CMLP International Blog

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.

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

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.)

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

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.

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.

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.

(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.)

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!

His Identity Revealed, Publisher of Glenn Beck Parody Site Comes Out Swinging

Sam Bayard — Thu, 01 Oct 2009 11:10:04 -0400

We reported earlier this month that Glenn Beck filed a UDRP action against glennbeckrapedandmurdereda younggirlin1990.com seeking transfer of the domain name. Beck alleges that the website, which instantiates an Internet meme born on Fark.com that pokes fun at Beck's rhetorical style, is improperly using his trademarked name. This week, First Amendment bad ass Marc Randazza filed a response brief on behalf of Isaac Eiland-Hall, the previously anonymous individual behind the site.

As you might imagine, Mr. Eiland-Hall is not taking this whole thing lying down (from the brief):

None of the factors in ¶4(b) of the UDRP apply. There is no evidence that Respondent [Eiland-Hall] has registered and used the domain name for the purpose of selling it for profit. Respondent is not engaged in a pattern of cybersquatting. Respondent did not register the domain name to disrupt the business of a competitor, he registered it to pay homage to an existing internet meme that poked fun at Glenn Beck, to poke fun at Glenn Beck directly, and to express his political opinions.

There is no indication that the Respondent has intentionally attempted to confuse anyone searching for Mr. Beck's own website, nor that anyone was unintentionally confused — even initially. Only an abject imbecile could believe that the domain name would have any connection with the Complainant.

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Responsdent's website wondering "where did all the race baiting content go?" We are here because Mr. Beck wants Respondent's website shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style. Beck's skin is too thin to take the criticism, so he wants the site down. Beck is represented by a learned and respected legal team. Accordingly, it is beyond doubt that his counsel advised him that under the First Amendment to the United States' Constitution, no action in a U.S. Court would be successful. . . . Accordingly, Beck is attempting to use this transnational body to circumvent and subvert Respondent's constitutional rights.

Randazza's brief is a fun read — I don't think I've every seen formal legal argument drawing on Mr. Spock Ate My Balls, Downfall, and ALL YOUR BASE ARE BELONG TO US before, but the brief pulls it off with style and still manages to make very serious arguments about Eiland-Hall's right to use Beck's name as part of a non-commercial criticism site. [Full disclosure: Marc Randazza blogs for CMLP and is a good friend. Hell, I even went to his family's annual wine-making party in Gloucester this past weekend, so sue me if I'm not totally objective.]

One aspect of the case that especially interests me is the unmasking of Eiland-Hall, who created the website and registered the domain name anonymously using the WhoisGuard domain privacy service. Beck initially filed the UDRP complaint against WhoisGuard because he didn't know who was behind the site. The details of what happened next aren't entirely clear to me, but either WhoisGuard divulged Eiland-Hall's identity to Beck, or Eiland-Hall came forward voluntarily to fight for his domain.

I hadn't thought of it before, but UDRP actions might constitute a significant loophole in First Amendment protection for anonymous speech. That is, filing a UDRP action just might be a convenient way for an (allegedly) aggrieved party to identify an anonymous online critic without jumping through the hoops imposed by many U.S. courts. Indeed (and this is pure speculation), Beck might have brought this UDRP action precisely to get Eiland-Hall's identity in order to file a defamation lawsuit against him in another forum.

Let's look at the legal framework. Section 3.7.7.3 of ICANN's Registrar Accreditation Agreement obligates accredited domain registrars to promptly disclose the identity of licensees when confronted with "reasonable evidence of actionable harm." It's worth reading the whole clause to understand what I'm talking about:

3.7.7.3 Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly discloses the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.

Now, it's not entirely clear that anyone other than ICANN can hold a registrar to its agreement on this point (Section 5.10 says that the agreement "shall not be construed to create any obligation by either ICANN or Registrar to any non-party to this Agreement"), but this doesn't mean that registrars who run privacy services can't choose to honor their obligations by disclosing identifying information about their customers in situations like this.

In fact, clause 8 of the WhoisGuard Service Agreement says that NameCheap, Inc., the company that runs Eiland-Hall's service, can do precisely that:

Notwithstanding your purchase of the WhoisGuard™ Privacy Protection Services, we reserve the right in our sole judgment and discretion to disclose your personal protected information in the event any of the following occur:

If the Protected Domain(s) is (are) alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties . . .

Lest you think it's just WhoisGuard, GoDaddy/DomainsbyProxy's Domain Name Proxy Agreement says something similar:

You understand and agree that DBP has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to either:

. . .

2. Reveal Your name and personal information that You provided to DBP when:

A. Required by law, in the good faith belief that such action is necessary in order to conform to the edicts of the law;

B. To comply with a legal process served upon DBP; or

C. In order to comply with ICANN rules, policies or procedures

So, it looks like domain privacy services can (and probably do) turn over registrants' personal information without a subpoena, court order, or other formal legal process when someone makes a cybersquatting/UDRP-type claim. No doubt this is not surprising to many trademark lawyers out there, but many consumers might be surprised to know that the "privacy" supplied by these services goes away so easily when trouble comes along.

This doesn't mean that these companies don't provide valuable services — they save customers from having to publish their email addresses and other personal information in Whois registries, with the attendant flood of spam, harassment, and the like. It does mean that domain privacy services aren't really meant to make it difficult for someone to sue you if they think your domain name violates their rights, even if that someone is Glenn Beck and his trademark claim is "preposterous."

Photos courtesy of Wikimedia Commons.

Anthropomorphizing Intrusion: Google Street View and the Armies of Cute

Andrew Moshirnia — Thu, 24 Sep 2009 12:39:42 -0400

A basic lesson of history: a spoonful of cute helps the social medicine go down.

Bert the Turtle prepared us for Global Thermo-Nuclear War. Bugs Bunny and Donald Duck helped us hate the Nazis and (briefly) like Stalin. Now Google has harnessed the power of cute to sell Google Street View. I think the approach will work in Japan and America, for Europe I’m not so sure.

Brief background: Google has decided (apparently) to photograph every inch of the Earth. To accomplish this feat, it has enlisted a fleet of camera-laden vans to create Google Street View. This approach occasionally captures private individuals in private settings (think the sexual and the scatological, or better yet, think both). Americans, aside from some crazy homeowners, have generally embraced this possible invasion of privacy. Europeans and the Japanese have been less receptive.

In Japan, the height of the cameras was problematic, because it allowed Google to see over fences and to capture too many private moments. Google responded by lowering the cameras and junking the film for the twelve Japanese cities it had already canvassed. But even that wasn’t enough to sate Japanese privacy groups. So Google, beset by opponents in a land obsessed with the cute, has broken out the big guns: Adorable Stop Motion Animation!

My God, I’m not sure this could get more cute: A mix of the anthropomorphic, the old-timey (love the ancient telephone and paint-brush), and the new fangled. If any more adorable was packed into this video, I’m sure it would reach critical mass and destroy us all in a blinding light of kitties and bunnies.

My bet is that this is going to go over gangbusters with the Japanese. But I’m not so sure this approach will win over citizens of the EU. The Greeks and the Brits don’t have anything comparable to otaku culture.

Unfortunately for Google, the cute approach might be even less successful in Switzerland. The country has problems with street view and has been inoculated against the twisted synergy of cute mascots tackling serious social issues. The far-right Swiss People’s Party has been using black sheep and crows to represent shifty foreigners for a few years now (see below for terrific fascist propaganda, I especially like the unsubtle focus on color . . . stay classy SVP!).

I think that Google has already recognized this cartoon immunity and found another way into the European heart – Tricycles! Yes, that’s right, the Google Street View (quasi-child-rapist) Van has been replaced in many European locales with the goofy rickshaw. While this change was ostensibly made to facilitate travel on narrow roads, I think it also seriously upped the CQ (cute quotient) of Google’s omni-photographer.

There has actually been some fascinating research into the importance of the cute in protecting nascent protest groups in developing countries. When a protest video is intermingled with lolcats, a regime must block access to sites filed with cute animals and the political cost can be enormous. It is not hard to imagine the same reaction occurring in Japan or Europe (kick out Google and the cute commercial camera-thing and wacky bicyclist will die).

I can only hope that Google’s rediscovery of the power of cute inspires other groups to unleash the dogs of cute. For crazy Republicans, meet Kenyatta, the phantom Birth Certificate! Come on Democrats, how’s about a singing needle pushing for health care reform (Hi Kids, Say Hello to Mr. Prick!).

(Andrew Moshirnia is a second-year law student at Harvard Law School. He is tired . . . so very very tired. He hopes you enjoy the anti-immigration SVP propaganda.)

Anthropomorphizing Intrusion: Google Street View and the Armies of Cute

Andrew Moshirnia — Thu, 24 Sep 2009 12:39:42 -0400

A basic lesson of history: a spoonful of cute helps the social medicine go down.

(Andrew Moshirnia is a second-year law student at Harvard Law School. He is tired . . . so very very tired. He hopes you enjoy the anti-immigration SVP propaganda.)

Canadian Court Rejects Defamation Liability for Hyperlinks: Crookes v. Newton

Sam Bayard — Wed, 23 Sep 2009 17:15:20 -0400

IP Osgoode alerts us to an interesting decision from the Court of Appeal for British Columbia that has important implications for online speech in Canada. In an opinion issued earlier this month, the Canadian court held that Jon Newton of p2pnet news could not be held liable for linking to allegedly defamatory articles written by others about politician Wayne Crookes. The appellate ruling upheld a lower court decision last fall dismissing Crookes' case against Newton.

In much the way CMLP often does, in 2006 Newton published a blog post about a defamation lawsuit brought by Crookes against Michael Pilling, who runs OpenPolitics.ca. In his post about the lawsuit, Newton linked to the allegedly defamatory articles in question on OpenPolitics.ca, as well as to an article posted on another website. Newton did not reproduce or comment on any of the allegedly defamatory material. Here's the important passage:

Under new developments, thanks to the lawsuit, I've just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.

¶ 88. My underlines represent Newton's original hyperlinks to the allegedly defamatory articles.

The Canadian decision focuses on whether providing a link to defamatory material can constitute "publication" of that material, one of the essential elements of a defamation claim. All three Justices agreed, "the mere fact [Mr. Newton] hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites." ¶ 78. But, they also agreed that a hyperlink could constitute "publication" of third-party content under some circumstances, if the facts "demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents." ¶ 84. The court gave as an example the statement "N is described at [hyper link]," suggesting that this might "incorporate a libel so as to be defamatory." ¶ 84.

Justices Bauman and Saunders found that, under the circumstances, Newton had not published the offending articles by linking to them. They noted that Newton made no explicit invitation to follow the links, no endorsement or adoption of the other sites' content, and the discussion of litigation in his post "at a minimum alert[ed] the reader to the potential for untrue content or disputed commentary." ¶ 89. Dissenting, Justice Prowse found that Newton had invited or encouraged his readers to follow the links. Her logic is a little mysterious, but Justice Prowse seemed to suggest that this encouragement or invitation flowed from the fact that the article dealt with free speech and referenced a defamation lawsuit (so compelling I guess readers just couldn't resist). ¶¶ 70-71.

The majority and dissent also disagreed about whether the court could infer that readers in the jurisdiction actually followed the links, based solely on the post's 1,778 page views.

While this a big win for Mr. Newton, the case itself must leave Canadian bloggers and online publishers lukewarm because of the clear implication that linking to third-party content can support defamation liability under some circumstances. Indeed, the court paid a lot more attention to specific facts and details (was there invitation or encouragement? did readers follow the links?) than it did to big picture policy questions like: Can we expect online publishers to verify the statements made in every article they link to? What will happen to debate and discourse on the Internet if we impose this responsibility on them? Granted, the Justices rejected a per se rule that linking = publication, so perhaps some of these concerns were hiding under the surface.

From a comparative perspective, online publishers in the U.S. would appear to have it much easier. Section 230 of the Communications Decency Act (“Section 230”) almost certainly immunizes web publishers against defamation liability for linking to third-party content, regardless of whether they invite or encourage readers to follow the link. There's not a ton of case law on this point (in fact, nothing addresses the invitation or encouragement point in the linking context, to my knoweldge), but the plain language of Section 230 seems to fit linking as well as it fits hosting user comments.

One U.S. case that might be helpful is Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006), in which the California Supreme Court held that Sections 230 protected Rosenthal for posting an allegedly defamatory article she received in an email from a co-defendant. The court rejected any distinction between "actively selecting" defamatory content versus "passively hosting" it, reasoning that a contrary approach would "tend to chill the free exercise of Internet expression, and could frustrate the goal of providing an incentive for self-regulation." Id. at 527-29. A subsequent lower court decision, McVey v. Day, 2008 WL 5395214 (Cal Ct. App. Dec. 23, 2008) (unpublished), applied Section 230 to bar a defamation claim based on a link to a website provided by the defendant in an email, noting that, under Barrett, intermediaries who simply pass on information accessible on the Internet are immune from liability under Section 230. Id. at *14.

An interesting query is how a U.S. court would deal with the "endorsement" or "adoption" theory the B.C. case embraces. This might take an online speaker outside of Section 230 to the extent the endorsement or adoption is no longer "information provided by another information content provider." 47 U.S.C. § 230(c)(1). We're curious whether our readers know of any U.S. cases — online or offline, Section 230 or not — that address a speaker's liability for endorsing or adopting someone else's content, without the speaker actually having reproduced the allegedly defamatory statements in question.

(Photo courtesy of Ian Muttoo on Flickr. Licensed under a CC Attribution-Share Alike 2.o Generic license.)

Australia's Facebook Five and the Right to Whinge About Your Boss Online

Arthur Bright — Fri, 18 Sep 2009 13:40:40 -0400

It's hard to be a prison guard in Australia, and not just because the entire country is a penal colony — zing! Apparently you run the risk of being fired for griping about your job in a private Facebook group, even if other corrections officers are the only ones reading your complaint. Such is the threat looming over those officers whom the Australian press has dubbed the Facebook Five. (Although apparently there are six of them. Go figure.)

According to the Sydney Morning Herald, the corrections officers set up the Facebook group last October and used it as a place to vent about the New South Wales ("NSW") government's plans to privatize some of the state's prisons. They also used the group to gripe about their boss, NSW Corrective Services Commissioner Ron Woodham. According to the Associated Press, the Facebook group was private, so that only those invited to join could view posts.

Somehow Woodham caught whiff of what was being written in the group. The Herald says that the six officers were informed that the Corrective Services Department was considering firing them based on the "bullying" and "harassment" that they were involved in on Facebook. Naturally, the officers were less than pleased, and their union, the Public Service Association of New South Wales ("PSA"), has take the issue to the Industrial Relations Commission ("IRC") to halt the department's firing process and protect the officers' off-hours speech. PSA senior industrial officer Stewart Little lays out the union's position to the Herald:

"What people do in their own time is their own business and shouldn't be subject to misconduct," Mr Little said.

"Talking on Facebook is the same as people talking in the pub letting off steam but the department is trying to say it's like going on ABC News at night.

"We say it's somewhere in between the two, but much closer to the lower end of the spectrum."

Now, just based on common sense, the officers would seem to have a reasonable case. It's difficult to see that communication to a private group online, even if hosted by Facebook, constitutes a fireable offense. But I know very little about Australian law, so let's take a look at some of the talking heads cited for legal expertise by the various reports on the case. Quoth Australia's Computerworld:

Lecturer from the School of Communication at Deakin University, Ross Monaghan, says anybody with a social networking profile needs to think about both the personal and professional ramifications of what they post online.

"If what you’re putting online would embarrass you if it ends up on the front page of a newspaper tomorrow, don’t do it," Monaghan said.

"If people are putting defamatory comments online I think people have to expect that the employer will abide by the law."

Well, yes. But one wonders upon reading this whether Mr. Monaghan was being asked about the implications of posting to private spaces online. It sounds like he's just giving the usual warning about public posts. Not very helpful. So what did the Associated Press's experts say?

Peter Black, a Queensland state University of Technology lecturer on Internet law, said that writing something unpleasant about someone online "is different from a conversation over a cup of coffee or a barbecue because there is always a record kept in the online environment which is usually searchable."

Lawyer Stuart Cole-Morgan said a conversation on Facebook or MySpace with colleagues or about colleagues could legally be considered work-related.

"I think the workplace would be considered to extend that far and certainly if we look at activity such as sexual harassment outside the workplace, that has been considered to impact on work," Cole-Morgan told Australian Broadcasting Corp. radio.

Seriously, this is the AP's legal summary? I am unimpressed. But let's look at Mr. Black's comment first: that Internet is different from a conversation because it's recorded and searchable. Again, yes. But this doesn't tell us much beyond the painfully obvious. It certainly doesn't tell us anything about the legal issues involved in the case. How does searchability and permanence impact a public employer's ability to discipline its employees for off-hours speech?

On to Mr. Cole-Morgan's comment that the workplace could extend to the locale of work-related conversations. This is more helpful. It suggests that the department will argue that the officers were still "in the workplace" during their Facebook venting sessions, and as such, could be disciplined as if at work.

Still, this seems counterintuitive. After all, if there's one thing that is universal to all employees, no matter what nation, culture, or planet they're from, it's getting together after work and bitching about bosses. Cole-Morgan can't really be insinuating that every boss-slamming utterance to a coworker that occurs in an Australian pub, picnic, or rec room is legally "within the workplace," can he?

So from the press clippings, it's hard to assess how the Facebook Five (of whom there are Six) will fair in their case. Were they in the US, they'd have a much easier time of things. Pickering v. Board of Education, 391 U.S. 562 (1968), sets the standards for whether a public employee's speech authorizes the government to terminate his/her employment. Under Pickering's test, one first examines whether the speech at issue is on a topic of public concern. If it is, one then balances the employee's speech interest against that of the employer's interest in workplace efficiency.

Now, the prison system's privatization and wasted finances are almost undeniably of public concern. Thus, the officers would seem to easily meet the first prong of the test. As far as the second prong goes, it's unclear that the officers' intra-group complaints affected their performance, but it's entirely clear that they have a strong interest in speaking out on issues of public concern. And, in any event, it's hard to believe that the officers' venting online was any more problematic than if they did the same thing after hours in a pub. So, based on the evidence the news reports provide, it ought to be a slam-dunk for the officers.

But that's all just a mental exercise anyway, because the prison officers' case is under Australian law. Still, it might be useful to them to bring up some comparative international law, especially because Facebook's user base is international — one wouldn't need to change too many facts in this case to implicate choice of law concerns (say, if the Facebook group were not merely Australia-centric, but included corrections officers from around the globe who criticized the NSW plans). Anyway, the IRC's hearing is set to resume next Wednesday; it'll be interesting to see how this turns out.