Posts about law

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.

One for the good guys

The ad agency that went after a Maine blogger has just dropped its suit in the face of big blogger pressure and consequent bad press. Bravo to the Media Bloggers Association for making it happen.

Throw the blog at them

The Media Bloggers Association has issued its first legal alert to let us all know about a blogger under attack in a suit. Lance Dutson, who blogs at Maine Web Report, has been slapped with a federal suit by an ad agency handling the state’s tourism business.

Here’s Dutson’s report and summary. Here is the PDF of the suit against him. Of course, I can’t vouch for any facts in the case. But one of the agency’s allegations is that “Dutson also claimed, falsely, that WKPA is ‘pissing away’ Maine tax money. ”

Well, I woud hope that we would always be protected from challenging government spending. “Pissing away” is a value judgment any taxpayer should be able to make.

The Agency is also claiming copyright infringement because Dutson put up an ad the agency made that he says mistakenly displayed the phone number for a sex line (and, indeed, the number does offer new friends, and I don’t meen moose). I would hope, too, that we woud always have the right of fair comment on anything produced with our tax dollars.

It is gratifying that the MBA is there to offer support to legally beseiged bloggers. Without fear of the support bloggers can muster, the rich and powerful will try to use their money and the courts to harass citizen journalists.

Mind you, this case is not just about journalism but also citizenry: We must always have the right and even duty to watch and question our government. Contractors acting as agents of government should come under the same scrutiny as government.

I hope that not just bloggers but also journalists and other groups will investigate this case and come to the defense of the right of this blogger and all of us to watch and question government.

: Also, a reminder: Eric Robinson at the Media Law Research Center is keeping a list of legal action against bloggers.