LawGeek

Lobbyist linked by Times to McCain sues paper, claims own denial evidence of defamation

Lobbyist linked by Times to McCain sues paper.

The article said that both McCain and Iseman denied any romantic relationship, but the lawsuit says most readers would find that obligatory.

"That The New York Times would make such aggressive and sensational allegations and insinuations in the face of on-the-record denials by Ms. Iseman and Senator McCain only reinforced the message to readers that The New York Times in fact believed that Ms. Iseman and Senator McCain had indeed engaged in an `inappropriate relationship,' a relationship that was romantic, unethical, and a conflict of interest," the lawsuit says. "Otherwise, reasonable readers would conclude, The New York Times would never have printed the story at all."

Wait, so printing a denial by the subject of the article is proof of defamation of their character? So the Times shouldn't have printed the denial? Talk about twisted logic...

Judge Kozinski on attorneys fees and slacker lawyers

court house drama
Originally uploaded by madmonk.

You gotta love Chief Judge Kozinski of the Ninth Circuit, who puts things pretty plainly most of the time:

Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid....

By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.

Moreno v. City of Sacramento

Circuit Watcher

U.S. Court of Appeals Opinions, served daily at Circuit Watcher.

Sign up now for EFF's Legal Compliance Bootcamp: Oct 10, 2007

Save the Date: October 10 for EFF's Compliance Bootcamp .

Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer's name to the FBI agent on the phone. Let us help.

What

One-Day bootcamp. EFF's staff attorneys will be teamed with private attorneys specializing in the various legal issues. We'll give you the basics on the key topics and you'll leave better able to protect your customers, your company and your job.

Topic areas

• Defamation, harassment, and other accusations of bad behavior.
• Fair use, free culture, and the right to remix.
• Copyright take-downs and put-backs: Understanding the Digital Millennium Copyright Act.
• How to respond to cops, crooks, and courts who want your customers' communications and other private information.
• How to avoid becoming the next Napster and stay on the safe side of the Copyright Wars.
• The rights of anonymous speakers.
• Porn, predators, and the pressure to police.
• Lightning rounds on Creative Commons licenses, webcasting and what to do when you've been hacked.

Who should attend

People who do front-line or mid-level work for companies and projects that rely on user-generated content and communications. This includes compliance, customer service and community management workers.

Why

In the past year or so we've met with several Web 2.0 companies, sometimes before -- and sometimes after -- embarassing incidents when they found themselves out of step with their communities or the law. We'd like to give the people who make these important initial decisions the tools they need to do the right thing by their companies and their customers.

Where

Fenwick and West Silicon Valley Center
Mountain View, California

How much

Sliding scale of $100-200 per person. For individuals, some portion may be deductible as a charitable donation. Space is limited, so sign up soon. Email bootcamp@eff.org.

We won! Ninth Circuit rules in favor of EFF argument in DirecTV case

I'm happy to report that the Ninth Circuit Court of Appeals has ruled in support of our argument in the DirecTV v. Huynh and Oliver cases, which I had the pleasure of presenting to the Court this summer.

The opinion takes a close look at the statutory structure of the Federal Communication Act (specifically, sections 605(a) and 605(e)(4)) and upholds the distinction between those who illegally intercept satellite signals and those who manufacture, assemble, or modify devices to enable others to do so.  (The penalties for the former are up to $10,000 per violation, the latter up to $100,000).

This is an important distinction for at least two reasons: (1) The $100,000 penalty is unduly harsh on people who simply plug a card into their set top box to watch TV, even illegally and (2) security researchers and computer scientists who assemble and modify these devices for purposes of educational research and innovation studies (but not to intercept TV illegally) will no longer have to worry about potential liability from vendors who don't like their results.

Los Angeles Judge discusses "old media" vs. "new media" in Family Guy fair use case

Judge Dean Pregerson, of the Central District Court of California (Los Angeles) issued this opinion a few weeks ago on the fair use issues in Carol Burnett's suit against Fox over the Family Guy episode where they send up Burnett's Charwoman character by having her work as the janitor in an XXX shop.  The opinion is a great one for fair use and parody, but perhaps the most interesting piece was at the end, when the judge comments on "old media" vs. "new media":

Carol Burnett is an icon in American culture as is her character the "Charwoman." The Court has no doubt that she is, and rightly so, well known, respected, and beloved by a large segment of the American public based upon her persona and her outstandingly successful entertainment career.  The Court fully appreciates how distasteful and offensive the segment is to Ms. Burnett.  Debasing the "Charwoman" and also making Ms. Burnett's parents participants in a crude joke is understandably disheartening to Ms. Burnett, her family, and many fans.

To some extent this dispute is indicative of just how far the "new media" has come from the "old media."  The old media harkens back to days when crude jokes and insensitive, often mean spirited, programing was perhaps found in live night club performances but not present on television.  In the new media, any self imposed restraint essentially has been eliminated.  Public figures, such as Ms. Burnett, are frequent targets of parodies and cruel innuendo.  As Ms. Burnett well knows, it takes far more creative talent to create a character such as the "Charwoman" than to use such characters in a crude parody. Perhaps Ms. Burnett can take some solace in that fact.

However, the law, as it must in an open society, provides broad protection for defendant's segment.  Therefore, the Court grant's defendant's motion to dismiss plaintiff's complaint without leave to amend.

I don't know that I agree with the judge about original characters taking more creative talent than a good parody of a character, but I'm glad he recognized that such parodies were as protected under the First Amendment any other other form of speech and expression.

Ninth Circuit rules in Perfect 10 v. Google

Still reading the decision, but it looks like a huge win for Google on most counts including the display right and fair use.

Update: I've posted some initial thoughts over at the EFF Deeplinks Blog.

Perfect 10 v. CCBill opinion posted

The Ninth Circuit Court of Appeals has published the opinion in Perfect 10 v. CCBill, dealing with both the DMCA Safe Harbors and the protections of CDA 230.  Still reading, but it looks quite interesting so far!

Update: The opinion is fairly meaty, addressing a number of overall policy and statutory issues in the case.  Here are some highlights:

1. Background: Perfect 10 publishes adult entertainment magazines and websites.  Many third-party websites post Perfect 10 images without permission.  CCBill et al provide hosting and credit card services to those sites.  Perfect 10 sued CCBill et al. for assisting in the infringement of their copyrights and associated state claims, such as violating the rights of publicity of Perfect 10 models.  CCBill raised, among other defenses, the DMCA Safe Harbors and Section 230 of the CDA.


2. The Court found that implementing a "reasonable" DMCA policy requires three things: a working notification system, a procedure for dealing with DMCA complaints, and systems that allow copyright holders to collect the information needed to issue DMCA complaints.


3. The Court also found that providers who rely on the DMCA must keep some kind of records for which subscribers are allegedly repeat infringers but need not "actively police" its users for evidence of repeat infringement.


4. Perhaps most importantly, the Court found that copyright holders who send DMCA notices must "substantially comply" with all six requirements under Section 512(c)(3)(A) in order to trigger the take-down procedures under the Safe Harbors.  In other words, if a DMCA notice fails to substantially comply with the requirements, the ISP/Provider can ignore the notice.  This applies to each notice individually and cannot be satisfied by separate notices over time that cobble together all the relevant information.


5. A great quote for why #4 is important: Accusation of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely.  If the content infringes, justice has been done.  But if it does not, speech protected under the First Amendment could be removed.


6. So-called "red flag" knowledge of infringement (a circumstance that can deprive one of the Safe Harbor protections) is not present if DMCA take-down notices do not comply with the 512(c)(3)(A) requirements.  Nor can indicia such as a domain name "illegal.net" or "stolencelebritypics.com" or the hosting of a "password" site trigger it.  Instead, the provider must have concrete and actual knowledge of the infringing material or conduct. The Court explicitly held that providers do not bear the burden of investigating the content or sites of their users to determine if infringement is occurring.


7. The DMCA Safe Harbors under Section 512(a) for "transient digital online communication" providers (such as an ISP) apply to all providers who send and receive online communications for their users, whether such communications include infringing content or not.  Thus, if payment information is sent over a network to enable infringing content to be downloaded, this can still be considered conduct protected by 512(a).


8. The Court held that a provider falls outside the protections of 512(c) if they receive "direct financial benefit" from infringing conduct, and that this term should be interpreted consistent with the "similarly-worded common law standard for vicarious copyright liability."  The Court then went on to state that the relevant inquiry was "whether the infringing activity constitutes a draw for subscribers, not just an added benefit."  Since CWIE (the hosting co-defendant) hosted sites for a fee unrelated to the amount of infringing material, the court found this did not qualify as a direct financial benefit.


9. Finally, the other big holding was regarding CDA 230. The Court held that while CDA does not protect against violations of "intellectual property," this term means only federal intellectual property and not state regimes like right of publicity.  Otherwise, the court argued, CDA 230 protection would vary from state to state and national providers would have trouble negotiating the level of intervention they were legally required to undertake.

Wow.. as I mentioned, quite an opinion.  There's lots here to digest, and a big part of this will influence the Viacom v. YouTube case for sure.  In addition, we are still waiting for the Perfect 10 v. Visa and Perfect 10 v. Google decisions to come out of the Ninth Circuit. Those should also have a similarly significant impact.

The Complete Internal Revenue Code Podcast Project

A clear sign of the coming Apocalypse.  On the other hand, excellent fodder for DJs.  Fire up those remixers, kids!

Link: Jack Bog's Blog: The Complete Internal Revenue Code Podcast Project.

Plus, blessed are the peacemakers -- this will help prevent and resolve disputes among tax specialists who find themselves in disagreement with each other about how they remember some provision or other. If they have a computer handy, they can just click on the applicable Code section on the podcast page, and even if they're too impaired to read all of the statutory provisions, they can play them back and hear their exact language over and over until the differences of opinion are ironed out. If it saves one life, it's worth it.

RANT: The Rules of Breaking Up

For my fellow lawgeeks who struggle with applying proper black letter law to matters of the heart, RANT: The Rules of Breaking Up:

Section 1: Terms of Separation (hereafter termed the Breakup)

(a) The rights of the Dumpee shall be directly proportional to the severity and immaturity of the methods of Separation used by the Dumper. For example, a Dumper (hereafter termed a Good Dumper) who breaks up with Dumpee face-to-face, in person, in a private place, and outlines issues which the Dumpee was aware of, and in fact is not too surprised at, with said discussion ending in a tearful hug cherished by both parties, and perhaps an incident of Goodbye Sex, shall not be severely punished. However, a Dumper (hereafter termed a Bad Dumper) who breaks up with a Dumpee in an especially cowardly way, such as over the phone, through email, or by having a friend tell the Dumpee, shall experience extensive limitations on rights after the Breakup. Most severely punished shall be those Dumpers (hereafter termed Assholes) who repeatedly Breakup and then Beg Forgiveness, and Dumpers who have Cheated.

(b) Exceptions to the Dumper/Dumpee division of rights are as follows: Dumpees who provoke the Breakup by avoiding the Dumper until such time as the Dumper feels forced to end the relationship. Dumpees who intentionally get caught Cheating and are shortly afterward, Dumped. These Dumpees shall be considered as Dumpers for the purposes of this document.

(Thanks George!)