David Ardia's blog

Peter Robbins, author of the Robbins Report, a blog that appears on the popular community website Cape Cod Today, and an anonymous commenter have been sued over statements they made criticizing a group of Barnstable, MA residents who opposed the dredging of Barnstable Harbor.  The case raises a host of interesting questions, including whether the statements at issue are protected opinions and the potential applicability of Massachusetts' anti-SLAPP and retraction statutes.

The dispute arose over a March 11 post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including Joseph Dugas and his lawyer Paul Revere III, who had challenged orders issued by the Town of Barnstable Conservation Commission and Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor (not surprising for a community that is so intimately tied to the water, dredging in the harbor is quite a controversial topic). 

Robbins' original post -- which has since been edited (more on this later) -- lamented the poor condition of Barnstable Harbor and its bulkhead, asserting that much of the blame for the town's failure to fix the problems was due to legal challenges filed by local residents. Robbins wrote:   read more »

Our very own Tuna Chatterjee is featured this week on the award-winning legal-affairs podcast Lawyer2Lawyer.  Tuna discusses the Massachusetts Bay Transportation Authority's (MBTA) recent lawsuit against three MIT students who discovered significant security flaws in the MBTA's fare system.

Tuna was joined by Marc Randazza, a First Amendment attorney and author of the blog The Legal Satyricon.  You can hear their excellent analysis of the case here.

Kevin Cogill, a blogger on Antiquiet, a site that provides "uncensored music reviews and interviews," was arrested yesterday at his home near Los Angeles on suspicion of violating federal copyright law after he allegedly posted nine songs from the unreleased -- and highly-anticipated -- Guns N' Roses album "Chinese Democracy."

Here is how his fellow Antiquiet bloggers described the situation facing Cogill, who posts under the name Skwerl:

Axl Rose didn’t call the FBI, but today it became more than obvious that someone really was serious about that threat. Johnny and I sat on a pew in the U.S. District Court building in Downtown L.A. as Skwerl sat behind glass, in handcuffs, and still in his jammies since the FBI arrested him at 6:59 this morning. . . . 

The U.S.A. requested bail be set at $50,000. Skwerl’s court-appointed attorney thankfully called B.S. on that one and recommended his bail be $5,000 and that this case is the kind of case where the defendant should have been summoned to appear instead of being accosted by five F.B.I. agents at his home in a quiet neighborhood.

Interestingly, the Judge chimed in to add that he had actually recommended that it be a summons case and wasn’t sure why it went down as it did. He also dismissed the idea presented by the U.S.A. that squirrels be forbidden to use the internet.  In the end, the Judge ruled that his bail be in the form of a signature bond at $10,000.    read more »

I just updated one of the more frivolous entries in our legal threats database, which has now spurred a federal lawsuit.  While it is barely worth blogging about, I thought it might be valuable as a cautionary tale for those who believe sending cease-and-desist letters is a no-lose proposition.   

The entry involves Jennifer Reisinger, who operates Sheboygan Spirit, a website focusing on the government and community of Sheboygan, Wisconsin, and Brat City Web Design, a site promoting her web development business.  The latter site contained a link to the Sheboygan Police Department (without any text or other explanation, it appears). 

On October 19, 2007, the city attorney for the City of Sheboygan sent Reisinger a cease-and-desist letter demanding that she remove the link to the police department from her site. The letter said that "maintenance of this link could be construed as having been authorized or endorsed by the City and/or its Police Department."   read more »

An Illinois appellate court has tentatively concluded that Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, violates the Illinois Constitution because it allows a party to appeal the denial of a motion to dismiss under the Act before the entire case has come to a conclusion.  Mund v. Brown et al., No. 05-L-83 (Ill. App. Ct. Aug. 13, 2008).   If the court, which has asked the parties and the Illinois Attorney General to brief the issue, ultimately invalidates the right to file an interlocutory appeal, it would significantly undermine the effectiveness of this important new law.   read more »

Los Angeles real estate developer Barry Shy and his development company, 5th St Loft, have sued Jessica Jordan and Alan Dylan, who reside in a building developed by Shy and run the website Truedowntown, the "unofficial" site for the Shybary Grand Loft in Los Angeles.  The lawsuit, which plaintiffs filed on June 17, 2008, claims that Jordan and Dylan libeled Shy and damaged his businesses by making disparaging comments about him.   read more »

Over the next few weeks I'll be posting about various topics we cover in the CMLP's Citizen Media Legal Guide.  If you would like to read any of the previous "highlights" from the guide, you can find them here. 

Today, I'll start with the risks associated with publishing online (for information on the legal risks associated with gathering, as opposed to publishing, information, see the Newsgathering section of the CMLP's legal guide).  Every time you publish something online, whether it's a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world.

Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. This post and the legal guide sections it links to are not intended to make you an expert on media law, but merely to help you identify potential "red flags" so that when you publish something that might result in liability, you will know to be extra careful and will take the necessary steps to minimize your potential legal risks.

Let's start with the more obvious risks.   read more »

Today, we are launching the final sections of the Citizen Media Law Project's online guide to media law covering the risks associated with publishing online, including defamation and privacy law.  (You can read the press release here.)  The free online guide, which is intended for use by bloggers, website operators, and other citizen media creators, focuses on the legal issues that non-traditional and traditional journalists are likely to encounter as they gather information and publish their work online.

The legal guide, which runs more than 575 pages, is funded by the John S. and James L. Knight Foundation. It covers the 15 most populous U.S. states and the District of Columbia and is broken into six major sections:

• Forming a Business and Getting Online, which covers the practical issues online publishers should consider in deciding how to carry on their publishing activities, including forming a for-profit and nonprofit business entity, choosing an online platform, and dealing with critical legal issues relating to the mechanics of online publishing;


• Dealing with Online Legal Risks, which covers managing a website and reducing legal risks through compliance with the Digital Millennium Copyright Act and other laws, finding insurance, finding legal help, and responding to legal threats;


• Newsgathering and Privacy, which addresses the legal and practical issues citizen media creators may encounter as they gather documents, take photographs or video, and collect other information, including information on state shield laws and using confidential sources;


• Access to Government Information, which provides information for citizens to proactively use the law in an affirmative manner to enhance their reporting and highlights the extensive amount of information available through government sources and explains how both traditional and non-traditional journalists can use various public access laws, including the Freedom of Information Act, state open records and open meetings laws to gather and make effective use of government information;


• Intellectual Property, which explains various intellectual property concepts, including copyright, trademark, and trade secrets, and provides practical advice to online publishers about how to use the intellectual property of others and protect their own property from exploitation; and


• Risks Associated with Publication, which covers defamation law, privacy law, rights of publicity, and other legal risks that can arise from public distribution of content. This section also explains the legal risks associated with the publication of reader comments and other user-submitted material.

Of course, law is never static, so we'll be updating the guide from time to time.  If you would like to stay abreast of these changes and any new material, please sign up for our weekly newsletter, the Citizen Media Law Brief.

The legal guide is the product of a tremendous amount of work by CMLP students and staff, especially Sam Bayard, CMLP's assistant director, and Tuna Chatterjee, CMLP's staff attorney. We also received help from Allan Ryan, the Director of Intellectual Property at Harvard Business School Publishing, and a team of top lawyers at Skadden, Arps, Slate, Meagher & Flom LLP, including Richard Hindman, Jane Harper, Kai Kramer, David Pawlik, and Eric Sensenbrenner. 

In keeping with our previous series of "highlights from the legal guide," we'll be posting summaries of the newest sections addressing the Risks Associated with Publication on this blog over the next few weeks.    read more »

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions. "Libel terrorism" (a term I am not a big fan of) describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States.    read more »

Following on the heels of a Virginia lawyer being sanctioned for improperly using a subpoena to silence a critic, we hear about a lawyer in California who is threatening to use a meritless lawsuit to force Julia Forte, who runs a forum for consumer complaints about telemarketers, to remove user-submitted comments that are critical of his client.

Paul Alan Levy at the Public Citizen Litigation Group, which represents Forte, has the story:

In a recent series of demands, a purveyor of “nutraceuticals” called mynutritionstore.com threatened to sue Julia Forte over consumer criticisms appearing on her web site 800notes.com, a forum for identification and discussion of telemarketers based on their phone numbers.  (The specific dispute is summarized here)  My Nutrition Store’s expressed concern was that the comments about it show up in Google searches.   read more »

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs Lisa and Seth Sykes sought to link exposure to mercury to their son's autism. (For more on her statements about the lawsuit, see my previous post: Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation.)   read more »

I am at the Carnegie-Knight Conference on the Future of Journalism hosted by the Shorenstein Center on the Press, Politics, & Public Policy at Harvard's Kennedy School of Government.  This is my third conference in three weeks, and I think I have reached my limit on conferences.  These three very different conferences, however, are excellent examples of the various approaches being studied (and in some instances, implemented) to ensure that good journalism survives the transition to new media.

The first was the Journalism that Matters (New Pamphleteers/New Reporters: Convening Entrepreneurs Who Combine Journalism, Democracy, Place and Blogs) conference at the University of Minnesota. This was a participatory affair full of independent journalists, placebloggers, and other citizen media types who are leading the charge of bringing quality journalism and conversation to their communities.  The energy and enthusiasm at this "unconference" was palpable, and I came away quite invigorated -- and optimistic -- that journalism would thrive (and is thriving in some places) on the Internet.    read more »

Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles. Today, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).   read more »

I'll be at the Massachusetts Institute of Technology for the next two days at a conference for the winners of the Knight News Challenge. CMLP was a lucky recipient of a Knight News Challenge award in 2007. The conference, which Knight plans to make an annual event, is being hosted by MIT's Center for Future Civic Media (which, incidentally, also won a News Challenge award last year).

It has been a fascinating day and a half so far, with presentations by both MIT researchers and Knight award winners, such as Adrian Holovaty, who showed off EveryBlock, an impressive aggregator and filter of local news by location, and Lisa Williams, founder of Placeblogger.

I won't even pretend to provide comprehensive coverage of this conference, especially when some of the best conference bloggers on the planet are here. For "live" coverage, you can't do better than Ethan Zuckerman and Amy Gahran. Ethan has several insightful posts up already (see here and here) and Amy is putting her fingers to the test by "live tweeting" at amylive.   read more »

Over the next two days, I'll be participating in and speaking at the Journalism that Matters: Minnesota conference organized by the Media Giraffe Project, Minnesota Journalism Center, and Minnesota News Council. It's the third in a series of Journalism that Matters gatherings. The full name for the conference, which gives you some idea of its focus, is New Pamphleteers/New Reporters: Convening Entrepreneurs Who Combine Journalism, Democracy, Place and Blogs. You can view the agenda here.

This will be my first time at a Journalism that Matters conference, and I am very excited to have been invited. What makes these conferences so interesting is that they aren't conferences in the traditional sense, but instead fall into that oxymoronic category of "unconference" conferences, where the participants largely decide the topics and run the discussions. For example, I am slated to join Robert Cox from the Media Bloggers Association for a "coffee klatch" on citizen media and the law.

If you are in the Minneapolis area, please come by. I'll try and post an update or two and may even begin using Twitter (gasp!).

Earlier this week, YouTube announced that it had designated a news manager for the site and created a Citizen News channel. Olivia Ma, YouTube's new News Manager, announced the initiative on YouTube's blog:

Thanks to better, cheaper, and easier access to video equipment, there's an amazing amount of news being reported on YouTube every single day by citizens in all corners of the globe. You're conducting interviews with local community leaders, doing weekly reports on the latest campus news for your school television station, and investigating untold stories you think the world should know about. This stuff is fantastic, but we want to see more from you all and to bring more citizen journalists into the fold.

Of course, there is already a lot of content on YouTube that could be described as citizen news. The new channel, however, will bring much of this content into one place and should serve as a useful platform for highlighting the important contributions that citizen media are making to our understanding of the world.   read more »

Today marks the one-year anniversary of the launch of the Citizen Media Law Project's blog. Back on May 20, 2007, we didn't have much in the way of staff (it was just me) and we didn't have a whole lot to say (again, it was just me), but we knew we had to start somewhere. My first post, entitled Time to Launch, begins with the following prose:

Don't let anyone tell you that launching a website is easy. It isn't. After several false starts and a lot of time spent trolling the Drupal community site (I'll talk more about Drupal in a later post), we are ready to put this out to the world, in beta form at least. Let's just say it has been a learning experience, which I guess is apropos because that is what this site, and the Citizen Media Law Project, are about: learning. . . .

Fortunately, other more talented writers joined the CMLP and the blog took off. With an average of about 5 new posts a week from 8 different authors, we've managed to publish a total of 267 blog posts over the one-year period (you can receive these posts automatically by signing up for our newsletter and/or RSS feeds). Because it can often be a challenge to come up with new and exciting topics to blog about (and I am feeling especially lazy today), I thought I would trot out the tried and true retrospective list.

So, in case you were wondering which CMLP blog posts are the most popular, we've got you covered. I am not sure what this list tells us about the project or you, our readers, but it's interesting nonetheless. Here are the titles of our ten most popular blog posts (ranked in order of page views with the original publication date included):   read more »

Lori Drew was indicted on Thursday for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006 after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, who pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter.

I've blogged about this tragic story several times and noted in January that the Los Angeles Times was reporting that a federal grand jury in Los Angeles had begun issuing subpoenas in the case. The grand jury has now charged Drew with conspiracy and three counts of accessing protected computers without authorization in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The indictment charges that   read more »

We are all at the Berkman@10 Conference at Harvard Law School today and tomorrow, so postings will be a bit light. The conference, subtitled "The Future of the Internet" (based on Jonathan Zittrain's engaging new book of the same title), includes a number of Internet luminaries such as Jimmy Wales, Esther Dyson, Joshua Micah Marshall, Doc Searls, David Weinberger, Michael Fricklas, and Reed Hundt.

You can see the agenda for the conference here and many of the events are being webcast live.

In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws. (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy. ) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-five states have anti-SLAPP laws.

The Illinois case, Jaeger et al. v. Okon, involved bloggers Joy and Tom Okon, operators of North Center Neighbors, a blog that covers happenings in the North Center neighborhood of Chicago. In May 2007, the Okons were sued by James Jaeger and his development company for defamation. Jaeger's complaint alleges that the Okons defamed him by posting statements on their blog (and sending emails) that implied that he had bribed government officials and engaged in dishonest business practices.   read more »