NSA Deflects FOIA Challenge About Possible Google Ties

Image via WikipediaWhether the National Security Agency has forged a relationship with Internet search engine colossus Google will remain under wraps for now as the NSA successfully rebuffed a document request by public interest watchdog group, the Electronic Privacy Information Center ("EPIC") under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

As reported by Suits & Sentences, a blog published by The McClatchy Co. media conglomerate, U.S. District Court for the District of Columbia Judge Richard J. Leon denied EPIC's FOIA document request, relying on Exemption 3 of the sunshine law. The restriction holds that material does not have to be produced that is otherwise protected from disclosure by another statute; in this case, one that guards "the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof," the Suits & Sentences post noted.

The NSA ain't talkin' about whether it has worked with Google.  EPIC initially filed its FOIA request after stories emerged concerning a possible connection between the NSA and Google regarding a cyber attack by hackers in China.

The case is Electronic Privacy Information Center v. National Security Agency (Case No. 1:2010-cv-01533).

Reader's Digest Being Swallowed Up by Buyer?

Image via WikipediaReader's Digest Association ("RDA") is offering itself for sale, in its entirety or piecemeal, and hopes to fetch $1 billion, according to reports in Folio magazine and The Wall St. Journal.

The Pleasantville, N.Y.-based publisher entered a voluntary Chapter 11 bankruptcy in August 2009 (see "TUOL" post 8/17/09), from which it emerged in February 2010. RDA endured a brutal First Quarter in 2011, as revenues sank 21.2 percent to $326 million, Folio reported.

The media company publishes 90 magazines internationally, including Taste of Home, Family Handyman and Every Day With Rachael Ray (a frightening prospect). The Wall St. Journal reports that one of RDA's most prized possessions is Allrecipes.com, for which digital media companies may pony up $100 million to $200 million.  

Reader's Digest, which Lila Bell and DeWitt Wallace founded in 1922, has registered nearly an 8 percent hike in ad pages through August, according to Folio. RDA was acquired for $66 million in 2006.

The intrepid "TUOL" staff's editor will be tracking this story closely as he grew up in a family who subscribed to the uniquely sized Reader's Digest and  has fond childhood memories of the magazine being delivered directly to his father's bathroom door.

Canadian Media Conglomerate Withdraws from Ontario Press Council

Image via WikipediaSun Media, parent company of Quebecor Media Inc., has pulled out of the Ontario Press Council ("OPC"), according to an article in The Vancouver Sun.

Sun Media head Glenn Garnett attributed the move to his chain's editorial direction being at odds with the OPC's being "politically correct." OPC Chair Dr. Robert Elgie pointed out that Quebecor previously had withdrawn from a Quebec-based media watchdog group. The Toronto Sun, Edmonton Sun, Calgary Sun and Winnipeg Sun are part of the Sun Media Group.

The OPC, which was established in 1972, oversees more than 200 newspapers. Sun Media's dailies make up 27 of the 37 in OPC's jurisdiction, the article noted.

O'Neal Sues Fawcett Assistant for Defamation in Spat Over Warhol Silkscreen

Image by Getty Images via @daylifeActor and gossip tabloid favorite Ryan O'Neal last week filed a defamation suit in Los Angeless County Superior Court against Craig Nevius, personal assistant to O'Neal's late partner, actress Farrah Fawcett.

As reported by The Hollywood Reporter's THR, Esq. blog, O'Neal's complaint seeks more than $1 million in damages and includes counts alleging defamation and intentional and negligent infliction of emotional distress. O'Neal blames Nevius' comments to Star Magazine and on Good Morning America for prompting the University of Texas to sue O'Neal on July 8 for the return of a silkscreen portrait of Fawcett done by Andy Warhol reportedly valued at $30 million.

Fawcett left her art collection to her alma mater when she died of anal cancer in 2009, but O'Neal claims the artwork is his. O'Neal's complaint alleges the school's complaint against him is based on false statements by Nevius. The actor, currently appearing in a reality tv show with his actress daughter Tatum O'Neal, has accused Nevius of being "obsessed" with Fawcett and blamed him for leaking her medical records to supermarket tabloids.

Given the gossip-rich path his off-screen life has followed, in retrospect it was probably a bad idea for O'Neal to make his show business splash in TV's adaption of soap opera Peyton Place.

BBC Journos Stage 1-Day Walkout to Protest Job Cuts

Image by Getty Images via @daylifeRoughly 3,000 members of the National Union of Journalists struck the British Broadcasting Corp. for one day, in protest of reduced government funding and job cuts, The New York Times reported today.

The BBC aired repeats on the World Service and in the U.K. because of the walkout. Last November, 4,100 BBC journalists staged a two-day strike, objecting to proposed pension reductions. The BBC is pink-slipping 480 staffers at BBC World Service and slashing 360 jobs online (see "TUOL" post 1/24/11).

Instead of "Bad Show," it was "No Show."

Is All-News FM Radio War in the Offing in Chicago?

Image via WikipediaCBS Radio-owned WBBM-AM 780 all-news radio, Chicago's top-ranked station, will begin simulcasting on WCFS-FM 105.9, heretofore a contemporary music station, as of August 1,  in a strategic maneuver to offset possible higher fidelity competition, The Chicago Tribune reports.

Merlin Media, which is led by a former Tribune executive, recently purchased WKQX-FM Q101 from Emmis Communications and is expected to convert the alternative rock station to a news-talk format. WBBM-AM, which has been an all-news radio station since 1968, also will take advantage of its FM doppelganger to broadcast Chicago Bears games in stereo if the NFL lockout ends and "da Bears" resume play. (Full disclosure: "TUOL"'s devoted staff used to reside in Chicago and regularly tuned in to WBBM NewsRadio, when not swinging to the jazz selections of the late Dick Buckley on WBEZ-FM.)

UPDATE: 'Twittersquatting' Plaintiff Drops Suit

Image via CrunchBaseLife settlement company Coventry First has withdrawn its subpoena to Twitter and voluntarily dismissed its lawsuit against anonymous tweeters (see "TUOL" 6/15/11), the ABA Journal Law News Now blog reports.

The U.S. District Court for the Eastern District of Pennsylvania case,  Coventry First, LLC v. John Does 1-10 (Case No. 2:11-cv-03700) alleged violations of the Lanham Act and the Anti-Cybersquatting Consumer Protection Act, along with common law claims of unjust enrichment and unfair competition, arising from sarcastic false tweets under the tag @coventryfirst.  Coventry First said it decided to drop the case after counsel for Public Citizen, which had sought to quash the subpoena to Twitter, revealed the pseudonymous tweeter was not an industry competitor. Public Citizen argued the plaintiff erred procedurally by serving Twitter with a subpoena before seeking court permission via motion to conduct early discovery.

More likely, dismissing the case without prejudice  is a face-saving measure by Coventry First, which faced an uphill battle supporting its claim that the fake tweets amounted to trademark infringement that might confuse consumers.

Kansas City Star Cans Columnist for Plagiarism

Image via WikipediaThe McClatchy Company-owned Kansas City Star has fired 31-year veteran employee Steve Penn for plagiarism.

The 53-year-old Penn, who has been a Star metro columnist since 2000, was found to have copied verbatim material contained in press releases without attribution in his columns on more than a dozen occasions dating back to 2008, according to Star Editor Mike Fannin. Penn, whose forte was human interest pieces, purportedly duplicated in one column the contents of a press release about the alliance between  Alaadeen Enterprises, Inc. and the family of the late jazz great Duke Ellington to help U.S. Veterans. Similarly, in a tribute column to restaurateur Maxine Virginia Byrd, Penn purloined descriptive phrases and a significant portion of a press release about Byrd written by a funeral home.

Trolling press releases for column content proves the old adage: the Penn is not mightier than the flack.

ESPN Sues OSU Over Public Records Request in NCAA Probe

Image by Getty Images via @daylifeIn State ex rel. ESPN, Inc. v. The Ohio State University (Case No. 11-1177), a complaint for writ of mandamus filed this week in the Supreme Court of Ohio, the sports broadcaster is seeking records from the football powerhouse concerning an NCAA probe into alleged sales by OSU players of game memorabilia that caused Coach Jim Tressel and star QB Terrelle Pryor to leave the university.

ESPN sued under the Buckeye State's public records law [Ohio Rev. Code sec. 149.43], after producer Justine Gubar's April 20, 2011, requests for documents concerning the alleged NCAA violations were rejected by OSU on May 27, on the grounds that producing the information would violate students' privacy rights set forth in the Federal Educational Rights and Privacy Act ("FERPA") [20 U.S.C. sec. 1232g].

ESPN was turned away by OSU after it asked for Email correspondence and other internal and external documents regarding the NCAA's inquiry into alleged actions by Tressel, Pryor, and other team members, including Devier Posey, Daniel Herron, Mike Adams and Solomon Thomas. According to an article in The Columbus Dispatch, ESPN also has its eye on correspondence from Tressel to Jeannette, Pennsylvania-based Ted Sarniak, purportedly Pryor's mentor.

OSU has 21 days to respond to the Complaint once it is served.

Online Shop Sites Liable for 'Active' Promoting of Fake Goods, Euro High Court Warns

Image via WikipediaeBay and other online shopping sites can't skirt trademark infringement claims if they have an "active role" in hawking counterfeit products, a full panel of the European Court of Justice ("ECJ") in Luxembourg has ruled.

Since 2007, cosmetics and beauty giant L'Oreal has locked horns with eBay, the world's largest online auction site, when the Paris-based company turned to the ECJ by linking lawsuits filed in France, Belgium, Spain and the United Kingdom, according to articles in The Independent and The Guardian. L'Oreal blames eBay for the sale of counterfeit goods on its Website as well as the sale of "parallel imports" (imported L'Oreal products not aimed at the European market). eBay argues that it should not be accountable unless it fails to act after a trademark holder notifies it of an infringement.

In a ruling that resonates in the world of e-commerce, the ECJ said national courts may order eBay and such companies "to take measures intended not only to bring to an end infringements of intellectual property sites, but also to prevent further infringments of that kind,"  The Guardian reports. The ECJ said European Union trademark rules are applicable to sales offers and advertisements involving trademarked goods outside EU countries once "it is clear that those offers are targeted at consumers in the EU."

L'Oreal complained that by paying for keywords from Internet referencing services, such as Google's AdWords, that correspond to the cosmetics company's trademarks, eBay was directing users "toward goods that infringe trademark law, which are offered for sale on its Website."  Although the ECJ said liability may attach if the online shopping site takes an "active role" in promoting sham goods or fails to remove goods upon notice that the sales are unlawful, eBay and its competitors are not liable merely for permiting its customers to display signs corresponding to trademarks.

AP 'Dusts' Freelance Photog for Altering Soccer Photo

Image via CrunchBaseThe Associated Press has pulled all the images of freelance photographer Miguel Tovar from its Website and AP Images photo licensing division after determining the photographer altered a picture he took at the Copa America soccer tournament in Argentina.

Santiago Lyon, AP Director of Photography, informed the wire service staffers in a letter that Tovar purportedly cloned dust from a portion of one feature photo to conceal his own shadow in another image of kids playing soccer. An array of Tovar's photos of the tournament appeared in The Sydney Morning Herald.

Lyon condemned Tovar's alleged action as a "deliberate and misleading photo manipulation." As stated in AP's ethics code concerning images: "We do not alter or digitally manipulate the content of a photograph in any way." The ethics code proscribes the use of Photoshop, the adding or removal of an element of an image or the deliberate obscuring of faces.  Ironically, the ethics code permits retouching images "to eliminate dust on camera sensors," but apparently doesn't allow a shutterbug to add dust to a photo.

Philly Papers to Hawk Digital Version/Android Combo

Image by Getty Images via @daylifePhiladelphia Media Network ("PMN"), owner of The Philadelphia Inquirer and Philadelphia Daily News, plans to sell discounted Android tablets on which digital versions of the dailies already will be built in, according to an article in AdWeek.

Beginning in late August, 2,000 tablets will be pedaled that boast icons of digital replicas of the dailies and separate applications for the papers' online versions. No price has been set, the AdWeek article noted, but the tablets housing the newspapers' content is expected to be offered for half-off their combined retail price. The dailies would receive all the revenues and data that will reflect consumer use of digital newspaper content.

PMN purchased the dailies from Philadelphia Media Holdings out of Chapter 11 bankruptcy protection.

Spanish Court Tells ISPs to Shut Off the Limelight

Image by Getty Images via @daylifeAn interesting post by the Internetdefamationlawblog.com reports on a case in Spain that highlights the different approach European courts take to defamation and privacy cases than their American counterparts.

Google was ordered by a court in Spain to remove from its index information about a private individual. Specifically, in 1991, an article critical of plastic surgeon Dr. Hugo Guidotti Russo was published by a Spanish newspaper concerning a dispute with a patient. The article in question did not assess the merits of the patient's complaint or address the resolution of the claim.

Dr. Russo, backed by the Spanish Data Protection Agency("SDPA") and a Spanish court, sought the removal of the decade-old article by Google, which he claimed detracted from his on-going medical practice when it surfaced in Google searches. Google screamed censorship and refused to do so. Whereas in the U.S., there is no expiration date once an individual is in the limelight as a public figure, Spain, as do many of its European Union compadres, abide by a doctrine known as "the right to be forgotten."

Interestingly, the SDPA previously has exempted Internet Service Providers from coverage by Spain's freedom of expression laws that protect newspapers and other publications. Google contends the onus should be on publications that provide Internet content to embed coding alerting ISPs not to index the data.

AP Staffers Taken to Woodshed for Social Media Opining

Image via CrunchBaseAssociated Press reporters weighing in on news stories such as the Casey Anthony murder trial and the New York legislature's thumbs-up to same-sex marriage have been taken to task by the wire service for sharing their views on Twitter.

According to Romanesko's media gossip column, Tom Kent, AP Deputy Managing Editor for Standards and Production, said AP staffers sharing their opinions with friends and family via Tweets undermine the credibility of AP reporters trying to cover controversial news stories in an objective, balanced manner. Sounding a bit "wired," Kent reminded AP staffers that social networks are a public forum and not the proper outlet for sharing personal views about contentious news events. Apparently, that's why wire service bureaus and newspapers are never located more than a stone's throw from  hanging fern-free dive bars.

Third Circuit to FCC: Back to Drawing Board on Media Ownership Rules

Image via WikipediaIn Prometheus Radio Project v. FCC (Case Nos. 08-3078/08-4468), the U.S. Circuit Court of Appeals for the Third Circuit this week resurrected media cross-ownership restrictions, ruling that the FCC 2007 decision to relax limits on entities owning newspapers and television stations in the same market ran afoul of the notice and comment requirements of the Administrative Procedure Act ("APA") [5 U.S.C. sec. 551].

In a controversial vote in 2007, the FCC loosened the cross-ownership ban and permitted the same entity to own a tv station and a newspaper in the 20 largest media markets provided the market in question boasted at least eight media outlets to compete against the dual-media owner. Consumer advocacy groups, including the Prometheus Radio Project, believed the lifting of the ban discouraged diversity of media ownership. Essentially, critics claim if the same media conglomerate owns a daily newspaper and a tv station in the same town, the public isn't getting two viewpoints, but the same viewpoint two times.

The 3rd Circuit, which in 2004 also overturned an FCC action that slackened media ownership rules, faulted the FCC for not adhering to APA protocol, which usually allows 90 days for objections and comments to rule changes. In 2007, the FCC set aside only 28 days for comments after announcing the media ownership ban lifting in a New York Times editorial by the FCC Chair.

The cross-ownership ban had been in effect more than three decades before the FCC changed the rule in 2007. This week, the 3rd Circuit told the agency to take another look at media ownership.

Tech Scribe Pogue Remains a Godsend to NY Times Public Editors

Image via WikipediaArthur Brisbane, The New York Times public editor, has posted on the Gray Lady's blog that henceforth, its technology columnist, freelancer David Pogue, will run his agent's proposed speaking engagements past his Times editor.

In an Email he sent to Brisbane, Pogue apparently has sworn off speechifying to public relations groups, such as Ragan Communications, which recently compensated Pogue for a live virtual event carrying a $159 price tag entitled "Pitch me baby!" Pre-recorded video presentations by Pogue at the event included "Pogue's Five Pitch pet peeves'" and "what you should NEVER do when pitching a reporter."

The Times imposes strict ethics guidelines on staffers prohibiting their involvement in for-profit PR workshops that imply privileged access to the press. Because Pogue is a freelance contributor, however, he will only be subject to the Times standards when writing for the daily.

Brisbane's predecessor as Times Public Editor, Clark Hoyt, took Pogue to task in 2009 for his non-Times activities that he believed posed a conflict of interest. Pogue is the author of the Missing Manual series of books and a technology correspondent for CNBC and CBS News Sunday Morning, among his many diversions.

Skype's The Limit for Facebook

Image via CrunchBaseSocial media monolith Facebook now offers users a plugin that provides access to Skype video calling of their friends, according to TechCrunch.com.

Users can leave a message if they don't receive a response. Facebook has now added a "Call" button to its "Poke" and "Message" array. When the Palo Alto, Calif.-Facebook adds a "Scratch" button for those hard-to-reach places, "TUOL" will be interested.

McClatchy's Metered Modesto

Image via WikipediaThe Modesto (Calif.) Bee last week became the first newspaper of  The McClatchy Company media conglomerate to erect a paywall for its online edition, according to News & Tech.com.

Bee Publisher Eric Johnston said online visitors may access 20 articles gratis before being asked to cough up $5 a month or $50 annually for continued access. Subscribers to the print edition have unlimited free access to the daily's digital version.

CNN Spitz the Bit; Aims to Re-Coop Ratings

Image via WikipediaPaltry ratings have led CNN to kick former New York Gov. Elliot Spitzer to the curb, Politico reports.

Spitzer had rebounded somewhat from the disastrous ratings of Parker/Spitzer, which debuted in September 2010 (see "TUOL" posts 1/10/11, 9/8/10, 6/24/10), with his solo turn on In the Arena, but in the end, there weren't enough 25 to 54 year olds--advertisers' favorite demographic--sitting in the arena either. Spitzer's 8 p.m. slot will be filled beginning in August by Anderson Cooper's Anderson Cooper 360, which also will air at 10 p.m.

Former CNBC star Erin Burnett joins CNN's Prime-Time lineup in September with a gabfest that will air at 7 p.m. and 11 p.m. Piers Morgan, The Situation Room and John King USA will continue to be part of CNN's viewer-averse evening programming.  Not a Snookie or Real Housewife in the bunch.

Chinese Press Crackdown Doesn't Suit Hong Kong Journos

Image via WikipediaAgence France Presse and The Guardian report that Hong Kong journalists are concerned about China tightening restrictions on press freedom in the former British Colony it took over in 1997.

The 500-member Hong Kong Journalists Association cited a crackdown by China in coverage of public protests, including the arrest of a tv journalist at a recent demonstration.  The city-state has benefiited from a "one-country, two systems" arrangement, which, for example, extends press freedom to Hong Kong that is not recognized on the Mainland.

Sofitel Housekeeper in Strauss-Kahn Scandal Hopes to Clean Up in NY Post Libel Suit

Image via WikipediaThe 32-year-old Guinean housekeeper at the Sofitel who accused former IMF head Dominique Strauss-Kahn of rape is suing The New York Post over a series of articles published July 2-4 that allege she solicited male guests at the hotel for prostitution.

As reported by Reuters and ABA Journal Law News Now, the housekeeper filed suit against the tabloid in state court in the Bronx, claiming reports by the Post that she "was doing double duty as a prostitute, collecting cash on the side from male guests" were false and defamatory. A Post headline about the woman read: "Maid cleaning up as 'hooker.'" The Wall St. Journal reports that authorities have found no evidence that the housekeeper engaged in prostitution, but the Post has not backed down.

The district attorney's case against Strauss-Kahn has collapsed amid reports that called the complainant's credibility into question, including allegations that she fabricated a claim about being gang-raped on her application for U.S. asylum and purportedly told her incarcerated boy friend in a recorded telephone conversation about the benefits of pressing her claim against Strauss-Kahn.

Esquire Magazine Humor Piece Gives Birth to Defamation Suit

Image via WikipediaThe U.S. District Court for the District of Columbia will hear Joseph Farah, Jerome Corsi et al. v. Esquire Magazine, Inc. et al. (Case No. 1:11-cv-01179), a defamation case arising from a humor article by writer Mark Warren that targets the author of a book questioning the citizenship of President Barack Obama.

As reported by Forbes Magazine, the plaintiffs' Complaint seeks more than $285 million in damages and includes counts alleging defamation, false light invasion of privacy, violation of the Lanham Act and interference with business relations. Farah, WorldNetDaily.com CEO, and Corsi, who wrote Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible to Be President, say they were damaged by Warren's parody that Esquire published May 18, 2011.

Headlined: BREAKING! Jerome Corsi's Birther Book Pulled from Shelves, Warren's piece appeared shortly after President Obama released his long-form birth certificate, defusing all but the most devout followers of the so-called birther movement that maintained the president was not native-born and, thus, ineligible to serve as Commander in Chief. Subsequently, Esquire posted an update on its Website in which it stated, in part: "We committed satire this morning to point out the problems with selling and marketing a book that had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication."

Satire has proved a successful defense against defamation in the past, as The Rev. Jerry Falwell learned when he sued Hustler Magazine in the '80s. The plaintiffs, who have not been mollified by President Obama's birth certificate, however,  are nothing if not persistent, so stay tuned.

UPDATE: Calif. Appeals Court Says County Employees' Pension Docs Public Records

Image via WikipediaThe public's interest in viewing county employees' pension documents outweighs the retirees' interest in keeping their personal financial information private, California's Court of Appeal, Fourth Appellate District, Division One, has ruled in San Diego County Employees Retirement Association v. Superior Court of San Diego County; California Foundation for Fiscal Responsibility (Case No. D058962).

In upholding the trial court's ruling earlier this year (see "TUOL" post 3/15/11), the appellate court found public worker pension benefits tied to salary, which is public, rather than private assets, in siding with a watchdog group whom the court said had a legitimate right to inspect a government group's activities. In its opinion, the court said: "The disclosure of pension information provides information about the government's management of public [funds], in which the public has a legitimate interest. Pension benefits are not excessively related to personal financial decisions of former employees."

The California Foundation for Fiscal Responsibility sought data on retirees receiving monthly pension benefits of more than $8,333.

UPDATE: Michiganders Can Now Blow the Head Off a 'Raging Bitch'

Image by Jon Åslund via FlickrThe Michigan Liquor Control Commission ("MLCC") has done an about-face, the Associated Press reports, approving the sale of Frederick, Md.-based Flying Dog Brewery's Raging Bitch India Pale Ale.

In allowing the sale of the provocatively named brew, the MLCC took its guidance from a recent U.S. Supreme Court ruling involving content-based discrimination. Flying Dog CEO Jim Caruso haled the Commission's decision, but indicated no plans to drop the company's lawsuit, Flying Dog Brewery, LLLP v. Michigan Liquor Control Commission in the U.S. District Court for the Western District of Michigan (Case No. 1:2011-cv-00307) that challenged on First Amendment grounds the Commission's rule banning the sale of Raging Bitch as "detrimental to the public health, safety and welfare." [See "TUOL" post 4/11/11.] 

Calif. Weekly Aims High: Adds to Pot With Medical Marijuana Ads

Image via WikipediaThe Sacramento News and Review ("SNR") has seen growth in circulation, staff, distribution and advertising revenue at a time when its fellow members of the dead-tree news brigade are enduring cutbacks. SNR's secret, according to News10/KXTV in Sacramento, is that the weekly has embraced purveyors of medical marijuana.

In fact, SNR launched a supplement, "4-20," to carry ads for more than 60 dispensaries of medicinal marijuana, the local ABC affiliate reports. SNR's Publisher Jeff vonKaenel said the ad revenue boost is enabling the weekly to hire three staffers and expand distribution.

Readers of  The Sacramento News and Review literally can pick up the paper to find the latest dope. It's like mind-blowing, man.