Eiland-Hall has voluntarily transferred the domain to Beck, writing that he "has no more use for the actual scrap of digital real estate" now that his criticism has been made and his First Amendment argument has been vindicated.

Massachusetts Supreme Judicial Court Hears Oral Argument in Anti-SLAPP Case

CMLP Staff — Wed, 04 Nov 2009 14:10:21 -0500

On Monday, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Fustolo v.Hollander, No. SJC-10485. As you may recall, last month the Citizen Media Law Project (CMLP) joined the American Civil Liberties Union of Massachusetts (ACLUM) and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief urging the SJC to reverse a lower court's decision interpreting the state’s anti-SLAPP legislation. Representing CMLP, Harvard Law School’s Cyberlaw Clinic co-authored the brief.

The brief was filed in support of Freda Hollander, a reporter for the Regional Review, a free local newspaper serving the North End community in Boston. The lawsuit involves allegations of defamation based on a series of articles in which Hollander reported on meetings of community groups that opposed development activities planned by the plaintiff, Steven Fustolo. In response to Fustolo’s lawsuit, Hollander filed a special motion to dismiss under the Massachusetts anti-SLAPP law, Mass.Gen. Laws ch. 231, § 59H.

The Massachusetts anti-SLAPP statute protects a party from strategic lawsuits against public participation (SLAPPs) by allowing that party to have a case dismissed at an early stage in the litigation and to recoup attorneys’ fees and court costs. The anti-SLAPP law applies if the underlying lawsuit is based on a party’s “exercise of [the] right of petition under the constitution of the United States or of the commonwealth.” Despite the statute’s applicability to a broad range of petitioning activities, the Superior Court denied Hollander’s motion, claiming that, as a paid reporter for the Regional Review, she fell outside of its scope.

During oral argument on Monday, the Justices of the SJC seemed skeptical about both sides’ arguments. The Justices expressed concerns that Hollander’s interpretation of the statute would give media outlets carte blanche to engage in defamation, while Fustolo’s interpretation would narrow the law’s scope to the point where it would cease to cover almost any petitioning activity other than direct appeal to a government official or body. In addition, the Justices sought clarification on whether protection under the anti-SLAPP statute should hinge on the reporter's subjective personal stake in the matter being reported on, and whether editorial content and factual reporting should be treated differently under the statute.

You can view a webcast of Monday's oral argument on Suffolk University Law School's digital archive of SJC oral arguments.

It is notoriously difficult to predict how a case will turn out based on the oral arguments alone. CMLP hopes that the Justices will give serious consideration to the arguments raised in the amicus brief and ultimately reject a categorical rule that would deny anti-SLAPP protection to the petitioning activity of paid staff acting on behalf of an organization—whether part of the news media or an advocacy group. A ruling is expected sometime in January 2010.

Photo courtesy of Flickr user mcritz, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license — http://www.flickr.com/photos/mcritz/ / CC BY-NC-SA 2.0

Chamber of Commerce to the Yes Men: We Are Not Amused

Helen Fu — Tue, 03 Nov 2009 16:47:52 -0500

What do Tommy Hilfiger, MasterCard, the World Wrestling Federation, and Tom "Scopes monkey trial" Donohue, the President of the U.S. Chamber of Commerce, have in common? Apparently, none of them has a sense of humor when it comes to their respective brands.

On October 19, 2009, the Chamber was the target of a prank by the Yes Men, a self-described "genderless, loose-knit association of some 300 imposters worldwide." A fake press release announcing a change in the Chamber's position on the climate bill followed by a fake news conference at the National Press Club left the Chamber and various media outlets covering the event, including Reuters, CNBC, and Fox Business Network, scrambling to figure out what was going on. Historically, the Chamber has lobbied against regulation of greenhouse gases and at times publicly doubted whether global warming would be harmful. The Yes Men prank announced a sudden turnaround in strategy and that the Chamber would support the climate change bill because "without a stable climate, there will be no business."

The 97-year old institution, America's "voice of business," was not amused. In the past few months, Nike, Apple, Pacific Gas and Electric Company, and others have been distancing themselves from the Chamber because of its position on climate change, drawing plenty of publicity. The Chamber evidently felt that it should attract more attention to the issue by sending a DMCA takedown letter to the Yes Men's ISP and filed a complaint in federal District Court in Washington, DC. alleging federal trademark infringement, unfair competition, and trademark dilution.

The DMCA takedown notice sought removal of the hoax website. The Chamber complained that the Yes Men's site infringed its "images, logos, design and layout" of its website. The Yes Men and its lawyers at the Electronic Frontier Foundation argued that the site is a parody of the real Chamber site. Characterizing the prank site as a parody is important because borrowing a copyrighted work for parody is more likely to be fair use (and not infringement) than borrowing a work for the sake of satire. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994). What's the difference? The essence of parody is the use of a work to comment upon the work itself, while satire is the use of a work to comment on something else, such as the world at large. You can argue about whether the distinction is really as clear as all that, but in this case it's pretty easy to see that in borrowing the Chamber's copyrighted logo and layout, the Yes Men were poking fun at the Chamber's political position and its website specifically, and not just climate change skeptics generally.

In their lawsuit, the Chamber takes a different strategy by alleging trademark infringement. The essence of a trademark infringement claim is likelihood of consumer confusion, 15 U.S.C. § 1114. Parody is not a separate defense to a claim for trademark infringement, but instead is "merely a way of phrasing the traditional response that customers are not likely to be confused as to the source, sponsorship or approval." World Wrestling Fed'n Entm't, Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 431 (W.D. Pa. 2003). In other words, with a parody, consumers are "in" on the joke and won't be confused as to the source of the parody. Thus in a successful parody, the trademark isn't being used to indicate source at all, but is used to ridicule the trademark owner and the brand, and courts weigh parody as a factor against consumer confusion. Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 414 (S.D.N.Y. 2002). The cautionary message to take away from this is that parody "must convey two simultaneous-and-contradictory-messages: that it is the original, but also that it is not the original and is instead a parody." World Wrestling Fed'n Entm't, at 431. Under this theory, a parodist will run into trouble if consumers don't figure out the joke and are confused as to the source of the parody. The irony is that the stronger the trademark and the brand, the less likely a consumer will be confused by the parody.

What are we to make of the befuddled journalists who had to correct themselves while on air or print corrections later in the day? Isn't that slam-dunk evidence of actual confusion as to the origin of the parody, and thus trademark infringement? The problem with that argument is that even with this prank, the point is to ultimately erase the confusion as to the source of the website, the press release, and the news conference. It's a prank because it was intended that everyone discover the source of the joke. Aside from a little embarrassment on the part of major news organizations, no one was actually confused in the end. All along there were clues that the whole thing was a hoax: Mr. Donohue's name was misspelled on the initial press release, the press contacts listed didn't work at the Chamber, and even the National Press Club got a little heads-up that something was afoot.

Another factor in the Yes Men's favor is that it wasn't appropriating the Chamber's mark in order to sell merchandise or to compete directly with the Chamber. In other words, it's like Ralph Nader's parody using the MasterCard tagline "Priceless. There are some things money can't buy." That use was not infringing because it did not "propose[] a commercial transaction at all" and was instead found to be political speech. MasterCard v. Nader 2000 Primary Comm., No. 00 Civ. 6068, 2004 WL 424404, *16 (S.D.N.Y. Mar. 8, 2004). In contrast, an artist could not sell t-shirts and merchandise depicting the Consumer Whore spoof of Starbuck's logo, even though it qualified as parody. Along similar lines, a direct competitor of John Deere tractors could not parody the the deer in the Deere logo, even if it was in mockery. Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 45 (2d Cir. 1994).

In the end though, the Chamber is mad about the whole thing. Unfortunately for Mr. Donohue, he's finding out what Barbie and Fox News found out: that it's hard to use trademark law to keep people from making fun of you. Not that Mr. Donohue isn't up for a fight: "You think we are going to blink because a couple of people are out shooting at us? Tell 'em to put their damn helmets on." And watch out kids, if you walk on the grass, Mr. Donohue will turn the sprinklers on you.

Senate Puts Bloggers Back in the Federal Shield Bill

Sam Bayard — Mon, 02 Nov 2009 17:15:40 -0500

On Friday, Senators Arlen Specter (D-PA) and Charles E. Schumer (D-NY) released a revised version of the proposed federal shield bill (S. 448), which expands the bill's coverage to bloggers and other amateur journalists publishing on the Internet. This version departs from a previous one, announced in September, which limited protection to "salaried employee[s]" and independent contractors for established news media organizations. The new language reads:

(2) COVERED PERSON.—The term "covered person"—

(A) means a person who—

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—

(I) conducting interviews;

(II) making direct observation of events; or

(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;

(ii) has such intent at the inception of the process of gathering the news or information sought; and

(iii) obtains the news or information sought in order to disseminate it by means of print (including, but not limited to, newspapers, books, wire services, news agencies, or magazines), broadcasting (including, but not limited to, dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means.

As Zachary Seward of Nieman Journalism Lab writes, with the revised version the Senate is "returning to its original definition of a journalist, focused on the craft instead of the business." We applaud this renewed focus on the function carried out by the individual in question, rather than occupational status. This approach better accounts for the economic realities and other challenges facing both journalists and journalism as an institution.

Of course, this step forward may not amount to much, seeing as the current House version of the bill (H.R. 985), which passed in March, limits the shield's protection to those who gather news "for a substantial portion of the person's livelihood or for substantial financial gain." While this language is not as restrictive as the Senate's previous version, it still presents a serious impediment for many bloggers and student journalists, and even some freelancers who don't get paid well.

Ultimately, differences between the House and Senate versions may get ironed out in conference committee, so there is definitely hope that last week's gains will find their way into law. Perhaps the participation of the Obama Administration in the negotiations that led to the current draft will help sway opinion in the House.

For more coverage, see The New York Times, Nieman Journalism Lab, and Reporters Committee for Freedom of the Press.

A New Leistungsschutzrecht? Say It's Nicht So!

Arthur Bright — Fri, 30 Oct 2009 14:05:14 -0400

It's tough being a publisher these days. Of course, no one is having much fun in the current economic downturn, but publishers were up against it even before the slowdown. Circulations have been down across the board for years now, which in turn has slashed the advertising revenues that print publications have always relied upon to survive. It's just a bad time to be publishing newspapers and magazines, at least while using the classical publishing business model.

Well, Germany's recently formed government believes they may have a solution to the woes of German publishers: a new kind of copyright. The New York Times reports that the incoming German government has proposed a new kind of "neighboring right" (i.e., "ancillary copyright" or Leistungsschutzrecht), along the lines of those already enjoyed by movie and music publishers in Europe, to stymie the unauthorized use of published works by for-profit websites:

Details of how the proposal would work have not been spelled out, but publishing executives say one possibility would be to require a license for any commercial use of published material online. That might include Web sites that post articles from other sources, assuming they sell advertising.

A new agency, modeled on the music and book industries’ royalty collection societies, could be created to gather and distribute the fees, publishing executives add.

Private, noncommercial use of news articles would remain unrestricted under the proposals publishers are discussing. (Source)

It sounds as though the German government is proposing a system modeled upon the lines of music licensers ASCAP and BMI. Basically, any online, for-profit website would have to pay this new agency for any published content that it reprints, and the agency would pass along payments to the original creators.

Of course, this proposal poses a number of hairy problems right off the bat. First and foremost is the difficulty in distinguishing a for-profit website from an "amateur" one. There are an awful lot of blogs that do host ads in order to bring in a modest bit of revenue, which — if they're lucky — will offset basic operating costs. Do they count as "commercial"? It's not as if whatever meager hits they may draw are really sucking money out of publishers — we're talking pennies (or Euro cents) at most, surely. Will it really improve the fortunes of publishers if this agency cracks down on these de minimis "commercial" websites?

Further, the proposal implies that published works can be managed analogously to music and movies. But that's not exactly a safe assumption. Generally, those users of music and movies who get the relevant industries bent out of shape don't do so in a piecemeal fashion. Rather, they duplicate entire works: all four minutes of a song, or all 120 minutes of a movie. There's not much use for fractional copies of these kind of audio or multimedia works. But published works are another matter. While there certainly are websites that replicate entire stories (and they should indeed be paying for those stories), there are also plenty that only reprint a small portion of the original text. Heck, look at this blog post — I used three paragraphs from The New York Times above. If I were using three grafs from Der Spiegel instead, would I be required to shell out a few Euros to this proposed agency? Would it matter that the CMLP doesn't have ads? What if it did?

And obviously, this same concern leads to the issue of fair use. I'm not sure what the precise status of fair use is in Germany, but after a little web research, I'm under the impression that Germany offers limited fair use protections to noncommercial websites. At the very least, fair use in Germany (and Europe generally) is nowhere near as strong as it is in the US, where at least one of the sites that German publishers complain about (*cough*Google*cough*) is based. If German content owners starts pursuing licensing claims against US content publishers, we could be in for a lot of international bumping of judicial heads.

Frankly, even if those issues were worked out such that independent bloggers were protected, I just don't see this sort of state intervention making much difference in publishers' bottom lines. As German blogger Markus Beckedahl tells the Times, “This debate is happening only because German publishers have failed to build successful business models on the Internet.” And indeed, that's true of publishers around the world. The reason why they aren't doing well isn't because a bunch of little websites are quoting their content; it's because they're relying on a business model that just doesn't work any more.

This German agency could, perhaps, staunch publishers' bleeding slightly, but overall, it's just delaying the inevitable. Publishers either need to completely revise their business model, or be prepared to close up shop. And the Germans aren't doing anyone any favors by implementing a system that could drive the little guys out of the information business by assessing licensing fees against them. Those little guys may be the only ones left standing after the publishing giants tank, and they might just lead the way forward for journalism.

Photo courtesy of Flickr user cooperis', licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.

http://www.flickr.com/photos/coopergriggs/ / CC BY-NC-SA 2.0

You Have Questions? CMLP Has (Tools to Help You Find) Answers.

Kimberley Isbell — Thu, 29 Oct 2009 16:17:35 -0400

"How do I get media liability insurance?" It's a question we hear a lot here at CMLP.

A lot has been written about why bloggers and other citizen journalists should consider obtaining insurance to protect themselves against liability for their online activities. But comprehensive, impartial information on the issue remains scattered and hard to find.

As a service to you, our dear readers, CMLP has attempted to remedy this problem by updating our Legal Guide content on insurance for online journalism ventures. In the guide, you will find sections on Finding Insurance, Homeowners and Renters Insurance Coverage, Evaluating Homeowners and Renters Insurance Policies, Insurance Exclusions for Business Pursuits, and Media Liability Insurance.

We've also added a brand-new feature: an Interactive Question Tool for Evaluating Your Insurance Needs. The tool takes you through a series of questions to help you determine whether your activities are covered by your existing homeowner's or renter's policy, whether separate media liability insurance is right for you, and what issues you should consider when shopping for media liability insurance.

We hope that this information is helpful. Of course, if you have additional questions that our Legal Guide doesn't answer, you can post them in our forums.

P.S. Happy 40th birthday, Internet!

It's Election Time Again: CMLP Announces Updated Guide to Newsgathering at the Polls

Sam Bayard — Wed, 28 Oct 2009 12:18:43 -0400

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections. In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legalizing same-sex marriage. Sure, it's an off-year for Congress and it doesn't have the historic dimensions of the last election, but there are still plenty of reasons for ordinary voters and journalists alike to document the day and gather news at the polls, including to root out fraud and other problems in election procedures.

To help out, the Citizen Media Law Project has updated its legal guide pages on laws regulating recording activities in and around polling places on Election Day. Our specific focus is on the laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places.

The Documenting Your Vote page gives some general guidelines and practical tips on how to stay out of legal trouble when engaging in newsgathering activities on Election Day. It features a short video we created last year as part of PBS and YouTube's Video Your Vote project:

Because there is no single, national law regulating polling place activities, it is difficult to generalize about what you can and cannot do on Election Day. If you are interested in using a recording device at a polling place, it is critically important to consult your state's law in order to make sure that your proposed activities are legal.

Many states, including Florida, Georgia, Kentucky, Michigan, Nevada, North Carolina, Texas and West Virginia, expressly prohibit the use of photographic and recording equipment inside polling places. Also, a majority of states have laws that prohibit public display of a voter's own marked ballot. Although designed to stop voter fraud, they may apply to more innocent activities like posting photos or video on the Internet for the sake of reporting or personal documentation.

To assist readers in negotiating these restrictions, we've updated our chart summarizing the law in all 50 states and the District of Columbia. In addition, the State Law: Documenting Your Vote page contains updated contact information for election officials in every state and links to the state statutes that impact polling place activities. While state laws have not changed a great deal since last year's election, we made a number of changes to these legal guide materials, so they are worth a look even if you consulted them last year.

The Online Odyssey: Internet Use in the Age of HADOPI's Scylla and Holder's Charybdis

Andrew Moshirnia — Tue, 27 Oct 2009 16:10:28 -0400

Last week was a tough one for Internet users worldwide. On the foreign front, the French (as predicted) reinstituted a due-process-shattering law that allows ISPs to kick suspected file-sharers off the Internet. On the domestic side, a district court refused to lift a government gag order, preventing ISPs from discussing the FBI’s Internet snooping. Separately, each of these events is a bummer, but taken together they threaten the Internet as we know it by inviting abuse from both private industry and government.

As you may recall, the French government (with a little encouragement from the entertainment industry) has previously attempted to do away with the entire notion of due process vis-à-vis the Internet. The HADOPI law would have allowed ISP’s to strip Internet access from users who were accused of file sharing. The French Socialist party challenged the law, arguing that access to the Internet was a basic right that could not be violated without judicial oversight. The Conseil Constitutionnel agreed and declared the banning provision unconstitutional.

However, last Tuesday the Conseil approved a modified version of the same law. What was the monumental change that protected the French Constitution? This bill sets up a fast-tracked judicial proceeding wherein the judge is given five minutes to rubber stamp . . . pardon me I mean . . . to rule on the disconnection order. (Suffice to say I imagine that even with this copious amount of time, innocent users might face digital execution).

The effects of HADOPI are already being felt in the EU. One day after HADOPI-redux, the Union agreed to scuttle the widely popular Amendment 138, which sought to guarantee robust judicial review of Internet prohibitions. Industry lobbyists are hailing the new law and are already pushing for an American adoption of a similar regime. While a wholesale import of this plan is unlikely, I have previously noted that the Anti-Counterfeiting Trade Agreement might require the adoption of similarly draconian measures. If such a regime is adopted, ISPs have large incentives to terminate users:

ISP’s are often part of the entertainment business, and would therefore be eager to kick off users who provide alternate sources of product. A user who trades digital copies of shows is less likely to upgrade to the latest cable TV package or order an on-demand movie.
ISP’s essentially promise more bandwidth than they can deliver. Kicking off high volume users is a great way to mask the limitations of the network.

Just as the HADOPI law presents the façade of judical review, the recent decision in Doe v. Holder means that judges are unlikely to lift the gag orders that the government imposes on subpoenaed ISPs. Double trouble.

The government can print its own backstage passes (National Security Letters) that allow it to demand information from ISPs without the obstacle of a warrant. Or even public controversy for that matter, because ISP’s aren’t even allowed to disclose the fact that the government made a request.

Now constitutional alarm bells should be ringing: the government can potentially violate your privacy AND the First Amendment rights of individuals working for your ISP. Wait, it gets better.

At first, the government was able to justify these secret requests merely by stating that the information related to a) an ongoing criminal investigation, b) interference with diplomatic relation, or 3) danger to the life or physical safety of any person. Wow, that must be a hard standard to meet. The Court of Appeals for the Second Circuit attempted to narrow the scope of NSLs in Doe v. Mukasey. Sorta. Instead of limiting the issuing of NSLs through judicial review ex-post, the court decided to place the onus on ISPs to challenge the requests in a timely manner:

The government could inform each NSL recipient that it should give the government prompt notice, perhaps within 10 days, in the event that the recipient wished to contest the nondisclosure requirement. Upon receipt of such notice, the government could be accorded a limited time, perhaps 30 says, to initiate a judicial review to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days.

Only then would the FBI have to certify that the disclosure of the request “may result in an enumerated harm that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

This offers little comfort because out of thousands of requests, only three challenges appear to have been registered. But what about the brave little ISP that does decide to protect its right to speak and its customers’ right to privacy? Well, in that case, the judge will just take the FBI’s word that the NSL was necessary. Indeed, that is what occurred in Doe v. Holder, where Federal District Judge Marrero determined the NSL was A OK after he met with government lawyers in closed chambers.

Wow, I feel safer already. I mean its not as if there is a long track record of improper surveillance. Right? . . . right? And surely the government has never deliberately misled the court or hidden behind the state secrets doctrine.

So at the end of the day we could possibly adopt a system that allows ISPs to terminate users with little judicial oversight. And we already have a system in place that allows the government to pry into my online life AND to gag the only party that could alert me to this violation, even if this party actually respects (and goes to bat for) my privacy rights? Well played everyone, well played.

(Andrew Moshirnia is a second-year law student at Harvard Law School. He is close to earning a secret, all-expenses-paid trip to Cuba.)

As Politicians Adopt Social Media, They Bump Into the Law

Eric P. Robinson — Mon, 26 Oct 2009 10:22:34 -0400

As social media become more popular, it is inevitable that enterprising politicians will use it promote themselves, connect with constituents, and garner votes. The White House has a blog, several Senators and House members tweet, and elected officials and candidates at all levels of government are using social media to get out their messages.

But just as use of social media by voters is coming into conflict with existing election laws, some politicians are discovering that their use of social media may clash — or at least create possible problems — with existing campaign and government disclosure laws.

Last summer, a Congressman's use of his cell phone to post pictures of a GOP "pep rally" on the House floor and a subsequent press conference prompted a partisan dust-up over archaic "franking" rules (large pdf) which required House members to post official content only on the house.gov domain — no embedded YouTube videos or Scribd documents, no Facebook posts, no Tweets, no Qik videos. The House Administration Committee eventually changed the rules to allow postings on other sites, within certain guidelines:

The official content of any material posted by the Member on any Web site must be in compliance with Federal law and House Rules and Regulations applicable to official communications and germane to the conduct of the Member’s official and representational duties.

When a link to a Web site outside the Member’s official cite is imbedded on the Member’s official site, the Member’s site must include an exit notice advising the visitor when they are leaving the House. This exit notice must also include a disclaimer that neither the Member nor the House is responsible for the content of the linked site(s). (Source)

The Committee also announced that it was considering other rule changes to accommodate new social media technologies.

The Senate Rules Committee adopted similar rules, with much less rancor.

Another rule that may be archaic is the policy, adopted in 2000 and reinforced in 2003, generally prohibiting federal agencies from using web-tracking technologies such as persistent cookies on their sites. The Obama Administration was criticized in its early months for using cookies on the new White House web site, and for using commercial sites (such as You Tube) with cookies. (The prior administration also had this problem). In July, the Office of Management and Budget solicited comments on this policy, see 74 Fed. Reg. 37062, with a view towards loosening the restrictions to allow customization of federal web sites.

Politicians' use of social media for campaigning can also conflict with federal, state and local campaign laws.

Because the main focus of federal campaign laws is campaign spending, their application to social media is unclear. In response to a federal court decision on the issue, see Shays v. Federal Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), reh’g en banc denied (Oct. 21, 2005), the Federal Election Commission amended its regulations in 2006 to make paid advertisements on the Internet subject to its regulations on election spending by campaigns, political parties, and coordinated activities. But the Commission explained that this action did not affect political activities on the Internet by others. "Everyday activity by individuals, even when political in nature, will not be affected by the changes made in this rulemaking," the Commission stated in its notice of the rules change. 71 Fed. Reg. 18589 (April 12, 2006).

As explained by David Ardia on this blog and in more detail by the FEC and in the Center for Democracy & Technology's Net Democracy Guide, the revised regulations come into play when more than $1,000 is spent with the "major purpose" of influencing a federal election; ads (paid and, in some circumstances, free) are placed for candidates; or funds are solicited for candidates.

State rules are a different matter. For example, a candidate for mayor of St. Petersburg, Florida may have run afoul of the state's campaign laws that require disclaimers on all ads by placing disclaimer-less ads with Google, which limits the number of characters you can use. The Florida Election Commission has proposed a $250 fine for the omission, which the candidate — who lost the primary — is challenging. In response to this case, a bill has been introduced in the Florida legislature that would exempt Internet ads from the disclaimer requirement, as long as the ad links to a web site that contains the disclaimer.

In 2000, the American Bar Association urged all states to review and revise their election laws in light of new technologies, and several states have done so. Some examples:

California's Fair Political Practices Commission declined to issue rules regarding campaign activity on the Internet in its first examination of the question in 2003, but is now re-examining the issue and plans to issue recommendations by June 2010.

The Massachusetts Office of Campaign and Political Finance issued an interpretive bulletin on the "Use of Internet and E-mail for Political Campaign Purposes" in 2004 (revised in 2005). A recently adopted statute, effective in 2010 and revising the state's campaign finance, ethics, and lobbying laws, specifically excludes "internet or email communications" from the definition of the term "electioneering communication," which are subject to state regulation. See 2009 Mass. Gen. Laws ch. 28, sec. 24.

In 2007, the Washington Public Disclosure Commission issued an interpretation of how the state's election disclosure laws apply to the Internet.

In Wisconsin, the state's Government Accountability Board recently announced (Item F, p. 16 of pdf) that it would formulate a guide for "electronic communications and the use of electronic technology for political purposes."

This process is sure to continue. As politicians' use of social media continues to grow, state and federal rules regarding campaigns will have to be modified to account for these new technologies.

Like many other things, these policies will have to evolve to remain relevant and effective in the Internet era.

Photo courtesy of Flickr user Gongus, licensed under a CC Attribution 2.0 Generic license.

Yet Another Plaintiff Faceplant, Thanks to Section 230

Arthur Bright — Fri, 23 Oct 2009 14:36:03 -0400

I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act (“Section 230”). Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material. And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings. Seriously, there are loads of these cases, and they almost always fail — why do plaintiffs keep bringing them?

The latest plaintiff to plow face-first into the Section 230 wall is Thomas Dart, Sheriff of Cook County, Illinois. Dart sued personal ad site craigslist in March 2009, accusing the website of facilitating prostitution through its "erotic services" section. Ars Technica writes that the lawsuit, along with pressure from other law enforcement officials around the country, prompted craigslist in May to change the objectionable section's name to "adult services," increase fees, and institute more extensive moderation. But the Sheriff's Department did not drop its case after the change, claiming that the difference between "erotic" and "adult" was purely cosmetic, and that craigslist was still promoting prostitution.

Labels aside, this is still a claim attempting to hold craigslist liable for publishing the statements of its users: precisely the sort of thing that Section 230 bars. And that's just why Judge John Grady tossed the Sheriff's case (from the opinion):

While we accept as true for purposes of this motion plaintiff's allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only "in the sense that no one could post [unlawful content] if craigslist did not provide a forum." . . . Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content in this fashion.

Honestly, this lawsuit strikes me as almost completely frivolous. Dart filed suit in the United States District Court for the Northern District of Illinois, any decision would be subject to appeal in the Seventh Circuit. While the Seventh Circuit once flirted in dicta with gutting Section 230, it cleared things up in Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008), where it held that Section 230 barred federal anti-discrimination claims against craigslist based on the postings of its users. While Dart brought a state-law nuisance claim here, the premise of his claim is nearly identical to the claim in Chicago Lawyers' Committee: that craigslist is somehow to blame for the illegal posts of its users, despite having no role beyond the passive host of the offending content. But if Section 230 prevented craigslist from being liable for its users' violations of the Fair Housing Act in that case, how could it not protect craigslist in this case as well? There's nothing to substantially distinguish the two.

And it's not just Chicago Lawyers' Committee that puts the kibosh on such claims. Courts have nearly uniformly found Section 230 to be a complete bar against liability for publishing the content of end users. The legal tides were against Dart from the start. Indeed, the Electronic Frontier Foundation slammed the Sheriff's decision to bring suit against craigslist, along with similar decisions by other law enforcement officials, as little more than a "publicity stunt" and "a cheap and easy way to score political points." I find it hard to disagree. I do hope that the Sheriff's department didn't spend much time and money on litigating this case, because it was pretty clearly doomed from the get-go.

Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger

Sam Bayard — Thu, 22 Oct 2009 09:16:53 -0400

A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity.

The Swartzes sued the anonymous blogger back in February 2008 for defamation and invasion of privacy and subpoenaed Google, the parent company of the Blogger hosting service used by Stop Swartz. The John Doe defendant moved to quash the subpoena, and in a March 2009 hearing (video available) the court indicated that it would follow the requirements of Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and granted a temporary protective order pending resolution of the First Amendment issues. (See my previous post for details.)

In his October decision, Judge Brothers revisited the question of "what standard should be applied to balance the First Amendment interests of John Doe #1 with the defamation and privacy concerns of [the Swartzes." The court reaffirmed that Dendrite strikes the appropriate balance and gave explicit guidance on how to apply the test (in marked contrast to the Maryland Court of Appeals in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)):

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant's shield of anonymity. The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient. As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing. By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity.

Slip op. at 8. Admirably cutting through the semantic differences between standards, the court isolated the critical requirement — "a substantial legal and factual showing that the claims have merit" — and thereby joined the growing consensus among federal and state courts that have addressed the issue. See, e.g., Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

What's especially interesting about this case is that it provides a window onto how trial courts can apply the Dendrite standard and how plaintiffs can satisfy it. The court held a hearing in August 2009, in which the Swartzes presented live testimony for the judge. Although the court expressed a willingness to accept a sworn affidavit under pseudonym, John Doe presented no proof. (A video of the hearing is available in two parts here and here, but unfortunately the sound quality is not great.) In his decision, Judge Brothers pointed out exactly what evidence persuaded him:

The Swartzes submitted and displayed copies of the blog posts in question, and testified that they were available for several months (satisfying the publication requirement for a defamation claim);
The Swartzes "testified that the allegations of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, negative effect on home prices, and being 'run out of East Nashville' are all false" (satisfying the falsity requirement);
The Swartzes testified that they "experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home" (providing evidence of damages).

See slip op. at 9-10. The court was less clear on how the Swartzes showed that the anonymous blogger acted recklessly or negligently in publishing the allegedly defamatory statements, but this is not surprising given the difficulty of establishing fault without knowing the identity of the defendant. See Mobilisa, 170 P.3d at 720; Krinksy, 72 Cal. Rptr. 3d at 245 n.12; Cahill, 884 A.2d at 464. The court's analysis of the invasion of privacy claim was also more cursory, but it's clear that Judge Brothers relied on live testimony to establish the requisite factual showing of merit.

Despite this victory, it looks like the Swartzes won't get immediate satisfaction. Judge Brothers granted the John Doe defendant's request for interlocutory appeal, which presumably stays his order permitting disclosure of the blogger's identity. The court found that "appellate court review would prevent irreparable injury, prevent needless and protracted litigation, and facilitate the development of a uniform body of law." Slip op. at 12. I don't know whether the appellate court has to grant the appeal, but if it does we'll benefit from a more authoritative ruling from Tennessee, hopefully one that stays with the national consensus on the law, regardless of how it comes out on the particular facts of the case.

You can follow developments in the case through our database entry, Swartz v. Does. Thanks to Nashville Law for sending me the court's decision and posting all the cool videos.

(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.)

Finkel v. Facebook: Court Rejects Defamation Claim Against Facebook Premised on "Ownership" of User Content

David Ardia — Wed, 21 Oct 2009 12:35:15 -0400

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her.

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28. (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA." After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.

So why am I even writing about this case? In an effort to save herself from certain disaster, the plaintiff threw out a rather interesting argument in her opposition to Facebook's motion to dismiss, arguing that because Facebook's Terms of Service granted it an "ownership" interest in the content on its site, it was not entitled to protection under Section 230. This is the first time I recall seeing an argument like this (note, this is a different argument than the plaintiffs made in Barnes v. Yahoo! and Mazur v. Ebay, which were premised on ToS-based duties flowing to the plaintiffs).

As my colleague Sam Bayard pointed out back in August:

I think the plaintiff quotes selectively from Facebook's terms of use and misrepresents what the quoted language actually means. First off, the quoted passage says that site content is the "proprietary property of the Company, its users, or licensors with all rights reserved." This plainly suggests that users own some of the content. Plus, if you look closer at the rest of the terms, you'll see that lots of material expressly dealing with user content, including the grant of a license to Facebook to make various uses of user content. If Facebook already owned the content, it wouldn't need a license.

Putting aside the factual accuracy of the plaintiff's "ownership" theory, copyright ownership would seem to be irrelevant to the analysis under Section 230 which requires only that the content at issue be "provided by another information content provider." 42 U.S.C. § 230(c)(1). While no court has (prior to Finkel) addressed this specific question, there are plenty of cases saying that the provider of an interactive computer service doesn't lose Section 230 immunity even if it pays someone to create content (as long as the person is an independent contractor, not employee). See, e.g., Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

Well, we now have an answer, albeit without much analysis. In a 5-page decision issued last month, New York Supreme Court Justice Debra James made short work of the plaintiff's ownership theory, holding:

"Ownership" of content plays no role in the Act's statutory scheme. The only issue is whether the party sought to be held liable is an "interactive computer service" and if that hurdle is surmounted the immunity granted by 42 USC 230(c)(1) is triggered if the content was provided by another party.

Finkel v. Facebook, 2009 N.Y. Slip Op. 32248, at 3-4 (N.Y.Sup. Sep 15, 2009). The claims against the individual defendants were not dismissed.

(For more on the case, see our database entry, Finkel v. Facebook.)