Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Please understand that this affects all of us: journalists and whistleblowers most directly, but also those of us in the public at large who benefit from having crimes and malfeasance exposed. Without the ability to be anonymous, and the ability to approach trusted journalists who can bring governmental and corporate misdeeds to our attention, we will all be worse off.
The classification was designed to exempt then-nascent ISPs from the level of regulation that big broadcasters had to follow. Now it's a decade later and there are effectively no differences between the major ISPs and broadcasters - often they're owned by the same parents. But the FCC's regulations are still on the book, and while the court held that the FCC does have the authority to regulate utilities it can't both exempt the ISPs and also try to regulate them.
The obvious solution is to reclassify ISPs properly and continue to work toward providing a level playing field. But that would take some political courage in the face of heavy industry lobbying and howls from Congressional sock-puppets. So I'm not hopeful. The FCC might also appeal this decision but it's going to lose again if it does so.
Free speech (in the US, First Amendment) claims are somewhat tangential to Copyfight interests, but it's still important to understand how courts interpret things. First of all, you don't have First Amendment rights with regard to private interests, such as the corporations that make up the Copyright Cartel. Against a government you may, and lots of people assert that the government can't restrict speech. Entities that are publicly funded, such as libraries or public parks, usually have to follow the same restrictions as governments themselves.
In fact, courts have held that governments may restrict speech, but only under certain conditions. Among the most important of those are that the restriction must be viewpoint-neutral; that is, they can't restrict some speech and allow other speech based on the point of view expressed, though there are exceptions even here, for things like sedition and credible threats. And a government entity that wishes to restrict speech must tailor its restrictions as narrowly as possible, in order to serve (what the court recognizes as) legitimate interests such as maintaining public safety.
As I've mentioned in my posts on "Safe Harbor" it's crucial for the DMCA's application that a safe harbor claim be made on the basis of provider neutrality. If Verizon wants to give up its claim that it is a neutral provider, then it suddenly becomes liable for every bit of infringing content that flows over its pipes. Dear Verizon, have you gone batshit insane?
Not only would that lead to a renewed flood of lawsuits and complications, but it would raise a whole host of issues of whether or not Verizon is claiming some kind of ownership over the content that it provides. People who feel that Verizon is trying to claim some kind of ownership of their content may themselves be moved to sue. This is very dangerous ground to tread and I suggest that Verizon might want to read the position paper that Google recently had prepared on the editorial role of search result-provision.
The parallels are surface-obvious, but functionally subtle and vitally important. Google is in fact editing the Web to produce an organized set of results. Google chooses what sites to crawl, which to index, and how to organize the results for display. However, much as they might mislead you otherwise, Google isn't the Web. There's lots of stuff on the Web that isn't in Google (or any other search engine). Conversely an ISP like Verizon shouldn't care what is or isn't in the Internet. If I type a URL then either that resolves or it doesn't. There doesn't need to be any editorial judgment involved, and trying to pretend to edit the Internet is just daft.
It is necessary to make three observations about this decision's scope. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application.
That's disappointing, but not wholly unexpected. SCOTUS has declined to rule on the First Amendment issues of the FCC's policies before. I'm disappointed, as I believe that arbitrary restrictions on word choice - with or without prior notice - are the essence of government censorship that the First was designed to prevent and that the FCC remains an agency that is too far out of control. It needs to be reined in strongly, not invited politely to write a new ridiculous set of rules that will have to be litigated for another decade.
However, since the focus of this blog has shifted considerably in the last half-decade this will probably be my only post on this topic.
The court rejected Righthaven's claim that online excerpting was copyright-infringing action, and also noted that a site which permits user comments is not automatically liable for material posted in those comments, even if the site is not a formal candidate for DMCA Safe Harbor provisions.
Righthaven is often referred to as a copyright troll for its practices of suing far and wide on dubious legal theories; for example, see this Boingboing post from last December on Righthaven. Courts have steadily dismissed and dismantled the company's claims and legal strategies and the company is now in (financial) ruins. Good riddance to bad garbage.
The Globe and Mail has coverage of the issue, noting that there seem to be an increasing number of hoops for government scientists to jump through if they want to talk about their work to the media. The fear, of course, is that the intention behind all these new rules is to move away from science-based policy making. This is presumably because the science doesn't support the pet policies of those in power.
Audrey Waters noted for ReadWriteWeb that this is part of Anonymous' campaign targeting some of the most litigious "pay up or else" sites. Simmons' bluster about calling in the FBI and tracking down these crackers notwithstanding I get the feeling that this is really a tempest in a teapot.
Rich aged white rock dude makes stupid copyright lawsuit remarks, annoys people. See Metallica over in that old corner? Simmons can go sit with them. I don't expect any of them to catch on to the fact that suing your customers sucks as a marketing plan.
Nobody debates that Jay Baitler, an executive VP at Staples, sent out a mass email giving information about the causes for firing Alan S. Noonan. The ostensible purpose of the email was to remind employees to follow certain Staples procedures. But the cause for action was the inclusion in the email of details about the cause for firing that Noonan claims are defamatory.
Initially these claims were dismissed because MA law, like that of the US, provides "an absolute defense to a defamation action" based on the truth of the statement. This principle was established for the US in a 1964 SCOTUS decision known as New York Times Co. v. Sullivan. The situation is a bit complicated in the States because not only is there Federal law about defamation but many states also have relevant clauses in their constitutions and state law books. Even so, US District Court Judge Morris E. Lasker determined in his dismissal of Noonan's claim that MA law and US law were consonant on this matter.
However, Noonan appealed to the First Circuit, which recently reversed an initial upholding and instead allowed a claim to go forward for "actual malice" based on an obscure 1902 Mass. law. The three-judge panel reasoned that Noonan might be able to convince a jury that Baitler met a standard of ill will provided for in the law. Since Staples is a private company and Baitler is not himself a public figure, the argument is that different standards apply. In particular, the Sullivan decision refers to public officials and Noonan's lawyer is claiming that this decision does not have First Amendment implications.
That argument isn't convincing many people, and may still be reversed if the Circuit agrees to review the decision en banc. Meanwhile, news organizations are left scratching their heads over whether they can publish this story or whether that act of publication could itself bring a suit for "ill will."
Regardless of whether or not a paper or blogger could win such a suit, the mere possibility that it could be filed might chill publication of information, not least of all reporting on the incident itself. With so many newspapers teetering on the financial edge, the last thing they need is to spend thousands more on lawyers' fees.
CBLDF is asking authors, retailers, and other creative types to help as well:
If you're a creator or publisher, you can also donate some of your time
to the Fund by signing for them at conventions and events, donating
signed copies of your work, or something even more creative. If you're
a retailer, why not host a CBLDF fundraiser at your store or sign up for
I generally agree with what Gaiman has written. I think popular speech doesn't need defending. It's the edgy, unpopular, icky stuff that needs defending because that's what people will attack. And although Copyfight is not a free speech blog I do passionately believe that much great art is created out on those icky unpopular edges and if we do not defend the rights of people to be patrons of that art then we strip away a lot of what is of value in protecting the intellectual property of creative expression.
Long-time readers of this blog may remember more than a year ago when I started listening to Howard Stern because he seemed to be the FCC's favorite whipping target, including being subject to hidden standards, retroactive censorship, and other such idiocy. Regardless of what you think of the man or his show, I expect you'd agree no one should be subject to that. Part of Stern's frustration and what drove him to satellite radio was that his then-employers wouldn't stand up to the FCC for him.
Well, according to Mark Stern's blog on PC World, Fox Broadcasting has done what Viacom wouldn't and gone to bat for bad words. Specifically, the use of "fleeting" expletives. The judge agreed that the FCC's policy made no sense and was probably unconstitutional. Yay! Now to wait for the appeal.
Kopytoff quotes Digg co-founder Kevin Rose as saying:
You'd rather see Digg go down fighting than bow down to a bigger company. [...] If we lose, then what the hell, at least we died trying."
Which is noble sentiments, don't get me wrong, but misses the point. Digg isn't creating this controversy. Nor are Digg's 'readers' saying "keep on writing about this." Digg's readers are its writers and they're saying "stop messing with my/our stuff."
There are serious challenges to these kinds of models. The line between a 'crowd' and a 'mob' is very thin and organizations with deep pocketbooks and high-priced legal staffs are certainly going to continue to weigh in.
Looked at simplistically, a song is a string of words set to music. It's quite possible to write nonsense songs or songs containing nonsense words - just ask any parent of a small child.
So if a song happened to be a series of words and not-quite-words (hush you Scrabble players, "eff" is not a normal word) then that'd still be a song, copyrightable and protected in the usual ways, right? This is sort of bad news for the Cartel, because in this case the sequence of lyrics is the sung-out version of the key used to crack HD-DVD encryption. Oops.
I was strongly reminded of the "Gallery of CSS Descramblers" that appeared in response to the legal requirements to take down the DeCSS executable code tools. The Gallery contains many versions of the De-CSS algorithm, including at least one sung.
Code that cracks HD-DVDs probably isn't redistributable. Nor are you likely to be able to publish a Web page saying "Here's the key you can write into your own code to crack HD-DVDs." But a song? Song lyrics? Good luck getting takedown orders for those.
"Oh Nine Eff Nine" is currently available on YouTube at: http://www.youtube.com/watch?v=L9HaNbsIfp0
Prior to an hour ago I'd never heard of this blog, nor of the troubles of the KY state administration. But the blogsphere takes care of its own, and the censorship got mention in Daily Kos and Boing Boing, among other places. BlueGrassReport's author, Mark Nickolas, is probably well on his way to becoming a minor blog celebrity.
So what does this have to do with Copyfight? My eye was caught by Nickolas' use of a word I'd never seen before: blog-swarm. In Copyfight, we've debated around ideas of whether bloggers are journalists, whether they ought to be entitled to protections traditionally afforded to other kinds of journalists, and how the actions of bloggers are what make them journalists, not any particular label.
So when I saw "blog-swarm" images filled my mind of the old days when reporters would rush to cover a story, then rush to the nearest phone booth to call the story in. On the one hand, there's cachet in the blog world for having a story originally, or being the first to note something of import - the 'scoop'. On the other, there's a notion that a story deemed important enough to be carried in several major blogs is something that people ought to pay attention to. I think that's interesting and important and even if it's not particularly dignified to be part of a "swarm" it's kind of cool to try and throw my weight behind an effort to move one boulder of injustice and possibly, in doing so, to establish that yes, bloggers have that kind of weight to throw.
What brought this to my attention was the unattributed note in this week's Harper's Weekly Review, which I feel compelled to quote in its entirety in the hope that some clever reader can find the source and so that all the people whining to the FCC about bad words can now whine about this blog, too
An analysis of FCC decisions found that the following terms or phrases are neither indecent nor profane: "a lot of crap," "ass is huge," "ass," "bitch," "damn," "dick," "dickhead," "fire his ass," "for Christ's sake," "hell," "kick-ass," "kiss my ass," "my ass," "pissed off," "poop," "sex with a dog," "singers that suck," "sit their asses down," "sucked," "up yours," "wiping his ass," and "you suck."
There is EFF. But only so long as people like you join as members.
As part of the bloggers' rights campaign, EFF has posted what could be described as a Miranda Rights for Bloggers. It tells you what your rights are and how EFF is fighting to protect them. Here, a snippet to give you a taste:
You Have the Right to Blog Anonymously. EFF has fought for your right to speak anonymously on the Internet, establishing legal protections in several states and federal jurisdictions, and developing technologies to help you protect you identity. With your support, EFF can continue to defend this right, conducting impact litigation to establish strict standards to unmask an anonymous critic in more jurisdictions.
You Have the Right to Keep Sources Confidential. In Apple v. Does, EFF is fighting to establish the reporters' privilege for online journalists before the California courts. With your support, EFF can defend news bloggers from subpoenas seeking the identity of confidential sources in more jurisdictions.
You Have the Right to Make Fair Use of Intellectual Property. In OPG v. Diebold, Diebold, Inc., a manufacturer of electronic voting machines, had sent out copyright cease-and-desist letters to ISPs after internal documents indicating flaws in their systems were published on the Internet. EFF established the publication was a fair use. With your support, EFF can help fight to protect bloggers from frivolous or abusive threats and lawsuits.
Trademark law is supposed to curb consumer confusion -- not stop people from learning the truth about products, especially ones that affect human health. Which is why I'm thrilled to report that EFF has stopped one of the world's largest pharmaceutical companies, Sanofi-Aventis, from using trademark claims to censor AcompliaReport.com, an independent online newsletter devoted to reporting about a drug called Acomplia.
Acomplia may help people lose weight and quit smoking. It may not. But Sanofi-Aventis has no right to control the flow of information about the drug simply because it has a trademark on the word "Acomplia." Yet that's exactly what the company tried to do, demanding that AcompliaReport give up its domain name. Thankfully, EFF helped the publisher of AcompliaReport forge a settlement agreement, and Sanofi-Aventis backed off.
"The website uses the Acomplia mark solely to refer to Sanofi's product," explains EFF's Corynne McSherry in the official press release. "That use is a textbook fair use."
Oh, yeah -- fair use. That's the part of the law that allows exceptions to an intellectual property holder's exclusive monopoly rights for legitimate, critically important social and cultural reasons. Nice to know it still has a fighting chance on the Internet.
Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective. Their potent allies in this pursuit include Google and Yahoo.
Gregory Halpern knows how to hype. Shares of his publicly held company, Circle Group Holdings, quadrupled in price early last year amid reports that its new fat substitute, Z-Trim, was being tested by Nestlé. As the stock spurted from $2 to $8.50, Halpern's 35% stake in the company he founded rose to $90 million. He put out 56 press releases last year.
Then the bloggers attacked. A supposed crusading journalist launched an online campaign long on invective and wobbly on facts, posting articles on his Web log (blog) calling Halpern "deceitful,""unethical,""incredibly stupid" and "a pathological liar" who had misled investors. The author claimed to be Nick Tracy, a London writer who started his one-man "watchdog" Web site, our-street.com, to expose corporate fraud.He put out press releases saying he had filed complaints against Circle with the Securities & Exchange Commission.
Printing presses are the prized platform of a public lynch mob spouting liberty but spewing lies, libel and invective. Their potent allies in this pursuit include Ben Franklin and John Hancock.
Take the tea tax. Revenue was coming, providing much needed funding to help with his Majesty’s benevolent aims in the colonies.
Then the pamphleteers attacked. A supposed crusading journalist launched a broadsheet long on invective and wobbly on facts, posting articles with his printing press calling your King "deceitful,""unethical,""incredibly stupid" and "a pathological liar" who had misled the colonists. The author claimed to be “Silence Dogood,” a middle-aged widow who started a one-woman "watchdog" pamphlet, to expose alleged regal excess.
The Delaware Supreme Court last week gave strong protection to online anonymity in Cahill v. Doe. The court protected "Proud Citizen's" anonymity against a City Councilman's attempt to identify the poster in a defamation suit. The decision, the first of its type from a state supreme court, required the plaintiff to meet a summary judgment standard before obtaining anonymous speakers' identities, not just provide the perfunctory complaint of notice pleading.
The court further decided, as a matter of law, that Cahill's complaint failed the summary judgment standard. Its analysis, based in part on the context of the posting, is one that may annoy some bloggers:
[C]ertain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself... chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their nature, they are not a source of facts or data upon which a reasonable person would rely.
Based on the context of "Proud Citizen"s post, in a chatroom filled with invective and personal opinion, the court found that "a reasonable person would not interpret Doe's statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning."
I anticipate some bloggers will object to this characterization: Blogs can be just as important for the dissemination of facts as newspaper sites; newspapers can be wrong. This is of course true. The Cahill decision is not denigrating blogs and chatrooms -- they are entitled to First Amendment protections as strong as those of a newspaper -- but rather recognizing the discernment ability of their readers.
The standard empowers a wide range of bloggers' speech. Because readers can use context to help them differentiate opinions from statements of fact, bloggers are freer to publish their choice of opinionated gossip or citizen journalism. And thanks to courts like Cahill and Dendrite, they can do so using pseudonyms or their real names.
Reporters Without Borders has just unveiled a remarkable how-to guide for bloggers and "cyberdissidents" who want to make their voices heard in/from countries that are hostile to free speech. It's more specialized than EFF's exhaustive Legal Guide for Bloggers, focusing on 1.) how to create an effective voice online and 2.) overcoming the specific technical and practical challenges to free speech and anonymity in the face of government monitoring and censorship.
Bloggers are often the only real journalists in countries where the mainstream media is censored or under pressure. Only they provide independent news, at the risk of displeasing the government and sometimes courting arrest. Plenty of bloggers have been hounded or thrown in prison. One of the contributors to this handbook, Arash Sigarchi, was sentenced to 14 years in jail for posting several messages online that criticised the Iranian regime. His story illustrates how some bloggers see what they do as a duty and a necessity, not just a hobby. They feel they are the eyes and ears of thousands of other Internet users.
The section called "Personal Accounts" is especially inspiring, providing the real-life stories of bloggers from all around the world; click on the links below for a few examples:
Excuse me, but isn't public photography of public officials carrying out official duties in plain view still legal? Ah, but perhaps not in the post-9/11 US. I think FEMA should take a page from Google's book and just refuse to talk to Geraldo for a year.
Note, the original source for this, Josh Marshall's Talking Points Memo, is pretty overtly partisan and opinionated. Whether that makes him more or less reliable is left as an exercise for the reader.
Jack Shafer, Slate's editor at large, has a wonderful piece (The Rebellion of the Talking Heads) listing a bunch of times in the past few days when mainstream media (MSM) have had enough and started calling a spade a spade when talking to government officials. I would dearly love to have a functional Fourth Estate in this country again, because I believe that MSM still has a huge influence on the course of thought and political policy in the US. I'm just sickened that it took something of this magnitude to jolt them finally out of their passivity.
There is Kanye West, whose remarks criticizing President Bush's slow response to Hurricane Katrina were cut from the west coast broadcast of a televised hurricane relief telethon, but can't be cut from the Net.
The story apparently starts over on CNET, with a story by Elinor Mills on Google's CEO, Eric Schmidt. Mills starts with the skimpy information on Schmidt at his home page and then - using Google itself - proceeds to reveal all sorts of interesting information about the man, his income, his abode, his hobbies. She then goes on to make the point that Google potentially knows a lot more about you than you might think, particularly if you use services like gmail or its desktop accelerator.
Google apparently took this research endeavor personally, informing Jai Singh, CNET News.com founder and top editor that nobody at Google would speak to him or anyone else at News.com for a full year. According to Adam L. Penenberg's story on WIRED, Singh is taking the high road for now, pointing out that it's really in Google's best interest not to blacklist any news organization, since that organization is going to be writing stories about Google no matter what and it's foolish for the company not to have its voice in those stories. It's not as if they're harming News.com in any way.
Not satisfied with the high road, the UK sister publication ZDNet UK issued a mock apology from apparently their entire staff. The apology is rife with the infamously dry British humor, apologizing for the sin of using Google as a search engine and promising to:
cooperate fully in helping Google change people's perceptions of its role just as soon as it feels capable of communicating to us how it wishes that role to be seen.
I really can't add anything to that. Go read the original.
... or, doesn't anyone EVER learn? Or, Internet... censorship... damage. It's not possible that this could surprise any sentient being. But here's the headline:
Lynn presentation leaks onto Net
Well, no kidding. For those not following this gem, the Lynn in question is researcher Michael Lynn. The presentation is a talk Lynn prepared on known exploits against Cisco routers. Apparently this is stuff that has been known for some time and Cisco is working to fix amid a sea of misconceptions about the basic security of the hardware/software that powers much of the Internet. And what has leaked onto the Net is a PDF file that contains the presentation Lynn was scheduled to give at Black Hat in Las Vegas.
UPDATE: RickF of InfoWarrior commented that he has recieved a takedown notice and has removed the PDF. Please read his update in the Comments.)
I say "was," because earlier this week Cisco pressured Internet Security Systems (Lynn's employer at the time) into removing the presentation from Black Hat. Lynn then threatened to go ahead anyway and resigned from ISS. Cisco got an injunction; Lynn gave the presentation. Now it's getting ugly. According to blogger Brian Krebs, the FBI is involved and this is after an agreement was reached among Cisco, Lynn, ISS and the Black Hat organizers not to further distribute the material. Krebs' blog has a blow-by-blow including the agreement text. (There's also an interesting aside that at least 16 WIRED reporters were laid off this week - anyone have the story on that?)
Kieren McCarthy at Techworld hits the nail on the head, noting that Cisco has been "heavy handed" and the result has been a backfire of major proportions. The story is everywhere; the presentation is hot. Note to all you control freaks: do not, repeat DO NOT hit the blob of mercury with the hammer. Really.
A nice explanation of why you can no longer buy the (Pensacola) News-Journal at Wal-Mart anymore. Randy Hammer, the paper's Executive Editor, recounts the ultimatum from a Bob Hart, who apparently represents Wal-Mart in that area. Fire your columnist or lose your rack space. Fortunately, Hammer made what I would consider the right choice.
UPDATE: Florida News Web site WCJB reports that Wal-Mart has backed down. Oops, sorry. Forgot about that whole First Amendment thing there for a bit.
Lisa Stone has an audio feature(tte) offering words of wisdom from two hero(ines) in the battle to defend free-speech rights in the digital era: our own Wendy Seltzer and the Stanford Center for Internet & Society's Lauren Gelman. These two need no introduction, but Lisa does a nice job listing just a few things they've done for your rights lately:
Seltzer helped write the EFF's new Legal Guide for Bloggers and Gelman wrote the bloggers' amicus brief in Apple v. Does -- they are, in other words, at the epicenter of ongoing legal efforts to protect First Amendment rights for U.S. bloggers.
Like the Legal Guide for Bloggers, these interviews are geared for a general audience -- you don't need to be well-versed in the law to follow the conversation and learn more about your rights. Check it out.
As I note in my post below on EFF's new Legal Guide for Bloggers, Kevin Marks has been thinking about whether conscientous objectors should use the much-maligned DMCA as a tool for justice -- specifically, to fight "spamblogs." Denise Howell says yes; Ernie Miller says no:
We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).
Update #3: Fantastic -- we're starting to get some traction, with more and more bloggers pointing others to the guide. We're going to see many more legal challenges for bloggers as they get more attention (and power), and people need to be armed with as much information about their rights as possible.
What if you had a document, potentially as explosive as the Abu Ghraib photos? What if you had on the record comments from British officials saying they "did not dispute the document's authenticity"? What if you then got a US Administration official to describe it as "absolutely accurate"? What if you were a respected member of Congress and you still couldn't get mainstream US media to cover the story?
After a number of embarrassing incidents over the past couple of years, mainstream media outlets are examining their use of anonymous sources, reports Lorne Manly for the NYTimes. At the same time, small and independent journalists are pointing out that the pendulum may have swung too far, given the atmosphere of mistrust and ongoing litigation directed at revealing anonymous sources.
If any good comes out of this, I believe it will be in the form of requirements that sources be contextualized, giving the readers more ability to understand the viewpoint and agenda of the speaker. Identifying someone as "a Northeastern Democratic Congressman" may be more informative than just "a Congressman." Likewise, "a defense policy analyst for a conservative think-tank" would tell us more than just the generic "defense policy analyst." Manly reports that NBC News is trying to move in this direction which could, if done well, help the public.
Other organizations are trying to force reporters to identify sources to management at their workplaces, such as a managing editor. This sounds fine in theory - and may serve as as brake on future journalistic malfeasance - but it raises the trust specter and will no doubt complicate the legal situation for media that wish to protect anonymous sources in court.
Anonymous source or not, the story was correct. That is the role of the anonymous source - to bring forth information that cannot or is not being revealed by conventional channels. By deflecting attention onto this secondary phenomenon, detractors such as White House press secretary Scott McClellan are artfully avoiding having to discuss the facts of the matter.
According to an AP story (here on USA Today), an investigation by Adam Penenberg into articles written by WIRED contributor Michelle Delio has turned up more than 40 "color quote" sources who could not be identified. Alert readers may recognize Penenberg as the person who exposed fabricated stories by Stephen Glass in The New Republic.
Delio has pointed out in her own defense that these quote sources were supporting main news points in the stories, which she says have not been questioned.
However, WIRED, in its lengthy report on the matter, noted four stories in which "unconfirmed sources arguably play a more prominent role," and has edited these stories to reflect its findings but left the stories online. Other publications have taken more conservative views: MIT's Tech Review pulled two of Delio's stories, and Infoworld edited stories to remove non-sourceable quotes.
The question here is did Delio make up the quotes or simply fail to keep adequate notes on the contact information for these sources? As someone who is himself habitually disorganized, I have some sympathy for a person who didn't keep notes on things she considered minor that happened some years ago. Given the general air of hostility towards online journalim, it'll be interesting to see how it responds to scandals in the family.
Ethan Zuckerman, founder of Geekcorps, Berkman fellow, and all-around great guy, has written a terrific technical complement to EFF's recent white paper, How to Blog Safely (About Work or Anything Else). Zuckerman's guide approaches anonymous blogging from the perspective of a government whistleblower in a country with a less-than-transparent government -- the kind of person for whom the promise of the Internet as a vehicle for democratic speech is especially desirable and important. Though the guide is about using technology, it's one-hundred per cent accessible to the non-geek -- Zuckerman's hypothetical "Sarah" walks the reader step-by-step through a set of increasingly challenging technical strategies for keeping your identity private on the Internet:
Sarah starts to wonder what happens if the proxy servers she's using get compromised? What if the Minister convinces the operator of a proxy server - either through legal means or through bribery - to keep records and see whether anyone from his country is using the proxy, and what sites they're using. She's relying on the proxy administrator to protect her, and she doesn't even know who the administrator is!
Spending quite a long time with the local geek this time, she explores a new option: Invisiblog. Run by an anonymous group of Australians called vigilant.tv, Invisiblog is a site designed for and by the truly paranoid. You can't post to Invisiblog via the web, as you do with most blog servers. You post to it using specially formatted email, sent through the MixMaster remailer system, signed cryptographically.
It took Sarah a few tries to understand that last sentence. Eventually, she set up GPG - the GNU implementation of Pretty Good Privacy, a public-key encryption system. ...She generates a keypair that she will use to post to the blog - by signing a post with her "private key," the blog server will be able to use her "public key" to check that a post is coming from her, and then put it on the blog.
She then sets up MixMaster, a mailing system designed to obscure the origins of an email message. ...She sends a first MixMaster message to Invisiblog, which includes her public key.
Ethan has asked for a thorough de-bugging; if you care about freedom of speech on the Internet and have expertise to share, drop by Global Voices and lend a hand.
To put it mildly, Justice Antonin Scalia got "more than he bargained for" when he agreed to answer NYU Law students' questions. Student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the case that overturned Bowers v. Hardwick and struck down sodomy laws. Not satisfied with the answer, Berndt asked Scalia, "Do you sodomize your wife?"
According to an article in the Madiscon, WI, Capital Times former Onion Editor in Chief Robert Siegel said that Janet Jackson nearly killed The Onion with a threatened lawsuit over a headline: "Dying Boy Gets Wish: To Pork Janet Jackson." The story actually satirized the Make-a-Wish Foundation but Ms. Jackson was apparently not amused by being mentioned in the headline. God is definitely an iron. Now if someone would just drop an anvil on certain parts of the FCC...
Talk about an "A list": the Tribune Co.'s Los Angeles Times, Hearst Newspapers' San Francisco Chronicle, Knight Ridder Inc.'s San Jose Mercury News, The Copley Press Inc.'s San Diego Union-Tribune, Freedom Communications Inc.'s Orange County Register, and The McClatchy Co.'s Bee newspapers in Sacramento, Fresno and Modesto. Oh and the Associated Press.
This is quickly spiraling way out of control. Apple should cut and run as gracefully as possible. This is a company that lives - and can die - on the buzz it receives in the public zeitgeist. There is such a thing as bad publicity, guys, and this is it.
Big news over @ Deep Links, where a new kind of bloggers' "A-list" has taken shape:
Groups working to protect journalists' press freedoms, the creator of a blog-search tool, weblog publishers, and more than a dozen individual online journalists/bloggers filed a friend-of-the-court brief (PDF) today in Apple v. Does -- the case in which Apple Computer is seeking to unmask online journalists' confidential sources for articles about forthcoming Apple products.
The amici urged the court to adopt "a functional test for the newsgatherers' privilege that does not discriminate between reporters, regardless of the medium in which they publish." They ask the court to "adopt a test that will not impede journalists' use of the Internet to report news by limiting their constitutional protections when they publish there."
"We thought the order would set a dangerous precedent and make it more difficult for journalists to cover stories," said Lucy Dalglish, executive director of the Reporters Committee and lawyer for the news groups.
"There's a trend right now toward government and private parties using journalists as investigators for their cases."
The [news organizations'] brief [PDF] signers include the Associated Press, the California First Amendment Coalition, the California Newspaper Publishers Association, Copley Press, Freedom Communications, Inc., Hearst Corp., Los Angeles Times, McClatchy Company, San Jose Mercury News, Society of Professional Journalists, Reporters Committee for Freedom of the Press, and the Student Press Law Center.
The US Internet Industry Association and NetCoalition, which represent Internet companies including Internet service providers (ISPs), search engines, portals, and hosting services, also filed a friend-of-the-court brief [PDF]. These trade associations argued that the journalist's email messages are protected under the federal Stored Communications Act. They further contend that if the trial court decision is not reversed, it will place an undue burden on service providers and will severely compromise email users' privacy.
EFF's Annalee Newitz in our latest white paper: "Blogs are like personal telephone calls crossed with newspapers. They're the perfect tool for sharing your favorite chocolate mousse recipe with friends -- or for upholding the basic tenets of democracy by letting the public know that a corrupt government official has been paying off your boss."
The case is convoluted and involves questions of what constitutes "publication" - in this case an apparently accidental event, what can be protected as trade secrets (shades of Apple v Does maybe?), and a number of other issues.
Spaink appears to be on good grounds but a final ruling is not due until July.
EFF today filed a petition for appeal [PDF] in Apple v. Does, arguing that the central issue in the case is not "the merits of Apple's trade secret claim nor even the potential liability of these non-Party reporters should Apple ever sue them (it has not). Rather, the question is only whether Apple may ride roughshod over the reporter's privilege and the reporter's shield in its eagerness to obtain evidence."
In other words, can Apple do an end-run around the California reporter's shield and the journalist's privilege under the federal First Amendment by forcing a third party (in this instance, Jason O' Grady's ISP) to divulge a reporter's confidential sources? If so, can it do so without first exhausting all other means of securing the information?
Remember, these reporters did not steal any information from Apple, bribe any Apple employees, or break any non-disclosure agreement. They are not defendants in any criminal action, and no criminal investigation is underway. Yet the trial court applied the consitutional reporter's privilege as though this were a criminal case. It even compared these journalists to "fences" in stolen goods.
EFF has prepared an FAQ to complement the official press release on the petition for appeal; we're hoping it helps clarify what's happening and why it matters for journalism.
Update (March 23): From my referrer logs, an astute appraisal of the situation: "Maybe I'm missing something here, but it does seem kinda like Apple is supposed to rip apart its own house before ripping apart those of journalists."
Consider the following scenario. A drug company's research determines that one of its drugs already on the market is dangerous. The company decides the research results are proprietary trade secrets and bottles them up.
It's clear that the public would be served by a conscientious insider leaking the research data to the media.
But after a ruling that could limit the public's access to vital information, insiders may now be reluctant to leak that kind of information. That's because Santa Clara County Superior Court Judge James Kleinberg said a reporter's promise of confidentiality may not be worth anything when the leak involves trade secrets.
You might also want to consider the automobile manufacturer that wants to keep secret the fact that its airbags malfunction in such a way as to threaten young children strapped in car seats. Or the e-voting machine vendor seeking to silence rumblings about the security of its machines, potentially leaving your vote vulnerable to hackers. (Sound familiar?)
This is a core function of journalist's shield laws that protect the confidentiality of sources. These laws allow the whistle-blower to blow the whistle. They protect us from companies that might otherwise harm us.
You might argue that no one's life is at stake in Apple v. Does and that stripping these journalists of their ability to keep their sources private is therefore a small matter. But Judge Kleinberg's ruling [PDF] is broad-brush. If it is allowed to stand, it can and will be used liberally by deep-pocketed companies to keep business journalists of all stripes from reporting on whatever they decide to call a "trade secret."
The Mercury News editorial concludes with the following warning:
What's more, Kleinberg seems to indicate that he's in a position to decide what is newsworthy. Saying that "an interested public is not the same as the public interest,'' he suggests that information about upcoming Apple products is little more than gossip.
That's a dangerous precedent. Would a leak last month about Hewlett-Packard's imminent firing of Carly Fiorina be news or mere gossip? Could a wide swath of information about private businesses become off-limits to reporters?
Ernie Miller on Apple v. Does and "what the First Amendment wants to protect":
Much of this debate has revolved around whether bloggers are journalists or to whom press shield laws should apply, should it be to people who work for established mainstream media, should we measure whether the process of journalism was followed, yadda, yadda, yadda. I find that much of this debate misses the point.
Why do we want a press shield in the first place? The reason derives from the First Amendment. We want to encourage people to gather information and publicly disseminate it without unduly impacting legitimate law enforcement interests. So, how do we limit the press shield appropriately? ...The four possible means are: favoring one kind of speaker, one kind of content, one medium of communication, or one type of process. ...
In the end, it seems to me, the only process worth protecting is gathering information and public distribution or the intent to publicly distribute said information. That is what the First Amendment wants to protect. Sure, we would prefer that information be verified and people have track records, but the First Amendment doesn't and shouldn't care. It is a relatively simple and brightline test. It would certainly protect mainstream journalists, as well as bloggers.
One of the gathering storms over Internet speech has broken. On Friday a Santa Clara County Court judge ruled [PDF] that in Apple v. Does, Apple Computer's trade secret claims trump both California's reporter's shield laws and the reporter's privilege under the First Amendment. Specifically, the judge ruled that a journalist's Internet service provider (ISP) can be compelled to reveal the identities of the reporter's confidential sources and other unpublished information when trade secret is claimed. And it's not only "bloggers," or online journalists, who are affected by this ruling. The judge was very clear that this would apply to any journalist's private email records.
The opinion [PDF] is an interesting read in terms of rhetorical structure. The judge defines the law surrounding free speech as "rife with complexities and restrictions" and the law surrounding the "right to protect intellectual property" in California civil and criminal law as "undisputed." From there it's only a hop, skip, and a jump to calling the reporters "fences" in stolen goods. It's not hard to imagine how badly the Diebold case might have turned out with a slightly different set of facts and a judge with a similar take on our vague, messy, ragged, complexity-ridden speech-protection laws vs. clean, pure, solid, "undisputed" property-protection rights.
I pointed to it earlier, but Ernie Miller and Susan Crawford have an exchange that's well worth the read for exploring the question of how we identify speech that merits protection under the First Amendment and reporter's shield laws. Professor Crawford argues for distinguishing and protecting speech that's important to the democratic process; Miller, meanwhile, argues that the First Amendment ought to protect a democratic culture, which "incorporates a wider view of what is protected, such as popular culture and non-political speech."
Before I sign off, let me explain what that little "Blogshine Sunday" icon is doing at the top of this post. Not long ago, I blogged about the OPEN Government Act [PDF], newly proposed legislation that would help clarify that online journalists are entitled to the same rights as traditional print journalists. Specifically, it would provide access to Freedom of Information Act (FOIA) fee reduction/waivers for people regardless of institutional association.
Texas Senator John Cornyn is a co-sponsor; here's what he had to say when it was introduced (emphasis, mine):
The news media, of course, is the main way that people get information about government. The media pushes government entities and elected officials, beaurocrats, and agencies to release information the people have a right to know, occasionally exposing waste, fraud, and abuse.... But we've also seen in recent years the expansion of other outlets for sharing information outside the mainstream media, to online communities, discussion groups, and blogs.
I believe all these outlets are -- can and do -- contribute to the health of our political democracy. But let me make this clear, Mr. President, this is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States who cares about the federal government, cares about how the federal government operates, and ultimately cares about the success of this great democracy.
That's what important about the debate over online speech: the battle to ensure that we have a truly healthy, functioning democracy. As I wrote before, I can't imagine that we've ever needed this kind of legislation more than we do right now. If you agree, join me by grabbing a button at Blogshine Sunday and writing a few words about it.
Post script: As I was writing this post, Aaron Swartz published his contribution to the cause: "Blogshine Sunday: US Greenlights, Funds Genocide." Highly recommended.
Ronald Coleman of Likelihood of Confusion, responding below to Jack Balkin's argument that courts should determine whether a blogger is a journalist by examining what he or she actually does: "Yeah but. Does that mean that when an established media outlet ('MSM') runs a story that demonstrates a *failure* to do these things in connection with news reporting, that that publication or program will lose its presumptive entitlement to 'journalist' status? In other words, does bunking down with the Mujaheeden innoculate you for life from shoddy journalistic practices?"
Esteemed Yale law professor/First Amendment scholar Jack Balkin, weighing in on who amongst the legions of bloggers ought to qualify as a journalist and therefore be protected under the "reporter's privilege":
Jonathan Glater's article in today's New York Times quotes me for the proposition that the reporter's privilege (the right, in some jurisdictions, to keep sources secret) should be extended to bloggers using a functional test. That is, a court should ask whether the blogger regularly gathers news, interviews sources, and produces content in roughly the same way that print and television reporters do. That would mean that a very large number of bloggers -- probably most -- would not enjoy the reporter's privilege. To enjoy the privilege the blogger would have to make some showing that they were functionally similar to reporters. The best evidence of this, however, would be relatively easy to provide -- it would be the blog itself.
The furor is a shame and a sham. Bradley Smith and the Republicans aren't nearly as concerned with protecting blogs as they are with undermining McCain-Feingold.
Third, the faux-horrors that Smith proposes are insane and would be unconstitutional if the FEC tried to enforce them in the way that Smith predicts. To the extent that McCain-Feingold actually bars a blogger from "linking to a campaign website" or "posting a press release" from the campaign, I'd be willing to be the blogger that violates these stupid rules. I don't care what the internal FEC white papers say; that is clearly a First Amendment violation and I'd help tear down the law. Come and get me, motherf***ers.
EFF has the scoop about what happened at today's hearing in Apple v. Does. The upshot? There's no final ruling yet, and the decison may hinge on the question of whether Apple exhausted all methods of getting the information it wants before subpoenaing the journalists and their ISPs.
James Grimmelman @ LawMeme: "Yes, I know that the blogosphere is in a tizzy about FEC Commissioner Bradley Smith's comments that the FEC will start regulating political blogs as a form of campaign advertising. But I say with all the confidence--nay, arrogance--that three years of law school give, that it won't happen. ...
This bout of bloggeristic panic does a few things, none of them productive. First, it redirects an honest debate over McCain-Feingold into an unhelpful debate over a parade of horribles associated with a questionable interpretation of one small offshoot of the act. Second, it fuels Big Bad Big Brother fears about the wrong things: go worry about the material witness statute or the driver's licence biometric standards. Third, it just reinforces the belief that the number one thing the government, like everyone else, cares about is blogs. They're just not that into you. And fourth, it completely ignores the ongoing role of the courts in protecting free speech rights."
Campaign finance reform is coming to the internet, and the Medium Lobster must say it's long overdue. No longer will bloggers simply be able to freely link to a candidate's website, or wildly and irresponsibly endorse one politician's views over another, or corrupt the democratic process with an overpowering onslaught of HTML-borne free speech. Thanks to John McCain, Russ Feingold and U.S. District Court judge Colleen Kollar-Kotelly, political speech on the internet will be as the Founding Fathers always wished it would be: bottled up and controlled.
San Jose Mercury News:"In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products. Kleinberg offered no explanation for the preliminary ruling. He will hear arguments today from Apple's attorneys and the Electronic Frontier Foundation, a San Francisco digital rights group representing two of the three websites Apple subpoenaed -- Apple Insider and PowerPage."
It's not over until it's over, of course. This was a tentative ruling, and the actual ruling will happen at the hearing today at 10:00 a.m.
More to come on this; previous Copyfight coverage here, here, and here. EFF press release on the hearing here. A disturbing article on a threatened regulatory "crackdown" on bloggers here. Will this make more people understand why we need to stand up for and clarify online journalists' rights?
Importantly for bloggers, the Cornyn-Leahy legislation grants privileged FOIA fees for bloggers and writers for Internet outlets, providing the same status as old media and will protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association - including bloggers and other Internet-based journalists.
The law in question is the OPEN Government Act (S.394), introduced Wednesday by Senator John Cornyn (R-Texas) and co-sponsor Sen. Pat Leahy (D-Vt.). It's aimed at reforming laws including the Freedom of Information Act of 1966 (FOIA) to make it easier for journalists and others to access government documents. According to the ACLU, it would "ensure that requesters have timely information on the status of their requests, set enforceable time limits for agencies to respond to requests, implement news media status rules that recognize the reality of freelance journalists and the Internet, and provide strong incentives -- including both carrots and sticks -- for agency employees to improve FOIA compliance."
Bravo to Senators Cornyn and Leahy. I can't imagine that we've ever needed this kind of legislation more than we do now.
That's obviously of no small interest to the bloggers being sued, but there are larger implications. In particular, bloggers may yet force the mainstream social consciousness to reconsider its view of what makes something news and what makes something reporting. This view has been under occasional challenge from places like the Drudge Report over political events, but these seem to fade as quickly as they burst on the scene.
Dotinga notes that the blogs' claimed readership puts them ahead of many recognized paper publications. So if it's not readership size that makes a journalist, perhaps it's the structure of a newspaper. But it seems antithetical to our notions of reporting to claim that unless your material is reviewed by an editorial board. Was James Madison not a journalist when he reported on the goings-on in Colonial America? I doubt he had an editor reading his broadsheets.
Perhaps then, the argument goes, bloggers are not journalists because they don't maintain the vaunted "objectivism" of mainstream journalists. If all they're doing is printing what they have opinions about then they're no better than William Safire... oops, scratch that argument.
Maybe it's about the money. Some bloggers talk about things and then take money from companies with an interest in those things. Oh, you mean like Armstrong Williams or Maggie Gallagher? Both of whom have admitted taking money under the table to promote Bush administration propaganda campaigns? We may call them bad journalists (no journalist biscuit) but we don't seem to have any doubts that they are journalists.
It seems to me that what gets under the skins of anti-blog people like Randall Bezanson, quoted at the end of Dotinga's piece, is that blogs fail to follow the familiar hierarchical model that has dominated American media for at least the last two centuries. I mean, really. If you let the people start talking to each other instead of lapping up the corporate consensus pap who knows what kind of trouble will follow.
As a follow-up to our previous discussion in this space about Apple's subpoena requests to a number of Mac-centric news blogs, check out this post by Kurt Opsahl, the EFF lawyer working to protect the blog publishers:
As the courts have confirmed, what makes journalism journalism is not the format but the content. Where news is gathered for dissemination to the public, it is journalism -- regardless of whether it is printed on paper or distributed through the Internet.
Blogs gain in importance and readership by the content and currency of their news, not their affiliations with the media of old. Indeed, we've seen numerous cases where blogs break the news first, and traditional media follow. Bloggers hammered on the Trent Lott story until mainstream media was forced to pick it up again. Three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used in CBS's rush-to-air story on President George Bush's National Guard service. And the list goes on.
If Apple's subpoenas to Apple Insider, PowerPage and Think Secret are allowed to proceed and the Apple news sites EFF is representing are forced to disclose the confidences gained by their reporters, potential confidential sources will be deterred from providing information to the online media, and the public will lose a vital outlet for independent news, analysis, and commentary. We can't let that happen.
If you have been kind enough to read what I've written on Tech IP you know that one of my current concerns is the US Government's campaign to stifle speech it doesn't like. I think this is critically interesting because a key facet of intellectual property is the ability to disseminate creativity to an audience. The more mediation there is in this process - be it the FCC or the Content Cartel - the more problems will arise.
One of the public faces of this campaign has been Howard Stern versus Michael Powell. That has had several amusing moments; I really did expect Stern to sing "Ding Dong the Witch is Dead" when Powell announced his resignation. However, on a quieter side, the government has also been clamping down hard on the porn industry. Yes, I'm about to defend porn producers - as has been said, popular speech isn't in need of defense; it's the unpopular stuff that needs defending.
The essence of the argument in dismissing the charges is that the government cannot assert an interest in preventing people (adults) from owning the material; therefore, to prosecute someone for production of something that is legal to own is itself a violation of due process and the 14th Amendment to the US Constitution. Interestingly, Lancaster drew heavily on the SCOTUS logic in Lawrence v. Texas. That case, which overturned anti-sodomy laws, essentially cut the legs out from under all attempts by the US Government to prosecute laws regulating private behavior between consenting adults on a "public morality" basis. Thus, even though the Extreme Associates material may be obscene in the public sphere, private sale to adults and private viewing in the adults' home doesn't generate any compelling problems for the government. Thus, no grounds to prosecute.
Alanesq believes that the decision has a weakness in relying on the 14th Amendment rather than directly tackling the 1st Amendment freedom-of-speech issues. I agree that is a problematic area, as there is precedent for the notion that obscenity may not be protected expression. I think that these issues will be more directly addressed in Nitke v Ashcroft, which I suppose will soon be retitled Nitke v Gonzalez and which opens up a whole realm of torture jokes.
The PA attorney hasn't announced whether they'll appeal (which would go to the Third Circuit I believe). I haven't a clue which way the 3rd is likely to lean - anyone want to speculate? On the one hand, Extreme's Zicari issued a pretty public challenge to Ashcroft and there are a couple of other minor prosecutions that are at risk if this decision stands. On the other hand, the Feds may not want to risk setting a larger precedent that invalidates their whole obscenity law framework. If Lawrence actually has the wide-reaching implications that some conservatives fear, then it may not be possible to patch the cracks in the dam.
Macworld kicks off tomorrow, but a behind-the-scenes drama has already begun to unfold. Over the past few weeks, Apple has been sending legal threats to the publishers of the Mac-centric weblogs AppleInsider and PowerPage for posting details about a new Apple product code-named "Asteroid." Apple has even obtained a court order to served subpoenas asking subpoena for the identities of the people who leaked the information. Today, EFF announced that it's representing the publishers to defend their right to keep their sources secret:
"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff
Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."
"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"
AppleInsider and PowerPage aren't alone; Apple has also targetedThink Secret and three people who allegedly posted a developer build of MacOS 10.4 via Bit Torrent.
It will be interesting to see what the resolution of each of these conflicts will reveal about the nature of speech on the Internet today. There are critical differences in the circumstances of each "case." Where will the courts draw the line between breaking the news and breaking the law?
In the wake of the Jeopardy/Kottke incident, bloggers are starting to feel a little anxious about what protections the law affords them with regard to online speech. Here's another reason to worry: the question of whether a weblog writer can be held responsible for libel charges for simply re-posting potentially libelous material hasn't yet been definitively answered -- at least not in/by the state of California.
In a case pending before the California Supreme Court, two doctors are suing Ilena Rosenthal, a woman's health advocate, because she posted a controversial opinion piece in a Usenet forum. To be clear, she didn't write the piece. She simply passed it along for discussion -- just as countless bloggers do.
In a radical reinterpretation of section 230 of the federal Telecommunications Act, the California Court of Appeals ruled for the plaintiffs. The plaintiffs' lawyers claim that Rosenthal is liable because posting the piece and subsequent comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. The ACLU and EFF disagree.
"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," says ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."
Denise Howell, weblog writer and attorney-at-law, has written a guide of sorts to the current discussion about how to protect bloggers' freedom of speech in the face of the kind of attention that attracts lawsuits. She suggests formalizing the informal process by which top-notch cyberlaw clinics with pro bono talent to spare often choose cases with good facts for defending speech -- that is, taking the unpatented "submit-C&D-to-ChillingEffects-and-hope-for-the-best-while-contributing-to-knowledge" method one step further:
Hopefully, you can readily grasp the benefits of this, including tangible personal benefits for the blogger who receives such a letter. 1) You've gotten your issue in front of some very smart folks who also happen to be among the most likely to consider taking on your case on a pro bono basis if it's particularly egregious/milestone in nature. 2) If the analysis goes your way when they post the marked up letter (and bear in mind there's no guarantee it will; as far as the law is concerned you might have done something perfectly cease-and-desist-worthy), you have some good ammunition for responding to the sender. 3) The richer the Chilling Effects database, the more people it potentially can help.
The organizations involved in Chilling Effects, along with Stanford's CIS, should be the first line of inquiry for now I would think. What might be interesting to try to accomplish, and this is in keeping with what Jeff has in mind, is to set up a new legal clinic that is entirely devoted to providing pro bono services for these sorts of cases.
I like the idea. I also like that Denise is helping get the word out about what Chilling Effects does. This is a resource that gets better and better (more and more effective) the more people take advantage of it.
The Free Expression Policy Project (FEPP) wanted to know what effect cease-and-desist notices like the ones to which Jason refers are actually having on fair use. So the organization took a look at 131 such notices compiled by the Chilling Effects Clearinghouse, then culled seven for further investigation. The findings? Whether you fight or fold depends on the circumstances.
Even based on this small number of examples, we can infer that cease and desist letters sometimes -- but not always -- have chilling effects on speech that might qualify as fair use. Critical factors in determining whether the recipient of such a letter will comply seem to include awareness that fair use provides a defense; support from the community; and a non-risk-averse temperament.
DMCA take-down letters seem more likely to have consistent chilling effects. This is because the law requires the ISP to remove the material once the letter (if it's in proper form) has been received, without actual proof of a copyright violation, and then puts the onus on the Web speaker to assert his or her rights.
FEPP is careful with qualifiers, as well it should be; this is an awfully small number of cases, and people who submit C&Ds to Chilling Effects are likely to be clueful types ready and willing to fight back. But I'm less interested in whether or not the report consitutes "proof" of how often legitimate expression is being chilled than I am in what it reveals about what works -- that is, what people need to be empowered in the face of intimidating legal threats.
Check out the report in full; it's relatively short, and the seven "case" studies make for illuminating reading about the state of speech online.
Food for thought on the relationship between digital copyright and a functioning democracy:
Seth Finkelstein, arguing that the Induce Act (PDF) is to the Betamax doctrine as the DMCA is to fair use: "The Induce Act may preserve the 'substantial non-infringing use' standard of _Sony_, in the same way the DMCA preserved fair use: only as a very abstract theory, not in practice."
If you can't live with the idea that people might criticise your work, you have no business to be a journalist in the first place. And if you try to abuse copyright to silence criticism, you deserve to be laughed out of court."
Korea Times article reminding us that not everyone has our conception of "fair use" to lose: "The court said in the ruling that everyone has the right to express their opinions by creating works, including parody works, but Shin's work passed a limit and tried to influence politics."
We talk a lot here about copyright as the 800-pound gorilla of the Internet, but there are other forces with considerable power to influence its development. One of these is the effort to control access to obscene material online -- to keep what a particular community considers "harmful" away from children. The problem is that on the Internet, no one knows you're a dog, and the server doesn't know you're a child living in a certain community -- unless, of course, it does.
Annalee Newitz has a new post over @ Deep Links pointing out that a ruling in the Nitke v. Ashcroft case that upholds the constitutionality of the contested provisions in the Communications Decency Act (CDA) could lead to what Jonathan Zittrain calls a "zoned" Internet -- one in which an adult would be forced to give up her anonymity in order to access online materials that someone (or some software) considers obscene:
[The Miller test] made sense in the 1970s, when obscene materials were usually books, mail, or magazines -- all of which could be located in a specific geographical region with distinct community standards. But when the CDA proposes to use this same rubric to judge obscenity online, things get a little sticky. What, after all, is a "community" on the Internet? How can a speaker be held liable for disseminating obscene materials when she has no idea who is accessing her website or archive online?
Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities.
As Annalee points out, the Nitke case is about much more than obscenity -- it's about the future of anonymity on the Internet. We'll have a ruling in a few months from a federal court in New York City, but whatever the outcome, both sides will likely push for a Supreme Court showdown. Let's hope that the Court preserves the right to anonymous free speech and keeps decision-making about blocking potentially "obscene" materials in the home rather than the server or ISP.
CNN:"The Bush campaign is demanding that the Kerry-Edwards campaign release video of a fundraising event in New York; apparently several celebrities in attendance made off-color anti-Bush jokes on camera. Kerry's camp is refusing, citing the possibility that distributing the footage might constitute a violation of copyright law.
"[Bush campaign manager Ken] Mehlman pledged that the president's campaign would not use the footage. He also said that rules allowing 'fair use' of newsworthy copyrighted material would allow its release for use by the media."
Hrmm...the President seems to have changed his mind about fair use since the days when his budding campaign sent a cease-and-desist letter to the satirical website GWBush.com, memorably argung that "there ought to be limits to freedom."
Where will the story go next? Despite early indications to the contrary, there's a possibility that Fox will still sue.
Larry's post subtly suggests that a lawsuit might not be such a bad result. "As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium -- now liberated by digital technology -- is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first."
In other words, if Fox sues, a court would have the opportunity to create meaningful breathing space for this kind of speech -- buttressing the (fragile) fair-use defense of future Robert Greenwalds/Michael Moores.
The unstoppable Ernest Miller has already posted a response that takes the thinking a step further. "[Why] use copyright law if there are other means to prevent the making of these sorts of films?" he asks, pointing out that with the broadcast flag mandate in force, "using such clips [would be] significantly more difficult (and expensive)." On the other hand, if a film does get made, there are plenty of avenues for distribution that bypass the traditional points of control -- e.g., "broadcatching." The law is only one front in the battle for fair use.
Where does this leave the average copyfighter looking to support fair use and the freedoms it allows? Two suggestions:
Forward and/or link to Boynton's piece. It's one of the better articles for articulating the connection between fair use, the First Amendment, and a functioning democracy.
As Larry advises, see the film. Encourage others to see it. If more of us don't practice/experience/celebrate our "particularly American" freedoms, we won't notice when they finally slip out of our grasp.