I’ll take chilling effects for $1000, Alex

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.)

No Access For You

LawMeme: Ninth Circuit Upholds Injunction Barring Access to a Website

Creative Computing, Inc. v. Getloaded.com pits two trucker-oriented websites against each other. Creative Computing’s Truckstop.com is an online marketplace that helps truckers and shippers link up with each other. It was the first such and quickly became wildly popular. Getloaded.com, is, if Judge Kleinfeld’s opinion is to be believed, a low-down rip-off, built on a systematic policy of fraud and dirty tricks. Getloaded hired away employees from Creative and had them bring source code and customer lists with them; it also hacked into Creative’s servers (Creative was using an unpatched Microsoft system, tsk tsk) and also stole the password of a Creative customer in order to get a closer look at the site’s functionality.

Creative Computing, Inc. v. Getloaded.com (9th Cir., Oct. 15, 2004.)

In my country, there is e-voting

LawMeme reports that Kazakhstan held a successful e-vote.
In its parliamentary elections, Kazakhstan adopted e-voting in 10% of its polling stations. International observers from the OSCE noted some drawbacks to the e-voting system: Statement of Preliminary Findings and Conclusions

The State Commission responsible by law for making the decision to establish e-voting was not formed until five days before election day. As a result, the scope of e-voting was not decided until 17 September, and some PECs appeared poorly prepared. According to the CEC decision, electronic voting was to be used in 961 of 9,480 polling stations.

The e-voting system was not openly and independently certified, which would have promoted confidence in the system by domestic stakeholders. A review was carried out by a group composed of experts invited by CEC and experts nominated by some political parties, but the IEOM expert was not allowed to observe on grounds of confidentiality. The group concluded that “hacking into the system and falsifying the election results were ruled out,” although one political party representative declined to sign the report. This group of experts did not publish detailed technical arguments for these conclusions.
The system does not include a manual audit capacity, and therefore there is no possibility for a recount. The system does generate, if requested by the voter directly after voting, a private PIN code not linked to the voter which could be used to check the final control protocols, thus providing the voter with the possibility to confirm that his or her vote was recorded correctly. However, that same PIN code, if provided by the voter to a party, candidate, or employer, would demonstrate how he or she voted. This opens the potential for violation of the secrecy of the vote as well as intimidation.
Protection against manipulation from outside or incidental technical malfunction appeared sufficient. The system generated redundant, periodic local backups, and all data transmission sent through communication lines was encrypted. However, the system uses normal telephone connections between polling stations and Regional Election Commissions, and these are potentially vulnerable to unauthorized monitoring or to distortion of transmitted information.

See also: In my country, there is treaty.

Ashcroft v. ACLU link roundup

Justice Dept. Dir. of Public Affairs: Regarding the Supreme Court’s Decision on the Child Online Protection Act:

Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped. Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America’s children. The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.

Ernest Miller: First Thoughts on Ashcroft v. ACLU: “The least restrictive means in this case are filters. Yea filters! Go filters! The opinion reads like a censorware author’s dream marketing campaign.”
Lawrence Solum: Ashcroft v. ACLU
Lyle Denniston: Sex, the Internet and congressional frustration

The Supreme Court, telling Congress for the third time that it has only limited power to try to censor sexually explicit material on the Internet, dropped a broad hint today that the lawmakers may be doomed to frustration if they try again. Because technology is advancing so rapidly, the Court said in blocking enforcement of the Child Online Protection Act, Congress may find that it has laid down rules based on a current state of technology only to see the rules become outdated through years of court review.

Eugene Volokh looks at the case and asks: “what does “prurient” mean here?”
Lawmeme: Ashcroft v. ACLU: Evaluation

Justice Breyer makes a very good point in dissent: The majority here that wholeheartedly endorses the effectiveness of filtering software is mostly the same as the dissenters who unhappily listed the faults of filtering software in the American Library Association case. Indeed, Justice Breyer seems to make a special effort to list the exact text of the dissenting opinion’s criticisms in ALA.

NY Times: Justices Uphold Block of Web Porn Law but Send Case Back

The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can only be answered after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.

Washington Post: Justices Leave Online Porn Case Unresolved

One COPA supporter said that the court is exceeding its powers. “This is akin to judicial tyranny,” said Patrick Trueman, senior legal adviser at the Family Research Council and former chief of the child exploitation unit at the Justice Department’s Criminal Division. “The court is dismissing acts of Congress which reflect the will of the people… This decision says to pornographers that you have a green light to distribute material to children.”

WTO Bets on Online Gambling

NY Times: U.S. Online Gambling Policy Violates Law, W.T.O. Rules

The World Trade Organization, in its first decision on an Internet-related dispute, has ignited a political, cultural and legal tinderbox by ruling that the United States policy prohibiting online gambling violates international trade law.
The ruling, issued by a W.T.O. panel on Wednesday, is being hailed by operators of online casinos based overseas as a major victory that could force America to liberalize laws outlawing their business.

Fourth Circuit Invalidates Internet Speech Regulation

Yesterday, in PSINet, Inc. v. U.S. Internet Service Provider Assoc., the Fourth Circuit struck down a Virginia state law which criminalizes the dissemination of material harmful to minors over the Internet. The court relied on both First Amendment and Commerce Clause grounds to affirm the District Court’s summary judgment ruling.
Ernest Miller looks at the decision, Divided 4th Circuit Invalidates Virginia’s Internet Speech Regulation Statute and notes that “two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.”

Net democracy

GrepLaw interviews Joel Reidenberg: Joel Reidenberg on Hack Toolz, Lex Informatica, and Affirming Non-US Democratic Values

Joel Reidenberg, professor at Fordham University School of Law, talks with GrepLaw about how “hack tools” (such as packet interceptors, viral e-mails, filters, and DoS attacks) give democratic states the ability to enforce their freely chosen public policies within their territories. Mr. Reidenberg challenges the conventional wisdom that said either the person or the person’s assets needed to be within the state’s physical territory to enforce the state’s law.

Popping Fresh

GigaLaw: Roundtable Discussion: Pop-Up Ads and the Law

Pop-ups and banner ads are the bane of many Internet users and the boon of companies trying to pitch goods and services. They’re also the topic of a number of suits in courts around the country, because when such ads use a search for one company’s trademarked term to point potential customers toward a rival, it’s potentially trademark infringement.
But what separates mere nuisance from something that’s legally actionable? Does timing — whether a competitor’s pitch pops up before or after a consumer makes an online purchase — matter? What if the pop-up or banner ad clearly identifies the company it serves? How does the consumer’s likelihood of confusion come into play? And what First Amendment issues could be triggered if courts choose to squash pop-ups?

I’ll have a more substantial post on this issue once I get the seminar paper I am writing about it squared away…

Accountant Sues Google

AP: Man ‘Googles’ Himself, Sues for Libel

Mark Maughan is a certified public accountant with the Brown & Maughan firm. He claims that on March 25, 2003 he was told by friends and family that typing “Mark Maughan” into a Google search engine delivered “alarming, false, misleading and injurious results” about him and the business….
[Maughan’s Attorney John] Girardi said the problem lies with Google’s patented PageRank algorithm search system. According to the suit, PageRank, created by Google founders Larry Page and Sergey Brin, “reformats information obtained from accurate sources, resulting in changing of the context in which information is presented.”


In this week’s New York Times Magazine, James Gleick writes about about names, namespaces, trademark and domain names: Get Out of My Namespace

Notorious forms of litigation flow from the overprotection of names. Every small-business owner is burdened by frivolous cease-and-desist letters; sending these is a cottage industry. The Fox News Network was laughed out of court trying to control the use of the words ”fair and balanced”; yet for now, at least, Fox still does own trademark rights in those words, in two categories: television news programs and neckties. The organization that maintains the Dewey Decimal Classification system sued a library-themed hotel for using its numbers — Room 700.003, for example, dedicated to the performing arts. (The case has been settled.) Pet Friendly of Alabama, maker of rope chew toys, is threatening Pet Friendly Rentals of California. Santa Claus has been trademarked in several hundred ways. None of this serves the public interest. It’s wasteful overhead, it’s expensive and it’s noxious.