Communications Decency Act Issues Raised in Recent Facebook Suit

Facebook is being sued for content it has posted according to an article in PC Mag.com.

http://www.pcmag.com/article2/0,2817,2353659,00.asp

A comprehensive discussion of issues around the Communications Decency Act of 1996, Section 230, is located here:

http://www.cdt.org/publications/policyposts/2008/4

An excerpt from this article by the Center for Democracy & Technology states:

"The four amicus briefs [filed by the CDT] essentially all argue for the same thing: a continued reading of §230 in the spirit that Congress intended and that a multitude of courts have so far followed. Any departure would otherwise stifle the provision's purpose and undermine industry strides towards responsible self-regulation. In those briefs, CDT argues that "intermediaries" - ISPs, websites, and online service providers that enable other people - Internet users - to post content onto the Internet should not be held liable for the content posted. To hold intermediaries liable would greatly chill their willingness to host online content created by others. To use a simple example, if the YouTube.com video sharing website had to be legally responsible for the content of the tens or hundreds of thousands of new videos posted to it each day, the site could not possibly continue to operate as an open forum for users' video expression."

The Citizens Media Law Project also provides a comprehensive overview:

http://www.citmedialaw.org/section-230

And, another excellent discussion on David Johnson's blog

http://www.digitalmedialawyerblog.com/2009/09/lessons_from_batzel_v_smith_no.html

High court approves injunction via Twitter

In the guardian.co.uk http://www.guardian.co.uk/technology/2009/oct/01/twitter-injunction

Additional DMCA Rulemaking Questions Received

I have, along with other DMCA rulemaking-hearing participants, received a second question set from the U.S. Copyright Office. The questions are premised by: "For purposes of the question below, please assume that the Register has decided to recommend an exemption to the prohibition for proposed classes 4A through 4H, 11A and 11B, or some portion thereof, relating to motion pictures on CSS-protected DVDs" and ask:

“From your unique perspectives, is there a limitation, either in terms of duration or percentage (or both), which could be incorporated into the definition of an exempted class of works?”

Specifically, the copyright office suggests the following language could possibly be used in the context of finished products (remixes) for crafting the new exemption:

“… the portions of any single work used shall be, collectively, no greater than x minutes in duration and represent no greater than y percent of the duration of that work….”

The questions also acknowledge how creating a quantity limitation might be objectionable to some, but since this is not a redrafting of section 107, but is instead an administrative rulemaking proceeding, they are asking for suggestions from hearing participants nonetheless. They state:

“Again, we recognize that for purposes of fair use, what may be a reasonable duration in one case will not necessarily be a reasonable duration in another case, we are not proposing to codify the fair use doctrine in this rulemaking proceeding. However, this is a regulatory proceeding and for the purposes of promulgating a regulation governing exemptions from the prohibition on circumvention, we are inclined to believe that more specific limitations are advisable so that, at least for purposes of predicting liability under section 1201(a)(1), users will find sufficient guidance in the regulatory text.”

The questions were emailed to hearing participants Friday August 21, 2009 at 5:38 pm, EST. Responses are due September 8, 2009 by 5 pm.

I am going to DC . . .

http://beyondwordsblog.com/2009/04/23/professional-writing-professor-to-testify-about-copyright/

Berkman Center Provides Info on How To Blog Anonymously

While I don't encourage anonymity in digital writing because I'm strongly in favor of accountability, in some places you cannot say what you think about political events because if you do you could go to jail or even worse. So, for those who feel the need to blog anonymously, the Berkman Center has some advice.

http://blogs.law.harvard.edu/idblog/2009/03/25/how-to-blog-anonymously/

The Obama Hope Poster Case

NPR has conducted a series of interviews with the interested parties. I include a link to the interview with law professor Greg Lastowka.

http://www.npr.org/templates/story/story.php?storyId=101187066

To clarify his discussion - the Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585 case never actually held 2 Live Crew's use was fair use, but instead suggested the use might be fair use, and sent it back down to the lower court for a determination. To quote: "Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. " Notice the word "may." http://www.law.cornell.edu/supct/html/92-1292.ZS.html

The four factors are not applied as willy nilly as might be suggested in the interview.

David Nimmer (2003), a leading intellectual property scholar, conducted a study on copyright cases decided between 1994 and 2002, and found 90% of the time, if three of the four factors are found in favor of fair use, fair use is affirmed. One cannot generalize his findings though, because he did not randomly select the 60 cases he examined, nor did he analyze all reported decisions. Overall, of the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277). Nimmer also analyzed percentage correspondences between each of the four factors and a favorable determination with correspondences ranging from 42% correspondence to factor two, and 57% correspondence to factor four, in the context of overall favorable findings. He states across all four factors, there is a 51% correspondence to a favorable legal outcome.Nimmer, D. (2003). “Fairest of them all” and other fairy tales of fair use. Law & Contemp. Probs., 66, 263-287.

There's other copyright and non-copyright issues as well other than the "fair use" claim. (I have not read the case but according to NPR, the potential copyright infringer is the one who filed the case for some kind of declaratory relief - always problematic because whoever filed the case has the burden -- I always think of this as if you are going to start the problem, then you will have the burden of proving yourself correct).

If I were arguing against the AP, I’d assert that the Obama photograph is not original. Per copyright law, in order for an artifact to be copyright protected, it must be an “original work of authorship fixed in any tangible medium of expression.” http://www.copyright.gov/title17/92chap1.html#102

Also note that “fixed” means fixed with authorization. http://www.copyright.gov/title17/92chap1.html#102

Then there is right to publicity issues going against AP:
http://www.publaw.com/rightpriv.html

Then of course, I’d recommend the AP lawyers read chapter 7 of this book when it is published in 2 months.
http://www.sunypress.edu/details.asp?id=61789

:)

Copyright owner obtains maximum statutory damages, compensatory and punitive damages, and attorneys' fees in an Oct. 21 ruling

Communication Decency Act Shields Wikipedia from Defamation Charge

According to an article by John Timmer, published to arstechnica, a judge has held against a publishing agent who filed a defamation lawsuit charging numerous people and entities, including Wikipedia with defamation. To save the day, the Communication Decency Act was brought into play by a New Jersey judge who "exempted Wikipedia from a defamation trial based on comments posted by its users." The Communication Decency Act contains provisions that protect websites from liability for user-generated content.

Timmer describes the case:

"The case was filed by a literary agent, Barbara Bauer, who apparently ran afoul of a small horde of Internet users . . . it seems likely her problems started when her name appeared on a list of the 20 Worst Literary Agents, hosted on the now-defunct site 20worstagents.com. According to accusations made there, Bauer was on the list because she'd inflated her credentials and never successfully closed a deal; she was also called a 'scam artist' and a 'con.'"

Other blogs picked up this discussion and exaggerated some of the terms used to describe Bauer. " Bauer quotes different blogs as referring to her as 'that lunatic.'" Eventually some of the statements about Bauer circulating on the web showed up in Wikipedia. This is how Wikipedia became a defendant in Bauer's lawsuit.

Section 230 of the Communication Decency Act says: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Judge Jamie S. Perri of New Jersey's Superior Court dismissed all charges against Wikipedia. Timmer's full coverage of the issue can be found here.

http://arstechnica.com/news.ars/post/20080813-judge-puts-defamation-lawsuit-against-wikipedia-to-the-sword.html

Understanding Your Legal Risks When You Blog or Publish Online

David Ardia of the Citizen's Media Law Project is going to be posting about the legal risks involved in publishing online. He's started out this posting series with an overview of the various legal risks that arise when writing in digital environments such as defamation, or unreasonably invading or exposing another's private matters. I recommend reading through these posts as they are published for anyone who writes blogs or webpages, or participates in social network sites.

http://www.citmedialaw.org/blog/2008/understanding-your-legal-risks-when-you-blog-or-publish-online

Ardia's posts are going to cover the material in the Citizen Media Legal Guide.

http://www.citmedialaw.org/legal-guide