Girl Talk goes Creative Commons (but caveat sampleor)

Girl Talk has a new album out today that you can download for free here.  Copyright nerds like me will note that Gillis has licensed this one under a Creative Commons license, with the attribution and noncommercial restrictions.

I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album.  Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license.  The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly.  Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it.  The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix.  You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage.  To the consumer it makes little difference, but to the remixer the difference is stark.

So, everyone go remix the Girl Talk album and post it on YouTube?  Well, not so fast.  All Day isn’t a lone, romantic album.  Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on.  If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings.  He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs.  (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)

The problem with using a Creative Commons license here is one of arithmetic.  Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works.  The sampled recordings aren’t under the Creative Commons license.  To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song.  Your defense is about as strong as Girl Talk’s defense.  You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument.  (There’s no indemnity clause or warranty of title in Creative Commons licenses.)

Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture.  But as a legal matter it’s little more than a gesture.  Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.

Now, will record companies sue you for remixing All Day?  Probably not, only because it’s such a complicated case to make with little economic return.  But will they send a DMCA takedown notice to YouTube over your remix?  Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.

The Dido and the Astronaut

When the Hollywood Reporter broke this story, they started their article with this:

Look closely at Dido’s album cover for “Safe Trip Home.” Spot the lawsuit?

The astronaut in that photograph is Captain Bruce McCandless II. This is him here:

(Image courtesy Wikimedia, and I’m going to go ahead and add that that Captain McCandless doesn’t endorse my blog.)

Capt. McCandless is a true hero of the NASA program, serving as CAPCOM during the Apollo 11 mission and logging more than 300 hours in space himself.  He is most famous for making the first untethered space flight in the NASA MMU.  NASA has a collection of photos from the flight, including this one:

(Courtesy NASA)

It doesn’t take too long to see how Dido took this shot and made the album cover above.  The thing is, Capt. McCandless feels as though he, the astronaut so portrayed in the photograph, is entitled to some form of remuneration (along with an injunction) by virtue of being portrayed therein.  And so, he sued.  Here’s the complaint (PDF).

It’s important to note that this is not a copyright claim.  NASA took the photograph, and under ordinary circumstances that’s enough to put the photograph in the public domain as a government work.  McCandless makes no claim to the contrary.  This is a question of personality rights.

I’m still learning about trademark and rights of publicity, so I don’t feel comfortable going into the legal weeds on this one, but I can’t help but think that all of the major personality rights cases – Waits v. Frito-Lay, Haelan Laboratories v. Topps Chewing Gum, Martin Luther King Jr. Center for Social Change v. American Heritage Products, even the often controversial Zacchini v. Scripps-Howard Broadcasting Co. – all dealt with portrayals of celebrities where you could actually tell who was being portrayed.  It was Tom Waits’s voice, the baseball players’ portraits, a sculpture of Dr. King, or a video of Zacchini, and in all of those cases it was easy to see or hear who it was.  There was no mistake about it. Until I started writing this article, I had no idea that who the astronaut was in the photograph there.  It’s just an astronaut.

And even if I did know that this is a picture from the first MMU flight, and that McCandless was the person portrayed, how can I tell that it’s him?  He’s a speck on that photograph. (I think that’s why that photograph is so powerful.)  When we talk about personality rights, we talk in reference to using someone’s name or likeness without their permission.  On Safe Trip Home you don’t know the astronauts name and you can’t see the astronaut’s face.  It is technically him, but the only way you know who this is would be if you are schooled enough to know the background significance of the picture.  I don’t even think the question fairly debatable – at best it’s a very serious uphill battle to prove it.

The complaint sees it differently:

29. The EVAtion Photograph [the photo used on Dido's album] includes the images of McCandless, and McCandless is further identified in part by distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system. NASA used such markings to visually distinguish McCandless from other crew members.

30. In the EVAtion Photograph, McCandless is further identified by and pictured with a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle missions.

With all due respect to the drafters of the complaint: really?  You really think you can see all of these things in this photograph?  Can you make out the mission patch on the chest of Capt. McCandless’s life support system?  Even if you saw it close up, would your mind go to Capt. McCandless when you saw that patch?

The complaint also notes that the photograph appeared in news media, including this piece in Time magazine, identifying Capt. McCandless.  But again, unfair use of publicity rights more or less presumes that a consumer will see the celebrity portrayed and believe the celebrity to have supported, endorsed, or otherwise lent their goodwill to the product.  To put it in the words of the California Civil Code (under which McCandless makes one of his five claims) a photograph of a celebrity must be clearly depicted so that “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”  I don’t think this should be enough:

(McCandless, zoomed in as far as the original photo will allow.)

Now, the Complaint alleges that Dido did, in fact, mention in the liner notes that the photograph depicts McCandless.  In so doing they have used his name, and thus he at least gets in the door with a personality rights claim.  But that’s inside the liner notes of the album, and thus not used to sell or advertise the product.  In short, I don’t think that should count either.

I leave more analysis to those more suited, but I do want to note in closing that the complaint embraces what I consider a wholly separate action against Getty Images for publicity claims as well as some form of breach of contract claim for a personality license Getty entered into regarding this picture.  Why Getty is allegedly commercially licensing a public domain picture, and paying McCandless for the personality rights therein, remains a complete mystery to me.

Update: They Burned The Book.

Following up on a post from a couple weeks back, CNN reports this evening that the Pentagon did indeed burn 9,500 copies of Operation Dark Heart.  They knew they could not sue to stop the book, so they bought it and burned it.  Exactly how is that any better for our free press?

… in which the Defense Department meets the Streisand Effect.

The Washington Post reports today that the Defense Department is attempting to buy 10,000 copies of the book Operation Dark Heart, by U.S. Army reservist Anthony Shaffer.  The book, according to the WaPo article, contains sensitive information regarding eavesdropping technology, purportedly used to spy on Al-Qaeda operatives in Pakistan. While Lt. Col. Shaffer obtained clearance from the Army to publish it, the article (cryptically) says that the Defense Intelligence Agency “obtained” a copy of the manuscript and raised issue with some of its contents.

The publisher and Army have sat down and negotiated a revised manuscript.  Of course, prior to this negotiation the publisher has made 10,000 copies of the unedited book, and sent such copies to journalists and organizations.  In an effort to take those books out of circulation the Army is now proposing now to buy-out the entire stock – all 10,000 copies – before they are sold to the general public.  This is stupid for a wide variety of reasons, but I will attempt to illustrate just a few below.

First, the military most likely does not have the legal right to stop dissemination of the book.  That would amount to a prior restraint of speech, the “most serious and the least tolerable infringement on First Amendment rights.“  As made famous in the Pentagon Papers case, any prior restraint comes with a heavy presumption against validity, and cannot be sustained absent a state interest of the highest order.  Military secrets may begin to approach that “highest order” standard, but the Supreme Court has never found a case to be so sensitive as to warrant a prior restraint.  Having the military attempt to achieve the same ends outside of court, in my mind, is equally repugnant to the principles First Amendment.  (Cases do suggest that one may waive the right to speak on a matter by way of contract or a fiduciary duty to the Government, and those waivers can be enforced, but that’s an ancillary matter.)

Another reasoned doctrine comes into play here as well: the Streisand Effect.  The effect amounts to a natural law of the Internet: attempts by an entity to use legal threats to silence a person making an uncomfortable statement about that entity will, through curiosity, draw greater attention to that uncomfortable statement, thus having the opposite effect.  (The term comes from an attempt by Barbra Streisand to sue aerial photographer Kenneth Adelman for breaches of privacy after Adelman posted photos of the California coastline, including Ms. Streisand’s mansion.  This, of course, lead to the photo of Streisand’s mansion appearing all over the Internet.)  As scholars before me have noted, this sort of tactic, be it a lawsuit or secretly buying a warehouse-worth of books, is so ineffective it is laughable.  All this does is attract greater discussion on the issue that the government is trying to squelch.

Third, this will not stop this information from getting out there.  WaPo freely admits in the article that they have an unedited copy of this book. If they’re half the journalistic organization they purport to be they will certainly highlight what’s been edited out of the second edition.  If they fail to do so, more principled journalists with their own advance copies will.  Spending thousands of dollars to burn several thousand books will not magically draw those disclosed facts out of the public domain.  Such a move is as wasteful as it is pointless.

(Thanks to Webster for the tip.)

Senate passes bill to combat libel tourism

Out-Law.com reported Friday that a lingering bill on free speech and international law just cleared the Senate and is likely to pass the House before the fall recess.  The bill (S.3518) tackles judgments from defamation lawsuits in foreign courts seeking to be enforced in the United States.  Without going into the minutiae of international law, the United States’ willingness to use American law to enforce matters found in foreign courts is regulated by a series of bilateral agreements and domestic laws, and this bill deals where and when the United States is willing to enforce foreign defamation claims.

The bill, entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act (the “SPEECH Act,” and yes, it’s a horrible name), restricts the enforceability of foreign judgments in two major ways:

First, the law will prohibit the recognition or enforcement of a foreign judgment unless a court determines either that the defamation law in the foreign state provided free speech safeguards equivalent to the First Amendment and the court’s state constitution, or the defending party would have been found liable by a domestic court applying domestic defamation law.

Second, the law provides for protection for online service providers equivalent to the U.S. Communications Decency Act’s Section 230, which provides online service providers some of the most robust protection in all of secondary liability law.  According to the SPEECH Act, a court may not enforce a judgment against a computer service provider unless that judgment can be applied consistent with the shield provided by § 230. (Sidenote – Berkman Fellow David Ardia just published a very impressive empirical study of Section 230 for those curious about that law and its application.)

I would characterize the bill as an unqualified positive congressional move, albeit a bit technical in application (and as Marc Randazza argues, a relatively small step toward broader protection for online speech).  The SPEECH Act clearly targets the growing practice of libel tourism, where defamation and libel plaintiffs use the laws of foreign countries (most frequently, England) to obtain judgments against speech that would likely be protected inside the United States.  Given the universal nature of the Internet, it’s easy to see how online speech — even speech clearly between two domestic parties — can fall into this forum-shopping trick, thus denying even American authors the stalwart protections of the First Amendment.

Read the bill here.

Update 11 August – Eric Goldman posted an analysis of the bill after the President signed it, and gives it the thumbs-up as well (though wonders the extent to which it will be used).

ASCAP goes to war with Creative Commons

ASCAP’s HQ, a CC-licensed photo from Flickr user CosmoPolitician

I can’t believe this slipped by me last week: ASCAP has started urging its members to fundraise against Public Knowledge, Creative Commons, and the Electronic Frontier Foundation.  The blog ZeroPaid has two pieces on the initial ASCAP action and CC’s response.

To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP.  As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like.  It doesn’t do our industry any favors.  But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.

Creative Commons is not about destroying copyright or artist rights – quite the opposite.  CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright.  As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works.  The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression.  We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.

Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate.  The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.

Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy.  And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees.  But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living.  When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.

At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works.  What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of).  Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t.  So don’t pass this off as an artist rights issue.  To act in the artists’ interest would be to allow them the choice.  What you’re doing is something else entirely.

Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.

Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again.  In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy.  This present fight is proving his point all too clearly.

I should also note that the contents of this blog, to the extent they are not owned and licensed by another party, are licensed under a Creative Commons Attribution Noncommercial Share-Alkie 3.0 license.

Citizen Media Law Project, EFF, and Public Citizen file amicus brief in “hot news misappropriation” case

I hope to add some color commentary to this when I catch a break, but for now here’s the Berkman press release:

Cambridge, Mass. – The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF) and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc. The coalition worked with Harvard Law School’s Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com (“Fly”) that reports on equity research from Wall Street investment firms. Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation. The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day. The injunction applies even when Fly obtains information about the recommendations from published news reports. Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern. The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment. The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment. “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard. “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief. Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School. CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf

New Hampshire Supreme Court applies free speech rights to online newsgathering

It’s a good day for the First Amendment – or, in this case, the New Hampshire constitutional analogue.

The New Hampshire Supreme Court issued an opinion this morning (PDF) vacating, reversing, and remanding the case of Mortgage Specialists Inc. v. Implode-Explode Heavy Industries, Inc. I worked on an amicus brief in this case with the Citizen Media Law Project and the Reporter’s Committee for Freedom of the Press, advocating for this outcome.

The case surrounds the Mortgage Lender Implode-O-Meter, a website dedicated to chronicling the collapse of the mortgage industry with insider reporting and primary sources (a bit like a Gawker or Smoking Gun for mortgage lenders). In 2008 the website obtained a confidential filing submitted by The Mortgage Specialists, Inc. (“MSI”) to the New Hampshire Banking Department. The chart contained detailed information on lending activity, and was submitted pursuant to an investigation on MSI’s lending activity. After the website posted this material, an anonymous commentator made statements which MSI interpreted as libelous of the company and its president. MSI responded to this publication by filing a complaint in New Hampshire court. Without discussing the First Amendment issues at stake, a New Hampshire Superior Court ordered that the Loan Chart be removed from the website, the source of the Chart be disclosed, and the identity of the anonymous commentator be revealed for possible libel charges.

As I noted in two earlier pieces, the CMLP and RCFP argued that this order violated both state and federal constitutions, as well as a the New Hampshire common law reporters’ privilege. (The amicus brief is here as a PDF.) We argued that the injunction removing content from a website works a prior restraint on speech, as even those who could have accessed the information prior to the court order would no longer be able to do so. As a prior restraint, the court had to demonstrate a government interest of the highest order to overcome the free speech issue at stake. Cases like the famed Pentagon Papers Case demonstrate just how high this burden is. We further argued, even assuming this is not a prior restraint, the government cannot punish this speech consistent with the United States Supreme Court case of Bartnicki v. Vopper and the First Circuit’s Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind words.)

The New Hampshire Supreme Court echoed these concerns in their opinion this morning. The court rejected MSI’s argument that the website was not entitled to a reporter’s privilege, noting that “[t]he fact that Implode operates a website makes it no less a member of the press.” In addressing the alleged crime committed by the source of the Chart, the court adopted the disclosure requirements of the First Circuit case Bruno & Stillman v. Globe Newspaper Co: MSI must demonstrate that the information sought is critical to their claim, cannot be obtained from other sources, and persuade the court that their interest in obtaining the information outweighs Implode-O-Meter’s interest in confidentiality.

Turning to the anonymous commentator’s allegedly libelous comments, the court adopted the test of the New Jersey Superior Court of Appeals in Dendrite International, Inc. v. Does, requiring a plaintiff to render efforts to inform the anonymous commentator, identify the particular allegedly libelous speech, make out a prima facie case for libel, and persuade the court on a balance of the equities.

For me, the most exciting part of this opinion is the Court’s approach to the prior restraint question. After a lengthy section discussing the extreme disfavor of prior restraints on publication, the court said the following:

Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.

Once this was found to be a prior restraint, the Court seemed to have no problem dismissing the interest here as far below that needed to issue an injunction. The court accordingly reversed on the injunction and remanded to consider the qualified reporter’s privilege and the Dendrite test for anonymous commentators.

Finding a reporters’ privilege for online journalists is wonderful news (especially in light of the question coming up in the whole Gizmodo/iPhone situation), but I think the real gold here is in the Court’s approach to prior restraint. The Court adopts congruent but discrete reasoning compared to the CMLP/RCFP amicus brief. Our brief focused a good deal on the constitutional right to make the same speech as that which is enjoined: even those who previously read the content could no longer access that information, so for purposes of public debate it’s as if the speech was never there. The court seems to focus on how the injunction impacts future speech: the injunction prevents new commentary and discussion surrounding the same information. These are complimentary arguments, but embrace an interesting nuance to the prior restraint question. Either way, the First Amendment risk of removing content from the Internet is brought into sharp focus, and receives appropriately high protection. Here’s hoping other states follow New Hampshire’s lead in this area.

(While I worked with a number of folks on the brief, the opinions of this post and blog in general are mine and mine alone.)

On the Gizmodo/iPhone debacle

If you’re going to read two articles on this whole Gizmodo/iPhone situation, read these:

• Prof. Orin Kerr (whom I shouldn’t praise too highly at the moment, as he’s grading my exam) gives his all-important 4th  Amendment perspective over at the Volokh Conspiracy.

• EFF Civil Liberties Director Jennifer Granick provides the 1st Amendment analysis.

In short, while the probable cause from the search would have to come from an affidavit to the warrant, which Gizmodo has not released along with the search warrant itself, there seems to be no fatal warrant errors under the 4th Amendment. Per Prof. Kerr, if there were overbreadth issues on the face of the warrant the police likely did not rely on them to execute the search. I don’t know if I’m alone in wondering how the (theoretically still-controlling) 9th Circuit case of United States v. Comprehensive Drug Testing would impact this analysis, as the 9th Circuit seemed to be commanding a series of ex ante requirements which the magistrate here did not include. The consequence for violating the 4th Amendment would be most severe for the police here, as it invokes the always discussion-provoking exclusionary rule.

Stautory privacy laws present a more complicated situation, turning around this question: Was the warrant issued for evidence of crimes committed by Jason Chen, or the original source of the iPhone? If the warrant is to gather evidence on a crime committed by Jason Chen himself (the California equivalent of knowing receipt of stolen property, for example), it would seem that the Privacy Protection Act would not save Chen, and the application of the California Shield Law is uncertain and unexplored. If, on the other hand, the search at Chen’s residence was for evidence of a crime committed by the source of the iPhone (for failure to adhere to California’s laws on possession of missing property), it would seem both federal and state statutory laws cleanly apply. The consequence for this is far less severe than violating the 4th Amendment – civil damages generally.

This is also where the 1st Amendment plays its role in this complicated dance. The courts have recognized the 1st Amendment protects journalists in these circumstances, especially against restraints on publication in Bartnicki v. Vopper and the all-famous Pentagon Papers case. I worked on a brief highlighting the 1st Amendment argument against restraint of publication of even unlawfully-obtained information last summer. Under this line of cases, Chen could not be punished for disclosing information about Apple’s new product, even if the disclosure itself violated the law (and according to at least one court, even if the disclosure itself violates laws protecting trade secrets). An argument can be made for extending this same rationale to prevent “second-degree” punishments like receipt of stolen property. The inclusion of property does make for a novel case, but any attempt to balance the newsworthiness of the property’s disclosure versus the criminal harm of a stolen property would easily side with Chen given these facts. As Granick puts it, this likely won’t save either Chen or the source of phone from whatever crimes they may have committed, but should at least force the police to proceed delicately in investigating the crime.

I leave further analysis to others, as I am in the middle of packing up my DC abodes and shipping up to Boston. I’ll close with an observation and a question: I notice a lot of the ire invoked in this circumstance is against Apple, and I’m not sure if they’ve earned that. Do we know that it’s Apple behind this whole investigation, and the subsequent search? Until we do, I wonder if we shouldn’t be training our guns somewhere else. I know a lot of us see some duty on Apple to denounce or deter the investigation against Chen, but I wonder if others out there presume it was Jobs in a tank breaking down Chen’s door, and not the San Mateo police.

NH Supreme Court hears online journalism case

Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.

We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts –  and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)

Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.

I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.

Naturally, when the Court rules I’ll be sure to pass along that information.