Citizen Media Law Project -

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.

(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.)

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.)

Combine One Part New Media, Two Parts Social Networking, Three Parts Activism, and Stir

Kimberley Isbell — Tue, 20 Oct 2009 15:22:33 -0400

A lot of ink and pixels have been spilled on predictions about how technology and social media will change the world. But the new technologies still have their skeptics (with some even going so far as to compare Twitter to the Macarena). Last week in Mexico City, the Alliance of Youth Movements convened a group of international activists, government officials, academics, journalists, and representatives of new media companies for three days of discussions seeking to prove the skeptics wrong.

The Second Annual Alliance of Youth Movements Summit sought "to explore ways to advance grassroots movements seeking positive social change through 21st century technology and tools." A quick glance at the list of conference sponsors reads a bit like a Who's Who of old-media meets new-media: the U.S. Department of State, Facebook, Hi5, Google, MySpace, Gen Next, Howcast Media, MTV, PepsiCo, Mobile Behavior, Univisión, Interactive Media, Inc., Causecast.org, WordPress.com, Edelman, and YouTube.

More interesting, however, were the delegates. There was Mayra Contreras, representing México SOS, a group that seeks to deploy technology and social activism to improve safety in Mexico. And Oscar Morales, whose organization Un Millón de Voces Contra Las FARC used Facebook to mobilize tens of thousands of protesters in the streets of Columbia and around the world against the Revolutionary Armed Forces (FARC). There was Rodrigo Nogueira of Viva Favela, a group that seeks to teach young people in Rio's favelas to become amateur journalists to document the day-to-day life in their communities using multi-media tools. Also Sophie Lwin of Burma Global Action Network, an advocacy organization that grew out of a Facebook group created in the wake of the 2007 monk-led anti-government protests in Burma. There was even Berkman Center's own Kevin Wallen of the Students Expressing Truth Foundation, which works with the prison inmate population of Jamaica.

Attendees heard panel discussions on a variety of topics, as well as case studies on the use of new media to advocate for social change. Natalia Morari of ThinkMoldova spoke on Moldova's Twitterrevolution, where demonstrators deployed social networking sites like Facebook, Twitter, and Live Journal to protest the election results in the former Soviet-republic. Jack Dorsey of Twitter, Steve Grove of YouTube, Kristen Morrisey of Google, and James Eberhard of MobileAccord spoke on a panel titled "Using Social Networks to Effect Change" (which was introduced with a how-to video called "How To Use Twitter To Effect Social Change").

Other panel discussions included "Social Media as a Tool to Promote Human Rights," "Using Viral Video to Effect Change" (which included a screening of the c harity: water video), "Social Media and Good Governance," "Building a Sustainable Movement," "Using Social Media for Anti-violence," and "How to Gain the Attention of the Global Media." On the last day of the conference, attendees also heard a recorded message from U.S. Secretary of State Hillary Clinton.

While you can check out the videos of the panels yourself, for those of you that don't have the time, below is a collection of conference highlights (in 140 characters or less) brought to you by my Twitter stream:

How to turn clicks into action? - Elias Kuri, Illuminemos Mexico #AYM
@RodrigoNogueira is one of the people hard at work behind @vivafavela. Worth checking out their work. #AYM
RT @emazursky: The connection between terrorism, mass atrocity, democracy and the need for change thru grassroots is pretty evident. #aym09
Hee. RT @katiewdowd #aym if you were worried, there was no boy in the balloon and twitter will outlast the macarena
Chris Csikszentmihalyi of MIT Media Lab showcased a few projects, including SMS reporting of Taser use based on creation of AM waves . #AYM
AYM panel shoutout to @berkmancenter's own @ethanz and his "cute cat" theory. http://bit.ly/s5bMO #AYM
Bad guys often using social media tools better than we are. Reason to learn and share best practices. #AYM
Offer diff. action items, including low investment ones. RT @ricardoblanco: "you are competing with people's time and interests" @AriW #aym
Question to ponder: Why (or is) technology game-changing? - @JaredCohen #AYM
Just saw a Pac Man totebag @ AYM. #want.
Un Mundo Sin Mordaza - use of social media to save tradt'l media after Venezuelan gov't tried to shut TV station. http://bit.ly/22xQ23 #AYM.
To get media attention, key was creativity. Ask creative friends. Put red gags over all statues in town. - @rockdiamante #AYM
Know your story, do your homework (find journalists that are in conversation already), tell your story simply- Russel Dubner #AYM
In joke among UOL journalists- Twitter is down, no news today. Rodrigo Luis Flores #AYM
If you try and control the conversation with a journalist, you're going to lose. - Russel Dubner #AYM
RT @mpastrana: Media is media is media and tools are tools are tools are tools. #imnomediaoutlet #aym -vía @ redmarker

Thanks again to Steve Grove of YouTube for inviting CMLP to tag along for the ride!

NEEEEEDDDD BRAAAAINNS: MPAA Resurrects Plan to Take the R Out of DVRs

Andrew Moshirnia — Mon, 19 Oct 2009 10:37:00 -0400

Between sparkling vampires and slobbering zombies, the Undead have found new life at the box office these days. So it makes sense that the MPAA, inspired by the success of the long deceased, has decided to resurrect the odorous, oft-defeated idea of “selectable output control.” We can only hope and pray that the FCC will shoot this idiotic (but dangerous) idea in the head, and grant consumers a brief respite (before the inevitable sequel). For those of you who are unaware of the movie industry’s idiotic plan to castrate and consume your DVR, allow me to shine a light on the lumbering terror.

The Movie Industry has never been fond of video recorders. The studios tried to strangle the VCR in the crib, claiming that the initialed monster would lead to widespread pirating and people watching movies GASP at home. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The movie studios “lost” that case and ended up reaping record profits from the resulting video rental market.

Never one to learn from its mistakes or to blindly accept the benefits of accidental success, the MPAA has been trying to cripple the Digital Video Recorder. The Industry wants to prevent DVRs from recording certain movies broadcast on television. The MPAA claims that in order to provide consumers with the ability to see new movies from the comfort of home, the industry must first scramble the video stream and break consumers’ DVRs. Oh, and the switch to a new scrambled signal will also break some home video systems.

So what justification does the MPAA offer for its plan to take the R out of DVR and wreck 11 million home theaters? Why the magic word of course: Piracy.

You see, the movie industry wants to make its movies available to all those consumers who can’t make it to the theater: the terminally ill or differently abled. And all it asks for this kindness is a handsome fee of course. But, gosh-darnit, it can’t (simply can't) offer this service to the masses because pesky pirates will tap the video stream and then the movie would be available on BitTorrent.

But wait, aren’t pirated movies already on BitTorrent? And how do the goals of anti-piracy measures (now rechristened “content protection”) justify destroying or disabling the devices that consumers have already purchased?

I suppose it is some comfort that the FCC also appears to have asked these questions and has rejected this proposal numerous times. After the debacle that was the digital transition, I’m sure the FCC is going to steer clear of format changes and bewildered consumers.

Imagine the political fallout of allowing a company to intentionally destroy or disable another brand of devices in order to grow a new market. The MPAA can’t pull the same tricks Amazon can with the Kindle or Apple can with the iPhone – namely, crippling a tethered device or selectively killing apps. The MPAA doesn’t sell home theaters, so it has no unconscionable terms of service to hide behind. Instead, it is meddling with the contracts/service of numerous, fairly powerful consumer electronics providers (and the lingering movie theater owners). And you better believe that those companies would be none-too-pleased if they lost market share because their devices suddenly didn’t work.

The MPAA hasn’t thought this through. The MPAA doesn’t need the help of a government actor at all. It could easily address its piracy concerns by simply rolling that risk into the cost of television licensing or pay-per-view fees.

Furthermore, the entire Industry’s approach to piracy prevention spurs pro-piracy education. The high profile attempts to quash DeCSS, the DVD decrypter, have served only to publicize the program, encourage creative diffusion, and embarrass the MPAA. By focusing on all the ways pirates could be pirates, the Industry is putting on a clinic. Imagine if the government decided to stress the importance of anti-terrorism by producing a series of educational films detailing the structural weaknesses of tall buildings.

Though it should be obvious to everyone that this scheme is DOA, the MPAA refuses to bury the plan. But how do you kill that which has no life? All we can do is hope that the FCC is constantly vigilant and sleeps next to a policy-killing shotgun.

(Andrew Moshirnia is a second-year law student at Harvard Law School. He was bitten by a homeless man a few hours aggo andd feels ooddd dasl;kakldjsdk123nsafr94wnkasd9e3w)

Showing Cyberbullying No Mercy in the Show Me State

Arthur Bright — Fri, 16 Oct 2009 16:01:15 -0400

On the broad grade-school spectrum of the bullies and the bullied, I tended to fall closer to the bullied side of things. Fortunately, I quickly proved taller than average — thus harder to intimidate — and smarter than average — thus more useful as a source for homework help than as a target for abuse — so the bullies moved on to other targets. Still, although not subjected to it much myself, I got to see a fair amount of bullying in my youth.

That's why I'm surprised that I can't think of a similar, non-Internet parallel for this Wired story about a new case of cyberbullying in Missouri. Apparently a ninth-grade girl at the Troy Buchanan Ninth Grade Center put together a "disparaging" website attacking a fellow student, posting photos of her and calling her a "slut," among other "very troublesome" things. The site creator even went so far as to register a domain name, which Wired writes, "included the target’s name and 'cunt.com.'" (I suspect that an "isa" appeared between the two.)

Naturally, this is the sort of thing that schools crack down on. Unfortunately for the spiteful girl in question here, it's now also the sort of thing that Missouri district attorneys crack down on — she was arrested by the local sheriff's department. According to Wired, her case has been turned over to juvenile court prosecutors who will determine whether she will be charged with a crime.

Missouri was, of course, the scene of the events in the infamous Lori Drew case, in which Drew posed as a teenage boy on MySpace in order to humiliate Megan Meier, a thirteen-year-old classmate of Drew's daughter. When the faux-boy told Meier that the world would be "better off without her," Meier committed suicide. As a result, federal authorities indicted Drew and prosecuted her in federal court in California (where the MySpace servers are located) for violating the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. Although the jury found Drew guilty of misdemeanor CFAA charges last November, the judge recently tossed Drew's conviction and dismissed all charges.

Troubled by the state's inability to deal with Drew's conduct under its own laws, the Missouri legislature amended its harassment laws last summer to incorporate new protections against cyberbullying. It is presumably for violation of this law that the ninth grader was arrested. According to the relevant portion of the Missouri Revised Statutes § 565.090 (1):

A person commits the crime of harassment if he or she . . . [k]nowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication; or . . . [k]nowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person;

Mo. Rev. Stat. § 565.090 (2) makes harassment a class A misdemeanor, except in certain cases which don't seem to apply here. Wired notes that Missouri has been quite proactive in enforcing the new law, racking up seven indictments in the first three months after the law was put on the books.

The Troy Buchanan situation is troubling on several levels. Certainly, this girl should be punished for putting together the hurtful website. Like I said before, I'm having real trouble thinking of any sort of analogous situation from my youth. I suppose the closest thing would be if someone had put flyers up all over the school accusing a student of being a "cunt" or "slut." No one at my school ever went to that much trouble to bully someone, but if they did, I'm sure they'd be guaranteed at least a lengthy suspension. Not to mention whatever punishment the offender's parents might mete out.

But bringing criminal law into the equation seems extraordinarily heavy-handed. Certainly, the girl's conduct appears to fall neatly inside the statute's parameters, but is it really an act in the same spirit as that of the Lori Drew situation? I'd think that a great deal of schoolyard bullying would be caught up by the "recklessly frightens, intimidates, or causes emotional distress" language — heck, bullying's purpose is to intentionally intimidate or cause emotional distress. But bullying, while antisocial and uncivilized, shouldn't necessarily be criminal.

On the other hand, one wants to protect the victim in situations like this, where the reputational and emotional damage can be far-reaching. Though it's not clear from the Wired story, I suspect that the offender's parents did not approve of her actions. But what if they didn't care, and the Missouri law weren't on the books? If that were the case, it could prove quite difficult and costly to deal with the disparaging website. The targeted girl would have to bring civil claims of defamation or intentional infliction of emotional distress against the offender and her parents. That seems like a hammer almost as heavy as Missouri's criminal law.

Probably the best thing to do is to look at the way the world actually works. And in non-legal world of schoolyard bullies, the bullies generally are kept in line through the oversight of the schools and the parents. And they probably should be in this situation as well. The online portion of the bullying certainly is a modern wrinkle, but with sufficiently tech-savvy parents or educators, criminal laws aren't necessary to prevent this kind of thing from happening. Hopefully the authorities in Missouri will come to the same conclusion. And perhaps the Missouri legislature should add a juvenile exception to Mo. Rev. Stat. § 565.090 to prevent this kind of issue from coming up again.

Photo courtesy of Flickr user Kopper (http://www.flickr.com/photos/kopper/), licensed under a CC Attribution 2.0 Generic license (CC BY 2.0).

Case That Upended Truth Defense in Libel Actions Ends With Jury Verdict for Defendant

David Ardia — Thu, 15 Oct 2009 16:20:51 -0400

In a closely watched case that challenged (at least in Massachusetts) our long held understanding that truth is an absolute defense to a defamation claim, the jury has returned a verdict for the defendant, finding that it acted without actual malice when it sent an email to its employees stating -- truthfully -- that one of its salesman had been terminated because he violated the company's travel and expense policies.

The case, Noonan v. Staples, Inc., D. Mass, No. 06-10716, involved Staples, the office supply chain, and one of its former employees, Alan Noonan. Back in February, we reported that the U.S. Court of Appeals for the First Circuit had held that Noonan could hold Staples liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan's termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will." Not surprisingly, the First Circuit's decision sent shock waves through the media defense bar, with Robert Ambrogi, Executive Director of the Massachusetts Newspaper Publishers Association, characterizing it as "the most dangerous libel decision in decades."

The First Circuit's decision was based on a 1902 Massachusetts statute, Mass. Gen. Laws ch. 231, § 92, which states that truth is a defense to libel unless "actual malice is proved." A 1998 decision of the Supreme Judicial Court of Massachusetts, Shaari v. Harvard Student Agencies, ruled the statute unconstitutional when applied to statements of public concern, but the First Circuit refused to consider whether the SJC's reasoning in Shaari extends to statements of purely private concern, explaining in a footnote that Staples failed to properly raise the issue of the statute's constitutionality in its initial briefing. (In March, we joined a coalition of media organizations in filing an amicus curiae brief urging the First Circuit to grant Staples' petition for rehearing en banc, which it ultimately denied.)

After remand, the case proceeded to a jury trial in Boston. While it's not clear from the case docket how the judge charged the jury with regard to the question of actual malice, it appears that the parties fought over the definition, as evidenced by the objections Staples filed at the start of the trial in which they argued that "'actual malice' under the Statute has a narrow and distinct meaning: actual malevolent intent, hatred, or ill will toward the plaintiff." (Note: this definition differs from the far more stringent definition of "actual malice" required by New York Times Co. v. Sullivan, 376 U.S. 254 (1964).)

Late last week, the jury, in a one-page general verdict form, found in favor of Staples on Noonan's defamation claim.

More coverage of the verdict is available on David Johnson's Digital Media Lawyer Blog and Dan Kennedy's Media Nation.

Cyber-Bully Pulpit: Government Sponsored Online Shaming

Andrew Moshirnia — Wed, 14 Oct 2009 11:20:26 -0400

While a number of businesses and organizations are initiating public service campaigns to combat cyberbullying, governments are realizing the utility of online shaming.

In response to a rash of recent suicides, the French Labor Minister, Xavier Darcos, has directed over two thousand French firms to craft anti-stress strategies with the aid of unions by 2010. Companies who do not have a plan in place by the deadline will be named publicly on a dedicated government website.

Now right off the bat, let’s acknowledge that this approach to suicide is fairly awesome. First, the government is aggressively addressing an insidious problem. Second, a public listing seems to be the only sanction for those companies that fail to comply. We’re bringin’ shaming back!

Public shaming, after a centuries-long winning streak, had largely fallen out of favor in the western world during most of the 20th century. Sure, there were the odd blips now following wars: e.g., the French sheered female collaborators. And every now and then a judge would get creative: e.g., an American Judge ordered a purse thief to wear tap shoes (People v. McDowell, 130 Cal. Rptr. 839 (1976)). But these were largely overshadowed by attempts to make punishment seem civilized and mechanistic.

But you can’t keep a good practice down, and since the 90’s, shaming has been making a comeback. (Outside the strictly governmental sphere, "naming and shaming" has also become a popular strategy for policing human rights violations.)

And now, with the Internet, governments have discovered a global whipping post. It seems that this has largely been directed against individuals. Earlier this year, a French court ordered Numerama, a news site that serves many users in the P2P community, to publish the names, birthdates, and sentences of convicted file sharers. Many states have relied on deadbeat websites to collect back taxes.

Some commentators (including myself) and jurists are not big fans of this approach as applied to individuals. But hey, it seems vaguely legal, and that's good enough for most.

Now, it looks like at least some governments are harnessing the powerful forces of shame in the name of corporate regulation. And just as in Olympic fencing, France seems to be in the lead. While the United States currently has some lists of corporate offenders (think toxic waste dumping), these catalogues of misdeeds are not widely effective. But maybe, with the advent of Twitter and other social media tools, consumers can quickly find out who to boycott and why. I imagine an app:

The Shame Game: You rank the issues that are important to you:
1. Child Labor

2. Pollution

a. Air

b. Water

And when you are done, the app spits out the top 10 or 20 companies you should avoid at all costs, with a little bio describing their verified offenses. Coders, get cracking!

In case you think this approach is insane, I point you to the many examples of successful corporate shaming in the form of consumer-oriented gripe sites. The Consumerist (think a snarkier, more entertaining version of Consumer-Reports) achieves wonderful results for wronged customers by placing offending corporations in the digital stocks. (Sometimes, though, a shamed company will take umbrage.)

A policy of government endorsed shaming can "inflict disgrace and contumely in a dramatic and spectacular manner" (Goldschmitt v. State, 490 So. 2d 123, 125 (Fla. Dist. Ct. App. 1986)). This power has been used by various regimes to destroy the lives of individuals. Now the Internet has increased the scope of humiliation beyond Torquemada's wildest dreams. Seems only fair that governments direct this weapon at some larger prey.

(Andrew Moshirnia is a second-year law student at Harvard Law School. He asks that you please stop shaming him, he has endured enough.)

Ralph Lauren Gets the Skinny on DMCA Takedown Backlashes

Arthur Bright — Fri, 09 Oct 2009 14:11:17 -0400

File this one under DMCA don'ts:

Last month, the folks at Photoshop Disasters and Boing Boing noticed that Ralph Lauren had done some rather horrific photoshopping of a fashion model in one of its ads (on right). Both sites mocked the horribleness with brief, but clearly critical, comments.

"Make her head bigger than her pelvis! Do it!" wrote Photoshop Disasters.

"Dude, her head's bigger than her pelvis," gasped Boing Boing.

Naturally, both blogs saw a torrent of comments of people laughing, pointing, and noting that this kind of photoshopping is exactly the sort of thing that drives women's self-esteem down the tubes. But that was about as much publicity as the posts got.

Enter an apparently cranky Ralph Lauren. Claiming that the blogs infringed on its copyright in the hideously doctored photo (and presumably also fearing that the label would see a backlash for promoting emaciation chic even more blatantly than the fashion industry's norm), Ralph Lauren sent DMCA takedown notices to the hosts of both blogs. (You can see a copy of the notice sent to Boing Boing at the Berkman Center's own Chilling Effects Clearinghouse.)

Photoshop Disasters' host, Blogspot, caved automatically, as is sadly the norm. (The post is still available through Google's cache, fortunately.) But Boing Boing and its ISP, Priority Colo, held firm, arguing that posting the photo is protected as fair use.

I certainly agree with them. Breaking down the four fair use factors of Section 107 of the Copyright Act, they seems to weigh heavily in favor of Boing Boing.

The first two factors strongly support a fair use defense. The purpose of the post was clearly, clearly criticism, so we've got a transformative use, which greatly favors Boing Boing. The photo, as a commercial depiction of goods, is arguably a more factual sort of work (artificial emaciation aside), which also weighs in favor of fair use.

The second pair of factors are a little trickier, but ultimately I think Boing Boing wins on them as well. While the blog did copy the entirety of the copyrighted work, which is generally a strike against fair use, the work here is a photo. Photos just don't lend themselves to "excerpts" the way text and video do. And given the nature of its commentary, Boing Boing had to copy the entire photo in order to make its point intelligible, so I think they're okay here.

And as for the "effects on the market" factor, yes, the blog posts might harm Ralph Lauren's sales. But as Chilling Effects' Wendy Seltzer told Boing Boing, "If criticism diminishes its effectiveness, that's different from the market substitution copyright protects against." In other words, if Boing Boing hurts Ralph Lauren's market by pointing out Ralph Lauren photoshops its models to look like Jack Pumpkinhead, tough noogies.

So, confident in its fair use claim, Boing Boing posted a promise to Ralph Lauren that no, it would not takedown the scary-stick-lady photo. Instead, it would mock Ralph Lauren mercilessly.

Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models.

The combination of threatened legal action and Boing Boing's righteous recalcitrance has turned this into just the sort of negative publicity bonanza that Ralph Lauren almost certainly hoped to avoid by filing the DMCA takedown. The legal foofaraw drew the attention of ABC News, FOX News, The Times of London, Forbes, and various other mainstream news agencies who all, of course, reposted the freakish photo. And the blogosphere was all over it too, including Jezebel, The Register, Techdirt, The Huffington Post, and a host of others. (Reproducing the photograph for purposes of news reporting and legal commentary is also a highly transformative use, and the other considerations discussed above largely apply in this context as well.)

With the photo now on full display across the media world, Ralph Lauren had to fess up to the photoshopping. And indeed it did, reports Extra.

On Thursday, Polo Ralph Lauren released the following statement about the retouched ad: "For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."

Sadly, they have yet to apologize for their frivolous DMCA takedown requests, says Boing Boing.

But on the whole, I think Ralph Lauren got just what it deserved. So kudos to you, Ralph Lauren! Through your hamhanded legal threats, you have put the spotlight on the designing world's self-destructive vision of women while simultaneously highlighting the foolishness of trying to silence valid, legally protected criticism. Here's to a job well done!

Think Twice Before You Dust Off Those Mix Tapes

Helen Fu — Thu, 08 Oct 2009 19:17:32 -0400

Digital technologies have allowed people to share music in unprecedented ways, and earlier this week recording artists, music industry leaders, and policymakers gathered at George Washington University in Washington, D.C. for the Future of Music Policy Summit sponsored by the Future of Music Coalition to talk about their impact on the music community. Also on the agenda were panels on how recording artists can use digital technology and social media to share and promote their work. Unfortunately, some of our intuitions of what kinds of sharing are okay don't always square with the law of copyright. The result has been confusion about the boundaries for legal conduct. For instance, we recently received this inquiry from a reader: "Can I post a mix tape on my blog to highlight a new recording artist? Can I allow visitors to download my mix tape?"

The simple answer to both questions is "not without permission," but there are steps you can take to make the content available to the public on your blog. The Copyright Act gives the author of a sound recording (say, a recording artist) exclusive rights to make reproductions, prepare derivative works, distribute copies to the public, and to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 114. Making a mix tape may implicate several of these exclusive rights. Putting the mix tape on your website for download would be distribution of the work to the public. A visitor to your blog downloading the file would be another instance of copyright infringement.

But wait, what about all of those mix tapes we exchanged with friends and family back in the day? Was all of that copyright infringement? No: many of those analog mix tapes were covered by the safe harbor established in the Audio Home Recording Act of 1992 ("AHRA"), which barred infringement actions for private, noncommercial musical recordings. When it comes to digital mix tapes however, your computer isn't an audio recording device covered by AHRA. See RIAA v. Diamond, 180 F.3d 1072, 1078 (9th Cir. 1999). More importantly, when a mix tape is posted on a blog for any and all to access and download, it isn't a private use anymore, but a distribution to the public. Analog mix tapes are different in kind from what I'll call "digital mix tapes" not only in the scale of distribution, but also in the quality of the reproductions. Because of those differences, posting of digital mix tapes would likely run afoul of the many cases prohibiting file sharing and other forms of individual copyright infringement.

Can making and distributing a digital mix tape be permissible under fair use? Section 107 of the Copyright Act identifies four non-exhaustive factors that courts consider in determining whether a use is fair. Unfortunately, it's hard to predict the outcome of the fair use test, but it's unlikely that posting entire songs on your blog would be considered fair use. Still, there hasn't been much litigation on the fair use of digital mix tapes. In the past, there was little litigation in the area because the inherent drawbacks in analog recording didn't present a real threat to the recording industry. Now, the action is in the area of file-sharing online where, as we've all seen, the RIAA has been quite aggressive.

How can a blogger play it safe? For the most flexibility, get explicit permission from the copyright holder for what you'd like to do. For some genres of music that are dependent upon word-of-mouth to attract the attention of the music industry, recording artists may be willing to allow mix tapes to be created, sold, or their recordings distributed in other ways. The only way to be sure, though, is to contact the copyright holders and get their permission.

This approach is complicated by the reality that many recording artists assign copyright in their sound recordings to a third party when they sign with a label. For you, this means that you would need to make sure that you are getting permission from the actual owner of the copyright who may not be the recording artist. In addition, if the recording artist did not write or compose the music recorded, you would also need to obtain a license to use the underlying musical composition. Still, contacting the recording artist or the publicist for that artist would still be a good place to start in identifying the people from whom you need to obtain the appropriate licenses.

Alternatively, you can link to the material if it's already available on the web. You can either provide links to where authorized copies of the musical files can be found online, or you can make playlists using services that use URLs to music files hosted elsewhere. The benefit of using these services is that you can present to your readers a playlist of the music you like, rather than just a set of links. Services like playlist.com and blip.fm also make an effort to comply with copyright law by only linking to authorized copies and obtaining the necessary clearances if they're hosting the music themselves.

CCMixter allows you to download, remix, and share music that has been licensed under Creative Commons licenses. Using CC licensed music means that you can post a mix for your visitors to download, so long as your use complies with the CC licenses that apply to those tracks. Usually, this means that you must provide attribution to the original creator and distribute your work under the same CC license that the original work was published under. Often, it also means that your use must be noncommercial. For more information, see this page on the various types of CC licenses offered.

Photo courtesy of Flickr user Phil Gyford, licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0 Generic license.

New FTC Rules Aim to Kill the Buzz on Blogs

Eric P. Robinson — Thu, 08 Oct 2009 11:14:38 -0400

On October 5, the Federal Trade Commission issued new guidelines (large pdf) on advertising involving endorsements and testimonials. The guidelines, which are due to go into effect on December 1, have caused a stir among bloggers, journalists, and new media types because they appear to place significant requirements and restrictions on blogs and social media. Most notably, they suggest that bloggers or other consumers who "endorse" a product or service online may be liable for civil penalties if they make false or unsubstantiated claims about a product or fail to disclose "material connections" between themselves and an advertiser. (Although Richard Cleland, assistant director of the FTC's division of advertising practices, told Fast Company that the Commission will focus on warnings and cease-and-desist orders, rather than monetary fines, and told PRNewser that the Commission will target advertisers for violations, not bloggers. Another FTC official reiterated this.)

While the guidelines are complex and their application in marginal cases is uncertain, they appear to require bloggers (and those who post on other social media, such as Twitter and Facebook) who receive a free product or service in exchange for writing a favorable review to disclose the freebie or face the possibility of an FTC enforcement action. Most surprisingly, the FTC appears to hold bloggers and social media to a different standard than the traditional press when it comes to "material connections": the guidelines expressly state that "bloggers may be subject to different disclosure requirements than reviewers in the traditional media." (Cleland expands on this in an interview with blogger Edward Champion.)

One chief goal of the FTC guidance is to regulate "buzz marketing" — in which "influencers" promote a brand through apparently noncommercial means, such as recommending a particular drink at a bar. These "influencers" can be paid in the traditional sense, or instead they can be offered special perks and benefits, or given free samples for their own use or to give away to others. The key is that the "influencers" do not reveal the arrangement, so that their use and interest in a product seems to be a genuine personal preference. This practice has grown since the late 1990s, and is now used in both person-to-person interactions, and in various forms of social media. (There's even a "Buzz Marketing with Blogs For Dummies" book.) This focus on "buzz marketing" may account for why online media finds itself in the FTC's cross-hairs while offline media does not.

The new guidelines are not technically rules. According to the FTC's press release, they are "administrative interpretations of the law intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves." Nevertheless, the guidelines will serve as the basis for FTC enforcement actions, and as a practical matter few online speakers would be wise to ignore them. So let's start with a look at the nuts-and-bolts.

As I previously noted when they were in draft form, the guidelines contain examples of how the FTC views certain hypothetical fact situations. In the final guidelines, five of these examples involve blogs and social media:

What's an "Endorsement"?

There's no disclosure requirement under the guidelines unless a statement or post qualifies as an "endorsement." In the general introductory provision (§ 255.0), the FTC gives an example with three factual variants in an attempt to clarify when a statement qualifies as an "endorsement":

Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog’s fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides.

Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.

Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 59-60.

This example suggests that there must be some sort of relatively formalized quid pro quo by which the blogger receives benefits for her reviews in order for an "endorsement" to take place. Conversely, if a blogger receives a benefit that is available to anyone and there is no quid pro quo (think of the computer coupon), then we don't have an endorsement and no disclosure requirements apply.

"False or Unsubstantiated Statements"

A second example appears under § 255.1(d) of the guidelines. This section says that both advertisers and endorsers may be held liable for "false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers."

"Example 5" under this provision, rewritten slightly from the draft version, reads as follows:

Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger’s endorsement.

The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services.

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 63-64 (emphasis added).

Common sense suggests that it's a bad idea to make unsubstantiated claims about a product or service in the course of paid endorsement of the product. But what was once an issue of a blogger's ethics could, under the new rules, be the basis of an FTC enforcement action against the blogger. From the perspective of the advertiser, Eric Goldman points out that liability might run afoul of Section 230, but this would be limited to situations where the advertiser qualifies as a "provider or user of an interactive computer service" with respect to the blogger's content. 47 U.S.C. § 230(c)(1). Also, note the formality of the relationship between the blogger and the advertiser in this example, coming as it does through a "blog advertising service."

Disclosure of "Material Connections"

Three other examples appear under § 255.5, which requires disclosure of "material connections." One of these examples — slightly edited from the draft version — involves a video game blogger:

Example 7: A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 79-80 (emphasis added).

Here, the relationship between the blogger and the advertiser is more tenuous than above, and the compensation is more casual and arguably necessary in order to write the review. But note that there is some established relationship between the parties. The FTC tells us that the advertiser has done the same thing in the past, suggesting a more stable quid pro quo relationship.

Another example involves a bulletin board poster touting his employer's products:

Example 8: An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 80 (emphasis added).

Another example under § 255.5 deals with social media like Twitter. Example 3 under this provision discussed a hypothetical "well-known professional tennis player" appearing on a television talk show and attributing the recent improvement in her performance to "the fact that she is seeing the ball better than she used to, ever since having laser vision correction surgery at a clinic that she identifies [and later in the interview laudes] by name." Example 3 states that the player must disclose that she is paid for speaking publicly about her surgery when she can do so. The example also states that the clinic (the "advertiser") must be able to substantiate the athlete's claims as a typical result.

The example continues:

Assume that instead of speaking about the clinic in a television interview, the tennis player touts the results of her surgery – mentioning the clinic by name – on a social networking site that allows her fans to read in real time what is happening in her life. Given the nature of the medium in which her endorsement is disseminated, consumers might not realize that she is a paid endorser. Because that information might affect the weight consumers give to her endorsement, her relationship with the clinic should be disclosed.

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 77 (emphasis added).

Here, the important point seems to be that the move to non-traditional forms of media may obscure the otherwise obvious paid relationship between the celebrity and the advertiser, and therefore disclosure is required.

It's hard to generalize too much from these examples, but they suggest that the FTC is mostly concerned about situations where the online speaker is not acting independently from the advertiser, but rather writing positive content as part of somewhat formalized quid pro quo relationship. Whether or not a post constitutes an "endorsement" will no doubt be central. The FTC's commentary gives us some more insight on this critical point:

The Commission does not believe that all uses of new consumer-generated media to discuss product attributes or consumer experiences should be deemed “endorsements” within the meaning of the Guides. Rather, in analyzing statements made via these new media, the fundamental question is whether, viewed objectively, the relationship between the advertiser and the speaker is such that the speaker’s statement can be considered “sponsored” by the advertiser and therefore an “advertising message.” In other words, in disseminating positive statements about a product or service, is the speaker: (1) acting solely independently, in which case there is no endorsement, or (2) acting on behalf of the advertiser or its agent, such that the speaker’s statement is an “endorsement” that is part of an overall marketing campaign? The facts and circumstances that will determine the answer to this question are extremely varied and cannot be fully enumerated here, but would include: whether the speaker is compensated by the advertiser or its agent; whether the product or service in question was provided for free by the advertiser; the terms of any agreement; the length of the relationship; the previous receipt of products or services from the same or similar advertisers, or the likelihood of future receipt of such products or services; and the value of the items or services received. An advertiser’s lack of control over the specific statement made via these new forms of consumer-generated media would not automatically disqualify that statement from being deemed an “endorsement” within the meaning of the Guides. Again, the issue is whether the consumer-generated statement can be considered “sponsored.”

Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255), at 8-9 (emphasis added).

Rules Only Apply to Social Media

As noted above, a particularly remarkable feature of the "material connections" disclosure requirement is that it apparently does not apply to traditional media to the same extent that it does to online media.

The FTC's justifications for this distinction are not entirely clear, but they appear to rely on two assumptions. First, the FTC assumes that traditional media exercises "independent editorial responsibility" in writing reviews and that bloggers and social media users may not. The FTC even suggests that reviews published on "an Internet news website with independent editorial responsibility" would be treated like those published in a traditional brick-and-mortar periodical. Guides, at 47 n.101 (emphasis added). Second, the FTC seems to assume that freebies for traditional news reporters are "reasonably expected by the audience," whereas freebies for bloggers and influential Twitterers are not. These assumptions may be justified when the comparison is between sleazy buzz marketers and much of the traditional press, but they're less convincing when the comparison is between serious online commentators and the offline press.

First Amendment Concerns

Even if the blog postings in these situations can be considered commercial speech -- an arguable point -- which can be subject to more regulation than other forms of speech, see Va. State Bd. of Pharmacy v. Va. Consumer Council, 425 U.S. 748 (1976), such regulations must directly advance a substantial government interest and may not be more extensive than necessary to serve that interest. See Central Hudson Gas & Electric Corp. v. Public Svc. Comm'n, 447 U.S. 557 (1980). Even if the government interests here are substantial, can the new rules directly advance these interests when they rest on suspect assumptions and faulty generalizations about speech online? Moreover, the difficulty in drawing the line between what does or does not constitute an "endorsement" may mean that the regulations regulate or (at the very least) chill noncommercial speech, which is entitled to full First Amendment protection. Both Dan Gillmor and Jeff Jarvis convincingly argue that the new FTC guidelines misunderstand the conversational character of online speech. It may prove very difficult to determine which of these conversations are noncommercial expressive speech and which are simply buzz marketing.

Killing the Buzz?

So, will these new guidelines about endorsements and disclosures of payments fly? While there's been a fair amount of handwringing over the new rules, so far no one's stepped up to challenge them in court. This is not surprising because it's only been a few days since the final guidelines were released. But, it seems that too many vested interests and established practices are at stake for someone not to take a swing at the new rules in court. (It wouldn't be the first time that FTC rules have been challenged.)

It may be that, by trying to eliminate the buzz in marketing — both online and off — the FTC may have stirred up a hornets' nest.

Photo from Carl Hayden Bee Research Center, U.S. Dept. of Agriculture Agricultural Research Service (http://www.snarc.ars.usda.gov/main/site_main.htm?modecode=53-42-03-00).