Friday, June 6, 2008
The City of Los Angeles is doing what viewers might like to do--it's suing the cable company over "shoddy" practices and misleading advertising dating back years, over techs who didn't show up on time to fix cable problems, and over rude customer service people. Said L.A. city attorney Rocky Delgadillo, "The company has broken multiple laws, and harmed countless Los Angeles consumers." Time Warner says it's actually getting fewer complaints from customers than in the past. Read more here.
HarperCollins is suing Victoria Gotti for the return of a $70,000 book advance because she has never delivered the manuscript and has terminated the contract. Ms. Gotti signed the contract with former HarperCollins exec Judith Regan, who left the company last year. Read more here.
U of Washington Report Concludes Innocent Internet Users Can Be Easily Accused of Copyright Infringement
A University of Washington, Department of Computer Science & Engineering report concludes that non-infringing users can easily receive takedown notices from rights holders. "Practically any Internet user can be framed for copyright infringement today." Here's a link to the report.
Thursday, June 5, 2008
Most Britons believe social networking sites such as MySpace and Facebook should be regulated, according to a new survey. Yes, they're concerned about potential embarrassment and invasion of privacy, but they're also concerned about larger issues, such as long-term effects on the general population of allowing such information to be widely accessible. Read more here.
The Daily Star will pay Ozzy Osbourne damages over a story that alleged that the rock star collapsed before the recent Brit Awards show, during which he presented awards, and implied that he was in bad health. The star's lawyer said the article caused Mr. Osbourne "considerable embarrassment and distress." Mr. Osbourne will donate the money to his wife's medical charity. Read more here.
Wednesday, June 4, 2008
Ofcom has fined MTV for "persistent breaches" of its code, based on the broadcaster's failure to prevent the use of offensive language on reality TV shows and other programming to which children had access during the "watershed" period. Read more here. Here is a link to the Ofcom ruling.
Susan Freiwald, University of San Francisco School of Law, has published "A First Principles Approach to Communications' Privacy," in Stanford Technology Law Review. Here is the abstract.
Under current doctrine, parties to a communication enjoy robust constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper suggests that the surprising dearth of case law applying the reasonable expectations of privacy test to modern electronic communications reflects courts' discomfort with the test's necessarily normative analysis. That discomfort also likely explains courts' use of shortcuts based on Miller v. United States and Smith v. Maryland in those few cases that have considered online surveillance practices. In particular, the government has argued that a broad third party rule deprives electronic mail of Fourth Amendment protection merely because Internet Service Providers (ISPs) may access those e-mails. Similarly, some courts have denied Fourth Amendment protection to information stored on computer systems other than e-mail contents, by over reading Smith to provide a bright line at contents/non-contents. Both analytical shortcuts not only miss the point of the Katz v. United States, which established the reasonable expectations of privacy test, but also dramatically under protect privacy, with pernicious results. This paper articulates a first principles approach to constitutional protection that focuses instead on the reasons electronic surveillance requires significant judicial oversight. In particular, it argues that electronic surveillance that is intrusive, continuous, indiscriminate, and hidden should be subject to the heightened procedural requirements imposed on government wiretappers. Because surveillance of stored e-mail, such as the type at issue in the case of Warshak v. United States, often shares the characteristics of this four factor test, it should be subject to the highest level of constitutional regulation[.]
Download the article from SSRN here.
The California Court of Appeals, Sixth District, has affirmed a lower court ruling dismissing a company's lawsuit against an attorney as a strategic lawsuit against public participation. The company had alleged defamation, trade libel, and false advertising. The case is Simpson Strong-Tie v. Gore.
Tuesday, June 3, 2008
A French court has convicted actress Brigitte Bardot of inciting racial hatred for a comment she sent to President Nicolas Sarkozy about Muslims in France. In her letter to the President, who was not yet elected to office, she said that she was "tired of being led by the nose by this population that is destroying us, destroying our country by imposing its acts." She was objecting to the Muslim practice of killing sheep during the festival of Aid el-Kebir. The court fined Ms. Bardot over $20,000. Read more here.
NASA Inspector General's Office Reports on Politicizing of Climate Change at Agency: Verifies That Incidents Occurred and Were "Inconsistent" With Law
The Inspector General's office charged with investigating whether political appointees at NASA colored press releases and other publications about climate change coming out of the agency has concluded that "that such activities occurred and were “inconsistent” with the law that established the space program 50 years ago," according to an article in today's New York Times. The report released by the Inspector General also concludes that whatever activities occurred were confined to these appointees; officials higher up in the Bush administration do not seem to have been involved.
Ninth Circuit Denies Request To Release Names of Forest Services Employees Named in Official Report; Cites Privacy Interests
The Ninth Circuit has declined to order the Forest Service to release the names of agency employees who were involved in fighting a fire that killed members of the Service. The employees named in a report investigating the aftermath of the fire were not suspected of wrong-doing, were "low and mid-level" employees, and the risk of intrusion on their privacy outweighed the public benefit.
On January 12, 2004, the Forest Service Employees for Environmental Ethics (“FSEEE”), a self-described public interest watchdog organization, filed a Freedom of Information Act (“FOIA”) request with the Forest Service seeking the release of the Cramer Fire Report. See 5 U.S.C. § 552. The Forest Service complied with the request, but redacted the names of all twenty-three Forest Service employees identified in the Report. The agency cited FOIA Exemption 6, which enables the government to withhold “personnel and medical and similar files” that implicate personal privacy, as justification for the redactions. See id. § 552(b)(6). The FSEEE filed an administrative appeal, which the Forest Service denied.Some time later, the Forest Service announced that it had decided to discipline six employees involved in the incident, but withheld their identities due to privacy concerns. In addition, the identities of several employees named in the Report become known in various ways. First, Incident Commander Hackett waived any right to confidentiality and the Forest Service released a revised Report with all references to Hackett unredacted. In addition, an unredacted copy of the Cramer Fire Report was leaked to the family of one of the deceased firefighters. The Forest Service discovered the leak and disciplined the Forest Service employees responsible. Finally, the OSHA report identified several Forest Service employees who held positions of responsibility during the incident.The FSEEE filed a complaint in the District Court for the District of Oregon seeking an unredacted copy of the Cramer Fire Report. On cross-motions for summary judgment, the district court concluded that Exemption 6 authorized the Forest Service to withhold the identities of the employees named in the Report in the interests of their personal privacy. The district court found that employees subject to disciplinary sanctions as well as those who merely served as cooperating witnesses had privacy interests in avoiding the “embarrassment, shame, stigma, and harassment” that would arise from their public association with the Cramer Fire and further found that the release of such employees’ identities would not materially contribute to the public's understanding of the event. The FSEEE timely filed this appeal.FOIA was enacted to facilitate public access to government records.... As the Supreme Court has explained, the statute's purpose is “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”...Thus, among other things, FOIA requires every federal entity presented with a request for records under the statute to make such records “promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, this requirement does not apply if the requested information falls within one of nine exemptions. Id. § 552(b).One such exemption, Exemption 6, provides that government entities may withhold information from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. § 552(b)(6). The district court concluded that the Cramer Fire Report was a “similar file” subject to this exemption and that the disclosure of the identities of the employees named in the report would constitute a “clearly unwarranted” invasion of their privacy. We consider each conclusion in turn.[Determining that the report fit the exclusion, the Court continued].Having determined that the Cramer Fire Report satisfies this threshold test, we next consider whether the disclosure of the employees’ identities would constitute a “clearly unwarranted” invasion of their personal privacy. 5 U.S.C. § 552(b)(6). In conducting this inquiry, we “ ‘balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect.’ ” ....Two guideposts are critical to our analysis. First, “the only relevant ‘public interest’ ” is the extent to which disclosure would “ ‘contribut[e] significantly to public understanding of the operations or activities of the government.’ ”....Second, the reasons why the FSEEE seeks the identities of the Forest Service employees are irrelevant to our inquiry. “ ‘[W]hether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.’ ”....FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large.... Accordingly, we consider the consequences of disclosure of the employees’ identities to the entire public.We begin with the privacy interests of the Forest Service employees. At the outset, we note that while the privacy interests of public officials are “somewhat reduced” when compared to those of private citizens, “individuals do not waive all privacy interests … simply by taking an oath of public office.”...In the past, we have recognized that a government employee's privacy interests may be diminished in cases where information sought under FOIA would likely disclose “official misconduct.”...In addition, we have placed emphasis on the employee's position in her employer's hierarchical structure as “lower level officials … generally have a stronger interest in personal privacy than do senior officials.”...As the district court explained, the twenty-two employees identified in the Cramer Fire Report were “low and mid-level” employees. In addition, although the Forest Service has disciplined six of these employees, none has been accused of official misconduct and the remaining employees were merely cooperating witnesses. Accordingly, we agree with the district court that neither the employees’ status as civil servants nor the Forest Service's disciplinary decisions strip them of their privacy interests under Exemption 6.Second, we consider the district court's conclusion that the employees possessed privacy interests in avoiding the “embarrassment, shame, stigma, and harassment” that would arise from their public association with the incident. The avoidance of harassment is a cognizable privacy interest under Exemption 6. We have previously construed the exemption to protect against the harassment associated with unwanted commercial solicitations....In this case, the potential for harassment that drew the district court's attention was that which would be presented by the media, curious neighbors, and the FSEEE itself. By its own admission, the FSEEE plans to contact the Forest Service employees named in the Report if their identities are disclosed. Moreover, in light of the significant public attention the Cramer Fire received, it is likely that the media and others would join the FSEEE in such pursuit. The fact that the record does not indicate that any of the employees have spoken out in the five years since the incident occurred leads us to conclude that such contacts would be unwanted....Satisfied that privacy interests are at stake here, we turn to the public interests asserted by the FSEEE. We emphasize that “the only relevant public interest” under Exemption 6 is the extent to which the information sought would “ ‘she[d] light on an agency's performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ ” Id. at 497 (quoting Reporters Comm., 489 U.S. at 773). Thus, to compel the disclosure of the Forest Service employees’ identities, such information must “appreciably further” the public's right to monitor the agency's action....The FSEEE contends that disclosure of the employees’ identities will advance several public objectives. First, it argues that disclosure will allow the public to determine whether the Forest Service reassigned employees identified in the Cramer Fire Report to non-firefighter positions as a result of the incident. Second, the FSEEE suggests that disclosure will allow the public to ascertain whether such employees were adequately trained. Finally, the FSEEE contends that the revelation of the employees’ identities will allow the public to “determine whether the Forest Service accurately recounted the incident in the Cramer Fire Report,” to “reconcile inconsistencies,” and to “shed additional light on what happened and how it can be prevented in the future” by, among other things, conducting “interviews with the participants.” To the extent that the FSEEE seeks to conduct its own investigation of the Cramer Fire, we note that four federal agencies have investigated the incident and produced three publicly-available reports. As such, the FSEEE “already ha[s] a substantial amount of the information they seek,” and we will not require the disclosure of the employees’ identities unless the “marginal additional usefulness” of such information is sufficient to overcome the privacy interests at stake. Painting Indus., 26 F.3d at 1486....The public benefit the FSEEE asserts and the privacy interests of the Forest Service employees are equally inseparable. Under the FSEEE's theory, the only way the release of the identities of the Forest Service employees can benefit the public is if the public uses such information to contact the employees directly. As we held in Painting Industry, such use cannot justify the release of the information the FSEEE seeks.
Miquel Peguera, Columbia Law School and the Universitat Oberta de Catalunya (UOC) has published "When the Cached Link is the Weakest Link: Search Engine Caches Under the DMCA." Here is the abstract.
When crawling the net, search engines' robots make a copy of each web page they visit. These copies are stored in the search engine's cache. In their search results, along with the link to the actual web page and a brief snippet from it, the main search engines provide a link to the cached copy as well. In Field v. Google the court held that the operation of Google's cache falls under the caching safe harbor of the Digital Millennium Copyright Act. Examining both the plain language of the statutory text and its legislative history, this paper shows why search engine caches are not covered by the DMCA caching safe harbor. Taking into account the Ninth Circuit analysis in Perfect 10 v. Amazon, this paper further suggests that the unavailability of a safe harbor does matter, since other defenses may fall short or involve higher litigation costs. In addition, this paper discusses whether an amendment of the DMCA safe harbor regime would be advisable.
Download the entire paper from SSRN here.
Nicolas Jondet, University of Edinburgh, has published "The Silver Lining in Dailymotion's Copyright Cloud." Here is the abstract.
Image Dailymotion, a French video-sharing website, recently received bad news on the judicial front. This summer, it was sentenced by a Paris court to pay 23,001 ($33,400) in damages for the copyright infringement of the movie "Joyeux Noël", an unauthorized copy of which had been made available on the website by an internet user. The court asserted that the hosting provider, because it had enabled and thrived on mass piracy, was under a general obligation to implement technical means to prevent unlawful activities. This controversial decision is worrying as it greatly expands the duties of Dailymotion with regards to piracy. Dailymotion has appealed the decision but face more judicial woes. It has also been sued for copyright infringement by a French comedian and could face another lawsuit from a French television broadcaster. Dailymotion would find little comfort in the fact that other video-sharing websites have not fared better in France. Internet giants Google, YouTube and MySpace also face copyright lawsuits. The "Joyeux Noël" case is symptomatic of the resolve of content producers in holding websites accountable for internet piracy. It also illustrates the challenges faced by the courts in defining the obligations of websites with regards to copyright infringement. In all, Dailymotion can expect protracted legal battles with users of the media industry over copyright issues.
Yet, things might not be as grim as they appear. Every cloud has a silver lining. Looking through the prism of judicial activity gives an incomplete and distorted picture of Dailymotion's relationship with the media industry. Dailymotion has been taking a series of measures to accommodate rightholders, both before and since the "Joyeux Noël" decision. It has been implementing filtering technology to prevent piracy and has actively been seeking partnerships with content producers. This strategy has shown promising results. Dailymotion has entered revenue-sharing deals with many media companies to broadcast their content. It has also managed to position itself as a global champion for copyright.
These proactive measures towards copyright compliance and the links built with many content producers should help Dailymotion maintain the number of future copyright lawsuits at a level that would not jeopardize its survival. Such optimistic outlook might partly explain why, despite ongoing litigations, the financial backers of Dailymotion have been willing to invest a further 25 million to help the Paris-based start-up grow and compete on the global stage.
Download the entire paper from SSRN here.
Monday, June 2, 2008
Some University of Ottawa law students have filed a complaint with the Privacy Commissioner of Canada, alleging that the social networking site Facebook violates the Canadian Personal Information and Protection Electronic Documents Act (PIPEDA) by collecting and sharing users' personal information with third parties without their consent. Facebook responds that users voluntarily share this information. Read more in a Chronicle of Higher Education article here and in an AP story here.
There's a mini-Clash brewing between Prince and Radiohead. Prince covered Radiohead's song Creep at a recent performance, and a fan recorded it and uploaded it to YouTube. When Prince heard about it, he told the website to block access. But Radiohead, which owns the copyright to the song, asked YouTube to make access available once again. Read more here from Billboard.
And is the BBC sexist? Some journalists have suggested that it is, based on a drop of the number of women reporters appearing on the 10 o'clock news. The BBC says the type of reporting dictates the journalists who report, and male journalists tend to dominate the fields of reporting from which stories that make up the 10 o'clock news are taken. Insiders respond that airtime on that particularly popular program is highly coveted. Read more here.