Don't Mess With the Lessig

(Photo credit: Wikipedia)

Lawrence Lessig, Harvard Law School Professor and champion of a less copyright-restricted Internet, last month joined forces with the Electronic Frontier Foundation to file suit in the United States District Court for the District of Massachusetts against a Melbourne, Australia-based record company that accused the professor of infringing on a copyrighted song by using it in a lecture presented on YouTube.

In his 11-page complaint, Lessig v. Liberation Music Party Ltd. (Case No. 1:13-cv-12028), the professor is seeking injunctive relief, damages and declaratory judgment from the Court under the Digital Millenium Copyright Act [17 U.S.C. sec. 512] that his use of a 2009 tune, Lisztomania, by French songsters Phoenix in the YouTube lecture was protected by the Copyright Act's Fair Use provision [17 U.S.C. sec. 107].

Under the Fair Use defense against infringement claims, the Court weighs factors, including the purpose and character of the use of the copyrighted material, whether the use was for commercial or nonprofit educational purposes, the nature of the copyrighted work, and the amount and substanitality of the portion used.

According to an account of the case in The Boston Globe, Liberation Music claims to hold the copyright on Lisztomania and sent correspondence to Lessig accusing him of violating its license. In turn, Lessig claims in his complaint that the Down Under record company is abusing the Copyright Act and abridging his First Amendment rights.

Shh!: EFF Wins FOIA Motion in FISC Case

 (Photo credit: Wikipedia)

The old does-a-tree-falling-in-the-woods-make-a-sound? conundrum has got nothing on the nonprofit online free speech advocate Electronic Frontier Foundation (EFF), which crowed in a press release that it had successfully argued a motion in a Freedom of Information Act (FOIA) action in the super-secret Foreign Intelligence Surveillance Court (FISC) regarding National Security Agency (NSA) surveillance.

What isn't so clear in this hush-hush alphabet soup that purportedly involves the first disclosed victory by a non-government party before the FISC is what exactly EFF has won. It's not easy to brag about the mouthful of the court's decision in In re Motion for Consent to Disclosure of Court Records or in the Alternative a Determination of the Court's Rules on Statutory Access Rights (Docket No. Misc. 13-01).

According to the EFF announcement, FISC said it was ok to disclose publicly a previous FISC opinion that purportedly said facets of NSA snooping under Sec. 702 of the FISA Amendments Act were unconstitutional. The victory, while not Pyrrhic, isn't exactly gratifying either, because FISC didn't actually order the opinion itself to see the light of day. Rather, the court merely ruled that FISC rules in and of themselves do not interfere with the disclosure of an opinion.  In other words, according to the EFF, FISC soundly rejected the argument by the Department of Justice (DOJ, if you can stand another acronym) that the Executive Branch's hands are tied by FISC procedural rules when it comes to releasing an opinion.

The court's ruling, along with a motion by the American Civil Liberties Union (ACLU) asking FISC to open the court's interpretation of Section 215 to public view, may be found on the public docket recently created by the FISC.

Given the PRISM and NSA phone call monitoring stories currently dominating the news cycle, you might want to think twice before sharing EFF's giddy celebratory news with your posse online or via cellphone.

DOJ Broad Subpoena of AP Journos Phone Logs an Assault on Press Freedom

Image via CrunchBase

The great jurist, Judge Learned Hand,  recognized that "[t]he hand that rules the press, the radio, the screen and the far-spread magazine rules the country." "A free press is not a privilege," journalist Walter Lippman wrote, "but an organic necessity in a great society."

Unfortunately, the Administration of President Barack Obama, which has initiated a record six cases under the Espionage Act against individuals alleged to have leaked classified information, has embraced Judge Hand's caveat but apparently turned its back on Lippmann's plea for press freedom, the cornerstone of our society.

The U.S. Department of Justice subpoenaed the telephone records of 20 phone lines of Associated Press reporters and editors from April and May 2012, which included journalists' cellphone and home numbers, and those of AP bureaus in New York, Hartford and Washington, D.C., as well as the AP press phone in the U.S. House of Representatives, the DOJ revealed to the AP last Friday.  Reportedly, the subpoenas sought the telephone numbers of those with whom the AP staffers had contact and the length of each call. Purportedly, the DOJ was reacting to a May 2012, AP story about a thwarted terrorist plan in Yemen and was gathering data for its probe into how AP learned about a conspiracy involving an underwear bomber on an airline destined for the U.S.

AP condemned the government seizure of phone logs as a "massive and unprecedented intrusion by the Department of Justice into the news-gathering activities (of AP)." The American Civil Liberties Union criticized the DOJ's actions as "an unacceptable abuse of power." AP CEO Gary Pruitt has demanded the return of the phone records and that all copies be destroyed.

Media organizations and free press advocates expressed shock at the breadth of the phone logs sought by the DOJ under the mantle of national security and fretted about the chilling effect the move would have on reporters' interactions with their sources.  Joining in the chorus of those criticizing the DOJ actions were prominent GOP legislators and members of past Republican White House administrations, many of whom wouldn't have shed a tear if the New York Times building had burned down when the Times reported during the Bush Administration on NSA wiretaps of Americans' overseas phone calls and the overseas locations where enhanced interrogation of suspected terrorists occurred.

Because of the U.S. Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979), authorities need only show relevance to a criminal investigation to secure subpoenas of telephone carriers for data, including incoming calls and the phone numbers of outgoing calls and when such calls were made. In contrast, electronic eavesdropping on the phone calls of American citizens is illegal unless law enforcement obtains a warrant from a judge.

Apparently, the DOJ did not inform the AP about seizing the phone records for more than two months after it secured the records, which appears to violate government regulations set forth in 28 C.F.R. sec. 50.10. Under the regulations, the news media must be told of the receipt of any data within 45 days. Moreover, the Attorney General must give approval to the Justice Dept. before it subpoenas the press, which is usually a last resort. Protocol usually involves authorities making an attempt to negotiate with the targeted media outlet for release of information before resorting to subpoenas.

The political blowback against elected officials perceived to be anything but vigilant and steel-jawed in their pursuit of those who would do harm to the U.S. has too often in recent years caused those in power, along with the news media and the public, to be lax in their support of the First Amendment, Fourth Amendment and other Constitutional provisions.  But as Thomas Jefferson once noted: " A society that will trade a little liberty for a little order will lose both and deserve neither."

EFF Opposes Forum Shopping in Online Defamation Suit

(Photo credit: ElectronicFrontierFoundation)The Electronic Frontier Foundation ("EFF"), a nonprofit online free speech advocate, wants a California federal court to retain a defamation suit into which a federal judge in Illinois has inserted himself, the Courthouse News Service reports.

The United States District Court for the Central District of California is where plaintiffs last month initially filed an 18-page Complaint alleging, among other counts, defamation, trade libel and trademark infringement in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-04095). McFadden, a VH1 tv reality star of House of Consignment, alleges the defendant's blog posts amounted to cyberbullying and harmed her eBay business by accusing McFadden of engaging in "shill bidding", a practice that artificially inflates a product's value.

Since then, however, the plaintiffs obtained a temporary restraining order from United States District Court for the Northern District of Illinois (Eastern Division) Judge Matthew F. Kennelly prohibiting the defendant from levying "shill bidding" allegations against the plaintiffs in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-036323).

Enter the EFF, which has filed a 16-page amicus curiae brief urging that the case remain in California and that the court deny plaintiffs' motion to dismiss the California case without prejudice. The crux of the EFF's argument is that the plaintiffs are seeking to move to Illinois to avoid California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute and the United States Court of Appeals for the Ninth Circuit's free speech-friendly approach toward the Communications Decency Act. The EFF asserts transferring the case from California would have a chilling effect on free speech.

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

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."



"

Ninth Circuit Rejects Lobbyist Privacy Claim in FOIA Request

Image via Wikipedia

In Electronic Frontier Foundation v. Office of the Director of National Intelligence, Department of Justice (Case No. 09-17235), the U.S. Circuit Court of Appeals for the Ninth Circuit this week rejected an invasion of privacy defense to a Freedom of Information Act ("FOIA") request for disclosure of the identities of telecommunications companies' lobbyists.

 The EFF sought disclosure of the identities of lobbyists who successfully persuaded Congress to grant immunity to telecommunications companies that were involved in the government's warrantless electronic surveillance of Americans' phone calls carried out by the National Security Agency post 9/11. In affirming in part, and reversing in part, the ruling by the U.S. District Court for the Northern District of California, Judge Michael Daly Hawkins wrote: "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

The EFF in the past attempted to learn which telecommunications companies participated in the NSA surveillance program, but the companies were granted immunity from the FOIA requests.  Although it dismissed the lobbyist privacy argument, the 9th Circuit decision ordered the trial court to review the information sought by the EEF to determine whether it should be exempt from disclosure under the FOIA for other reasons, such as national security interests.

EFF Fighting Subpoena in Pa. Corp. Suit Against Anonymous Blogger

Image via Wikipedia

USA Technologies, Inc., a Malvern, Pa., corporation that provides cashless microtransactions, has filed suit in the U.S. District Court for the Eastern District of Pennsylvania, seeking the identities of anonymous bloggers "Stokklerk" and "Michael_ Moore_ is Fat" (USA Technologies, Inc. v. John Doe & Jane Doe..., Case No. 09-3899).

The Complaint includes counts alleging defamation and violations of Section 10(b) the Securities & Exchange Act of 1934 [15 U.S.C. sec. 78j(b)] against anonymous Yahoo! message board posters who criticized the plaintiff's management performance. The defendants are being represented by the Electronic Frontier Foundation, proponents of the argument that the use of subpoenas to unmask anonymous bloggers in civil actions violates the bloggers' First Amendment free speech rights.

EFF Seeks to Protect ID of Blogging Development Opponents

Image by A Gude via Flickr

The Electronic Frontier Foundation (EFF) and local counsel want to quash subpoenas that would identify anonymous bloggers who are critical of a Chicago development project.

In Fix Wilson Yard, Inc. et al v. City of Chicago et al. (Docket No. 2008-CH-45023), the EFF wants a Cook County Illinois Circuit Judge to toss six subpoenas to Google aimed at Websites including www.uptownupdate.com and www.buenaparkneighbors.org, sought by defendant firms linked to Chicago developer Peter Holsten. The subpoenas want the identities of anonymous online critics of the Wilson Yard project and its chief sponsor, Alderman Helen Shiller.

The EFF contends that identifying the online critcs has no bearing on the litigation, which involves land-use ordinances, and abridges the First Amendment rights of the anonymous opponents of the project.