I’m spending the next couple of days back in Boston at the Rethink Music conference, with a humbling collection of music industry minds. I wanted to mark the occasion by bringing back a thesis about which I wrote extensively last year, following several discussions at the Future of Music Coalition Policy Summit in October 2009. In response to perceived market failures in the licensing market for sampling music, I proposed that Congress should develop a statutory license for sampling. The details of this proposal are below. The paper I drafted received a warm response from my peers (thank you), but needs substantial revision in light of Peter DiCola and Kembrew McLeod’s excellent new book, and my own Sisyphean push for excellence. I wanted to share my thoughts here and take this time to solicit some feedback. So here they are. Conference attendees, non-conference attendees, friends, strangers: rip this apart.
26 April 2011
11 December 2010
I’ve been meaning to write up a few thoughts on Wikileaks, but finals have kept me fairly busy. I have a bit of a break before round two of finals, so I wanted to take a couple hours to put some thoughts up here. I’m not especially interested in engaging on a broad-strokes merits argument of Julian Assange, the so-called “Cablegate” leak, Operation Payback, or the Interpol warrant. Instead I want to focus on the question that seems to be coming up in the press all month but has not been answered cleanly: How exactly does the First Amendment play out here?
I’ve spent a great deal of time considering the First Amendment implications of leaking confidential sources on the Internet. A lot of this analysis comes from the two amicus briefs I worked on while at the Berkman Center’s Cyberlaw Clinic, both dealing with websites that disclosed confidential information. (And to that end I owe thanks to the Clinic and the CMLP for helping me develop this analysis over two summers.) There are three discrete sub-doctrines of First Amendment law that inform my conclusion here, but I believe that, at least under the facts as they are currently understood, Assange and Wikileaks could not be punished in the United States for their actions.
6 September 2010
Congrats and well-dones are in order! My buddy and fellow Berktern Joey Mornin announced a few days back that he is the new Online Director of Fix Congress First, an organization dedicated to removing the institutional corruption (perceived in real) in the congressional process. You can read the announcement here, and read about the organization’s chief piece of legislation, the Fair Elections Now Act (S.752 | H.R. 1826), here.
26 July 2010
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.
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).
22 June 2010
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
13 May 2010
There’s a weird lie that’s circulating around a lot of blogs this week that I think needs dispelling. It reminds me of one of my favorite scenes in The Wire, when Marlo tells the security guard “You want it to be one way. But it’s the other way.”
Eriq Gardner over at The Hollywood Reporter released an article on Monday claiming that the entertainment industry should fear Kagan on the Court, because:
[a]s dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on “fair use” in copyright disputes.
I don’t feel as though I need to go to the substance of this assertion, as the whole premise of it is flat-out wrong, at least as Professor Lessig is concerned. A quick look at his HLS faculty profile shows that he was at Harvard as the head of Berkman between 1998 and 2000. In 2000 he left Harvard to form Stanford’s Center for Internet and Society, where he remained until 2009, when he rejoined Harvard at the Safra Foundation Center for Ethics. Kagan was in the Clinton Administration while Lessig was at Berkman, and served as Dean three years after Lessig had moved to Stanford. I don’t doubt that Kagan was instrumental in bringing Lessig back to Harvard, but unless Hollywood disapproves of government ethics, this shouldn’t be cause for alarm for them.
I have no idea who Gardner’s “others” are at Berkman who take “strongly liberal positions” on fair use, and I think after working there for a summer (and soon starting my second) I would have met these strongly liberal folks at this point. The Center’s not that big a place. I suppose this may be an attack on Professor Charles Nesson, but I don’t think Kagan could have done anything to alter his status at HLS. He’s been on the faculty there since 1966 and tenured since 1969.
Gardner puts this out like it’s one way. Well, it’s the other way.
6 May 2010
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.)
7 November 2009
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.
3 November 2009
Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.
I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.
After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.
Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys. From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.
Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.
17 July 2009
Two articles stand out as great reads on the Twitter Security Breach debacle:
- Sam Bayard from the Citizen Media Law Project discusses the constitutional right to publish hacked documents here. The analysis here draws on many of the same cases Sam and I used in an amicus brief sent by CMLP and the Cyberlaw Clinic to the Supreme Court of New Hampshire about a month ago.
- Journalism professor and tech pioneer Dan Gilmor takes Sam’s analysis and adds his own spin, coming right to the point on the merits of how Michael Arrington and TechCrunch are handling the breach.