Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances.  A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com.  Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.”  The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys.  Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism.  “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.”  A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims.  A fair use argument cannot simply succeed on its merits where other legal rights are violated.  Context matters.  So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation.  Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

As I wrote:

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

Several recent stories vividly illustrate the point, including an article in last Thursday’s New York Times about suicide chat rooms and prominent recent lawsuits in New Jersey and Louisiana involving attempts to “out” the names of anonymous online authors.

The Times reported that a Minnesotan named William F. Melchert-Dinkel was charged with aiding the suicide deaths of a British man in 2005 and a Canadian woman in 2008.  Whatever can be said of his actions (and whatever might be deemed “just words”), Melchert-Dinkel’s actions were done solely via the internet and solely in the form of words.

The case is novel for several reasons, including the location of the presumed “conduct” – in Minnesota?  In Canada?  In the UK? – as well as the not-so-novel questions of individuals being held accountable for words alone.

Libel, of course, is all about words – no need to argue the fine points of conduct versus speech – so the Louisiana suit involving Jefferson Parish interim president Steve Theriot raises no real conduct issues.  Lucy Dalgish of the Reporters Committee for Freedom of the Press is quoted in a Times story on Theriot, saying “Cases involving anonymous commenters are now ‘where the action is in libel suit,’” and Dalgish appears right, if only for the fairly predictable result of expanding to the sky both the publishing ranks and a prospective publisher’s audience.

Put another way, we are not in Louisiana anymore.  As Randall Stross wrote last week in “Digital Domain”,

… [T]he online world … is already a very open and connected place, thank you very much.  Densely interlinked Web pages, blogs, news articles and Tweets are all visible to anyone and everyone.

In the Louisiana case, the allegedly libelous statements (including “just another Jefferson Parish politician thug mobster”) were made by registered users of the website of the New Orleans Times-Picayune, known as Nola.com.  That is, the names are known to Nola, and the suit seeks their disclosure but does not claim defamation by the website.

In the New Jersey case, Too Much Media v. Hale, a website operator unsuccessfully sought to protect the identity of third party contributors to her site as “sources” covered under New Jersey’s reporter’s “shield” law.  The New Jersey appellate court ruled that the website operator could not claim the shield law’s protective rights because her publishing activity did not qualify her as a journalist.  Perhaps the most interesting passage by the court was this one, giving the back-of-the-hand to a claim of 1st Amendment privilege by every Tom, Dick and Harry with a webcam and an internet connection:

However, the fact of presenting information on a new, different medium, even if capable of reaching a wider audience more readily, does not make it “news,” for purposes of qualifying for the newsperson’s privilege.  Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.”

The separate subject of what constitutes a “journalist” for shield law and other 1st Amendment press protections is a subject for another day and a different blog.  And one might lament the clearly conservative (some would say “stuck in the mud” crankiness) recalcitrance of the New Jersey court.  But the broader law of these cases is not new or even particularly reactionary: Words have consequences in our society and published words have even greater consequences.  Now take those published words and publish them even wider, and lower the barriers to publish, and the consequences can get quite interesting.

Commentary on the episode leaned heavily to the view of “what gall!” of Apple to presume rights to regulate content.  So, for example, Rob Pegoraro wrote in the Washington Post last week:

If this conduct seems arbitrary, that’s because Apple gives itself that liberty.  The Cupertino, Calif., company’s iPhone developer agreement, as published by the Electronic Frontier Foundation, says Apple can reject an application “at any time” if it thinks rejection would be “prudent or necessary.”

Pegoraro commented that Apple had subsequently “relent”-ed, and presumably characterizing Apple’s conduct as “arbitrary” was appropriate.

And indeed, “arbitrary” may be appropriate, although usually typically the word is thrown around in characterizations of government action like “arbitrary and capricious”.  The stuff of epochal Supreme Court 4th Amendment cases challenging the Bush Administration, for example.

Two thoughtful takes on a broader related point were published in the last week, first by Michael Kinsley in the Atlantic and by William McGurn in the Wall Street Journal.  Both are worth reading if only to appreciate contrarian views when society of a collective pile-on of “The Man” (aka Apple).  Michael Kinsley, in particular, is as usual vibrant, his arguments are entertaining and his conclusions read as if seemingly inevitable.

Kinsley and McGurn both suggest that journalists from traditional media (daily newspapers, presumably) usurp the 1st Amendment as their own unique sword AND shield, most recently illustrated with an explosion of “shocking, just shocking!” at the Supreme Court’s Citizens United case recognizing strong 1st Amendment rights for corporations, and similarly the collective “huh?” in response to the more recent Gizmodo/Apple smackdown in California.  In Citizens United, the simple idea (as the Court did write) that the 1st Amendment really does prevent the government from playing favorites with speech OR with speakers – in and of itself, a full-throated empowering of the 1st Amendment – was lost in the din of criticism focusing instead on the seemingly pro-corporation and pro-money line-up of the Justices.

In the Gizmodo/Apple “situation”, much frothing was done over Apple’s “Gestapo-like” tactics, actions that would have made the Chicago Police blush.  Yet here too, a 1st Amendment angle was missed.  No, not the argument about bloggers being journalists: McGurn strongly supports Gizmodo’s argument that bloggers are in fact journalists and thus eligible for the same protections as more traditional media organizations.

Media types will argue – with some credibility – that for both historical and for good public policy reasons, the press MUST have a special place under the 1st Amendment.  And a problem – a serious one – for those opposing this view is a quick reading of the 1st Amendment itself, namely something about “Congress shall make no law … abridging the freedom of speech, or of the press”. This space today is not intended to be the place to debate the issue, suffice for now to say pretty clearly that the Amendment applies specifically to the press – not just freedom of speech.

But again, that issue is for another day.  Citizens United seemed to get under skins not for any challenge to the press, but to a seeming elevation of the 1st Amendment protections for speakers who were NOT the press.  To many observers, that in turn, seemed to challenge the “special” place of the press in American society simply by even hinting that others might share similar rights.  William McGurn in the Wall Street Journal put it this way:

These days, alas, too many journalists and politicians assume that a free press should mean special privileges for a designated class. The further we travel in this direction, the more the government will end up deciding which Americans qualify and which do not.

I think this is an apologist’s perversion of Citizens United.  As a lawyer working with and for new media individuals and companies, I am sympathetic to the arguments for a robust 1st Amendment and, in particular, special protections (including “shield” laws) for the press.  Kinsley and McGurn both offer excellent perspectives on the harm done to the press by the press itself with arguments and assumptions, to the effect, that (a) by virtue of these protections, “the press” must be given unquestioned and great deference and assumptions of infallibility – and immunity from laws such as libel, and (b) the idea, blossoming with blogs and microblogs and reduced barriers to entry into media through online publishing, that anyone who “publishes” is a journalist – and therefore is automatically eligible for these great protections.

Nonetheless, sensitivity to these problems must still recognize the realities of “new media”, a field which potentially includes a publisher group a LOT broader than news media and bloggers.

Spend any time on the Internet and – like the naif in the ‘Casablanca’ gambling room dumbfounded when the wheel comes up 22-black twice in a row – one’s bound to ask, ‘Say, are you sure this place is honest?’

This sort of thing seems oddly hilarious and at the same time naïve in the same way as the fool in Casablanca, in whose defense one could at least say it was a different time.  Last I checked, there was no giant sign over the entrance to the internet saying “tread warily here”, although Felten’s point about the sensitivity of individuals to words being written about them is hardly a new concept.  Just one small point of reference: I handle a fair amount of pre-publication review of publications for libel (i.e. in advance of actual publication), and one thing I usually drill into my publishing clients is being somewhat sensitive to the litigatory likelihood of the person about whom words are being published.

I’m not saying shy away from controversial journalism, and it’s advice that probably did not compel the muckracking vision of Woodward and Bernstein or the “American Century” mantra of Henry Luce.  Nonetheless, don’t ask a libel lawyer for advice unless you’re willing at least to consider whom you’re writing about if one of your goals is simply to avoid getting sued.

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

A third and possibly even more “magical” contribution of the internet to the law of libel involves imaginative expansion of the types of publishing that can be libelous.

Example number one is a suit Felten writes about against Yelp by a California veterinarian, claiming that Yelp’s rating system results in fraudulently produced and therefore libelous reviews of services (such as the veterinarian’s) derived from rankings that are at least partially driven by competitor’s purchasing of Yelp local advertising.  Yelp defended its case and its rating system, arguing that its reviews are “completely independent of advertising – or any sort of manipulation.”  With thinly veiled sarcasm, Felten notes that Yelp coupled its vigorous defense with a simultaneously announced discontinuance of the challenged ratings process based on advertising.

Much of libel litigation on the internet – and much of privacy law, and similar torts involving personal reputation and privacy matters generally – focuses first on the “outing” of anonymous bloggers, commenters and other sources of allegedly defamatory commentary, product reviews, critiques and what not.  That anonymity, in turn, owes its robustness to the late-1990s Communications Decency Act (CDA) and Digital Millennial Copyright Act (DMCA) laws protecting internet service providers and website operators from liability for copyright infringement or defamatory conduct of users of the operators’ web forums, chat rooms, product review pages, YouTube and on and on.

So, on the one hand there are the ISPs and websites (AOL in the early years, Craigslist and Roommates.com in more recent years) taking advantage of the largely “see no evil” legal protections accorded by laws like the CDA and the DMCA: That is, with only modest simplification, as long as the copyright infringer or defamer is an unrelated third party user of the website, the website operator is immune from liability.

That is the one hand.  The “other hand” view is not exactly “opposite”, but it may be moving to be different. While the national default position remains quite protective of operators’ right to refuse to disclose users’ names and identities, recent state appeals court cases – including a leading early 2000s New Jersey case, Dendrite, the more recent Brodie case in Maryland, and Solers in the District of Columbia  - have chipped away at the efforts of website operators to extend their CDA and DMCA legal immunities to include non-responsibility for identification of anonymous content posters.

But with the exponential increase in lawsuits filed over libel and other torts for online activity, one might expect a continuing degradation of these protections for website operators under the withering onslaught of contributory and/or vicarious liability arguments.  The YouTube-Viacom lawsuit goes on (and on, and on, and on) seemingly tackling these very arguments, albeit in the copyright infringement arena rather than libel.

As media lawyers never tire of writing, though, the internet did not do away with the First Amendment and the law is still the law.  So, as David Johnson wrote last year in his “Digital Media Lawyer Blog”:

The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker’s identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama ) (1958) [Citation omitted]; Talley v. California (1960) [Citation omitted]. On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire (1942) [Citation omitted].

The reality is that, even without success of plaintiffs’ lawyers in breaching these powerful immunity barricades, website operators and publishers always have the prerogative of becoming more aggressive in re-writing – and then enforcing – website terms of use.

We do see this starting to emerge with the increasing sophistication of content-sharing services owned by larger and more traditional media organizations (Hulu is a decent example).  With increasingly locked-down commercial control over content distribution, the industry’s arguments about the effectiveness and sufficiency of self-policing against personal privacy torts and reputation torts and copyright infringement could become more and more credible.