Monthly Archives: October 2011
When it comes to requesting the removal of videos from You Tube, most situations fall into two categories. First is Copyright Claim, and under the Digital Millenium Copyright Act, once a takedown notice is recieved, the site has 24hours to remove the site, easy as pie. The second situation falls into tort. Say a video takes clips of a celebrity and attempts to make them look like a sex maniac, or say a video accuses the same celebrity of a sex crime. These are tort situations, invasion of privacy: false light, and defamation, respectively. It is often times much harder to “convince” a site to remove these types of videos, and they will often do so, only in response to a court order.
Now we have a situation where Google (YouTube is a subsidiary) has reported a 70% increase in the number of removal requests from Law Enforcement, of videos allegedly showing police brutality. From Digital Journal:
According to Google, from January to June of this year the “number of content removal requests we received increased by 70 percent,” in comparison to the previous July to December 2010 report.
In addition to the removal requests, the report also showed a 29 percent increase in user data requests. Even though the company reported that in fact it did comply with 63 percent of the government requests overall, they noted that due to the lack of a court order to remove certain content they may decline, stating “we received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove.”
Adding, “Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.” (Note that Truth is a defense in defamation claims)
If the videos merely show what happened, then there is no claim for defamation. Defamation occurs when someone states a false or misleading statement against an individual. A video showing police brutality would merely show what happens, nothing false or misleading so there is no chance to prevail in a defamation claim.
There is a possibility for a “false light claim”, which falls under the invasion of privacy tort. Simply put, a false light claim is one where the information transmitted, although possibly truthful, may put an individual a false light than they would have been otherwise. An example would be a video of a law enforcement officer using excessive force to take down a suspect with the caption “Police Brutality”. The video did not include the sequence prior to the detainment, where the suspect struck the police officer in the face and attempted to take his side arm. The police used proper measures during the situation, but the video leads a reasonable person to believe that the suspect was a victim of police brutality. This is the tort of false light.
The Italian language version of Wikipedia is finally back online. The three day long blackout was in protest of a proposed law by the Berlusconi government which would force websites to make “corrections” within 48 hours of a “complaint” of defamatory information. The website would then have to publish an unaltered “correction” printed by the party which made the complaint. The law would essentially prohibit any open discussion concerning individuals because it would make sure that all information posted on the internet is one-sided in favor of the self-interested party releasing information about itself. Any criticism could potentially considered “defamatory”, and instead of addressing the issue, a party could just merely have the criticism removed, and replaced with its own propoganda. This is not how information is exchanged in an open and free society.
The protest focused on two issues. First, the law is contrary to the free flow of information philosophy at the root of Wikipedia. Second, the law would make Wikipedia practically impossible to run, with its 800,000+ Italian language entries.
The Berlusconi government backed off of the legislation after facing protests from Wikipedia, members of the Italian Press, and free speech advocates.
The proposed law does pose a question of whether or not such laws could come to pass in the United States. The United States has an advantage that the First Amendment to the Constitution protects free speech, and freedom of the press. Such protections do not exist in Italy, nor in do they exist in most of the “free world”. American jurisprudence has strongly favored the protection of free speech interests. Undoubtedly, such a law could not apply to newspapers and online news services. However, what about blogs and wikipedia?
Recently a blogger was fined $60,000 in a law suit concerning blog posts he wrote about an employee of the University of Minnesota. So far the judgment still stands even though the statements were truthful. If the ruling stands, then the legal trend will start to look at bloggers as not being covered by the first amendment the same way the mainstream press is protected. As far as Wikipedia is concerned, their protection could be potentially far less, since they do not classify themselves as being “press” on any level other than its entries often address current event issues.
Furthermore, upon looking at the original Italian legislation, it looked suspiciously like provisions in the Digital Millenium Copyright Act, 17 U.S.C. 501 (1998) (DMCA), which contains a provision forcing the removal of suspected copyright material within 24 hours of receipt of a takedown notice by the alleged copyright holder. If we were to replace copyright holder (copyright violation victim) with “defamation victim”, and 24 hours to 48 hours, the Italian Law is suspiciously similar to this provision of the DMCA.
I honestly think that such legislation is unlikely to even be broached by federal or state legislatures. Americans treasure their free speech rights, and I don’t think any legislator could face their constituents after supporting such draconian legislation. However, such a situation is at least not beyond a theoretical possibility
Legal academics have had a much larger impact on the development of Internet legal theories and perspectives. But if it were not for Steve Jobs, the field of Internet and Digital Media law would be very limited today. Why? Because while Apple did not invent the internet, nor did they produce any of the applications we use to communicate on the internet (ie- facebook, twitter, youtube), their products made the internet accessible to any one at any time, thus changing forever the paradigm of business and communication, which are both at the crux of internet law. Each year since the 1990′s, business and communication has shifted more and more from traditional forms of newspapers,terrestrial radio, letters, and brick and mortar retail stores, to online journals, email, social networking sites, internet radio and e-commerce. The share of communications tools used in these types of transactions are more and more dominated by Apple products. In this way, Steve Jobs did not just think out of the box, he changed the box in which we think.
Apples internet innovations started with the iMac in 1998, not long after Jobs’s return to Apple. The ‘i’ in iMac stood for ‘internet’, and it was the first major computer designed primarily for internet use. The iMac was not the first computer designed to connect to the internet. It missed that mark by almost 20 years. However, Jobs and Apple recognized early on that the internet was going to change the way the world operated, and designed their products with that in mind. Thus began Apples business model, you do not need to market the first product based on an idea, you only need to improve on what is out there and make it accessible to people. Apple products since then have focused on how the average person thinks, not as MIT educated designer/engineer thinks. The genius of Apple products are they seem to be designed by your 6 year old niece, with such simple, logical, and colorful interface. Apple was not the first to produce an MP3 player, they were years behind the curve with that product, but when the iPod came out, you had to have it. Apple was not the first to produce an internet phone, but when the iPhone came out, you had to have it. Apple was by far not the first company to produce a tablet computer, but I am pretty sure my uber-nerdy law school roomate was the only person in the world who owned one before the iPad came out.
Each of the early versions of these products had one major flaw, they were too complicated for easy use. Steve Jobs did not invent facebook, google, or twitter, but he made it easier to use all of these products. Apple’s primary innovation was three fold: make it simple, make it logical, make it beautiful. And they succeeded.
Some would say that Steve Jobs is the type of person that every lawyer should envy. He doesn’t have a college degree, he dropped out at age 20, started his business at 21 and was worth 8 figures by the time he was 30. Meanwhile, us lawyers struggle through 7 years of college, rack up tons of debt and work our tails off every day just to slice a sliver of the American dream. But thanks to Steve Jobs, and the way he changed the way we communicate and do business, there exists this brand new legal frontier of Internet and Digital Media Law.
All of us in the Internet Legal Profession can say only one thing. Thank you, Steve Jobs. May you Rest in Peace.
This may seem like a complicated case. One one side you have an Indian wind-power company, Suzlon Energy, operating in Australia, suing an Indian National, Rajagopalan Sridhar, for fraud in an Australian court. As part of the discovery process (the investigation by one party of another searching for evidence to support their case), Suzlon seeks to view Sridhar’s email, which is stored on a server owned by American super-corporation Microsoft. Microsoft refuses to comply with the request so Sulzon then has to go to an American court to compel Microsoft to hand over the emails.
In reality the American aspect of the case is simple. The only question for review is whether or not Microsoft is obliged by provisions the Electronic Communications Privacy Act of 1986 (ECPA) protects the emails stored on their domestic server, even though the communications belong to a foreign national, and were originally sent between two foreign nationals. The ECPA originally expanded wire tapping laws to include electronic communications. It was later amended to include “stored communications”, and creates an obligation by Microsoft to protect the content of emails stored on their servers. On a plain reading of the act the 9th circuit unanimously agreed that the ECPA protects the emails of foreign nationals stored on domestic servers because the plain language reads “any person” without qualification.
You can view the 9th Circuit’s opinion here.
A reader from Boston asks:
Dear Ask a Cyber Lawyer:
I see that you create home made gelato recipes as a hobby. I have tried making my own gelato a few times, but, it keeps on curdling when I heat up the custard. Are there any tricks to prevent this?
The primary purpose of this blog is answering questions about internet and digital media law, and reporting on issues in the news. Every good blog has it’s diversionary topics. I guess the art of making gelato would be a good one for this blog. After all, who doesn’t like delicious, smooth, and creamy gelato?
The key to keeping your gelato from curdling is tempering the eggs with the hot milk very slowly, and then cooking the custard over a double boiler. Do not add your eggs to the hot milk directly, or else it will almost always curdle. Beat your egg and sugar mixture in a stainless steel bowl. When your milk and cream mixture comes close to a boil, turn off the stove. Put one ladle of the milk and cream mixture into the bowl with the eggs, and whisk it for about 10 seconds. Repeat this process until all of the milk and cream is combined with the eggs and sugar. Meanwhile, wash out the sauce pan and fill with a few inches of water. This will be the bottom part of the double boiler. Use the stainless steel bowl with the ice cream base as the top part. Turn on the heat and cook your custard until it coats the back of a spoon.
There are other tricks, such as adding some corn starch to your egg mixture. This will keep your eggs from curdling, but the end product does not taste as good, and the mouth feel is a bit off when you churn. The corn starch tends to thicken the custard too much which will have a negative effect on the end product.
I also recommend using the type of freezing device where the cylinder turns around a stationary scraper. This mimmicks the traditional french pot method, which results in a gelato where less air is beaten in and you end up with a thicker and creamier product.
Today, the Supreme Court refused to review a ruling by the United States Court of Appeals for the 2nd Circuit over the issue of whether or not legally downloading a music file is considered a “performance” for the purpose of copyright law. The Court of Appeals said “no”, and by refusing to hear the case (legal term: grant certiorari) the Supreme Court has let the previous ruling stand by default.
At stake were potentially hundreds of millions of royalties which would have been paid to composers if a digital download were to be considered a “performance”.
The suit was brought by the American Society of Composers, Authors and Publishers (ASCAP), a non-profit organization who’s primary purpose is to collect performance royalties for its roughly 400,000 members. They are the ones responsible for the scenario:
You’re at a restaurant, somebody is celebrating their 40th birthday. All of a sudden the wait staff comes out clapping and carrying a big cake covered with sparklers. You expect a rousing rendition of “Happy Birthday”, but instead, it is some drab awful sounding birthday cheer, chanted by a gaggle of overworked and underpaid waiters and waitresses, who would rather be at home playing Xbox. This scenario is brought to you by ASCAP. They own the copyright to “Happy Birthday” and will not allow the restaurant staff to sing it, without paying them a performance royalty.
Two years ago, the Court of Appeals ruled that downloads are not considered performances under the Copyright Act simply because nothing is played: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener”. Instead, it is considered a “reproduction” and would not be subject to performance royalties under the act.
The Supreme Court issued its ruling without comment. (ASCAP v. United States, No. 10-1337)