Posts about law

Posner’s dangerous thinking

Mike Masnick on techdirt points us to some dangerous and incomplete thinking from Judge Richard Posner on his blog. At the bottom, Posner writes:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

Good God. Posner is not just trying to mold the new world to old laws – which is issue enough – but is trying to change the law to protect the old world and its incumbents from the new world and its innovators. He is willing to throw out fair comment and free speech for them. That is dangerous.

Posner’s thinking is incomplete in a few ways. First, he is ignorant of the imperatives of the link economy. The links and discussion he wants to outlaw is precisely how content is distributed and value is added to it in the new media economy.

Second, as Masnick points out, Posner assumes that jouranlism as it was done is journalism as it should be done: that the goal is to protect newsrooms, unchanged. But there are tremendous savings to be had thanks to the link economy: do what you do best, link to the rest.

Note how The New York Times and The Guardian – not to mention the Huffington Post and Andrew Sullivan – covered the Iran crisis. They linked. Links made their journalism complete. So did readers. The Times has three editors for every writer but in the blog, there was no need – no opening – for them. There was no need for production or design. The new news organization can and will operate at a different scale from the old one, because it can and because it must. So what is Posner protecting besides the old budget and payroll. He’s not protecting journalism – or rather, he’s protecting it only from progress.

No, sir, the news industry – and the law – must be updated for this new world and so must your thinking.

: LATER: Here‘s Matt Welch at Reason.

The craigslist (read: internet) witchhunt

The internet – in the form of the latest kerfuffle over craigslist – is exposing an anachronism of law in society.

I’ve seen reference lately to attorneys general and law-enforcement officials saying that the craigslist community policing itself isn’t enough. Said the Wall Street Journal: “Some large Internet communities are coming to a controversial conclusion: the Web can’t always police itself.” That’s why, they argue, they need to swoop in to save us from sex.

But the truth is that this episode only shows the gap between the law and the community. Craigslist’s community does police itself against the things that matter to it: fraud, spam, trolls. That’s how craigslist’s founder, Craig Newmark, spends his days, in customer service: policing against the things that bother and matter to his community. But sex? Who gives a damn? Clearly, the community doesn’t think it needs to be protected from that. So who are these cops protecting and from what?

That’s a fascinating aspect of the culture of the internet: It shows what really matters to a community and what does not matter and that, in turn, reveals how out of touch laws and those who make and enforce them can be. Craigslist is a society and it has its own laws and means of enforcement.

Can the law, like media, still be one-size-fits-all? Well, of course, to some extent, it must be. We need consistent laws across society that define everything from fraud to murder; tat is the foundation of society. But within a society there are other societies. And so, in the U.K., there have long been religious courts that deal with disputes in the Jewish and Muslim communities. The laws of society still stand over them (thank God) and members of the community retain the right to call on those laws. Online, we also have communities that cut across borders and have their own rules of behavior. Indeed, even games become societies with laws and consequences. As Lawerence Lessig famously said, code is law, for it prescribes behavior exactly. Laws come into conflict with laws.

And so, once again, the internet becomes a threat to the control and power of an elite and they are exploiting craiglist – and the murderer who used it – to reassert their control. But it has the marks of a witchhunt. Craigslist’s blog this weekend writes about the attorney general of South Carolina going after it even though craigslist promotes these supposed sins less than others. The blog says: “And FWIW, telephone yellow pages and other local print media have both companies beat hands down as adult service ad venues for South Carolina. Any interest in targeting them for criminal prosecution? Didn’t think so.” This weekend, I was also glad to hear craigslist CEO Jim Buckmaster go on the offensive against the offended on On the Media.

I’ll be writing more about the law after the internet soon. I have lawyers on the brain.

(Disclosure: Craig Newmark is a friend and an investor in Daylife, where I’m a partner.)

For bloggers: A stay-out-of-jail card

My colleague at CUNY, Prof. Geanne Rosenberg, has just put up an online course for bloggers and media practitioners of any stripe with the 10 things you need to know to stay out of court.

It’s quick, clear, easy, and fun with videos and quizzes. This was produced with experts from the Berkman Center at Harvard and the Media Law Research Center. The course is funded by the Knight Foundation and its Knight Citizens News Network.

The 10 rules to blog by:
1. Check your facts.
2. Avoid virtual vendettas.
3. Obey the law.
4. Weigh promises.
5. Reveal secrets selectively.
6. Consider what you copy.
7. Learn recording limits.
8. Don’t abuse anonymity.
9. Shun conflicts of interest.
10. Seek legal advice.

The press release says:

Each rule in the educational module is aimed at helping citizen journalists avoid lawsuits; each rule serves as an entry point for more in-depth material. While other educational materials on online publication are organized by legal doctrines such as libel, privacy, laws of access, and intellectual property law, the “Top Ten Rules” are organized around practical guidelines for safer and more effective journalistic conduct.

The module aims to educate citizen journalists about legal hotspots, help them distinguish between genuine legal problems and intimidation tactics, learn simple practical steps to reduce legal risk, find additional resources and information, understand rights related to news gathering, and recognize when to reach out for a lawyer’s advice.

I’m included in the credits but this is all Prof. Rosenberg — and good thing, since I don’t even play a lawyer on TV. All I did was say that I wish bloggers and citizen journalists had this kind of help and there was Knight to fund it and Geanne to write it. So here is a gift to bloggers from them and CUNY.

But wait, there’s more: For a graduate-level course with lots of in-depth details, the amazing Berkman is, at the same time, putting online a legal guide with information on such topics as setting up a publishing business.

The lowest common denominator of speech

Martin Stabe points to another legal story that is getting too little coverage here, with links to a news story and a FindLaw analysis about a New York court refusing to protect an American author from a UK “libel tourism” judgment over a book that sold a mere 23 copies in England.

What’s profoundly frightening about this is that we in America could find ourselves subject to the UK’s libel and privacy laws, which throw free speech to the wolves in defense of privacy.

In other words, thanks to the internet, we could be subject to the lowest-common-denominator of protection of speech against libel actions.

One could imagine it would get even worse: Couldn’t we be subject to Islamic theocracies’ prohibitions against criticizing Muhammad or dictators’ laws against criticizing them. If other legal systems can reach out to us and our speech here then corporations — publishers, networks, service providers — chilling us.

Only fair

Jackson West at NewTeeVee — one of my daily reads — has an excellent and brief primer on fair use and comment. Nut graphs:

Section 1074 – remember it kids – of the Copyright Act defines the potentiality of a fair use defense as copyrighted work used “for purposes such as criticism, comment, news reporting, teaching…scholarship or research…”

Generally, it’s all about commentary. How can you prove, or how can your entertainment lawyer prove, that the nature of your use of the copyrighted work is critical. A limited excerpt of the work during a review or critique is clear cut fair use.

Link law

Rafat Ali reports on a troubling court decision trying to restrict direct linking.

Meanwhile, WebTVWire has this interesting post on liability for linking to pirated video, citing Dr. Stephan Ott, who runs a web site just about links and the law:

In my opinion linking to infringing content is unlawful and that is also what most of the courts say. In the USA there have been several lawsuits about linking, but so far there has been no decision on the liability of a link provider for linking to copyright protected videos or music files (see this pending lawsuit). In Germany there have been lots of lawsuits on this matter and there is no doubt that you are liable if you link to illegal content, at least if you know that the content is illegal. I’m by far no expert in the legal system of the UK, but it is probably not so much different in this area.

So to answer your first question, I wouldn’t say the website is illegal but the links are. The same applies to a blog that occassionally links to infringing content.

In the USA there are Safe Harbour provisions for hyperlink providers. You receive a take down notice and you comply with it, than there is no liability. So far we have nothing that is comparible to that system in Europe. I think we need a similiar system and there are discussions on the European level. I took part in a discussion in September in Brussels. Maybe there will be new rules in 2007, but probably it will take more time.

This presents an untenable situation: If we had to check on the legality — broadly defined — of every link before making it, we would not link and the internet — search engines included — would collapse.

A gift to bloggers: A stay-out-of-court card

At CUNY’s Graduate School of Journalism, where I teach, I’m grateful to report that we just were awarded a grant from the Knight Foundation to create a guide with the top 10 rules bloggers and amateur journalists need to stay out of court. My colleague at CUNY, Geanne Rosenberg, who is a law-school graduate and is also journalism director at CUNY’s Baruch College, will be the primary author and I’ll help where I can. Gary Kebbel, Knight Foundation journalism program officer, said in the press release: “If this grant helps keep just one blogger out of court for reporting the news, it served its purpose.”

This could not come at a more opportune moment. See the list of suits against bloggers maintained by the Media Law Research Center. Other are, thank goodness, finally working on this problem. Bob Cox at the Media Bloggers Association, has been a tireless advocate for bloggers in courts and legislatures. And the Berkman Center at Harvard Law School is also offering help. We need all the help we can get to assure not only that bloggers stay out of court but that we all maintain our free speech, free of suit and harassment.

Citizen journalists win one v. Apple

An appeals court handed a big victory to bloggers and citizen journalists in the Apple leak case.

A state appeals court on Friday rejected Apple Computer Inc.’s bid to identify the sources of leaked product information that appeared on Web sites, ruling that online reporters and bloggers are entitled to the same protections as traditional journalists.

“In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company,” Justice Conrad Rushing of the 6th District Court of Appeal wrote in a unanimous 69-page ruling.

“We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalism,” he wrote. “The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here.”

The online journalists are thus entitled to the protections provided under California’s shield law as well as the privacy protections for e-mails allowed under federal law, the court ruled.

I may love my Apple computer but I hated the way Apple the company was behaving; I also feared the way the lower court tried to tiptoe around this issue; so I salute the appeals court for standing up for the idea that anyone can commit an act of journalism.

: Key quotes from the ruling in the Times story:

In its ruling, the appeals court said online and offline journalists are equally protected under the First Amendment. “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” the opinion states. “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment.”

: Here’s the PDF of the decision. The good bit about the First Amendment and us starts on page 35.

: So the court decides that the person doesn’t make journalism — you don’t have to be a journalist to commit an act of journalism:

We can think of no reason to doubt that the operator of a public Web site is a “publisher” for purposes of this language; the primary and core meaning of “to publish” is “[t]o make publicly or generally known; to declare or report openly or publicly; to announce; to tell or noise abroad; also, to propagate, disseminate (a creed or system).”

The court even gets into the issue of whether packaging makes journalism — that is, you don’t have to write a newspaper story to deliver the news:

Nor does Apple supply any colorable ground for declaring petitioners’ activities not to be legitimate newsgathering and dissemination. Apple asserts that petitioners merely reprinted “verbatim copies” of Apple’s internal information while exercising “no editorial oversight at all.” But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us.

Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise.

Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time– the publisher’s and the reader’s. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to “drill down” to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own “spin” on a story.

: LATER: Eugene Volokh’s good analysis.