Blog Archives
Back from Hiatus
Dear Readers:
January and February were arduous months both personally and professionally. Sometimes when life gets busy, it gets very busy. I am back and of course I am always fielding questions on Internet Law, and now other areas of law as well. I am also going to continue doing my editorial content for this blog. So if you have any questions, or would like to contribute, feel free to let me know. Also visit Skyles Law Group’s website at http://www.skyleslaw.com if you have a legal need that needs to be addressed.
Thanks!
James Skyles
You Gonna Eat That?
For our readers from across the pond, you may already be familiar with this story. Recently a nine-year-old Scottish girl was forced by her school to stop posting less-than-flattering pictures of the school’s cafeteria food on her blog. You can read the whole story here and here.
Martha Payne, hard at work!
Now the school has since reversed its position on the matter but nine-year-old Martha Payne is no longer snapping pictures or posting on her blog. She is able to as a matter of policy according to the school, but that does not change the fact that she has opted not to continue for the time being. One can only assume she reached this decision because of all the hassle the school put her through. If you really think about it, all she was doing was taking pictures of what a bunch of kids were being served at lunch (most of the meals looked better than the “food” I was served when I was in grade school). If simple transparency such as this is problematic for a school, then that school has much larger fish to fry. But what is really scary is how quickly and soundly an institution which is supposed to be all about education and sharing information, can put the kibosh on free speech. Judging by the time stamps on the posts, Martha was not even making these posts while at school but the school still felt that it had the authority to quell the speech anyway. This brings the chilling factor to a new level; a school limiting the freedom of speech of its students while the students are outside of school grounds.
Now this happened in the UK and they have a different version of freedom of speech in Great Britain but this kind of thing could easily make its way over here. Currently, freedom of speech both on and off school grounds in the US is being limited by schools under the guise of anti-bullying (story via Forbes.com). This subject garnered even more notoriety when a Rutgers student committed suicide after an incident of alleged bullying involving a web-cam (The Story of Tyler Clementi). Legislation that has allowed for the curtailing of expression by schools has come under some fire lately but seems to have been embraced by many of the statehouses across the United States in one form or another (all but Montana actually). Federal legislation was even introduced but it quickly stalled.
These two concepts may seem rather disconnected but they really aren’t, both stories center around the issue of freedom of expression versus freedom from harassment. On the one hand, we have an interest in protecting students and faculty from harassment but we also have a duty to uphold the First Amendment rights of those same folks. Schools are a place where students are supposed to learn to be civic-minded members of society but they are also a place where they need to be safe as well. This leads to a precarious balancing act which these two stories exemplify quite nicely (I think). In the blogger case, we have a student who is simply posting pictures of cafeteria food, she is doing nothing to put anyone in danger, she is not harassing anyone (unless the headmaster getting phone calls from outraged parents for serving their lil angels crappy food qualifies). On the other side of the fence (barely), we have a student actively bullying another with potentially disastrous consequences (the only consequence for Martha’s blog? Better food @ school). So this begs the question “where do we draw the line?” We sure don’t want to go as far as the Scottish school and actively cut off creative talent but we also don’t want kids tossing themselves off bridges because of some online slur against them. I don’t pretend to have an answer to this question but it is one we need to constantly ask ourselves and discuss or otherwise we will be at the point where we punish little Marthas before we know what hit us. So let’s heed a tale from across the pond and watch carefully where we step.
The best understanding of toeing this line that I have seen came out of the First Amendment Center earlier this year and can be found here.
Rashad Richey drops lawsuit against Andre Walker
I received a message from Andre Walker today that Rashad Richey has dropped the lawsuit against him. Congratulations for Andre and the good guys for winning this one!
Last month I wrote a blog post about Georgia Democratic Party Official Rashad Richey suing blogger Andre Walker for defamation. Andre Walker is a former democratic official, turned conservative blogger who writes for Georgia Unfiltered. I wrote that essentially Richey had no case against Walker and that the entire purpose of the case was to intimidate Richey.
The advice I give to anyone in this situation is don’t panic, and Call Me. Most of the time it is a nothing case, and that the best thing you can do is not be intimidated by meaningless threats. I applaud Andre for not backing down and defending his first amendment rights.
SLAPP’d blogger fights back
A few days ago I wrote about the case of Andre Walker, who is being sued for defamation by Georgia Democratic Party Political Director, Ali Rashad Richey. In the post I mentioned how the causes of action were pretty much moot from the beginning, and how the purpose of the lawsuit was not to win, but merely to silence Walker.
Today, Ask a Cyber Lawyer received a copy of a letter from Walker’s attorney to Richey’s attorney, which both responds to the claims made, and demand to withdraw the complaint, or else Walker will proceed with a claim under the Geogia Abusive Litigation Act. O.G.G.A. §51-7-80 et seq. The full text of the letter is below:
When you are threatened by a corporate entity, a political party, or a government body, for items posted on your blog. Do not panic. Contact an attorney (preferably Skyles Law Group) and you will be taken care of. Make sure that they not only lose, but that they are hurt in the process. Andre has not backed down. He is continuing to voice his opinion. His work can be seen at Georgia Unfiltered.
Ask a Cyber Lawyer helps Blogger assert copyright
I met Duane Lester from All American Blogger when I spoke at a blogger conference in Charlotte, NC a few weeks ago.
Last week I got a tweet from Duane. Turns out a small news paper had taken a blog post of his, copied it almost verbatim, and published it in their newspaper. They did not get his permission. They did not attribute the source to him. So here was my complete non-legal advice.
So that is what he did. He wrote a letter to the paper, he attached a bill. He delivered the letter, and in the end, he got a check from the paper for $500.00. He also videotaped the encounter and posted it on his blog. This all can be seen here.
This entire episode shows that the law is a double edged sword. The advice about posting and attributing to bloggers, applies to news publications. You cannot copy and republish an article without violating someone’s copyright. Bloggers can’t do it. Newspapers can’t do it. Select what you want to use, a small fraction of the original work, attribute it, and add your own content, at least double of what you copied at bare minimum. More would be better.
I also encourage bloggers to actually develop relationships with local newspapers. See if you can get what you write republished with permission, and perhaps actual payment. This way, they get content, you get attribution, publicity, and maybe a little cash.
Disclaimer: This blog post contains no actual legal advice. It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
North Carolina Threatens to Jail Blogger
Here we have yet another reason why bloggers need advocacy.
A blogger writing a blog on his personal experiences combating diabetes using the “paleo-diet”, is threatened with a government mandate which could send him to jail for “practice of dietetics or nutrition” without a license. The blog, Diabetes-Warrior.net, was started as a result of the blogger, Steve Cooskey changing his lifestyle in his fight against diabetes after he was hospitalized in 2009.
The complaint comes from the state diatetics and nutrition board, which regulates the dietician profession. In order to avoid jail he needs to virtually shut down and delete his blog. This is in spite of the fact that he placed this disclaimer on every post ““I am not a doctor, dietitian, nor nutritionist … in fact I have no medical training of any kind”.
From the Carolina Journal:
Declan McCullagh, a CBSNews.com correspondent who writes about online free speech, says the board probably is violating Cooksey’s First Amendment rights.
“The First Amendment says state and federal governments ‘shall make no law’ abridging freedom of speech,” McCullagh said. “It doesn’t say ‘except for what annoys the North Carolina Board of Dietetics and Nutrition.’”
McCullagh pointed to a sentence in Cooksey’s blog the board didn’t approve of: “I do suggest that your friend eat as I do and exercise the best they can.”
“If that language appeared in a book or a magazine article, do you think the board would complain?” McCullagh asked. “How about if someone said that to a friend over dinner at a restaurant? Of course not. But because it’s on the Web, they seem to think that the First Amendment no longer applies.”
A couple of key points. If Cooskey was offering paid services then the state would have a case. However, blogging would have nothing to do with the paid services, the paid service itself would be the violation. Anyone can offer lay opinion. News editorials offer lay opinion on legal issues all the time (and they are more often than not wrong). Are they practicing law without a license? Clearly not. Their activity is covered by the first amendment. The same applies here.
On my blog, on posts where I opine on legal situations, I always include a disclaimer stating that the information contained is not legal advice, and that the reader should consult a lawyer before doing anything. If Cooskey’s disclaimer is not enough, then what is to say my disclaimer is enough, should someone decide to act on the advice given?
Obsidian Finance Group v. Cox- A Case every blogger should know.
I recently spoke on a panel discussion on legal issues facing bloggers at BlogCon 2012 in Charlotte, NC, generously sponsored by FreedomWorks, and the Franklin Center for Government and Public Integrity. I intended to discuss a very important case currently being litigated in the United States District Court for the District of Oregon, but ran out of time.
In my opinion, this case shows the need for first amendment issue advocacy on behalf of bloggers, and also expressly shows why it is important for bloggers to have insurance.
The facts of the case are simple. The defendant made statements on her blog which may have been defamatory. The Plaintiff filed a defamation suit against the defendant. The judge dismissed on summary judgment all but one of the issues contained in the complaint (a summary judgment is where a judge rules that there is no issue that needs to be brought to trial, and that as a matter of law, the case is decided in one way or another). On the one issue that remained, the judge ruled very strongly against the first amendment rights of bloggers.
Shield Laws
While the court stated that shield laws did not apply, due to the information being allegedly defamatory, the Court also opined on how shield laws should apply to bloggers.
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
So, shield laws do not apply to bloggers because they are not “media” because they are not affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, etc. etc. This is an important factor to think about. Is it a requirement under the law to be “affiliated” with a news service to be considered “media”? This is particularly interesting because the law cited in the previous paragraph states that the “Medium of Communication” is broadly defined, and is not limited to “News papers, magazine, periodical, etc.”. So is the court here narrowing the scope of the definition of “Media” to explicitly exclude bloggers?
Anti-SLAPP and the First Amendment
Oregon has an anti-SLAPP law. The defendant made the mistake of not attaching the anti-SLAPP motion at the outset, however the judge said that this didn’t matter because in this case the First Amendment protections did not apply in the first place. If the plaintiff is a public figure, then in general, the plaintiff has to prove that the defendant had “actual malice” in stating the false or defamatory statement (see. New York Times v. Sullivan, 376 U.S. 254 (1964)). In this case the judge ruled that the plaintiff was not a public person or even a limited public person, so actual malice is not the standard. This is not the important part. If the person is not a public person, then the plaintiff still needs to show that the defendant was at least negligent in their publication of the false or defamatory comment (Gertz v. Welch 418 U.S. 323 (1974)). The court ruled that Cox was not a media defendant, and so Gertz did not apply, therefor not allowed the First Amendment protections afforded to the media.
Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
Again, we have the court applying a test to define what is and what is not considered “media”. The court stated that the defendant showed no evidence to define her as media. But, should she have to? Shouldn’t the court rule in favor of First Amendment protections, and leave it to the defense to prove in front of a jury that she is somehow “not” media? How can this be a ruling as a matter of law?
Need for Advocacy
Cases like this are likely to come up, and judges are likely to rule in the very same matter. This is why bloggers need advocates. They need advocates to reform legislation to specifically mention “bloggers” as media because the nature of media is changing, and the courts are slow to recognize this. With the shuttering of many small market newspapers and the shift of the remaining groups away from expensive investigative reporting, it has been up to bloggers and online media groups to pick up the slack. They cannot do it alone, there needs to be cohesion amongst bloggers to protect their first amendment rights. There needs to be active advocacy on behalf of bloggers.
Need for Insurance
As I stated last week at BlogCon, bloggers need insurance, and this case is a prime example of why. Originally the defendant defended herself pro se, and I speculate she did so because she could not afford legal representation. This was largely a mistake and she lost largely because she did not have the necessary legal training. But more importantly the amount in controversy is $2.5 Million. $1.5 Million to the Finance Group, and $1 million to the named plaintiff. This types of lawsuits have the potential to render many bloggers destitute for merely exercising their first amendment rights. Insurance could have the effect of both helping to pay litigation costs, and making payouts in the event the defendant loses. Like I stated before, insurance programs for bloggers are in development. In the mean time, bloggers need to check to see if they are covered under their existing insurance programs
The entire court opinion can be read here.
Nevada Company in Trouble Over Excessive Copyright Lawsuits
Righthaven LLC is a Nevada company with a single purpose, suing bloggers. The company founded in 2010 as a holding company which partners with newspapers and print media in order to obtain standing to sue bloggers for copyright infringement. Print media has been losing its a large share of news media to internet based news sites and bloggers for years. Bloggers often get their news from print media that also post online. They use the material from the print media directly on their blogs, often through blog quotes (Yes, I do this too, duh…) Print media is upset because online media is using their material and taking from their share at the same time. The problem is most of the time it is perfectly legal, ethical, legitimate, and (guess what) newspapers do it as well.
Here is the scenario, say a blogger uses a quote from a newspaper. The newspaper is upset because they have been losing their share of the media. The newspaper partners with Righthaven in order to sue the bloggers for copyright infringement.
Righthaven has had these deals with many print media outlets, and have been using them to sue countless bloggers in the process called copyright trolling. Copyright trolling is the term used when a company asserts their copyright through lawsuits or threats of lawsuits in order to make money through litigation. In this case, Righthaven is owned by a lawyer and the lawsuits are processed through the lawyer’s firm. The whole purpose is to get settlements and judgments, and to earn money for the lawyer who happens to own the holding company.
There is a catch, in general, if you lose a lawsuit at the outset, you often have to pay the defendant the cost of defending the suit. This is exactly what happened with Righthaven. Several of the cases were dismissed under the “Fair Use” defense for copyright, and Righthaven was slapped with “costs”.
Now Righthaven has filed for bankruptcy protection due to the large amounts of judgments against them. From VegasInc.com.
After U.S. District Judge Philip Pro in Las Vegas dismissed Righthaven’s suit against Hoehn this summer on both fair use and standing grounds, he also ordered Righthaven to pay his $34,045.50 in legal fees to Randazza Legal Group of Las Vegas….
The writ of execution signed Tuesday covers not only the original $34,045 in fees, but nearly $30,000 more in fees racked up by Randazza Legal Group in trying to get Righthaven to pay the first $34,045.
The entire writ, which includes a small amount of interest, is for $63,720.80.
A message for comment was placed with Righthaven on the writ.
Based on its past practice, Righthaven is likely to fight execution of the writ with another court appeal — though it hasn’t taken the bankruptcy option off the table.
Unethical conduct, and bad lawyering are a very costly combination. The lawyer should have done better research on standing and the very basic concept of “fair use” before initiating a lawsuit.
My advice for bloggers remains, use a minimal amount of the original work, make sure that a majority of the work is your own, and you should be fine.
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
Question: Can I blog about something I read in a book?
A reader from Illinois asks via facebook:
Dear Ask a Cyber Lawyer,
Is it legal to write blog postings about something I was reading in a book, if I say its from that book?
One of the services I provide through Skyles Law Group, LLC is training for journalists and bloggers on basic copyright law, so I am very familiar with copyright issues involving using outside sources.
In general, you can quote all you want from articles, as long as you cite where it is from somewhere in the article. If you are quoting from something you find online, it is a courtesy to link back to that webpage. Copyright is a tricky issue because technically, the use of copyrighted material is a violation of the owners copyright. The law has created a large amount of defenses to copyright violations, most prominently “fair use”, which allows for many exceptions where copyrighted sources can be used. Here are a few rules to follow.
1) If you block quote from an article, do not make it more than a few paragraphs.
2) In each blog post, make sure the original content is greater than the quoted content. This ads weight to the argument that the piece is an original work.
3) Again, if you cite an online source, always link back. They will appreciate the increase in SEO and traffic to their site.
4) Do not quote from Reuters or AP as a source. Reuters and AP are wire services that share articles only with sources that subscribe to their service. They are very trigger happy, and under the DCMA, it is shoot first, ask questions later. Once you get a DCMA takedown notice, you MUST COMPLY within 24 hours.
Other than that, have fun blogging!
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
James Skyles
