September 9, 2005
DeFede Won't Face Charges
Former Miami Herald writer Jim DeFede apparently will not face any charges associated with his taping of phone conversations with Arthur Teele, Jr. last July. Teele killed himself in the lobby of the Miami Herald building shortly after he spoke with DeFede. The paper fired the columnist after it found out that he taped the conversations without Teele's permission, and it has refused to reinstate him. Read more here in a story by AP reporter Curt Anderson and in John Dorschner's piece for the Herald.
FEMA Resists Media Attempts to Photograph Dead
FEMA, now fighting a growing reputation as a bungling agency in the aftermath of Katrina, is trying to prevent print and tv journalists from showing military and other recovery specialists removing body bags from the homes and streets of New Orleans, arguing that such images are disturbing. Some dissatisfied media representatives have complied, but others are objecting loudly, saying that the public has a right to such information, and that the images would not be overly disturbing or graphic. Reacting to the angry criticism, one FEMA official backpedaled, saying that the request that the dead not be shown was just that. Read more in articles from the Seattle Times, Editor & Publisher, and Reuters.
Berkeley Breathed Sends a Character to Jail
Pennsylvania Supreme Court Allows Autopsy Report Sealed in Case of Ongoing Investigation
In In Re: Randy Buchanan, the Supreme Court of Pennsylvania has upheld a divided lower court, finding that a "county's Coroner is [not] required to disclose to the public under the Pennsylvania Coroner's Act..." the results of an autopsy if "an ongoing police criminal investigation of the homicide" exists. The Altoona Mirror had asked for access to the report pursuant to the state statute, and the trial court had found in the newspaper's favor, "denying the Commonwealth's petition for a permanent seal.... " The appellate court, however, reversed, holding that "`an autopsy report may remain sealed beyond the statutory period if the Commonwealth demonstrates that the release of the report would substantially hinder an ongoing criminal investigation.'"
According to the Supreme Court, "In interpreting Section 1251, the Superior Court panel majority noted that the provision contained no express exception for records connected with criminal investigations. The majority reasoned nevertheless that `we do not believe that our legislature intended to strip from the common pleas courts their inherent right to ensure that the release of information will not jeopardize either the privacy rights of individuals or ongoing criminal investigations.'"
Continuing with its consideration of the prior practice in the common law and the Court's own procedural rules, the Supreme Court states that "`upon a sufficient showing', a trial court may seal certain statements, documents, or other evidence from discovery or inspection at a point in a criminal proceeding well-beyond the investigative stage....Additionally, Rule 211, entitled "Sealing Search Warrant Affidavits," provides that a district attorney can request that a search warrant affidavit be sealed `upon good cause shown.'...
After rejecting the appellant's other arguments, the Court concludes that "the Commonwealth offered what amounted to generic evidence concerning how release of the autopsy results could impede the homicide investigation. Thus, Coroner Ross testified that autopsy reports generally contain details of the scene of the homicide, including where the body was located, the positioning of the body, who was last seen or reported as being seen with the victim, the clothing on the body, the condition of the scene and what determination the coroner was able to make....The panel majority noted that the trial court had failed to make specific findings of fact that would permit the Superior Court to determine whether release of Buchanan's autopsy report would actually substantially hinder or jeopardize the ongoing investigation....Upon remand, the trial court should determine whether the Commonwealth can establish that the release of the report...in fact poses a threat...."
Read the entire opinion here.
September 8, 2005
Reporters Without Borders Accuses Yahoo of Assisting Chinese Government in Prosecution of Journalist
The BBC reports that Reporters Without Borders has accused Yahoo of enabling the People's Republic of China to prosecute a journalist by turning over information about his email account. Yahoo said that it was required to follow Chinese law in the matter. Read more in a BBC story here. Read more from the Times Online here and the Media Guardian here.
Marty Lederman's Post on John Roberts' Position in Metro Broadcasting v. FCC
September 7, 2005
French Court Upholds Acquittal of Comedian
A French court has upheld the acquittal of French comedian Dieudonne M'Bala M'Bala, who had been accused of defaming Jews during a television show in 2003. In 2004 the comic was fined for making anti-Semitic comments published in Le Monde. Read more here and here (from Le Monde, in French).
FCC's Response in Katrina's Aftermath
Check here for the FCC's response to land line and wireless problems in the aftermath of Hurricane Katrina.
Send In the Clones
The makers of the 1979 film Parts: The Clonus Horror are Dream Works and Warner Brothers over the current release The Island, which both the plaintiffs and many reviewers say appears to be a scene by scene remake of the earlier film. It is available on DVD and has been shown on television. Read more here on Findlaw, here in a Variety story by Gabriel Snyder and Army Archerd, and here in a Seattle Times story by Mark Rahner.
September 6, 2005
Colorado Supreme Court Schedules Oral Argument in Columbine Diaries Case
The Colorado Supreme Court will hear oral argument September 13th in the case of Denver Post v. Cook, to decide whether diaries and other records made by Dylan Klebold and Eric Harris, the two teenagers who engineered the Columbine High School shootings in 1999, should be released to the public.
The Colorado Court of Appeals opinion reads in part, "The trial court concluded that the recordings were not “criminal justice records” merely because the JCSO possessed them, that the specific items sought by the Post were not “criminal justice records,” and, accordingly, that CCJRA did not govern their release and disclosure. On January 29, 2004, we issued an opinion in which we held that the recordings were public records subject to CCJRA, but remanded the matter to the trial court for a determination of whether, on the date of the Post’s request, the JCSO was holding the recordings “for use in the exercise of functions required or authorized by law or administrative rule” under § 24-72-302(4), C.R.S. 2003. The Post filed a petition for rehearing, arguing that we were incorrect in concluding that the recordings were criminal justice records only for so long as they were held for the purposes enunciated by CCJRA. We requested that defendants file a response to that petition.
Upon consideration of the original briefs, the petition for rehearing, and the response to that petition, we withdraw the prior opinion but again remand the case to the trial court for further proceedings. At the outset, we note that, with exceptions not applicable here, property seized by law enforcement officials remains the property of its owner prior to the seizure....It is clear that the recordings are not, and have never been, the property of the JCSO. As to the Klebolds, this issue was previously determined in Klebold v. Search & Seizures, (Colo. App. No. 01CA1240, May 16, 2002)(not published pursuant to C.A.R. 35(f)), in which the family requested the return of tapes and documents, some or all of which are the subject of this proceeding. The JCSO disclaims ownership of the recordings....We next address whether the recording are "criminal justice records" under CCJRA. We conclude that they are not. We further conclude, however, that they are public records...The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest:
(I) Any records of the investigations conducted by any sheriff, prosecuting attorney, or police department, any records of the intelligence information or security procedures of any sheriff, prosecuting attorney, or police department, or any investigatory files compiled for any other law enforcement purpose.
CORA excludes from its definition of “public records,” among other things, criminal justice records.” Section 24-72-202(6)(b)(I), C.R.S. 2003. This exclusion of “criminal justice records” dates to the adoption of CCJRA. ..Colo.Sess. Laws 1977, ch. 340, §§ 1, 2. The provision of CORA relating to investigative records dates to the adoption of CORA. Colo.Sess. Laws 1968 , ch. 66, § 4. The amendment of CORA excluding “criminal justice records,” while still leaving untouched the provision in CORA relating to investigative files, is some indication that investigative files are not included in “criminal justice records.” Further, CORA also limits disclosure of many other categories of information held by public agencies for the benefit of the agency. These limitations include, among others: (1) test questions and scoring keys; (2) details of research projects; (3) real estate appraisals; and (4) market analysis data. Section 24-72-204(2)(a)(II)-(V), C.R.S. 2003.
More significantly, unlike CCJRA, CORA recognizes privacy interests of private parties in public records by prohibiting disclosure of some information to anyone other than the “person in interest.” Section 24-72-204(3), C.R.S. 2003. This prohibition includes, by way of example: (1) medical and mental health information; (2) personnel files; (3) letters of reference; (4) trade secrets, privileged information, and confidential commercial or financial information; (5) student telephone and address information; and (6) records protected by a common law governmental or deliberative process privilege. Section 24-72-204(3)(a)(I)-(IV), (VI), (XIII), C.R.S. 2003. A “`[p]erson in interest’ means and includes the person who is the subject of a record or any representative designated by said person; except that, if the subject of the record is under legal disability, [it] means and includes his parent or duly appointed legal representative.” Section 24-72-202(4), C.R.S. 2003. Exemptions from disclosure are to be narrowly construed. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150(Colo.App. 1998). This recognition of privacy interests is further support for the proposition that highly personal and confidential information, regardless of ownership, may become a “public record” within the meaning of CORA. In addition, our supreme court, in dicta, has recognized that a constitutional right to privacy may likewise limit the disclosure of public records. Wick Communications Co. v. Montrose Bd. of County Comm’rs, 81 P.3d 360, 365 n.4 (Colo.2003); see also In re Bd. of County Comm’rs, ___ P.3d ___ (Colo. App. No. 03CA0074, July 17, 2003)(cert. granted July 26, 2004).Therefore, we conclude that the disclosure of the recordings is not governed by CCJRA, but rather by CORA, if they are “public records.” We next address the issue of whether the recordings are “public records” under CORA. Whether any document or article of property is, or is a part of, a "public record" depends on whether it is "made, maintained or kept" by the state or political subdivision of the state...The JCSO maintains that the terms...are active terms, that is, that is, they require more than mere storage or possession....[But] according to the Post, storage or possession is sufficient....
In Wick Communications, the supreme court “adopted” the three-part test applicable to the federal Freedom of Information Act (FOIA) as the appropriate analysis under CORA, that is, whether the agency (1) improperly (2) withheld (3) a public record. The court concluded that if the county manager possessed the diary in his official capacity, the diary was a public record subject to CORA. The court then concluded, under the unique circumstances there presented, that a person requesting disclosure of a private document held by a public official in his or her official capacity has the initial obligation to present evidence that the document is likely a public record subject to disclosure. The court further concluded that the news organization had failed to fulfill this initial evidentiary obligation to show that the diary was made, maintained, or kept by a public entity because the diary (1) was made by the county manager in his private capacity, (2) was not maintained by the county, and (3) was not kept by the county or by the county manager in his official capacity. See also In re Bd. of County Comm’rs, supra (private e-mails between county officials on a publicly-owned computer system may be public records).
Here, there is no dispute that the recordings are the private property of the families and that the JCSO holds them in its official capacity. There is also no dispute that the recordings were lawfully acquired and were used by the JCSO in the normal course of its investigation of the Columbine tragedy. Portions of the “basement tapes” were used in the preparation of the sheriff’s final report and in the sentencing hearing of the individual convicted of providing weapons to the boys. In addition, while the recordings may be severable from the rest of the investigative files, we conclude that that they have become a part of the investigative records “made, maintained, or kept” by the JCSO.
While there are certainly parallels between the recordings and diaries the boys might have wished to keep private, there are also parallels between them and a self-aggrandizing manifesto the boys might have wished, even ached, to be made public.
We conclude that the recordings are public records subject to the disclosure requirements and limitations of CORA. The matter must be remanded to the trial court to determine, among other things, whether the recordings are exempt from disclosure pursuant to § 24-72-204(3)(a); whether disclosure of the recordings is contrary to the public interest pursuant to § 24-72-204(2), C.R.S. 2003; and such other matters as may be asserted by the parties affecting whether the recordings should be publicly disclosed.
Therefore, the case is remanded to the trial court for further proceedings consistent with the views herein expressed."
Read the lower court's entire opinion here.
September 5, 2005
BPI Reports Sales of Pop Singles Up
Owen Gibson reports in the Guardian that sales of pop singles are up in 2005, despite the massive popularity of Internet downloading. The British Phonographic Industry has reported that both Internet downloads and vinyl singles are on the upswing. Observers had wondered whether aggressive prosecution of illegal downloaders would be worth the effort, or if legal filesharing would cut into the sales of traditional music media. Read more here.
Australian Court Smacks Kazaa
An Australian federal court ordered Kazaa to eliminate copyrighted material from its network via filters in future versions of its software. The Federal Court of Australia found that Sharman Networks had violated Australia's intellectual property law.
Said the court, "In this case, the applicants made claims of copyright infringement, contravention of the Trade Practices Act and conspiracy. It is convenient to say immediately that the evidence does not support either the Trade Practices Act or conspiracy claims. Those claims will be rejected. The more arguable claim is infringement of the applicants’ copyright.
Before I indicate my conclusions about that claim, I wish to identify two matters that this case is not about.
First, many people (including the respondents) argue that the Internet is here to stay, it is being used by an ever increasing number of people and peer-to-peer file-sharing is one of its most valuable potential uses. They say that copyright owners, such as the present applicants, could eliminate (or at least substantially reduce) infringement of their copyrights if they were willing to make copyright works available on a licensed basis for a fee, in the way in which Altnet offers gold files. Second, it was suggested at one stage of this case that it would have been possible for the applicants to have made their compact discs less vulnerable to being ‘ripped’ into a computer program by issuing them in a digital rights managed, rather than open, format.
Neither of these matters fall for decision in this case....I return to the true issue in the case: the applicants’ copyright claim. Here again, the applicants overstated their case. It cannot be concluded, as the applicants claimed in their pleadings, that the respondents themselves engaged in communicating the applicants’ copyright works.... They did not do so. The more realistic claim is that the respondents authorised users to infringe the applicants’ copyright in their sound recordings....I have concluded that this more limited claim is established against six of the ten respondents."
September 4, 2005
Two Houston Law Professors' Blog On Conditions at the Astrodome For Black Americans in Katrina's Aftermath
Read about the treatment of black evacuees at the Astrodome (versus the George R. Brown Convention Center) according to two U of Houston law profs who have visited both sites. Their conclusion? The media have ready access, and are covering, the Convention Center extensively. They're not paying quite so much attention to conditions at the Astrodome, possibly because they can't get in to see what's going on. Check out White Washing the Black Storm.
Photographer Sues Over Use of Osama Photos
Egyptian photographer Essam Mohamed Aly Deraz has filed suit in U. S. District Court in Denver, claiming copyright infringement among other things, against ABC News. The familiar photos and video of Osama bin Laden in the battlefield, which ABC, CNN, and the BBC have broadcast over and over are those that Deraz shot in the late 1980s, and that he claims he allowed ABC to show "on a limited basis" for a total payment of $15,000. Instead, the complaint alleges that ABC continued to show the pictures and video repeatedly, and that it made the material available to other media. ABC representatives said they were unaware of the lawsuit. Read more in a Reuters story here.
LEXIS/NEXIS Assistance for Students Displaced by Hurricane Katrina
Dear Admissions Directors, Deans, LexisNexis authors & others,
Many of you have inquired about LexisNexis Law School Publishing’s plans to assist law students from Tulane University & Loyola, New Orleans displaced by Hurricane Katrina. LexisNexis will provide free coursebooks to all displaced students enrolled in a law school class that requires a LexisNexis coursebook. We will also provide free copies of relevant titles from our Understanding Series and our Q & A Series to all displaced students enrolled in a law school class that corresponds to a title in our Understanding and Q & A product lines.
To receive this assistance, an appointed school administrator (e.g., registrar, admissions director) must make this contact on behalf of the displaced student(s) who have been invited to participate in their Fall 2005 program. Requests must include:
- student’s name
- mailing address
- email address (if any) &/or phone number
- home law school
- author name & title of adopted LexisNexis coursebook
- Fall 2005 course listing (to determine relevant study aid title(s) to send to each student)
Please send this information to: Lisa Hughes, LexisNexis Law School Sales Operations Manager at Lisa.A.Hughes@lexisnexis.com or via fax at 518-641-6090.
German Actress Sues Over Use of Images
German actress Michaela Schaffrath, who now makes mainstream films, has sued a German tv channel for using her image without her permission, saying it falsely gives the impression that she still makes pornographic films. But the corporate owners of the channel say that since they show those films, they have a perfect right to show those films, made when Schaffrath was still known as "Gina Wild." Read more in a Media Guardian story here.
Federal Judge Considers Arguments In Release of Abu Ghraib Materials
U. S. District Judge Alvin K. Hellerstein is balancing the public's right to know against national security considerations in the ACLU's request for release of photographs and videotapes related to the treatment of prisoners at Abu Ghraib prison. The request stems from the 2003 lawsuit filed on behalf of those detained and/or transferred to other nations. In delaying release of the materials, Judge Hellerstein cited the graphic nature of the pictures and worries over potential danger to US troops in the region cited by General Richard B. Myers, chairman of the Joint Chiefs of Staff. In response, the ACLU argued that the public had a right to see the material in order to judge for itself the events at Abu Ghraib. Read more in a CNN story here, in a Newsday story here, and at the ACLU's website here.