Monday, October 31, 2011

High Court Rejects Appeal of Student Disciplined for Internet Posting

U.S. Supreme CourtImage via WikipediaThe U.S. Supreme Court today let stand a ruling by the U.S. Circuit Court of Appeals for the Second Circuit by refusing to hear an appeal from a Connecticut high school student who was sanctioned by school officials for after-school live-blogging that was critical of school administrators, according to the Associated Press.

The case, Doninger v. Niehoff (Docket Nos. 09-1452, 09-1601, 09-2261), concerned then high school junior and class secretary Avery Doninger of Burlington, Connecticut, who was upset by principal Karissa Niehoff's decision in 2007 to cancel Jamfest, a popular musical event at the school. Doninger blogged from her home, calling school officials "douchebags" and urging students and parents to complain to the school superintendent to "piss him off."

For her virtual rant, the school forbade Doninger from running for class secretary during her senior year. She sued pursuant to 42 U.S.C. sec. 1983 & 1988, alleging her free speech, due process and equal protection rights were being violated. The district court and court of appeals sided with the school, and the Supreme Court declined to hear the case.  It's worth noting that before her confirmation on the High Court, Justice Sonia Sotomayor sided with the majority on the appeals panel against Doninger (see "TUOL" post 5/26/09).
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Copyright Infringement for Dummies

Seal of the United States District Court for t...Image via WikipediaIn John Wiley & Sons, Inc. v. John Does 1-27(Case No. 1:11-cv-07627), filed October 27 in the U.S. District Court for the Southern District of New York, the publisher of the popular "For Dummies" series has sued as-yet unidentified individuals who downloaded Wiley publications without permission.

As reported by, Wiley, which has published more than 1,800 "For Dummies" titles in 31 languages, claims the pirated downloading of its Photoshop for Dummies alone, which sells for $20, has occurred more than 74,000 times since Summer 2010. The publisher, which has reportedly sold more than 200 million copies of its "For Dummies" volumes since 1991, has targeted anonymous New York residents as defendants based on IP addresses.

Looks as if "Defendants for Dummies" may not be far in the offing.

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Friday, October 28, 2011

Paparazzo Ambushes CBS With Copyright Infringement Suit

John Edwards official Senate photo portrait.Image via WikipediaPaparazzi, the relentless photographers staking out celebrities, may be lawless in the public's mind, but that doesn't mean they can't also be litigious.

Witness Alan Zanger, as in Zanger v. CBS Corporation et al. (Case No. 1: 2011-cv-07483), who this week brought a copyright infringement action in the U.S. District Court for the Southern District of New York alleging that CBS's The Early Show and The Insider featured his mother & child pics of Rielle Hunter, former Sen. John Edwards' mistress without his permission.

Zanger allegedly has an exclusive deal with tabloid New York Post since 2008 to publish candids of Edwards' & Hunter's kid, which US Weekly and Inside Edition have also licensed, according to a THR, Esq. blog post. Based on interest purportedly expressed by The Insider, Zanger claims that he forwarded a couple of Hunter photos to the CBS program for its review, which his complaint alleges have appeared on the Eye Network without his being compensated.

CBS has yet to respond to the suit that was filed October 21.

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Sheriff's Dept. Conduct Makes Los Angeles Photogs Shutter: Federal Suit Filed

Los Angeles County Sheriff's DepartmentImage via WikipediaBacked by the ACLU, three photojournalists have filed suit in the U.S. District Court for the Central District of California, alleging that the Los Angeles Sheriff's Department and its deputies have systematically harassed, searched and detained them as the shutterbugs have attempted to take photographs in public places, The Los Angeles Times reported.

The 24-page complaint in Shawn Nee, Greggory Moore, Shane Quentin & the National Photographers' Rights Association v. County of Los Angeles, Los Angeles County Sheriff's Dept. et al. seeks a declaratory judgment from the Court that the alleged misconduct by the defendants violated the First and Fourth Amendment rights of the plaintiffs, an injunction against the Sheriff's Dept. and attorneys' fees. The complaint includes two counts alleging violation of the First Amendment and Fourth Amendment rights of the plaintiffs pursuant to 42 U.S.C. sec. 1983 (Civil Action for Deprivation of Rights), which in relevant part provides: "Every person, who under color of any statute, ordinance, regulation, custom or usage of any State...subjects...any citizen of the United the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."

The alleged behavior by the Sheriff's Dept. deputies springs from "suspicious activity reporting" under the auspices of Homeland Security and counterterrorism. According to the Times article, documentary photojournalist Shawn Nee allegedly was detained and searched on Halloween 2009, after photographing turnstiles at the LA Metro system. Greggory Moore, a reporter/photographer for the Long Beach Post, was photographing passing motorists from a public sidewalk for a story in June 2011, when he was allegedly frisked and interrogated by deputies. Shane Quentin, a freelance art photographer, ran afoul of deputies in June for photographing oil refineries.

"TUOL" will watch as this case continues to develop.

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Tuesday, October 25, 2011

Facebook Cookie Spurs Class-Action Suit

Seal of the en:United States District Court fo...Image via WikipediaThis blog was remiss in not reporting on a class-action complaint filed September 30 in the U.S. District Court for the Northern District of California, Davis et al. v. Facebook, Inc. (Case No. 5: 2011cv04834).

The case, reported by and elsewhere, alleges that social media leviathan Facebook violated the Federal Wiretap Act [18 U.S.C. sec. 2511], the Stored Electronic Communication Act [18 U.S.C. sec. 2701] and the Computer Fraud &Abuse Act [18 U.S.C. sec. 1030] when it admitted surreptitiously tracking its members' computer usage after users logged off the social media site.

The 15-page complaint alleges as its class members active Facebook account users for the period from May 27, 2010, through September 26, 2011, when it was first publicized that Facebook purportedly conceded employing cookies to track its users' Internet site visits post-sign-off. reports the plaintiffs have retained Prof. Henry H. Perritt, Jr., author of Law and the Information Superhighway, as an advisor. Related suits have been filed in several other states, including Arizona, Alabama, Illinois and Kentucky.

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Thursday, October 20, 2011

Canada High Court Says Hyperlinking Not Publishing in Libel Context

Supreme Court of CanadaImage via WikipediaIn its 72-page opinion in Crookes v. Newton (2011 SCC 47), The Supreme Court of Canada ("SCC") this week unanimously ruled that hyperlinking to online defamatory content is not the same as publishing the defamatory statements.

Likening hyperlinks to footnotes that communicate that something exists but do not communicate the content of that something, the nine-member SCC panel struck a blow for Internet freedom, allaying concerns of a chilling effect on online communicators fearful of being liable for using hyperlinks on their Web sites. Writing for the majority, Madam Justice Rosalie Abella said: "'Hyperlinks are, in essence, references, which are fundamentally different from other acts of 'publication,"' according to an article in Canadian Lawyer magazine.

"The Internet cannot, in short, provide access to information without hyperlinks," Justice Abella wrote. "Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information, and, as a result, freedom of expression," she noted in the majority opinion.

The SCC was quick to point out, however, that an individual who presents defamatory hyperlinked content in a manner that repeats the offensive material may be viewed as publishers susceptible to a libel claim. The case arose from a 2006 post by defendant Jon Newton on his Web site that linked to other articles that the plaintiff claimed defamed him. Former Green Party Campaign Manager Wayne Crookes alleged he and his company, West Coast Title Search Ltd., were subjects of a smear campaign and sued Newton after the defendant refused to remove hyperlinks to the allegedly offensive articles.

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Wednesday, October 19, 2011

UPDATE: English High Court Scraps Much of Tesla's Top Gear Libel Suit

DRESDEN, GERMANY - NOVEMBER 13:  A visitor sit...Image by Getty Images via @daylifeThe Queen's Bench Division of England's High Court today sent to the legal junkyard a significant portion of an automaker's libel suit against BBC's Top Gear program based on a December 14, 2008, episode that depicted the car manufacturer's vehicle faring poorly in a number of performance tests.

According to an article in The Guardian, Mr. Justice Tugendhat found that reasonable viewers of Top Gear would not compare the shaky performance of Tesla Motors' electric car on the program's airfield track to its actual performance on a public road. The court will continue to hear Tesla's allegations that the defendant made five defamatory false statements about the Tesla Roadster.

The case, Tesla Motors Ltd. et al.  v. BBC (Claim No. HQ11D01162) [see "TUOL" post 3/30/11], centered around Top Gear's Jeremy Clarkson's contention that the Roadster ran out of battery after 55 miles driving around the show's track, far short of the car maker's 200-mile endurance claim. The Guardian article quoted Mr. Justice Tugendhat verbal opinion: "In my judgment, the words complained of are wholly incapable of conveying any meaning at all to the effect that the claimant [Tesla] misled anyone. This is because there is a contrast between the style of driving and the nature of the track as compared with the conditions on a public road."
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Tuesday, October 18, 2011

Fla. Mayor Won't Talk to Reporters Unless They Register as Lobbyists

County logo.Image via WikipediaLauderhill (Fla.) Mayor Richard Kaplan, citing an ethics code enacted by Broward County Commissioner last week, will not speak to reporters unless they register as lobbyists, according to the Website for  the Reporters Committee for Freedom of the Press (

The ethics code takes effect January 2, 2012, but don't expect Sun-Sentinel reporters to sign up as lobbyists anytime soon. The paper's assistant general counsel believes the measure is unconstitutional and Broward County's chief appellate counsel has already stated that journalists are not lobbyists and that his office sees no need to clarify the ethics code to make that point.

Mayor Kaplan reasoned that reporters' research is the source for editors who write editorials that seek indirectly to influence government decision-making, which he views as lobbying. Just the kind of clear-thinking that voters want in a chief executive. Kaplan's staff said the mayor was on vacation (from reality?) and unavailable to respond to the adverse reaction to his opinion.

It all may be a tempest in a teapot, though this being Florida, maybe an iced teapot.

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Palm Beach Post Latest Daily to Slash Newsroom Staff

Cox EnterprisesImage via WikipediaTwenty staffers at the Cox Enterprises, Inc.-owned Palm Beach Post received their walking papers last Friday, Romanesko's blog reports.

Publisher Tim Burke blamed the economic downturn for the staff cuts. Cox's holdings include radio stations, television outlets and two dozen daily newspapers, including The Atlanta Constitution and The Austin American-Statesman.
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Friday, October 14, 2011

Politico Punts Plagiarist

Nice giveaway, PoliticoImage by @jbtaylor via FlickrArlington, Va.-based Political Website Politico has jettisoned reporter Kendra Marr after editors uncovered content in several of her articles that she used without attribution from The New York Times and other publications, according to The Huffington Post.

Politico Editor-in-Chief John F. Harris said Marr resigned. Reportedly, there were a half dozen or so articles that Politico editors said in an online note on their Website "borrowed from the work of others, without attribution, in ways which we cannot defend and will not tolerate."
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Times Not at a Standstill; Looking for 20 Print Journalists to Accept Buyout

Logo of The New York Times.Image via WikipediaOnly ink-stained wretches need apply to The New York Times' management offer of voluntary buyouts for 20 staffers.

The Romanesko Website notes that the Grey Lady, as part of its efforts to adapt to industry changes, excluded digital journalists from the buyout. In a memo to newsroom employees, Romanesko noted the Times acknowledged the "continuing and difficult challenge to the Times: how to rebalance our business for the digital age while remaining steadfast to the quality journalism that defines us?"

The Times' contract with the Newspaper Guild of New York expires March 30, 2012, though it remains in effect until the two sides reach an accord. Any new pact is likely to reflect the Times philosophy toward rebalancing the more favorable terms print reporters enjoy compared to their digital counterparts.
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Ruptured Maine: Press Herald Slashes Newsroom Staff

Portland MaineImage via WikipediaStaggered by the poor economy and declining advertising revenues, Maine Today Media-owned Portland Press Herald will layoff 38 full-time and part-time employees within two weeks, mostly newsroom denizens, according to a story in the Kennebec Journal.

In addition to the blood-letting on the editorial side, an additional 23 full-time and part-time staffers have opted for a voluntary buyout, according to the Journal article. Pink-slipped employees will receive two weeks' severance pay for each year of service.

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Thursday, October 13, 2011

Another Winklevoss Loss--Rowing Twins Likely to Miss Litigation Playoffs

SAN FRANCISCO - JANUARY 11:  Cameron (L) and T...Image by Getty Images via @daylifeSay what you will about the litigious Winklevoss twins, but you have to admit, they're not afraid to lose.

The latest courtroom setback for Harvard alums Cameron and Tyler Winklevoss happened this week when a five-judge panel of New York's Appellate Division, First Department upheld the 2010 findings of an arbitration panel and of New York Supreme Court Judge Richard Lowe III by rejecting the duo's legal malpractice claim against the law firm that resolved the Winklevi suit against Facebook founder Mark Zuckerberg. In ConnectU v. Quinn Emanuel (Case No. 602082), the appeals court granted defendant Quinn Emanuel Urquhart & Sullivan's motion to dismiss the plaintiffs' suit to overturn the firm's $13 million contingent fee arising from the settlement of the Facebook suit in 2008, according to a report by Reuters news service. (See "TUOL" post 7/26/11).

The brothers W alleged their lawyers undervalued social media giant Facebook's worth when negotiating the settlement and purportedly breached client confidence by allegedly disclosing the settlement sum in a firm newsletter, despite a confidentiality agreement. The Winklevoss twins, who reportedly received $20 million apiece and another $65 million in Facebook stock from the settlement, despite their Olympic rowing skills, appear unable to get the Zuckerberg loss through their thick sculls.

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Tuesday, October 11, 2011

Will Oregon Twibel Case Proceed to Trial?

Downtown Tigard, Oregon, Main StreetImage via WikipediaThe Multnomah (Ore.) County Circuit Court this month may hear Darm v. Craig (Case No. 1107-08823), Oregon's first Twitter-based defamation ("Twibel") trial in which Jerrold Darm, a physician at the Aesthetic Medicine spa in Tigard, Oregon, is seeking $1 million in damages to his reputation against blogger Tiffany Craig, according to a report on the Website.

According to the OregonLive account, the 62-year-old Darm's suit is based on June 2011, postings by the defendant in which she allegedly described him as "ubiquitous" because of his spa's extensive television advertising and allegedly alluded to a decade-old disciplinary action taken against Darm by the Oregon Medical Board ("OMB"). Darm alleges that the defendant posted that he sought sex in exchange for treatment.

Reportedly, Darm was reprimanded in 2001 for violating the state's Medical Practices Act and was subjected to an order mandating interviews with the probationary board, mental health reviews, mandatory enrollment in risk management and doctor boundaries courses and required chaperones when Darm saw female patients. The OMB lifted the order in 2009.

According to Darm's suit, the OMB-imposed discipline for an "inappropriate boundary violation" and for "unprofessional or dishonorable conduct," made no mention of sexual relations with patients as he alleged the defendant's blog and Twitter posts suggests. Craig's attorney in August filed a motion to dismiss the suit with the court under the state's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [ORS 31.150], which contends that the plaintiff's lawsuit infringes on Craig's First Amendment rights to address a matter of public concern. The defendant's counsel claims Craig's postings were substantially true and included a hyperlink to OMB documentation.

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Monday, October 10, 2011

Qwikster Becomes Quicksand to Netflix: Company Abandons Split of DVD Rental & Video Streaming

Image representing Netflix as depicted in Crun...Image via CrunchBaseNetflix, once-admired for its business acumen and streamlined operation that enabled it to topple Blockbuster and other video competitors, nowadays evokes comparisons to the bumbling video store clerks played by Jack Black and Mos Def in Be Kind Rewind (2008).

Less than three weeks after Netflix announced it was dividing its operations into separate subscriptions for Netflix, which would stream movies, and Qwikster, which would rent DVDs through the mail (see "TUOL" post 9/21/11), The New York Times reports today that the company will keep the two operations together under the Netflix name and Website.

The bold corporate decision to say: "Never mind," follows a firestorm of criticism and an estimated 1 million users out of the company's 25 million subscribers jumping ship to protest the lack of notice and the boost in the monthly subscription rate from $10 for the two services to a proposed $16, or $8 apiece, for Netflix video streaming and Qwikster DVD mailing.

Although he declined to be interviewed, the Times article reported a statement released by Netflix chief honcho Reed Hastings, who distinguished between "moving quickly--which Netflix has done very well for years--and moving too fast, which is what we did in this case."  It remains to be seen whether subscribers, happy that the company wouldn't be split into two entities, will nonetheless absorb the higher $16 monthly subscription fee, which has not been rolled back.

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Times Are Tough in St. Petersburg: Sagging Economy Prompts Staff Layoffs

St. Petersburg TimesImage via WikipediaOn the heels of a 5 percent salary reduction and a shake-up in severance payments, the Times Publishing Co.'s St. Petersburg Times has begun pink-slipping editorial staffers in response to a stagnant economy that has dried up ad lineage and reduced circulation.

The Romanesko Website reports that at least 8 staffers have been laid off, though the daily thus far has confirmed only 3 jobs lost. Times Executive Editor Neil Brown issued a memo to the newsroom explaining the economic need to trim staff.  The St. Petersburg Times is owned by the nonprofit Poynter Institute for Media Studies.

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Friday, October 7, 2011

BBC Budgetary Bombshell

LONDON, ENGLAND - MARCH 02:  A BBC logo adorns...Image by Getty Images via @daylifeDesperate to reduce its operating budget by 20 percent over the next five years, the British Broadcasting Corp. announced layoffs approaching 400 staffers throughout England, with local radio stations taking the largest hit at 280 jobs, the BBC reported.

The BBC said another 100 jobs will be lost in regional current affairs, online, local weather and regional news. The National Union of Journalists and the technicians union, Bectu, oppose the reductions. 

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Denver Post Offers Voluntary Buyouts--Staff Cuts Could Approach 10 Percent

WestwordImage via WikipediaGregory Moore, Denver Post editor, has confirmed that voluntary buyouts have been offered to editorial staffers in hopes that 15 to 20 will depart, Denver blog Westword reports.

Staff cuts are the next step if the nearly 10 percent of newsroom personnel don't opt out, according to Westword. The MediaNews Group, Inc.-owned Denver Post slashed the daily's budget 4 percent last June in the wake of depressed advertising sales and a shrinking readership.  The cutbacks were visible in the sports and feature sections, which reduced pages. As have many other newspapers, the Post is redirecting its resources toward its Website.

The paper's daily circulation is roughly 255,000.

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Thursday, October 6, 2011

Restrictive Italian Law Prompts Wikipedia to Block Access to Site

Image representing Wikipedia as depicted in Cr...Image via CrunchBaseProtesting a draft law that would require altering Website content within 48 hours without explanation based on a complaint of prejudice or bias, online encyclopedia Wikipedia has blocked access to its Italian version, the Montreal Gazette reported in an Agence France Presse wire story.

Beleaguered Italian Prime Minister Silvio Berlusconi's government endorsed the measure that mandates content change without verification, which Wikipedia attacked as "an unacceptable limitation" on its freedom. Intended to deter details about government-sanctioned wiretaps from appearing in the press, the draft law imposes a $14,000 fine and a one-month imprisonment on journalists who violate it, according to the Gazette article.

Wikipedia objects to the law's failure to provide for a third party who could judge whether the content at issue is damaging.
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Tuesday, October 4, 2011

'Oh My God, They Sued Kenny!': South Park Wins Copyright Suit

Canada on StrikeImage via WikipediaIn Brownmark Films v. Comedy Partners et al (Case No. 10-cv-1013; 2011 U.S. Dist. LEXIS 72684), U.S. District Court for the Eastern District of Wisconsin Judge J.P. Stadtmueller last week found that an episode of the animated series South Park did not infringe the copyright of the viral music video of Samwell's "What What In the Butt(WWITB)."

The court held that the WWITB parody featured on South Park's April 2, 2008, episode entitled "Canada on Strike" was a protected fair use under 17 U.S.C. sec. 107 of the U.S. Copyright Act. The plaintiff, co-holder of the music video's copyright, sued Comedy Partners, South Park Digital Studios, MTV Networks, Paramount Home Entertainment Network, Inc. and Viacom International Inc. for the send-up of the viral video craze that incorporated a portion of the WWITB footage, without the plaintiff's permission, which included a brightly attired Samwell singing: "I said what what in the want to do it in my butt, in my butt..."  Eat your heart out, Cole Porter.

Applying the four-pronged fair use test, which involves examining the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the effect of the use on the potential market for or value of the copyrighted work, Judge Stadtmueller concluded the South Park parody warranted the limited privilege provided by the fair use exception. He dismissed the complaint with prejudice.
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