Throughout this year, über-blogger Jason Kottke posted links commentary, rumors, speculation and audio about Ken Jennings’ unprecedented domination of Jeopardy. Kottke quickly became the internet’s leading source for information about the wild and crazy saga of KenJen.
In the week prior to Jennings’ final appearance, Kottke received an audio clip of Jennings’ final Final Jeopardy and posted it to his site along with a transcript. The Washington Post picked up the story (This Game Show Contestant Is In ‘Jeopardy!’) and then Sony contacted Kottke and asked him to remove the audio and then the “spoiler” text.
Kottke complied, noting the chilling effect of Sony’s request (Sony, Ken Jennings and Me):
As an individual weblogger with relatively limited financial and legal resources, I worry about whether I can continue to post things (legal or not) that may upset large companies and result in lawsuits that they can afford and I cannot. The NY Times can risk upsetting large companies in the course of their journalistic duties because they are a large company themselves, they know their rights, and they have a dedicated legal team to deal with stuff like this.
Red Herring reports: And the question is, ‘Who is a big bully?’
“I think it’s possible that Sony thinks individual bloggers are more easily intimidated,” said Wendy Seltzer, an Electronic Frontier Foundation staff attorney who specializes in intellectual property law. “I don’t think they had a reasonable request. A short audio clip – not a full show – could be a fair use in the context of news reporting. Jason Kottke was reporting an event that had, in fact, happened. And just because television producers wanted to treat it as suspense media, doesn’t mean that it’s not also news.”
Scott Andrew: Harrassing fans for being fans: “What it basically boils down to is entertainment companies harrassing fans for being fans. And that is no way to win fans.”
Jeff Jarvis thinks the time has come for a Bloggers’ Legal Defense Society:
I suggest that what we need now is a means of organizing them so a blogger who’s getting harassed by big corporate or government attorneys can call for help. In some cases, the lawyers may say that the blogger did something wrong. But in most cases, the lawyer can breath fire back at the corporate dragons and skip the harassment stage and get right to the civilized discussion and agreement stage.
Denise Howell follows up (Legal Representation Is A Conversation) noting that Chilling Effects Clearinghouse, a joint project of the EFF and law school clinics at Harvard, Berkeley, Stanford, University of San Francisco, and University of Maine, already provides this exact service to small, independent online publishers.
While Howell thinks that these sort of cases are not the type of cases that lawyers in private practice typically take on as pro bono work, Evan Schaeffer thinks that the idea could work. (Thoughts About a “Bloggers’ Legal Defense Society”)
In the right set of circumstances–for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can’t afford help–we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.”> In the right set of circumstances–for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can’t afford help–we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.
This is but one example of the broader question of how should the law deal with personal publishers. Doesn’t the First Amendment require the same level of protection for the personal press as the establishment press?
In a NY Times op-ed piece, Eugene Volokh suggests that citizen journalists deserve the same level of protection as journalists working in traditional media. You Can Blog, but You Can’t Hide: “The First Amendment can’t give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.”
Bloggers may have legal problems that extend beyond the traditional boundaries of media law. One area which bloggers have to worry about that journalists employed by mainstream press do not have to is employment law. Former blogger Paul Gutman published a note in the Columbia Journal of Law and the Arts about this issue: “Note. Say what?: Blogging and employment law in conflict”. 27 Colum. JL & Arts 145 (2003). (Not available on the web, but it is on Lexis, Westlaw and Hein for those of you with access.)
Last year, I started to plan a panel discussion on “Bloggers and the law: perils and pitfalls of personal publishing.” We ended up not going forward with it, because it didn’t really work for our audience, but perhaps it may be time to actually run this as a session for bloggers.
Kevin Heller has one solution, the blogosphere needs to form themeslves into a not-for-profit corporation and hire Kevin as General Counsel.
Six Apart (Typepad), Google (Blogger), Tucows (Blogware), LiveJournal and other hosted blog service providers might get some customers by being the first to include access to a lawyer to answer questions about C&D letters concerning material posted on the blogs. But, would that create some level of liability for the service providers that makes such a plan infeasible? Would such a plan be ethical? Would that be a worthwhile use of resources by these companies? (Probably not.)