The Unruly of Law

Gingrich 'Rocky' Campaign Sued by 'Eye of the Tiger' Composer

2012-02-01T13:43:00.000-05:00

Image by Getty Images via @daylifeGOP presidential primary contender and former House Speaker Newt Gingrich may consider himself a political Survivor, but the co-composer of the Rocky III theme song "Eye of the Tiger" nonetheless has brought a copyright infringement claim in the United States District Court for the Northern District of Illinois to get the Georgia history professor to stop blasting the tune at campaign events.

The five-page complaint in Rude Music Inc. v. Newt 2012 et al. (Case No. 1:12-cv-00640) seeks injunctive relief, along with damages and attorneys' fees against Gingrich's campaign, Newt 2012, as well as the American Conservative Union. Plaintiff Frank Sullivan, owner of Rude Music Inc., co-wrote the Grammy-winning "Eye of the Tiger" with Jim Peterik, and registered the copyright in 1982, according to accounts by Reuters and Associated Press wire services.

The complaint alleges Gingrich co-opted the song without the creators' permission, and has been using it since 2009 to signal his arrival at rallies and other public appearances. Gingrich's campaign has yet to respond to the suit, preferring to direct its invective at front-runner Mitt Romney, President Barack Obama and the news media.

Republican candidates have not had much luck against musicians angry over their works being used in political settings, ranging from Jackson Browne (see "TUOL" post 7/21/09), David Byrne (see "TUOL" post 5/26/10) and Don Henley (see "TUOL" post 6/3/10). If Rep. Gingrich decides to change his tune, so to speak, the music-loving staff of "TUOL" recommends Frank Sinatra's "Love is Lovelier the Second (er...Third) Time Around," Tina Turner's "Let's Pretend We're Married," Blue October's "Hate Me" or Lisa Marie Presley's "Idiot."

Cops Sue Chicago Sun Times Over Publishing Photo LIneups

2012-02-01T12:15:00.000-05:00

Image via WikipediaIn a seven-page complaint filed in the United States District Court for the Northern District of Illinois, five police officers have sued The Chicago Sun-Times for publishing photo lineups that depicted the officers and included personal information gleaned from the Secretary of State's motor vehicle records.

The complaint, Scott Dahlstrom, Hugh Gallagly, Peter Kelly, Robert Shea & Emmet Welch v. Sun-Times Media LLC d/b/a Chicago Sun-Times (Case No. 12-cv-00658), alleges the defendant violated the Drivers Privacy Protection Act ("DPPA") [18 U.S.C. secs. 2721-2725] by including information, such as the officers' birthdates, height, weight, hair color and eye color, in a story that included photo lineups of the plaintiffs along with Richard J. Vanecko, nephew of former Chicago Mayor Richard Daley, who was accused of striking David Koschman on April 25,2004, according to an account in The Chicago Tribune. Koschman died from brain injuries less than two weeks later. Vanecko was not charged in his death.

Police routinely participate in "perp lineups" standing alongside suspects whom witnesses are asked to identify. The complaint claims the plaintiffs are fearful for their safety because of the defendant's publishing their photos and personal data. Section 2722(a) of the DPPA makes it "unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b)" of the Act.

The plaintiffs are seeking injunctive relief to remove identifying details and personal information from the defendant's publications, along with attorneys' fees, actual damages of at least $2,500 per officer as statutorily prescribed, and punitive damages. The Tribune reported that the Fraternal Order of Police last November unsuccessfully attempted in Cook County Circuit Court to prevent the Sun-Times online edition to continue publishing the five officers' personal information. That case has since been dismissed.

Whither Philly Dailies?

2012-01-31T09:35:00.000-05:00

Image via WikipediaHow solid or shaky the ground on which Philadelphia Media Network ("PMN")-owned dailies, the Philadelphia Inquirer and Philadelphia Daily News, stand is open to debate on news that one of PMN's key stakeholders is sitting on his hands as the papers are put on the auction block.

The New York Post yesterday reported that Alden Global Capital principal Randall Smith, owner of roughly 30 percent of the Inquirer & News properties, has remained quiet amid PMN's auction that is expected to reap about $100 million. PMN acquired the dailies out of Chapter 11 bankruptcy protection from Philadelphia Media Holdings (see "TUOL" post 7/11/11).

Romanesko's media blog reported that PMN CEO Greg Osberg discounted the Post story, assuring PMN employees in a memo that shareholders routinely boost or reduce their ownership levels in properties and that a minority owner may only sell his percentage of ownership in the dailies, not the dailies themselves.

Alden Capital and other hedge funds doled out $139 million for their Philly stake (sorry), the Post reported, but it seems that Smith, a major shareholder in a variety of media entities, including Gannett, Freedom Communications and Journal Register Co., may be losing his taste for media empire building.

Poor 4th Quarter Earns Gannett Co. S&P 500 Index Booby Prize

2012-01-31T09:03:00.000-05:00

Image by Getty Images via @daylifeUSA Today parent Gannett Co., which counts 82 newspapers and nearly two dozen tv stations among its holdings, saw its stock plummet 6.9 percent yesterday, making the McLean, Va.-based media conglomerate the worst performer among the S&P 500 Index, Bloomberg News reports.

Gannett, which slashed its work force by 2 percent over the summer (see "TUOL" post 6/21/11) as readers continued to flock to online competitors Google and Facebook for information, suffered its fourth consecutive decline in quarterly revenues, plunging 5.3 percent in its publishing division. Net income for the Fourth Quarter sank 33 percent, according to Bloomberg, to $116.9 million, or 69 cents a share, compared to $174.1 million, or 72 cents a share, a year ago.

The beleaguered media giant's sales dropped 5.1 percent to $139 billion. Gracia Matore, Gannett's former COO, assumed the helm last October after declining health prompted Craig Dubow to step down.

A far cry from the company's salad days when, on one occasion, USA Today founder Al Neuharth when asked whether the first or second syllable of the conglomerate should be emphasized when identifying the company responded: "It's pronounced 'money.'"

Govt. Seeks to Keep a Lid on Graphic bin Laden Photos

2012-01-30T08:24:00.000-05:00

Image via WikipediaThe U.S. Justice Department wants the United States District Court for the District of Columbia to back its efforts to keep graphic photos depicting the death of Osama bin Laden from seeing the light of day.

In a supporting memorandum to its summary judgment motion to the Court in the case of Judicial Watch, Inc. v. U.S. Department of Defense & Central Intelligence Agency (Case No. 1:11-cv-00890-JEB), the DOJ claims the grisly images must remain classified to prevent the incitement of violence against the U.S. their release might create. According to a post by the Legal Times Blog, the photos would reveal sensitive intelligence data and military methodology.

The plaintiff contends the CIA violated classification procedures and that the government agencies in queston conducted an inadequate search for material requested under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.]. Osama bin Laden, the leader of al-Qaida, was killed in May during a Navy Seal raid in Pakistan last May.

The photos at issue, according to the DOJ, include images of bin Laden's corpse and its burial at sea.

Maltweeting Free Expression?

2012-01-30T08:03:00.000-05:00

Image via CrunchBaseSan Francisco-based microblogger monolith Twitter will selectively block tweets in specific countries as it continues to grow its social platform worldwide, Reuters reports.

In a business move that will enable the microblogging network to broaden its global user base, Twitter will adapt to governments internationally whose notions of freedom of expression do not mirror those in the U.S. Twitter will post a censorship notice whenever it removes a tweet at the behest of a government and will use the chillingeffects.org Web site to house removal requests it receives from governments, companies and individuals, according to the Huffington Post.

Twitter offered the legal restriction on "pro-Nazi content" imposed by the countries of Germany and France as an example of a restriction to which it might accede. The announcement marks a policy shift by the six-year-old social media company, which in January 2011, coinciding with the so-called "Arab Spring" uprisings throughout the Middle East, posted The Tweets Must Flow stating that it would not remove Tweets based on their content.

Twitter boasts roughly 100 million users, according to the Huffington Post report.

UPDATE: Nancy Benoit Heirs Ask 11th Circ. to Reinstate $20m Judgment Against Hustler Magazine

2012-01-27T14:31:00.000-05:00

Image via WikipediaA three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit this week heard arguments from the family of the late model/pro wrestler Nancy (Toffolini) Benoit to reinstate a $20 million judgment in their invasion of privacy suit against Hustler Magazine's parent company, Larry Flynt Publishing Group LLC, which published nude photos of Benoit a year after she and her seven-year-old son were strangled by her pro wrestler husband, Chris Benoit, in a murder/suicide in June 2007.

Last June, a jury awarded Nancy Benoit's family $19.6 million in punitive damages, along with $125,000 in compensatory damages, but U.S. District Court for the Northern District of Georgia Judge Thomas Thrash, Jr. reduced the $19.6 million to $250,000, citing Georgia's statutory cap on punitive damages. (See "TUOL" post 6/20/11.) As reported by the Daily Mail online edition (www.dailymail.co.uk), Associated Press and the ABA Journal Law News Now blog, counsel for Nancy Benoit's Estate argued the adult magazine "acted...with intent to harm" the plaintiff, an exception to the statutory cap, so the $19.6 million puntive damages award should be reinstated. Counsel for the defendant argued on First Amendment grounds that the matter was wrongly tried in the first instance because the photos of Nancy Benoit were newsworthy, involving a matter of public concern, a recognized defense to invasion of privacy claims.

Algeria's New Media Takes Effect--Less Repressive, But Journos Still Nervous

2012-01-27T10:43:00.000-05:00

Image via WikipediaAlgeria's President Abdelaziz Bouteflika's long-awaited reformed media law in the Northwest African nation took effect January 12, but a press release issued by the Committee to Protect Journalists ("CPJ") says the new measure amounts to only baby steps toward press freedom.

A majority in both houses of Algeria's legislature passed the measure, which supplants a repressive 1990 law, though the opposition Al-Nahda party walked out of parliament in protest that the new law does not go far enough. The CPJ press release counts at least 32 provisions among the Act's 133 articles that may still restrict press coverage in the republic.

Whereas the draconian 1990 media law subjected journalists who insulted or defamed the government to 10 years in prison, the newly enacted law can shutdown publications and fine journalists a maximum 500,000 dinars ($6,706) for defamation and a slew of infractions, such as publishing information concerning preliminary criminal probes or insulting foreign leaders and dipolomats.

Media ownership restrictions are a part of the new law, as a minimum 10 years' media experience in periodical publications is required for someone to qualify as a director of a periodical publication. CPJ also expressed concern about the legislation's vague definition of terms such as media (any broadcast, opinion letter or idea expressed by any written, audiovisual or electronic means). Algerian journalists surveyed by CPJdescribed the new law as merely offering "cosmetic changes."

What the 1% Will Be Reading

2012-01-27T10:18:00.000-05:00

Image via WikipediaBloomberg News may dutifully cover the so-called "class warfare" playing out nowadays in the nation's cultural and political arenas, but when it comes to boosting its own products, Bloomberg LP knows the "1 percent" demographic group is the way to go.

Women's Wear Daily's online edition reports today that the financial news corporation next month is launching a posh periodical, called Bloomberg Pursuits ("BP"), that is an offshoot of the monthly business magazine, Bloomberg Markets. Both journals will be distributed gratis to the roughly 310,000 subscribers to the Bloomberg Professional service. Those subscribers pay $20,000, on average, for access to Bloomberg Terminal, a computer system that enables financial industry types to access Bloomberg Professional service and thereby, track financial market data in real-time and trade on the electronic trading platform, as well as peruse price quotes and news and send messages.

Circulation for the two magazines will be 375,000 copies apiece, with non-Bloomberg Terminal issues being available on newsstands and by subscription. The Women's Wear Daily article quotes Bloomberg Pursuit's advertising director, who claims 60 percent of the periodical's market is outside the U.S. in financial hot spots such as Hong Kong, Japan and Germany. Ninety percent of BP's readers are male whose household income, on average, is $452,000, BP boasts.

The debut issue will be 76 pages, 30 of them devoted to advertisers, including Rolls-Royce and Hermes. Articles in the inaugural issue will include profiles of Bloomberg subscribers doing things such as observing a solar eclipse aboard an icebreaker in Antarctica, building a racing yacht and collecting Ferraris, which the subscriber deconstructs and then spruces up.

BP, which is designed to compete with other magazines for the affluent such as the Robb Report and ForbesLife, will garner attention in an hour-long prime time program on Bloomberg Television in February.

The always media-hungry devoted staff of "TUOL" can't conceive of how Bloomberg Pursuits in any way will be seen as a symbol of the expanding schism between the haves and have-nots in America. Still, "TUOL" is not likely to thumb through Bloomberg Pursuits anytime soon, mostly out of fear that the journal may contain a computer chip that automatically dispenses painful paper cuts to perusers who don't have a suitable financial portfolio.

Judge's Illness Stalls Paper's Appeal of Libel Judgment for Ecuador's President

2012-01-26T09:33:00.000-05:00

Image via WikipediaThe Ecuadorian daily El Universo's appeal of a $40 million libel judgment in favor of the country's President, Rafael Correa, was delayed this week by the illness of a member of the three-judge panel hearing the appeal, CNN reports.

President Correa, the 48-year-old economist who assumed leadership of the South American republic in 2008, was awarded $40 million last July in a ruling that also resulted in three-year jail terms for El Universo's former opinions editor and its directors. A column entitled No to lies that appeared in February 2011, which branded Correa a "dictator" responsible for a September 2010, attack in which security forces allegedly fired on civilians in a hospital, triggered the lawsuit by the president, who dismissed the allegations as false and an "outrage," according to the CNN account.

President Correa has rejected El Universo's offer of a public apology conditioned, in part, on his dropping his suit against journalists and following the nation's access to public information law. In the U.S., a government entity can't be defamed and a public official suing for libel must overcome the challenging legal hurdle of proving "actual malice," meaning that the media defendant published false statements about the official knowing they were untrue or with reckless disregard for the falsity of the statements that impugned the official's reputation.

UPDATE: Ill. High Court Slaps Down Anti-SLAPP Defense in Coach's Libel Suit

2012-01-26T08:51:00.000-05:00

Image via WikipediaDefendants in a defamation suit brought by a former high school basketball coach may not rely on their state's anti-SLAPP(Strategic Lawsuits Against Public Participation) statute to defeat the claim, the Illinois Supreme Court ruled this week.

Steve Sandholm was let go by the local school board in 2008 as Dixon High School's basketball coach because his coaching style allegedly included verbally abusing and bullying players (see "TUOL" post 10/28/10). He filed defamation and false light claims against a group of parents, bloggers and a radio station who had criticized him, but the trial court and the Appellate Court of Illinois Second District both ruled the defendants were protected by the state's anti-SLAPP measure, the Citizen Participation Act [735 Ill. Comp. Stat. 110/1 et seq.] ("CPA") in Sandholm v. Kuecker et al. (Case No. 08-L-19).

As reported by the excellent Reporters Committee for Freedom of the Press Web site (www.rcfp.org), the Illinois Supreme Court found the CPA could not derail Sandholm's suit, which the Court said did not seek to suppress constitutionally protected speech, but rather, sought recovery for harm to his reputation. "If a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts, and thus, does not constitute a SLAPP," according to the Supreme Court opinion, "it is irrelevant whether the defendants' actions were 'genuinely aimed at procuring favorable government action, result or outcome.'"

The CPA is intended to promote citizen involvement in government without fear of retaliation in the form of SLAPP suits, which are very costly to defend against.

Illinois Expands Use of Cameras in the Courtroom

2012-01-25T15:46:00.000-05:00

Image by myoldpostcards via FlickrNews media in Illinois, already permitted to use still and video cameras to cover criminal and civil proceedings in the Illinois Supreme Court and Illinois Appellate Court, will now be allowed to record circuit court proceedings on a limited, experimental basis, the state Supreme Court has decided, according to a Chicago Tribune report.

Proceedings in the state's 23 circuit courts may be recorded beginning next Tuesday, the Tribune article noted.

Iowa High Court Sides With Student Journalists on Principal

2012-01-25T15:30:00.001-05:00

Image via WikipediaThe Waukon High School newspaper's faculty advisor was wrongly disciplined by administrators after the student paper published articles that offended the principal, the Iowa Supreme Court ruled this week.

The High Court declined to review an Iowa Appeals Court decision ordering the Allamakee Community School District to expunge reprimands placed in the advisor's file, according to an Associated Press report. Iowa thus joins a handful of states, including Illinois and "TUOL" 's home base of Massachusetts, that accord student journalists greater press freedom, according to the Student Press Law Center.

The case is Lange v. Diercks & the Allamakee Community School District (Case No. 1-587/11-0191).

Chicago Sun Times Touts Its Irrelevance; Editorials Won't Endorse Candidates

2012-01-25T10:31:00.000-05:00

Image via WikipediaWriting in an editorial this week that it has "come to doubt the value of candidate endorsements by this newspaper or any newspaper, especially in a day when a multitude of information sources allow even a casual voter to be better informed than ever before," The Chicago Sun Times announced it no longer will endorse political candidates at any level.

The Jan. 22 editorial in the tabloid daily, which is about to undergo an ownership change (see "TUOL" post 12/21/11), said readers have complained to the paper that they can make up their own minds and don't need to be told what to do. The paper has also expanded the journalistic code of ethics ban on staffers making financial contributions to political campaigns to encompass Sun Times senior management.

The editorial cites research suggesting editorial endorsements do not sway voters, particularly in elections that garner considerable attention. Some may consider the new policy of the Sun Times, which emerged from Chapter 11 bankruptcy in 2009, pragmatic and even, humble, in its tacit between-the-lines admission that what it says editorially doesn't matter. The tireless staff of "TUOL", which long ago resided in Chicago and maintains strong ties to the city, however, considers the decision a cop-out and an act of cowardice.

Not taking the time to endorse candidates for office is a clumsy attempt to mask that the depleted Sun Times newsroom lacks the bodies to perform the task and is a craven excuse to hide management's fear of alienating advertisers and an ever-shrinking readership by its choice of candidates.

Journalists have the proxy of their readers when they attend political gatherings and interview candidates. Citizens are obligated to inform themselves about the voting record and character of candidates, but should be able to look to the editorial board of their local newspaper for guidance, not fiat.

The Sun Times is shirking its responsibility by leaving it to partisan and nonpartisan bloggers to carry out its duty to vet candidates. Choosing to stay above the fray to avoid being branded "liberal" or "conservative" by online commenters and candidates does not benefit readers, who, especially in local elections, may lack the command of issues and the positions staked out by incumbents and challengers.

As a cost-savings measure, the Sun Times agreed last summer to allow its blood rival Chicago Tribune to print its editions (see "TUOL" post 7/20/11). With its latest decision, the paper has ceded its journalistic stewardship and the higher moral ground to the Tribune.

Md. Appeals Court Says No Libel by Baltimore Weekly in Murder Series

2012-01-24T08:56:00.000-05:00

Image via WikipediaThe Maryland Court of Appeals has upheld a summary judgment ruling for the Baltimore weekly City Paper in Piscatelli v. Smith et al. (Case No. C07009530V01), finding the weekly's reporter Van Smith did not defame Redwood Trust nightclub owner Nicholas Piscatelli in a series of articles concerning the 2003 slaying of club employees Sean Wisniewski and Jason Convertino.

According to a report in the Baltimore Sun, Piscatelli sued Smith and City Paper based on two articles that appeared, respectively, on December 6, 2006 (Late Discovery) and June 20, 2007 (The Lonely Killer), that described the killings as "mysterious" and included allegations by Convertino's mother, Pamela Morgan, suggesting the plaintiff may have been implicated in her son's murder. The Sun article reported that Anthony Miller was convicted of second degree murder and sentenced to 60 years in prison in 2007 for killing Convertino and Wisniewski.

The Maryland Appeals Court upheld the summary judgment ruling in the defendants' favor by the Baltimore City Circuit Court and the Court of Special Appeals, finding that Piscatelli had not proved City Paper's reporting was inaccurate and unfair.

"We shall conclude," the Court of Appeals opinion stated, "utlimately that the manner in which Respondent published those statements placed them within the protective embrace of the fair reporting and fair comment privileges, and consequently, Piscatelli's claims were not actionable."

Mon Dieu! Le Huffington Post Launches Today

2012-01-23T10:16:00.000-05:00

Image via WikipediaA partnership involving Le Monde, Les Nouvelles Editions Independantes and The Huffington Post Media Group today launched Le Huffington Post, which the news aggregator promises "will be rooted in French culture and will reflect France's own unique personality, rich culture and diversity of voices."

Anne Sinclair, who has written a blog, annesinclair.fr., will serve as editorial director of Le Huffington Post. Among bloggers debuting on the site today are Guy Carrcassonne, a Univ. of Paris professor, and Julien Dray, a member of the country's Parliament.

France sends us brie and Chateauneuf de Pape; we send them the parsimonius Huffington Post and Jerry Lewis. Hardly seems fair, and may explain why they don't like us.

Illinois Judge Rules Tech Blogger Not Entitled to Shield Law Protection

2012-01-23T09:40:00.000-05:00

Image via WikipediaTechnoBuffalo.com, a three-year-old, California-based consumer electronics blog that is a melange of gadget reviews and tech news, plans to appeal a ruling last week by Cook County (Ill.) Circuit Judge Michael Panter that the blog is not covered under Illinois's shield law [75 Ill. Comp. Stat. secs. 5/8-901 to 8-909] from revealing its confidential sources.

Acknowledging that he was addressing "a fast-evolving issue (that) faces courts everywhere" and that the "scope and variety of electronic communication is a challenge in many areas of the law," Judge Panter concluded TechnoBuffalo did not satisfy the state shield law's definitions of reporter and news medium, and thus, must reveal the identity of the anonymous source who provided it with images and instructional information about Motorola's Droid Bionic smartphone before the company released the product.

Niles, Ill.-based Johns-Byrne Co., with whom Motorola contracted to print the smartphone's manual, sought a pre-litigation court order requiring TechnoBuffalo to divulge the name of the anonymous tipster who shared the Droid Bionic material as a precursor to a likely trade secret and breach of contract lawsuit against the unidentified source. The information at issue was leaked via Email to TechnoBuffalo, which published it last August 17.

"The content on TechnoBuffalo's website may inform viewers how to use certain devices or offer sneak peaks of upcoming technology," Judge Panter wrote, "...[but] [i]t does not 'encourage a well-informed citizenry' to protect the source and type of confidential information disseminated by TechnoBuffalo." TechnoBuffalo reportedly attracts more than a million viewers monthly, according to various news accounts of the ruling.

Under Section 5/8-902(a) of Illinois' shield law, a reporter is "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis." Section 5/8-902(b) defines news medium as "any newspaper or other periodical issued at regular intervals, whether in print or electronic format, and having a general circulation."

Courts nationwide are all over the board on the issue of whether bloggers should be accorded a qualified reporter's privilege, depending on the language of the jurisdiction's shield law and other circumstances. An Oregon judge, for example, recently ruled self-described investigative blogger Crystal Cox could not benefit from Oregon's shield law [see "TUOL" post 12/6/11], while the New Hampshire Supreme Court in The Mortgage Specialists case preserved the confidentiality of anonymous bloggers [see "TUOL" post 5/10/10].

Paul Likes Courts, if not Government; Sues Anonymous Webbies for Libel

2012-01-20T09:25:00.001-05:00

Image by Getty Images via @daylifeLibertarian GOP presidential candidate Ron Paul may frown on government generally, though using federal court to litigate against 10 anonymous online supporters who uploaded attack videos on his behalf, but without his permission, apparently doesn't bother him.

Paul's campaign this week in San Francisco filed suit in the United States District Court for the Northern District of California seeking damages and injunctive relief against the zealous unidentified boosters. The complaint in Ron Paul 2012 Presidential Committee, Inc. v. John Does 1-10 (Case No. 12-cv-0240) includes counts alleging libel, defamation, false advertising and false designation of origin in violation of the Lanham Act [15 U.S.C. sec. 1125(a)].

As reported by paidContent.org., Paul's organization faces the high hurdle of proving actual malice in its defamation claim and daunting odds pursuing its trademark infringement count, but the candidate and his organization have been nothing if not surprising thus far in overcoming expectations.

The videos at issue in the lawsuit, entitled NHLiberty4Paul, disparaged now-former GOP presidential hopeful Jon Huntsman, taking aim at the former Utah Governor and U.S. Ambassador to China's Mormon faith and connections to China. The Libertarian Paul's dogmatic devotion to personal freedom and government restraint is likely to be tested by the litigation once subpoenas targeting Internet Service Providers to identify the John Doe defendants begin flying out of the plaintiff's camp.

UPDATE: High Court Holds Foreign Works in Public Domain Still 'Copyrightable'

2012-01-19T09:29:00.000-05:00

Image by Getty Images via @daylifeBy a 6-2 margin, with Justice Elena Kagan recusing herself, the U.S. Supreme Court this week ruled Congress has the authority to restore copyright protection to foreign works previously in the public domain without running afoul of the Constitution's Progress Clause (Art. 1, Sec. 8, Clause 8) [see "TUOL" post 3/8/11].

Justice Ruth Bader Ginsburg wrote the majority opinion in Golan v. Holder (Case No. 10-545), finding that the power conferred to Congress by the Constitution "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" was not undermined when the U.S. signed onto the Uruguay Round Agreements Act of 1994 ("URAA") international treaty that accorded copyright protection to previously accessible foreign works by individuals ranging from author Virginia Woolf and film auteur Federico Fellini to composer Dmitri Shostakovich.

The case was originally brought by Lawrence Golan, a conductor who sought to produce a derivative composition based on works by Shostakovich in the public domain, who argued URAA stifled creativity. The government, in turn, contended that U.S. participation in an international copyright treaty served the nation's interests.

Justice Ginsburg wrote: "Nothing in the text of the Copyright Clause confines the 'Progress of Science' exclusively to 'incentives for creation.'" In a strong dissent, Justice Stephen Breyer lamented URAA "does not encourage anyone to produce a single new work [and] bestows monetary rewards only on owners of old works--works that already have been created and already are in the American public domain."

Federal Appeals Court Shields Anonymous Source in Defamation Suit

2012-01-19T08:45:00.000-05:00

Image via WikipediaThe United States Court of Appeals for the D.C. Circuit last week in Software & Information Industry Association v. Solers, Inc. (Case No.10-cv-1523) held that the mere filing of a defamation suit doesn't overcome an individual's First Amendment anonymous speech right where the plaintiff could not demonstrate it was damaged by the allegedly false statements.

The three-judge appellate panel said software company Solers, Inc. failed to prove it suffered financial or economic damage from the allegedly defamatory statement by an anonymous source who in 2005 reported to software industry trade association Software & Information Industry Association ("SIIA") that Solers was using unlicensed software. The anonymous allegation sparked a probe of Solers, Inc., by SIIA, but did not result in legal action.

Solers alleged its legal fees and the time and money expended by its employees to respond to the allegations constituted damages, but the appellate court said the purported harm did not trump established case law that recognizes anonymity as an important aspect of free speech. Tip of the hat to the Reporters Committee for Freedom of the Press (www.rcfp.org) for its detailed coverage of the case.

Payouts Bad News for 'News of the World' in Hacking Scandal

2012-01-19T08:17:00.000-05:00

Image via WikipediaThe defunct Rupert Murdoch-owned News of the World has settled 19 civil suits arising from its phone-hacking scandal, the Press Gazette reports.

England's High Court said among those plaintiffs receiving payouts in resolution of their lawsuits were actor Jude Law, who received 130,000 pounds ($200,949), singer Sadie Frost, who received 50,000 pounds ($77,288) and Welsh rugby star Gavin Henson, who settled for 40,000 pounds ($61,819).
The Press Gazette reports that 36 claims to date have been settled by News Group Newspapers subsidiary News International.

Rusty GateHouse Media Swinging Shut on Copy Editors as Production Centralized

2012-01-18T15:59:00.001-05:00

Image via WikipediaContinuing a trend in the financially beleaguered newspaper industry, GateHouse Media Inc. plans to consolidate the copy editing function among its member papers according to size, the Illinois Times and WUIS News blog report.

The headline writing, copy proofreading and page design functions for GateHouse papers whose circulation exceeds 5,000 will be handled from its Downers Grove (Ill.) facility, while smaller member papers will have their copy editing done centrally from a location in New England.

GateHouse management would not confirm the reports, but the consolidation is expected to result in 10 copy editor positions being axed at the Springfield (Ill.) State Journal Register. The imminent change sent GateHouse stock skyrocketing a penny to seven cents a share at the market's close Tuesday.

Somaliland Sweep Nets 25 Journalists' Arrests

2012-01-18T15:33:00.000-05:00

Image via WikipediaTwenty-one journalists protesting the Jan. 14 government shutdown of HornCable TV in Somaliland have been arrested, The Guardian reported today, fueling concerns by Reporters Without Borders that began last week with the separate arrests of four journalists.

President Ahmed Mohamed Siilaanyon moved against HornCable TV, branding it a "nation destructor" that aired anti-government propaganda. The 21 journalists, who demonstrated outside the president's palace, triggering the arrests, were released within 24 hours, The Guardian article stated.

State Solon Seeks to Subject Okla. Legislature to Transparency Laws

2012-01-18T15:22:00.000-05:00

Image via WikipediaSen. David Holt (R.-Okla. City) has introduced S.B. 1243 and S.B. 1244 to make the Sooner State Legislature subject to the state's Open Meetings Law [Title 25 Okla. Stat. secs. 301-314] and Open Records Act [Title 51 Okla. Stat. secs. 24A.1-24A.24] respectively, The Shawnee (Okla.) News-Star reports.

Presently, only internal rules govern the Legislature's transparency, according to the News-Star story.

"TUOL" offers a shout-out to Sen. Holt, and should his measures become law, will be the first to say: "You're doin' fine, Oklahoma! Oklahoma, O.K."

Singer Sues U.K. Daily Over 'Drunken Karaoke' Story

2012-01-17T11:09:00.000-05:00

Charlotte Church (Image via RottenTomatoes.com)MGN, Ltd.-owned The People (People.co.uk) on its Website boasts it is "the best source for national and international news, celebrity gossip, lifestyle ideas and pet care." The English daily, however, will have a hard time convincing singer Charlotte Church, who has sued The People for defamation, according to an article in The Guardian.

Church is upset about an article that appeared last November 6 entitled Marryoke--Charlotte proposes after club karaoke session claiming that she proposed to boyfriend Jonathan Powell and sang karaoke in a Cardiff pub, all while well into her cups. Church and Powell, in fact, were performing a concert in Pentrych at the Acapella Studio during the time the alleged Cardiff pub shenanigans were occurring, according to a report in The Daily Mail.

The People published an apology to Church three weeks after the article initially appeared, but this Church does not dispense forgiveness. Instead, in her defamation suit, she alleges the defendant fabricated quotes attributed to her, Powell and unnamed friends of the duo that caused her hurt, embarrassment and distress.

Church wants damages from The People and an injunction barring the allegations in the Nov. 6 story from appearing again. She currently is waging war on two fronts, as she and her parents in a lawsuit have alleged News International hacked her phone.

Labor Dispute Has Union Leader Newsers Operating Incognito

2012-01-17T10:49:00.000-05:00

Image via WikipediaPicketers at public events involving the N.H. presidential primary were not limited to those showing their disdain for the field of GOP candidates; some were photogs and reporters for the Granite State's only statewide daily, the N.H. Union Leader, protesting a protracted contract dispute with management, according to a report by a rival, The Nashua Telegraph.

Where the names of journalists and photographers usually appear in the daily accompanying their work, the word Staff instead appears, as the paper endures a two-week byline strike. Negotiations between management and the Newspaper Guild have dragged on for months.

Although offering a better pay scale and benefits package than most of its in-state competitors (Full Disclosure: the devoted staff of "TUOL" long ago wrote for the Union Leader when New Hampshire's "Man of the Mountain" was still a boy), the increased use of correspondents, who are not covered by the contract, doesn't sit well with staffers. Correspondents' bylines continue to appear in the Union Leader as the strife continues.

Don't Trib Over Yourself on the Way Out

2012-01-17T10:24:00.000-05:00

Image via WikipediaExpect in mid-February to see more empty chairs in the Chicago Tribune newsroom as the embattled daily this week offered an unspecified number of voluntary buyouts, with all but senior editorial management eligible to apply, the paper reported Monday.

Whether applicants will receive a buyout depends on numerous factors, such as seniority, business goals and staff depth at various positions. Those accepted will receive two weeks base pay for their initial year of service and an additional week's pay for each year of service over and above that, according to the Tribune article. Career counseling and outplacement services also will be available to those who accept buyouts.

Currently mired in a three-year-old bankruptcy from which it is unlikely to emerge before the Third Quarter of 2012, Tribune management has not ruled out the possibility of layoffs even after the voluntary buyout program.

LePage Wants His Pages Exempt from Public View

2012-01-13T10:50:00.000-05:00

Image via WikipediaMaine Gov. Paul LePage wants the same exemption enjoyed by the Maine Legislature from the state's Freedom of Access Act ("FOAA")[1 M.R.S.A. sec 401 et seq.] when it comes to public access to his "working papers," according to a story on the Web site of the Maine Public Broadcasting Network (www.mpbn.net).

Gov. LePage's office claims Maine lawmakers have an unfair advantage because their notes and documents are not covered by the Act, whereas the public may request such information from the governor about his administration's plans. LePage's office insists any information blackout under his proposal would be temporary as the exemption would dissolve once a bill derived from his "working papers" would be introduced.

The managing editor of The Lewiston Sun Journal, a member of Maine's Right to Know Advisory Committee, voiced concern that LePage's proposed measure would also shield his staff from FOAA. The editor feared that extending the exemption to the governor's office could create a groundswell among other Maine public officials seeking the same protection.

As it is, the FOAA offers more than 300 exceptions to the Act's definition of a "public record." What may appear to be arrogance (because it is) on the Maine Legislature's part for exempting itself from the open government legislation is not unusual. Congress, for example, decided not to subject itself to the provisions of the federal Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

In case Gov. LePage's proposed measure has yet to be named, "TUOL" recommends a Downeaster title: The 'Ya Kant Seeit Frum Heeuh' Bill.

Magazine Ad Pages Decline 3.1 Percent Over 2010 Figures

2012-01-12T13:55:00.000-05:00

Image via WikipediaIndividuals may resolve in January to slim down, but magazine publishers are praying for thicker periodicals in 2012, following a disappointing report released this week by the Publishers Information Bureau (PIB) reflecting a 3.1 percent drop in ad pages in 2011.

According to an article in The New York Times, a statement by the Association of Magazine Media, which oversees PIB, blamed poor results in the Third and Fourth Quarters during which "advertisers grew more skittish," that negated gains in ad pages over the first half of 2011. Nine of the 12 categories tracked by PIB showed a decrease in ad pages.

Although the grim news continues for magazines (see "TUOL" post 1/14/10), the Times article acknowledged that magazine ad pages at least outshine newspaper ad pages.

New Haven Not Safe Haven for Printers

2012-01-12T09:00:00.000-05:00

Image via WikipediaThe New Haven Register will slash 105 jobs in March when it closes its printing operations, the New Haven Independent announced this week.

The Hartford Courant will print the Register, along with two other Journal Register East-owned papers, the Middletown Press and Torrington Register. The move is part of the Register's Digital First strategy, which touts the daily's online edition. Besides outsourcing printing, JRE plans to centralize back-office operations out-of-state, according to the Independent article.

The company plans to relocate its editorial offices and unload its Long Wharf facility.

Fall of the New Republic?: Mag Seeks New Owner or Fresh Investors

2012-01-11T13:40:00.000-05:00

Image via WikipediaThe New York Times' Dealbook is reporting today that the 98-year-old bastion of liberal literati, The New Republic, is looking for suitors that either may result in an ownership change or a stable of new investors.

Founded by political scribe Walter Lippmann in 1914 and whose pages in the past have been graced by prominent authors such as Philip Roth, George Orwell and Virginia Wolff, The New Republic has been owned since 2009 by long-time Editor-in-Chief Marty Peretz and a group of investors headed by Lazard media banker Laurence Grafstein. Dealbook reports that the possible sale of the bi-weekly will be overseen by the Blackstone Group.

According to Dealbook, interest in the periodical, whose 2009 circulation figures were roughly 53,500, has been shown by several media groups, including Yahoo, Thomson Reuters and Bloomberg LP. Others are expected to kick the tires of the struggling journal, which has yet to solidify a digital makeover plan.

Buchanan Indefinitely Suspended by MSNBC

2012-01-11T12:22:00.000-05:00

Image by FlickrPhotosAccount via FlickrConservative firebrand commentator Pat Buchanan, 73, has been indefinitely suspended by MSNBC, according to the cable news station's president, Bill Griffin.

Buchanan hasn't appeared on MSNBC since October. Although he told talk radio bloviators Hugh Hewitt and Sean Hannity in separate appearances that his absence was attributable to medical problems (excessive bile, perhaps?), Poynter.org, The Huffington Post and other media outlets reported the underlying reason may be a chapter in Buchanan's latest book, Suicide of a Superpower, entitled The Death of White America, that suggests the nation's European core has been overrun by immigrants.

Griffin was quoted on Poynter.org as branding some of Buchanan's ideas "[not] appropriate for national dialogue on MSNBC." Apparently, Griffin either experienced the slowest epiphany on record about Buchanan, or like most of the nation, doesn't watch MSNBC programming regularly.

Since Griffin's announcement, Buchanan complained he is the target of a smear campaign by activist Van Jones and his group, Color of Change, as well as the Anti-Defamation League and the Human Rights Campaign.

Buchanan served under Presidents Richard Nixon, Gerald Ford and Ronald Reagan, and three times sought the presidency, in 1992 and 1996 as a GOP candidate, and in 2000, heading the Reform Party ticket. He was the original host of CNN's Crossfire, and co-founded The American Conservative magazine in 2002.
He has come under fire on numerous occasions for alleged insensitivity to people of color, as well as for alleged anti-Semitism and downplaying of the Holocaust.

The hard-working staff of "TUOL" always associates Buchanan with the late columnist Molly Ivins, who commented on the so-called "Culture War" speech Buchanan delivered at the GOP National Convention in 1992, quipping that it "probably sounded better in the original German."

Govt. Entitled to Twitter Records in WikiLeaks Probe, Federal Judge Rules

2012-01-10T15:20:00.000-05:00

Image by Sean MacEntee via FlickrUnited States District Court for the Eastern District of Virginia Judge Liam O'Grady, in a three-page Memorandum and Opinion in In Re Application of the United States of America for an Order Pursuant to 18 U.S.C. sec. 2703(d) [Case No. 1:11-dm-00003-TCB], this week denied a request by Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp to shield their Twitter account information from authorities seeking to prosecute WikiLeaks.

As reported by Wired, Twitter was served with a subpoena by the feds in December 2010, pertaining to a Grand Jury inquiry into possible criminal charges against WikiLeaks. The government wants information regarding the above-named individuals' accounts under the 1994 Stored Communications Act, 18 U.S.C. sec. 2703(d), which governs access by law enforcement officials to Internet data, such as transaction information, but not online content. Specifically, the order wants information about the trio's Twitter accounts, including addresses and phone numbers, account payment information (if any), IP addresses, data transfer records and connection records.

The ACLU and the Electronic Frontier Foundation contend the Twitter order violates the trio's First Amendment rights. In March 2011, U.S. District Court Judge Theresa Buchanan ruled the three lacked legal standing to challenge the records request because the government was not attempting to access actual Twitter content. Prosecutors argued that the Grand Jury probe was being stalled by the delay in obtaining the Twitter account information.

Judge O'Grady denied the petitioners' request because they failed to make a "strong showing" of success on appeal. "A stay is not a matter of right, even if irreparable injury might result," Judge O'Grady wrote.

Boston Globe to Publish Boston Herald; Will Red Sox & Yankees Soon Share a Dugout?

2012-01-09T09:51:00.000-05:00

Image via WikipediaTeamsters yesterday unanimously gave their blessing to a deal that will have broadsheet The Boston Globe printing and delivering its rival tabloid Boston Herald beginning January 23, the dailies announced separately.

Terms of the agreement were not disclosed, though 50 Teamsters--drivers and other personnel--will be laid off by the Herald. According to a story in the Herald, the Globe will print and deliver the city edition of the tabloid Sunday through Friday and the paper's entire Saturday run, but the Herald, Sunday through Friday, will print most of the copies of the paper from its plant in Chicopee, Mass., which will be distributed by wholesalers, some of whom are Globe-controlled.

The deal makes fiscal sense for both dailies, which, of course, will maintain separate newsrooms and editorial identities. The Herald report of the business arrangement stresses its imminent move into "state-of-the-art" offices in Boston's fast-growing Seaport District, while the Globe account of the deal emphasizes the Herald's personnel layoffs in the lead paragraph, so the competitive newspaper spirit captured by The Front Page may not entirely be dead.

Fox News Hires Liz Cheney as Contributor--Bolsters Its GOP Witness Protection Program

2012-01-09T09:31:00.000-05:00

Image via WikipediaNot to be outdone by NBC/MSNBC, which showcases Chelsea Clinton, Jenna Bush-Hagar and Meghan McCain (see "TUOL" post 11/14/11), Fox News Channel has hired 45-year-old Liz Cheney, daughter of former Vice President Dick Cheney, to be a contributor and substitute host for bloviator Sean Hannity, according to The Hollywood Reporter.

Cheney, who has worked in the State Dept., will wax eloquent about national security issues and will be a high-profile contributor during the ongoing, never-ending Republican presidential primary season.

Fox News is keeping the terms of her contract a secret, which must bring a tear to the eye of ex-Halliburton Co. CEO Daddy Dick.

ECU Fires Student Media Faculty Advisor; Nude Student Photo in Student Daily Blamed

2012-01-06T11:15:00.000-05:00

Image by Getty Images via @daylifeOne could say that "a bad streak" caused journalism professor Paul Isom his job at Greenville, North Carolina-based East Carolina University.

During his tenure at ECU, which began in 2008, Isom oversaw student-run media on campus and was advisor for The East Carolinian newspaper. The paper's November 8, 2011, edition ran a memorable front-page, frontal-nudity photo featuring 21-year-old John Sieglinger streaking across the field during halftime festivities honoring the military of an ECU-Univ. of Southern Mississippi football game. Sieglinger told the student daily: "It was something that I wanted to do before I died." Having on one's bucket list the goal of displaying one's bucket to a stadium full of people may warrant its own separate blog post, but this item is about the ensuing action by ECU officials and the First Amendment hornet's next that has been stirred up.

The East Carolinian editor at the time said access to unedited, factual photos was a right of the ECU student body, even if the photos involved an unclothed ECU student's body. University officials condemned the photo as being in poor taste.

Prof. Isom, who was fired Wednesday, nearly two months after the Sieglinger photo ran, contends faculty advisors provide students with resources necessary to publish, but otherwise, stay out of the editorial decision-making process. The university declined a request by WITN-TV for a copy of Isom's termination letter, claiming the issue was a personnel matter and that the letter was not a public record because Isom's dismissal was not for disciplinary reasons.

College faculty advisors cannot engage in prior review of student-run newspapers at public universities without running into a First Amendment problem--that's the naked truth.

UPDATE: High Court Will Hear Arguments on FCC Indecency Rules Tuesday

2012-01-06T10:28:00.000-05:00

Image via WikipediaOral argument on FCC v. Fox Television Stations (Case No. 10-1293) will be heard by the U.S. Supreme Court next Tuesday.

Justice Sonia Sotomayor, who sat on the U.S. Circuit Court of Appeals for the Second Circuit before her confirmation to the High Court, has recused herself from hearing the one-hour argument by the parties regarding the constitutionality of the FCC's indecency rules regarding "fleeting expletives" and "fleeting nudity" that govern television and radio broadcasting. The U.S. Circuit Court of Appeals for the Second Circuit twice has ruled the rules violate the First Amendment. (See "TUOL" posts 6/28/11 & 4/22/11).

Village Voice Ousts Long-time Senior Film Critic

2012-01-05T11:03:00.000-05:00

Image via WikipediaThe Village Voice's senior film critic since 1988, (James Lewis) J. Hoberman, has been cut loose by publication owner Village Voice Media, according to reports on the New York Observer and Capitalnewyork.com Web sites.

Hoberman, 63, co-author of Midnight Movies (1983), was quoted as being "shocked, but not surprised" by his ouster. A Voice staffer dating back to 1983, Hoberman was a vocal union shop steward during staff labor negotiations with Village Voice Media last summer, when a strike was narrowly averted.

Hoberman joins a growing list of veteran Voicers who have departed the weekly in recent years, including Tom Robbins and Nat Hentoff, though the latter still is a contributor.

Instagram: Just Add President Obama Pix and Wait,,,

2012-01-05T10:41:00.000-05:00

Image via CrunchBaseTrying to woo young voters with his hipness, social mediaphile President Barack Obama has added to his Twitter, Facebook and Flickr online presence by joining the photo-sharing network Instagram, according to Politico.

The Politico post, written by former Boston Globe political scribe and current Politico White House reporter Donovan Slack, notes that President Obama's initial contribution to Instagram is an informal photo of him addressing Iowa Caucus supporters through a video link (naturally) from the Capitol Hilton. President Obama has developed social media expertise, which is fitting, because an obstructionist Congress has boxed him into a virtual presidency.

Twitter Adds Another Twit

2012-01-04T12:21:00.000-05:00

Image via CrunchBaseNews Corp. mogul Rupert Murdoch, 80, joined the Twittersphere on New Year's Eve, The Los Angeles Times and other media outlets breathlessly reported, and already, @RupertMurdoch has more than 104,000 followers.

Besides plugging two films, The Descendants and We Bought a Zoo, produced by movie studios he owns, Murdoch has devoted some of his early 140-character missives to boosting the presidential bid of former U.S. Sen. Rick Santorum (R.-Pa.). Murdoch tweeted: "Good to see Santorum surging in Iowa. Regardless of policies, all debates showed principles, consistency and humility like no others."

Thus far, Murdoch has dispatched 27 tweets and is following 11 fellow Twits, including Eric Cantor and Peggy Noonan, along with the Wall St. Journal and New York Post, which are properties of News Corp.

Meanwhile, The Guardian and Associated Press have apologized for being snookered by a faux Twitter account the publications mistook for being written by Murdoch's Missus, Wendi Deng. Turns out @Wendi Deng was being written as a lark by some yet-to-be-identified guy in London. The Twitter bird has egg on its face, too, having wrongly verified the Deng account, if only briefly.

"TUOL" hopes Rupert doesn't hold back on Twitter, and looks forward to reading tweets such as: "Fox News fair & balanced? LOL;" and "Junior's testifying @Parliament again? WTF?"

Will Reality Fans Be Able to Track Kardashians' Periodical Monthly?

2012-01-04T11:56:00.000-05:00

Image by Getty Images via @daylifeThe tabloid New York Post reports today that the omnipresent Kardashian clan is negotiating with National Enquirer owner American Media, Inc. to produce a glossy (not as in "brilliant") magazine about the celebrity family.

The fanzine may be on newsstands as early as spring, the Post reports, though neither side would confirm the story. No details were offered about the content of the Kardashian magazine, but "TUOL" suspects articles about the latest achievements of Kourtney, Kim and the rest of the klan, er, clan, will be augmented by columns featuring wedding announcements and NBA scores.

Look for the back of the book to be full and heavy with advertisements.

Hallmark Channel: Continuing Ratings-Starved Martha Stewart Show Not in the Cards

2012-01-04T11:35:00.000-05:00

Image via WikipediaPotpourri and doilies are no substitute for viewers, so the Hallmark Channel will end the run of The Martha Stewart Show in April, Newser.com reports.

Stewart and Hallmark began their collaboration in 2010 (see "TUOL" post 3-31-10), but her show, which Newser.com said drew, on average, a quarter-million viewers last year, only attracted 41,000 watchers in the desirable demographic group of females, ages 25 to 54. Reruns of her program will air from April through September, according to Newser. Stewart may continue to explore other programming options with Hallmark and is pitching ideas to other networks as well, according to a spokesperson, so no need to send her a "Sorry to Hear You Were Cancelled" Hallmark card.

Here's a tip for Hallmark: combining the shredded tapes of Stewart's old shows with assorted ferns and cuttings can produce stylish, but expensive centerpieces for formal shareholder dinners.

E.W. Scripps Co. Buys Itself Late Christmas Gift: 9 TV Stations

2012-01-03T10:20:00.000-05:00

Image via WikipediaMediabistro's TV Spy blog reports that E.W. Scripps. Co. has finalized its purchase of 9 television stations from The McGraw-Hill Co.

The FCC last month signed off on the $212 million acquisition, that involves ABC affiliates KMGH-TV in Denver andWRTV in Indianapolis and several Aztec America affiliates out West, including San Diego and Bakersfield outlets.

The acquisition took three months to complete.

Happy New Year!

2011-12-30T18:12:00.000-05:00

Image via WikipediaThe hard-working, low-paid staff of The Unruly of Law would like to thank devoted followers of the blog--as well as curious occasional visitors--for their continued support. Have a safe holiday weekend and a joyous, media-savvy 2012!

Media & Human Rights Groups Voice Concern Over Kazakh's Repressive New Media Law

2011-12-30T18:00:00.000-05:00

Image by Getty Images via @daylifeThe National Assn. of Kazakh Broadcasters and human rights group Adil Soz are among those highly critical of a restrictive media law awaiting Kazakh President Nursultan Nazarbaev's signature following Senate passage this week of the measure introduced by the Communications & Information Ministry, according to a report by Radio Free Europe/Liberty Radio's ["RFELR"] Web site.

The draft broadcast law mandates foreign tv and radio outlets to register with an official Kazakh entity and sets 2018 as the date by which half of foreign broadcasts must concern domestic content. The increased state control over electronic news media that the new law would entail prompted a letter of protest to President Nazarbaev signed by more than 40 Kazakh media NGOs, the RFELR article reported.

Hungary's State Broadcaster Fires Two Journalists Over Protest

2011-12-29T15:06:00.000-05:00

Image via WikipediaHungry Hungarian journalists Aranka Szavuly and Balazs Nagy Navarro, engaged in a hunger strike since December 10 in protest against Prime Minister Viktor Orban of the conservative Fidesz party, have been terminated, according to a story in The Irish Times.

The State-owned public broadcaster said the journalists were canned for taking on a political role in conducting an "illegal" strike. Prime Minister Orban, who has drawn fire from U.S. Secretary of State Hillary Clinton and European Commission Head Jose Manual Barroso, among others, for reforms that purportedly infringe on democratic freedoms, was targeted by the two journalists for allegedly meddling in media operations, the Times reported.

Ex-NBA Great Scottie Pippen Moves Forward with Libel Suit

2011-12-29T14:49:00.000-05:00

Image by Getty Images via @daylifeNBA Hall of Fame Forward Scottie Pippen, 46, has filed a defamation suit in the United States District Court for the Northern District of Illinois Eastern Division against 10 Web sites, claiming the media defendants falsely alleged he had suffered more than $120 million in financial losses and had filed for bankruptcy, according to the BET (Black Entertainment Television) Web site.

The 17-page Complaint in Scottie Pippen v. Comcast Corp. et al. (Case No. 1:11-cv-08834) alleges defamation, negligence and false light against the defendants and reads as if it were prepared by an avid Chicago Bulls fan, replete as it is with Pippen's noteworthy scoring and rebound achievements. Among the media defendants in the suit are Comcast-owned CNBC, CBS Corp., Sportsreport360.com, Evolve Media Corp., Yakezie Network and the University of Tampa Minaret.

The plaintiff alleges he lost out on numerous endorsements and appearance fees because of the purportedly erroneous statements concerning his financial condition.

Journal Sentinel Online Metered Paywall: The Tier that Made Milwaukee Pay Us?

2011-12-29T14:26:00.000-05:00

Image via WikipediaBeginning January 4, The Milwaukee Journal Sentinel (JSOnline.com) will introduce a paywall requiring online readers to pony up once they exceed their 20-free-article limit, the paper announced today.

Digital-only access subscribers will pay $2.35 a week in monthly, semi-annual or annual installments. Readers who subscribe to the print edition will have free access to the electronic version. Subscribers to the Sunday-only print edition can pocket an extra nickel by paying $2.30 a week while enjoying full access to the digital version.

The daily is calling its digital version JS Everywhere, which should help those who sometimes confuse journalism with creative writing. Sports results, section indices, classified ads, home page, videos and the TapMilwaukee channel offerings on JSOnline.com will remain free to all online visitors, the paper announced.

FCC Judge: Comcast at Fault in Treatment of Tennis Channel

2011-12-28T11:41:00.000-05:00

Image via WikipediaIn his 59-page ruling this week, FCC Administrative Law Judge Richard L. Sippel aced Comcast, finding the cable Goliath violated the agency's anti-discrimination carriage rules in its treatment of the Santa Monica, Calif.-based Tennis Channel.

According to articles in The Los Angeles Times and The New York Times, Judge Sippel ordered Comcast to pay a $375,000 fine and cease its discriminatory treatment of the Tennis Channel. His decision is subject to a vote by the FCC before it becomes final and were the five-member Commission to uphold the ruling, would almost certainly be challenged by Comcast in federal appellate court.

Judge Sippel said Comcast placed the Tennis Channel at a competitive disadvantage by not including it in a basic cable subscription as it did its own GolfChannel and Versus sports network, but rather, added the Tennis Channel to a more expensive collection of stations that have fewer subscribers. Nearly all 22 million Comcast customers receive the basic package, whereas only roughly 2.5 million dole out for the premium subscription that boasts the Tennis Channel, according to the newspapers' accounts.

"Although Comcast Cable claims that it denied Tennis Channel broader carriage based upon a cost-benefit analysis, the record shows that Comcast did not analyze the benefits that would accrue from giving Tennis Channel greater penetration," Judge Sippel wrote in his opinion. The FCC enacted program carriage anti-discrimination rules in 1993.

Federal Judge Upholds 1st Amendment: Defendant Was Talkin', Not Stalkin'

2011-12-27T15:45:00.000-05:00

Image via WikipediaIn his 27-page Memorandum of Opinion in U.S. v. William Lawrence Cassidy (Case No. RWT-11-091), U.S. District Court for the District of Maryland Judge Roger W. Titus last week granted the defendant's motion to dismiss, ruling the First Amendment overrides harassment allegations based on offensive Tweets and blog posts.

As reported by the Legal Times blog (LegalTimes.typepad.com), Cassidy was indicted in February 2011, pursuant to a federal interstate stalking statute [18 U.S.C. sec. 2261A(2)(A)], which originally was passed as a component of the Violence Against Women Act of 1994. The Electronic Frontier Foundation filed an amicus brief in support of the defendant.

The case arose from the defendant's introduction in 2007 to a Buddhist sect leader who was an enthroned tulku whose power was derived by lineage within her community. Cassidy had claimed the same status, which the other tulku questioned, prompting a Twitter and blog campaign by the defendant critical of the tulku and her place of worship, according to Legal Times.

Judge Titus ceded that the online assault by Cassidy may have caused the tulku emotional distress, but noted the government's indictment was not limited to unprotected speech, such as defamation, true threats or obscenity. Said Judge Titus: "The Government's Indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters."

Though prosecutors argued the First Amendment does not confer a right to harass or intimidate, Judge Titus said: "Twitter and blogs are today's equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim."

"

Calif. Federal Judge Denies Facebook Motion to Dismiss Privacy Suit

2011-12-22T16:14:00.000-05:00

Image via WikipediaImage via CrunchBaseImage by Getty Images via @daylifeIn her 38-page decision last week in Fraley v. Facebook (Case No. 5:11-cv-01726), United States District Court for the Northern District of California Judge Lucy H. Koh refused to dismiss a putative class action suit against Facebook based on the social media leviathan's use of "Sponsored Story" ads.

Although she dismissed an unjust enrichment count against Facebook, Judge Koh found Angel Fraley and her co-plaintiffs had legal standing to proceed with their claims of unfair competition and violation of California's Right of Publicity statute [Calif. Civ. Code sec. 3344]. The plaintiffs contend Facebook, without their consent, appropriated their names, likenesses and photographs for use in Facebook's "Sponsored Story" paid advertisements.

A "Sponsored Story" ad is generated when a Facebook user clicks on the raised thumb Like icon concerning a product or service, which then appears on the user's friends' Facebook page. At issue is whether that turns the user into a spokesperson/endorser of that product or service.

As reported in the Financial Times and elsewhere, Judge Koh kept the plaintiffs' suit afloat by finding "logical" the plaintiffs' argument that they should benefit from the ad revenues flowing to the defendant social network from their unwitting endorsements. Unequivocally, Facebook's "Sponsored Story" marketing strategy has been successful.

Judge Koh specifically ruled that Facebook cannot benefit from the defense afforded by Section 230(c)(1) of the Communications Decency Act of 1996 that shields Internet Service Providers from liability as publishers. Facebook has also raised a First Amendment argument that the "Sponsored Story" ads are newsworthy, which characterizes the plaintiffs as public figures rendering newsworthy consumer opinions.

The Times It Is A'Changin...

2011-12-21T10:19:00.000-05:00

Image via CrunchBaseThe "Grey Lady" New York Times is getting rid of some of its grey-haired journalists, according to the New York Observer.

Accepting voluntary buyout packages this past weekend are a number of long-time Timesers whose bylines are well-recognized by readers. Included among the very dearly departed scribes are George Vecsey, a 30-year veteran whose Sports of the Times Saturday column was widely read; 34-year Times veteran Metro columnist Clyde Haberman, 20-year veteran Sam Dillon, National Education correspondent; and Nicholas Wade, a 29-year Times veteran Science reporter/editor.

Dancer's Libel Suit Against Daily Mail a Misstep, Court Rules

2011-12-21T09:01:00.000-05:00

Image via WikipediaFrom across the Pond comes a story from The Guardian concerning Strictly Come Dancing hoofer and lawyer Nancy Dell'Olio, 50, (the apostrophe is silent), who unsuccessfully sued Daily Mail parent Associated Newspapers, Ltd. for libel, claiming she was defamed in an article about her romantic involvement with thrice-married, 71-year-old theater director Sir Trevor Nunn.

Dell'Olio sued over an April 2011, Daily Mail article headlined "Return of the man-eater," claiming the article ignored the couple's mutual love of theater and each other by portraying her in a defamatory way as a "serial gold-digger." Associated Newspapers acknowledged the article was not a paean to Dell'Olio, but argued it fairly depicted the couple's mutual admiration, noted Nunn made the initial overtures to the plaintiff, and denied the piece defamed Dell'Olio.

Mr. Justice (Michael) Tugendhat of the High Court (not a Dr. Seuss creation) agreed with the daily, writing that although "man-eater" has a predatory connotation, it doesn't rise to the more actionable level of "serial gold-digger," which must be a great relief to grizzly bears and Great White sharks everywhere. Not likely the plaintiff would have fared any better in the States, where the "fair comment" defense probably would have found the offending statements non-defamatory opinion.

Final tally--Daily Mail: 1, Dell'Olio: Nunn.

New Owners Take a Shine to Sun Times

2011-12-21T08:15:00.000-05:00

Image via WikipediaThe Chicago Tribune reports that Sun Times Media, parent of the Trib's chief rival, The Chicago Sun Times, is about to change hands.

Former Newsday publisher and chief executive Timothy Knight is expected to take the helm of the tabloid Sun Times, whose origins date back to 1844 with the Chicago Evening Journal. Current Sun Times shareholders, such as Chicago Blackhawks owner Rocky Wirtz, are hanging around, but the new ownership will be fronted by Michael Verro of Merrick Ventures, a technology holding company based in Chicago, according to the Tribune account.

The Sun Times, which emerged from bankruptcy in 2009, is also entering the pay-for-a-peek at some of its online content era embraced by most metro dailies. The tabloid remains home base for renowned film critic Roger Ebert.

Times to Throw Out the Small Newspapers

2011-12-20T09:59:00.000-05:00

Image via WikipediaAn albatross of sagging circulation and diminished advertising lineage, the Regional Media Group division of The Times Co. is being jettisoned by the Mother Ship, The New York Times reports.

Sale of the regional dailies to Daytona Beach, Fla.-based Halifax Media Holdings is expected to be finalized this week. Although the Times Co. is mum on the asking price, the Times article quotes industry analysts as expecting the deal to be in the neighborhood of $145 million.

Included in the Regional Media bundle are dailies such as The Sarasota Herald-Tribune, The Tuscaloosa (Ala.) News and The Press-Democrat in Santa Clara, Calif. The Regional Media Group reportedly generated about 11 percent of the Times Co.'s $2.4 billion revenue in 2010.

Halifax would be adding the dailies to its stable of newspapers that include the Daytona Beach (Fla.) News Journal.

UPDATE: AP Settles With NBA REF; 'Twibel' Suit Dribbles Away

2011-12-19T15:40:00.000-05:00

Image via WikipediaTip of the hat to Bloglawonline.blogspot.com for picking up on the resolution of a "Twibel" suit filed against Associated Press and its sportswriter who covered the NBA's Minnesota Timberwolves by a referee who claimed his integrity and reputation were impugned.

The litigation in the United States District Court for the District of Minnesota, William H. Spooner v. The Associated Press & Jon Crawzynski (Case No. 11-cv-00642-JRT) [see "TUOL" post 3/15/11], has been settled by the parties, with the defendants reportedly removing the offending Tweet by Crawzynski and covering the plaintiff's legal fees of $20,000. The case arose during a Jan. 24, 2011, contest between the Timberwolves and the Houston Rockets and involved a disputed foul call by Spooner about which Crawzynski Tweeted: "Ref Bill Spooner told [former Timberwolves Coach Kurt] Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks."

As part of the settlement, AP issued a statement in which it conceded that its sportswriter may have misheard an exchange between Spooner and Rambis that prompted the offending Tweet. That's a costly personal foul for the wire service.

Ogden Daily Exec Editor Apologizes for Doctored Photo

2011-12-19T12:54:00.000-05:00

Image via WikipediaThe Ogden, Utah-based Standard-Examiner, the state's third-largest daily, apologized to its readers recently for running a dramatic front-page image on Nov. 27 that was digitally altered by the photographer, a regular contributor to the Sandusky Newspaper chain-owned daily.

The Web site iMediaEthics (formerly stinkyjournalism.org) reported that Standard-Examiner Executive Editor Andy Howell pulled the doctored image from the paper's online edition and apologized to readers in a column on Dec. 17, noting that the offending photographer was a trusted contributor to the daily. The image proved to be a composite of two photos taken 10 minutes apart, one of which depicted a modern commuter train headed toward Ogden, and the other, an Ogden-bound classic Union Pacific Steam Engine No. 844.

The Standard-Examiner claimed it would have labeled the composite image an illustration to avoid deceiving readers had they known it was not a real-time photo of the two trains. Talk about an engineered photo.

Reader's Digest Workforce--the Condensed Version

2011-12-16T10:18:00.000-05:00

Image via WikipediaPleasantville, N.Y.-based publisher Reader's Digest, sharing the pain worldwide, has abridged its labor force by 150 jobs, half of which are in the U.S., according to a report in Folio Magazine.

The company wouldn't disclose details about the layoffs, though Folio reports that 30 slots were eliminated at Reiman Publications in Greendale, Wisconsin. Pink slips were doled among the company's domestic and international entities so that the publisher could focus on its more valuable brands, The Family Handyman, Taste of Home and Reader's Digest, according to the Folio story.

Reader's Digest, which emerged from a voluntary Chapter 11 bankruptcy in February 2010 (see "TUOL" post 8/17/09), saw a 4.4 percent boost in 3Q revenues compared to Third Quarter revenues in 2010, and reduced its net loss to $76.8 million from $86.8 million a year ago. The company is headed by CEO Robert Guth, the third person to take the helm of the publishing company in the last year.

UPDATE: Howling Pig Quieted by $425k Payout

2011-12-15T09:19:00.000-05:00

Image via WikipediaFormer Univ. of Northern Colorado student Thomas Mink is $425,000 richer this week, the ACLU reports, following settlement of his 2004 claim based on a former Weld County Deputy District Attorney's approval of a search warrant of his home in connection with a criminal libel suit against The Howling Pig, an online publication of which he was the publisher (see "TUOL" posts 6/6/11, 7/22/10).

In Thomas Mink v. Susan Knox, a Deputy District Attorney Working for the 19th Judicial District Attorney's Office in Her Individual Capacity (Case No. 04-cv-00023) the U.S. District Court for the District of Colorado found for Mink in his action under 42 U.S.C. sec. 1983 that his Fourth Amendment rights were violated by an illegal search and seizure of his home computer and written materials arising from a criminal libel probe based on comments about a professor that appeared in The Howling Pig. The Associated Press reported that Knox is no longer with the Weld County DA's office.

LA Times Editor Bolts Before Job Ax Wielded in Newsroom Again

2011-12-14T22:45:00.000-05:00

Image via WikipediaImage via WikipediaTheWrap.com Website this week reported that Los Angeles Times Editor Russ Stanton has resigned as the beleaguered daily awaits January layoffs that could further shrink the newsroom by 12 to 20 staffers.

Stanton is the fourth consecutive editor at the Times to depart in the face of a pink slip-laden newsroom. While at the helm, Stanton saw his editorial staff shrink to 550 from 900, The Wrap reports. Meanwhile, circulation at the metro daily has plunged 21 percent since March 2009. The Times is owned by the Tribune Co., which has been immersed in Chapter 11 bankruptcy since December 2008. A paywall for the Los Angeles Times is expected to debut during the First Quarter of 2012.

UPDATE: FCC to TV Stations & Advertisers--Everyone Remain CALM

2011-12-14T22:28:00.000-05:00

Image via WikipediaThe Federal Communications Commission this week passed rules related to the Commercial Advertisement Loudness Mitigation ("CALM") Act [H.R. 1084/S.2847] signed into law by President Barack Obama a year ago that mandates tv and cable operators maintain volume on local and national advertisements at the same level as for programming (see "TUOL" posts 10/1/10 & 6/12/09).

The FCC rules take effect on Dec. 13, 2012, according to the San Mateo Daily Journal and the THR, Esq. blog. Among the FCC provisions are those requiring large tv operators to spot check the sound levels of commercials for at least the initial two years from when the law takes effect.

Media General 'Tampas' with Tribune: Staff Slashed by 16 Percent

2011-12-13T11:07:00.000-05:00

Image via WikipediaThe Tampa Bay Tribune announced today that 165 staffers were pink-slipped, reducing its workforce by 16 percent.

Among those terminated was 35-year veteran TV critic Walt Belcher. The layoffs affect the Tribune's print and online editions, but on-air talent at sister station News Channel 8 were spared the ax. Media General Communications Holdings, LLC, which owns the Tribune, said the move will shore up the daily's finances and reflect the redirection toward digital and mobile delivery of the news.

Following the terminations, roughly 675 persons remain employed at the Tampa Bay Tribune.

'That's the Chicago Way': Trib Subscriber Sues Over Unheralded Rate Hike

2011-12-13T10:10:00.000-05:00

Image via WikipediaChicago Tribune subscriber Cheryl Naedler has sued the daily in Cook County Circuit Court for breach of contract and violation of Illinois's Consumer Protection Act [815 ILCS 505] after the paper allegedly charged her credit card more than double her previous subscription rate without notice of the price hike.

Crain's Chicago Business reports that Naedler is seeking class action status for the suit, assuming other readers were also blindsided by the price boost. Her complaint alleges that her credit card was charged $97.50 per quarter without her knowledge or approval of the higher price. Naedler filed suit after not getting satisfaction from her complaint call to the Philippines-based call center that handles such matters for the Tribune.

Purportedly, some, but not all, Tribune subscribers received a letter that specified the new home delivery rate but did not acknowledge the increase it represented.

Pa. Court Rules The Citizen's Voice Did Not Libel Businessman

2011-12-12T15:56:00.000-05:00

Image via WikipediaIt was nearly a decade in the making, but the Wilkes-Barre (Pa.)-based The Citizen's Voice has been exonerated in a defamation case brought by a businessman who alleged the daily linked him to a reputed Mob boss.

According to accounts by Associated Press and the blog Citizensvoice.com, the Times-Shamrock Communications-owned Citizen's Voice did not defame Thomas Joseph, Sr., his son or his direct mail and telemarketing firms, wrote Luzerne County Judge Joseph Van Jura in a 37-page opinion. The Citizen's Voice published 10 stories from June 1, 2001, to October 10, 2001, concerning a money-laundering probe allegedly involving the plaintiff and Acumark, Inc., his direct marketing firm, which included raids by armed federal agents of Joseph's home and company.

The libel complaint alleged the defendant daily, through largely anonymous-source based stories, connected the plaintiff to reputed mobster William D'Elia, a childhood pal of Joseph's. Joseph was never charged with any crime. He sued the paper and former reporter Edward Lewis for defamation, contending he lost friends and his companies sustained financial harm because of the articles. Following a bench trial in 2006 before Judge Mark A. Ciavarella, the Citizen's Voice was socked with a $3.5 million judgment.

On Nov. 4, 2009, however, the Pennsylvania Supreme Court tossed the verdict and ordered a re-trial based on concerns about the impartiality of Judge Ciavarella and Judge Michael T. Conahan, who assigned the Joseph case to Judge Ciavarella. Conahan and D'Elia purportedly had a relationship, which prompted the Pennsylvania High Court not only to toss the libel judgment against the daily, but also to overturn thousands of juvenile justice convictions imposed by Judge Ciavarella over a five-year period.

In the re-trial, Judge Van Jura concluded the reputations of Thomas Sr. & Jr. and their companies were not impugned by the Citizen's Voice series. Judge Van Jura faulted the plaintiffs for not showing "special harm" from the publication of the articles, such as lost business contracts or being shunned by social contacts. Although the daily dodged a punitive damages award, the court did not allow the Citizen's Voice to recover the nearly $1 million in attorneys' fees doled out over the past decade and took the newspaper to task for sloppy reporting and unsubstantiated claims.

This story is just crying out for a cable movie version.

Number of Jailed Journos Soars to 15-Year High

2011-12-09T10:00:00.000-05:00

Image by Getty Images via @daylifeReporters, photojournalists and editors worldwide incarcerated for plying their trade totaled 179 as of December 1, the Committee to Protect Journalists("CPJ") reported today, up 34 from 2010, and the highest number recorded by CPJ in the past 15 years.

Roughly half of those jailed are online journalists, and 45 percent are freelancers, according to CPJ. Countries imprisoning the greatest number of journalists include Iran (42), Eritrea (28), China (27), Burma (12) and Vietnam (9), the CPJ reported in a press release. Anti-state charges and violation of censorship rules were cited as the principal bases for jailing journalists.

Federal Judge Rules Oregon Shield Law Won't Cover 'Investigative Blogger'

2011-12-06T11:03:00.000-05:00

Image via Wikipedia

The United States District Court for the District of Oregon last week in Obsidian Finance Group, LLC v. Cox (Case No. CV-11-57-HZ) ruled that a self-proclaimed "investigative blogger" could not avail herself of Oregon's shield law [ORS 44.510-44.540] to avoid disclosing the identity of confidential sources to the plaintiff in a defamation suit.

Obsidian sued Crystal Cox for allegedly false statements appearing on several Web sites, including her own obsidianfinancesucks.com (catchy). Among the purported defamatory content are allegations of tax fraud and fraud against the government. Cox, who is defending herself in the suit, sought protection under the shield law, contending she is a member of the media.

The federal court disagreed, noting that she is not affiliated with any print or broadcast medium. More to the point, the court cited a provision of Oregon's shield law that "do[es] not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” As the underlying claim in the lawsuit is defamation, the statute offers no shelter for Cox, the court ruled.

Tip of the hat to Chicago attorney Evan Brown's Internetcases.com blog for picking up on this case.

Deck the Halls (& Columns) With Clients of Holly

2011-12-06T10:34:00.000-05:00

Image via WikipediaWhile trying to keep pace in grading the tsunami of end-of-the-semester term papers, the crack team at "TUOL" overlooked a local egregious ethics breach by a columnist at the tabloid Boston Herald.

A tip of the hat to the Blue Mass Group political blog that first brought to light last week Herald columnist Holly Robichaud's piece about potential challengers to fill the Congressional seat being vacated by Democrat Barney Frank after a mere three-decade run. Robichaud touts Mass. Rep. Shaunna O'Connell (R-Taunton), a freshman (freshperson?) legislator who ousted long-term Democratic Rep. James Fagan.

Robichaud suggested O'Connell "could pose a serious threat for the Democrats" eager to retain Frank's seat. Prognosticating about elections is red meat for columnists, but the "rub" as Shakespeare used to say, is that Robichaud also is a principal at the Tuesday Associates political consultant shop, which--now don't get ahead of us, readers--has pocketed more than $17k since 2009 from client Shaunna O'Connell, according to the Commonwealth's Office of Campaign & Political Finance ("OCPF"). Nowhere in her column handicapping the Congressional race to succeed Frank does Robichaud disclose she may "wanna Shaunna" to win.

Op-ed or operative? You be the judge.

1st Circuit Reinstates Libel Suit But Raises Plaintiffs' Burden of Proof

2011-12-05T22:00:00.000-05:00

Image via WikipediaBrothers who believe they were libeled by a 2007 documentary may pursue their defamation action, the United States Circuit Court of Appeals for the First Circuit ruled last week, but will have to satisfy the elevated burden of proof of actual malice to prevail, according to The Docket, a blog produced by Massachusetts Lawyers Weekly newspaper.

The case, Felipe Vicini Lluberes & Juan Vicini Lluberes v. Uncommon Productions LLC (Case No. 10-2082), involves The Price of Sugar, a documentary narrated by the late actor/activist Paul Newman, about the plaintiffs, Dominican sugarcane plantation tycoons, who allegedly exploit Haitian immigrants who harvest the sugarcane, and the attempts by a Spanish priest to intercede on the Haitians' behalf.

U.S. District Court for the District of Massachusetts Judge Douglas P. Woodlock tossed the plaintiffs suit, but the three-judge First Circuit panel reinstated the case, finding that information provided by the filmmakers to a fact-checker may yield discoverable evidence. The appellate court, however, also concluded the plaintiffs were limited public figures, which means that to sustain their defamation claim, they will have to prove the defendants knew their film contained false statements about the plaintiffs or exhibited reckless disregard about the truth or falsity of the purported defamatory content.

According to the First Circuit, the Lluberes brothers made public appearances on CNN and pored millions of dollars into a public relations campaign to stifle critics and win public support, and so, should have to meet the higher burden of proof against the defendants.

Daily Reaps Rewards of 1st A. Airport Newsrack Case Win--If Only Travelers Read Newspapers...

2011-12-02T10:55:00.000-05:00

Image via Wikipedia

Travelers strolling the concourse at Raleigh-Durham (N.C.) International Airport enroute to their probable delayed flights may not notice the newspaper boxes for The New York Times, USA Today and The Raleigh News & Observer, which is too bad, because the newsracks cost the Raleigh Durham Airport Authority nearly $1 million in legal fees.

The News & Observer reported this week that the fruits of its six-year legal battle with the airport authority--coin operated vending boxes--are now in place in Terminal 2 and other locales for iPod-wearing passengers to ignore. A First Amendment suit was filed in 2004 against the airport authority after it said that newspapers only could be sold at airport shops that were not always open for early and late travelers to patronize. (See "TUOL" post 3/15/10.)

Last year, the United States Court of Appeals for the Fourth Circuit in The News and Observer Publishing Co., The Durham Herald Co., The New York Times Co. & Gannett Co., Inc. v. Raleigh-Durham Airport Authority (Case No. 5:04-cv-00639) sided with the plaintiffs in noting that the First Amendment protects the distribution, as well as the content, of newspapers, rejecting the defendant's aesthetics, congestion and security arguments against news vending machines.

The afore-named newspapers, and the Durham Herald-Sun, which is expected to go the vending machine route imminently, will pay the airport authority $12.50 per box monthlyrent, according to the News & Observer story.

Copyright Infringement: What's This Dentist Trying to Pull?

2011-12-02T10:19:00.000-05:00

Image via WikipediaIn our Internet-savvy society, businesses and providers of professional services have come to expect that their performance will be subject to criticism on a plethora of consumer Web sites. It doesn't appear that Stacy Makhnevich, DDS, received that memo.

Exhibit A, reported by the ABA Law News Now blog, is a 19-page complaint filed by Public Citizen on behalf of former New Yorker Robert Lee, now of Huntingtown, Md., against Dr. Makhenvich in the United States District Court for the Southern District of New York. The potential class-action suit, Lee et al. v. Makhnevich & Aster Dental et al. (Case No. 11-cv-8665) involves a $4,800 bill Lee received after the defendant drained and filled a tooth that was causing Lee pain, a procedure the plaintiff alleges should have cost more in the neighborhood of $200.

Lee vented on Yelp! and other online sites to protest the bill and to tell consumers "avoid at all costs!" when it came to Dr. Makhnevich. What makes "TUOL"'s media law sense tingle about this dispute is Dr. Makhnevich's practice of not treating patients unless and until they have signed an agreement waiving their rights to comment online about her services and assigning the copyright to any online comments to Dr. Makhnevich, for which, in turn, she promised not to market confidential personal information about her patients, according to allegations in the complaint. Dr. Makhnevich sued Lee for copyright infringement, based on his online comments, seeking $100 a day in damages.

Plaintiff's counsel argues that the purported contract is unconscionable and unenforceable as it stifles Lee's First Amendment freedom of expression by misusing copyright laws. Pursuant to 17 U.S.C. sec. 107, the plaintiff contends his comments are protected by the fair use exception to copyright infringement. Moreover, the plaintiff alleges the contract at issue is wanting for lack of consideration because Dr. Makhnevich already is precluded under federal law from sharing patient information with marketers by HIPAA (Health Insurance Portability & Accountability Act).

"TUOL" predicts the court will yank Dr. Makhnevich's contract in one swift motion on First Amendment grounds. File this story under the heading: Always Sue Your Dentist Once a Year.

Facebook Waiting to Get Poked After Resolving FTC Complaint

2011-12-01T10:00:00.000-05:00

Image via WikipediaSocial network leviathan Facebook, which as early as the first quarter of 2012 is expected to roll out an IPO that may top $100 billion, this week settled a complaint with the Federal Trade Commission filed in 2009 by the Electronic Privacy Information Center concerning changes in Facebook's privacy policies.

Under fire for a policy shift that allegedly made users' personal information accessible to third parties that previously had been unavailable, Facebook, pursuant to an agreement with the FTC, will have to undergo bi-annual privacy audits over the next two decades. Additionally, before initiating revisions to its privacy policies, Facebook henceforth must give users prominent notice of any alterations to privacy settings and obtain their consent.

The company has added two attorneys to oversee Facebook's privacy concerns. According to published accounts, Facebook's resolution of the FTC complaint could subject it to maximum fines of $16,000 per infraction if it violates the settlement terms.

Mutual of Omaha: Buffett & World-Herald Share the Love

2011-11-30T12:14:00.000-05:00

Image via WikipediaBillionaire Berkshire Hathaway Chair Warren Buffett continues to bolster his Nebraska presence with the purchase of the Omaha World-Herald ("OWH"), the paper announced today.

Berkshire Hathaway will be acquiring OWH, the nation's 49th largest daily newspaper, from the Peter Kiewith Foundation and the paper's employee shareholders. The paper had been the nation's last employee-owned major daily as Berkshire Hathaway is poised to become its fifth owner since it was founded in 1885. Terry Kroeger is expected to remain as the paper's publisher and president, according to the OWH online story.

The OWH owns a number of smaller papers, including the Council Bluffs (Iowa) Nonpareil along with papers in North Platte and Scottsbluff, Nebraska, among other publications.

UPDATE: Hartford Courant Settles 'Hot News' Copyright Suit with Journal-Inquirer

2011-11-29T11:36:00.000-05:00

Image via WikipediaSettlement terms were not disclosed, but the Tribune Co.-owned Hartford Courant earlier this month quietly ended its defense of a copyright infringement/"hot news" suit brought against it by the Manchester Journal-Inquirer (see "TUOL" post 12/4/09), PaidContent.org reported.

The Journal Inquirer sued for $1.65 million, claiming that the Courant plagiarized its stories about education and local water issues, posting some on the Courant Web site without attribution. The Courant apologized to its readers in September 2009 (see "TUOL" post 9/4/09) for its ersatz news aggregating practices.

With the parties' out-of-court resolution, journalism junkies are deprived of seeing the Journal Inquirer's "stealing news" accusation played out in open court. The Courant had contended that its news aggregating came under the fair use exception to the plaintiff's copyright infringement count, and denied the re-written stories at issue constituted "hot news." The so-called hot news doctrine, which amounts to a property right in information, dates back to an Associated Press case decided by the Supreme Court in 1913, but enjoyed a revival of sorts last year with a New York case involving a financial services Website.

Societe Generale Banking on Libel Suit Against U.K. Paper

2011-11-25T12:24:00.000-05:00

Image via WikipediaSociete Generale, France's second largest bank, has sued Associated Newspapers, publisher of the Mail on Sunday, for defamation based on an article last August claiming the financial services institution was on "the brink of disaster" and in a "perilous" state.

The Guardian reports that the Mail on Sunday retracted the article and published an online apology, but Societe Generale said no dice, claiming the Website "oops" was difficult to find and that the paper had failed to publish in its print edition that the original article was not true.

Societe Generale alleges it sustained "substantial damage to its reputation and prejudice to its trade" because of the inaccurate Mail on Sunday article. For its part, the defendant contends it already said it was sorry and plans to contest the suit.

Calif. Federal Judge Protects Anonymity of Blogger Against Spirtual Group Subpoena

2011-11-22T19:53:00.000-05:00

Image via WikipediaIn her 16-page opinion in Art of Living Foundation v. Does 1-10 (Case No. 10-cv-05022), United States District Judge for the Northern District of California Lucy H. Koh last week ruled against a spiritual organization that had subpoenaed Google and Automattic, Inc. to obtain the identity of Skywalker, who publishes two blogs critical of the group.

The Art of Living Foundation ("ALF") sued unnamed defendants in November 2010 for defamation, trade libel, misappropriation of trade secrets and copyright infringement based on two blogs' publication of ALF's "Breath Water Sound Manual" and teaching methods. The blogs, "Leaving the Art of Living" and "Beyond the Art of Living" are written by an anonymous poster under the pseudonym Skywalker, according to the Reporters Committee for Freedom of the Press Web site (www.rcfp.org).

ALF celebrates the spiritual lessons of "His Holiness Ravi Shankar" that emphasize yoga, meditation and breathing relaxation skills. Skywalker and his supporters argue the plaintiff is attempting to use its copyright as a tool to suppress their free speech rights. The defendants challenged ALF's subpoenas of the Internet Service Providers without revealing their identities.

To the degree anonymity encourages an individual to speak freely, Judge Koh wrote, compelling the disclosure of Skywalker's name "diminishes the free exchange of ideas guaranteed by the Constitution." Judge Koh indicated in her ruling that as the lawsuit proceeds to the discovery stage, the issue of anonymity may be revisited and the defendant blogger may not be able to continue to conceal his identity.

But at least for now, as Obi-Wan Kenobi used to say: "Use the courts, young Skywalker, use the courts..."

Orlando Sentinel Pink Slips 16 Staffers

2011-11-18T10:46:00.000-05:00

Image via WikipediaPoynter.org, via MediaWire, reports that 16 staffers, including a dozen full-time newsroom personnel, have been laid off by the Tribune Co.-owned Orlando Sentinel.

Although the paper has not confirmed the latest round of staff cutbacks, among those set free was Roger Moore (the movie critic, not the former 007 star). Mark Russell (the Editor, not the political satirist) informed staffers of the newsroom trimming on Wednesday. Reportedly, many of the casualties were part of the paper's copy desk.