Harvard Berkman Ctr: Digital Media Law Brief

From the Digital Media Law Project (by Harvard’s Berkman Center for Internet & Society); you can sign up for alerts here: http://www.dmlp.org/newsletter/subscriptions

Digital Media Law BriefNews and more from the Digital Media Law Project at Harvard’s Berkman Center for Internet & Society.

Brief for September 2013

Welcome to the Digital Media Law Brief, our monthly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Digital Media Law Project’s website, as well as upcoming events and other announcements. You are receiving this email because you have expressed interest in the DMLP or registered on our site, www.dmlp.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.dmlp.org/newsletter/subscriptions.

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News from the Digital Media Law Project…

Hello from the Digital Media Law Project; we hope the beginning of fall is treating you well!

We have launched the season with a bang, shipping Jeff off to New Delhi and London to speak with lawyers and journalists about online resources for defending freedom of expression, meeting members of the Harvard/Cambridge community at the Berkman Center’s Fall Open House event, launching a new survey to investigate how government and private organizations grant press credentials to newsgatherers, and working on an exciting new project with the Harvard Law School Cyberlaw Clinic to develop educational materials to help journalists understand their technical and legal ability to protect journalism work product and source identities.

We also have new and updated sections in our legal guide addressing practical tips for accessing courts and court records generally, as well as information on topics relating to specific states such as access to Missouri state court recordsaccess to public records in Tennessee, and forming journalism cooperatives in Illinois. We have updated a number of entries in our threats database, and have added a bunch of new content in our blog. We are also still accepting applications for academic-year internships, so if you are a law student in the greater Boston area and are interested in working with us during the fall or spring semesters, you can find out more about internship positions here.

Meanwhile, we’re eagerly expecting our 500th legal referral through the Online Media Legal Network, and we’re certainly intending to make a big deal of it, using that milestone as an opportunity to look back at the lessons we’ve learned and to make plans for the future. We are always looking for media, intellectual property, and business law attorneys to join us, so if you’re interested in working with us on the future of the network, now is a great time to let us know!

As always, much more to follow, so stay tuned!

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The latest from the Digital Media Law Project blog…

Samantha Scheller explores the intersection of fact and fiction in court cases involving reality TV
Real or Fake, It’s Protected by the First Amendment: Court Awards Fees in “Storage Wars” Case

Kristin Bergman calls out newscasters who invoke copyright law to hide their on-air embarrassment.After On-Air Mishaps, Embarrassed Newscasters Turn to Copyright LawRebekah Bradway examines what happens when a private party holds the copyright in the government’s public records.
Blurred Boundaries: When Copyright and FOIA Collide

Jeff Hermes digs into a Sixth Circuit ruling on the doctrine of opinion that undercuts the value of the very speech that it protects.
A Win for Opinion: Sixth Circuit Tackles Website Top-Ten Lists

Lindsay Burke takes a look at a recent federal court decision analyzing the Stored Communications Act in the context of Facebook.
Federal Court Finds Stored Communications Act Applies to Facebook Wall Posts

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Threats recently updated in the DMLP Threats Database…

Jones v. Dirty World, LLC
Updated August 12, 2013

Prenda Law v. Godfread
Updated August 14, 2013

Duffy v. Godfread
Updated August 14, 2013

Seaton v. TripAdvisor, LLC
Updated August 29, 2013

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Other media law news and commentary…

Time to tame the NSA behemoth trampling our rights
The Guardian – 9/13/13

How a parody T-shirt beat the NSA
The Daily Dot – 9/12/13

The NSA Is Breaking Most Encryption on the Internet
Schneier on Security – 9/5/13

‘Revenge porn’ law in California could pave way for rest of nation
NBCNews.com – 9/3/13

Bing No Longer Complying With Court-Ordered Defamatory Content Removals?
Search Engine Watch – 8/23/13

App Stores Aren’t Liable For Third Party Apps
Forbes – 8/19/13

A chilling act of intimidation and harassment
Media Nation – 8/19/13

First 100 Pages of Aaron Swartz’s Secret Service File Released
Wired – 8/12/13

Federal judge indefinitely blocks N.J. law intended to root out online ads for underage sex
NJ.com – 8/9/13

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The full(er) Brief…

“A California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment. The plaintiff, Dave Hester, was a cast member for three seasons on A&E’s hit reality show Storage Wars. The show centers around the lives of a handful of bidders who compete in auctions for abandoned self-storage lockers across the country. The rules of the show are simple: the lockers are up for grabs to the highest bidder, but each prospective bidder may only look at the locker from the outside—which means that no one is allowed to probe through the inner contents of the storage unit. … Hester’s complaint alleged that he was fired after complaining to the Storage Wars producers that their “rigging” of the storage units—by “salting” the units with new, valuable items before the on-camera biding—was illegal…”
Samantha Scheller, Real or Fake, It’s Protected by the First Amendment: Court Awards Fees in “Storage Wars” Case

“Whether we consider the purpose of copyright to be to protect economic rights or moral rights, copyright is a powerful yet dangerous instrument. Abuse of copyright, particularly using the Digital Millennium Copyright Act’s takedown notice system, is hardly new; the Chilling Effects database contains ample evidence of efforts to silence legitimate speech. But this summer, we saw a trend of abusers using copyright to save face and reduce criticism from an unexpected type of copyright holder: news organizations. … News organizations exist at the heart of political discourse, and should function to encourage public discussion rather than censor it. A news outlet should promote the exchange of ideas, not restrict them simply because the outlet itself might be reflected in a negative light…”
Kristin Bergman, After On-Air Mishaps, Embarrassed Newscasters Turn to Copyright Law

“Technology has given citizens the ability to interact with government information in a way never before possible. Some exploit this data for commercial gain; others use new analysis techniques to uncover layers of meaning previously unrecognized; still others collate and publish government records to simplify access for everyone else. But what happens when there is an assertion that vital government records are subject to copyright restrictions? Section 105 of the U.S. Copyright Act explicitly states that works created by the U.S. government are not eligible for copyright protection, but allows the federal government to hold copyrights assigned by others, and does not address the work of third-party contractors hired by the government. Meanwhile, the law regarding copyright ownership for state governmental entities is unclear; Section 105 does not mention state government works, and while some states follow the federal model, others allow their agencies to assert copyright control over their works. Resulting from uncertain standards and various levels of copyright protection, the intersection of public records laws and copyright can be complicated, as recent events have shown…”
Rebekah Bradway, Blurred Boundaries: When Copyright and FOIA Collide

“The doctrine of opinion can be confusing at the best of times. The very use of the word opinion as a catch-all term for that category of speech that cannot be proven true or false carries unfortunate connotations of whim and personal preference, which do not readily fit the broader range of conclusions, hypotheses, speculation, invective, humor, and other statements which fall within the category. While the Sixth Circuit’s decision this week provides strong support for the publication of subjective conclusions based upon data from the crowd, the court’s apparent need to tie its analysis to a lack of seriousness weakens its value somewhat for opinions on matters of public concern…”
Jeff Hermes, TwitterFacebookYouTube, and Delicious!