Some think the next phase in the check in revolution is coming soon to a couch near you. Entertainment could be the next big thing that draws users to check in and share what they’re doing with others. Services like GetGlue, Miso, and Philo encourage you to share what you’re watching and engage with people doing the same. Besides the social networking incentive to interact with fellow fans of your favorite shows, these applications offer tokens and badges for every time you keep up with the Kardashians or tune in to see what Snooki will do next on Jersey Shore.

Checking in while watching TV sounds like fun, but the question remains: What will it mean for the direction of social media? With badges and rewards, social media is tapping into what many gamers find so appealing: virtual symbols of achievement that show where you’ve been and what sort of character you are.

When playing massively multiplayer online role-playing games (MMORPGs) like World of Warcraft (WoW), the community is equally if not more important than the actual gameplay. A WoW player forges his identity partially based on items he collects. These items determine his character’s appearance and others in the community can learn about his character from them. (You may remember the Mr. T commercials that showed his character, a night elf with his signature mohawk). A character may carry a sword, for example, that can only be obtained by defeating a certain monster in a certain forest of the online world. The item serves as a badge of honor, letting other players know where the character has been and what he achieved while there. They may ask how the player found it, whether or not he could lead them there, or even accuse him of being a hacker who obtained the item without actually completing the quest required to find it.

Social media check-in badges serve the same function for their users. They invite discussion (“I’ve never been to that restaurant, is it good?!”), debate (“season one of this show was definitely better than season two”), and build community (sounds like a cool place, I’ll meet you there!). Look for services like Foursquare and Facebook’s Places to continue taking cues from the gaming world and for further attempts to make everyday life seem more fun based on a gaming model. If I were playing EpicWin on the iPhone, for example, I would score points for finishing this blog post!

Copyright law preempts certain state law personal rights, including misappropriation of someone’s likeness or identity.  For example, the right of an individual to prevent a third party from exploiting that person’s image or voice is trumped when that third party purchased the rights to the sound recordings (i.e. the copyright) of that person’s voice.

Similarly, someone like celebrity blogger Perez Hilton might argue (and did argue in a recent lawsuit, somewhat successfully) that he had protection under copyright law (as “fair use”) to copy someone else’s copyrighted photographs.  And Hilton might further argue (and did argue in that same lawsuit, although not as successfully as his fair use argument) that his copyright claim preempts any attempt by that aggrieved copyright holder to pursue other legal arguments against Hilton.

And THAT, in beautiful incoherent summary, is how Perez Hilton might make some very good law and teaching on federal copyright law!  Like OMG!

Perez Hilton v. X17

In 2007, celebrity gossip blogger Mario Lavandeira, better known as Perez Hilton, was sued by the paparazzi photo agency X17 for copyright infringement in using its photos without permission, nor offering any form of compensation, nor acknowledging where the pictures came from.  X17 sued for copyright infringement and for “hot news” misappropriation.

The term and theory of “hot news” comes from the 1918 Supreme Court case of International News Service v. Associated Press in which the AP accused International News Service of purloining stories that required time, money, and journalistic effort to produce. The news is “hot” due to the fact that the news is of interest largely due to its freshness – or hot-ness.

It’s easy to see why X17 would claim Perez Hilton’s actions constituted hot news misappropriation. Paparazzi are known to camp outside celebrities’ houses and hotspots for hours just to snap one decent picture. For X17, this is the nut of their business.  Inarguably, much value in that business is dissipated if its exclusivity or first-in-time status is lost.

Undoubtedly, too, many of the visitors to Hilton’s site may believe he is the first to feature these photos.

An argument could be made, though, that the celebrity photographs of paparazzi should not legally constitute “hot news”.  It might be noted, for example, the lack of “news” value in the photos, certainly in the sense of comparison with the “hot news” subject matter traditionally protected by the International News Service doctrine.  That question may be litigated in the X17 case, including Hilton’s argument that “hot news” applies only to text (and not to photographs). The immediate interest here, though, is Hilton’s defense argument that X17’s claim of “hot news” misappropriation should be dismissed as preempted by the federal Copyright Act preempted it.

Hilton argued that his use of the photographs was permitted as “fair use”, a claim that would kick in the federal Copyright Act and therefore any claim that the Copyright Act preempts a state law claim of “hot news” misappropriation.  If the Copyright Act did indeed preempt the state law claim, then X17’s claim of “hot news” misappropriation would be automatically rejected.  X17 would then have only a possible claim of copyright infringement, and would have to persuade against an argument of fair use.

California’s Central District Court denied Hilton’s preemption motion, however, ruling that the federal Copyright Act does not preempt California’s state-law “hot news” misappropriation claim.

Copyright Preemption

The court noted that Congress’ 1976 amendments to the Copyright Act did establish the doctrine that federal copyright generally preempts state law claims, but highlighted two important conditions:

1. The work must fall within the scope of the Copyright Act.
2. The rights of the owner claimed under the state law must be equivalent to those rights protected by the Copyright Act.  If any rights other than reproduction, performance, distribution or display of the work are involved under the state law, then the state law is not considered equivalent and thus not preempted.

Put another way: Person A owns copyright to a work.  Person B claims rights to make some use of the copyright work under a fair use or other copyright argument. Person A claims that Person B has infringed Person A’s copyright, and further claims that Person B has violated a non-copyright state law right of Person A – even conceding the validity of Person B’s fair use claim.  Person B responds that Person A’s non-copyright state law claim against Person B is “preempted” by the Copyright Act, and therefore the non-copyright state law claim should be dismissed.  Person A responds that Copyright Act preemption is not applicable in this case because Person A’s state law claim seeks to protect rights that are different – i.e. not “equivalent to” – Person A’s rights under the Copyright Act.

In the Perez Hilton case, the court cited cases where “hot news” misappropriation was found to involve protection of rights other than reproduction, performance, distribution or display.  The time-sensitive, first-to-break-the-story element of hot news, for example, is not a right “equivalent to” the essential rights protected by the Copyright Act.  Nor is the protection of investment from gathering time-sensitive information.

In rejecting Hilton’s claim, the court distinguished misappropriation from copyright infringement.  Misappropriation – or, in plain English, theft – seems pretty much another way of saying copyright infringement.  And there is clearly and obviously overlap, but the essentials of the two claims are different.  As the court noted, the essence of misappropriation is a claim of improper use for a trade purpose, while copyright infringement generally involves improper or unauthorized use for an expressive purpose.

Kind of subtle to the point of seeming meaninglessness, but the distinction does have legal significance as shown in these cases.  The main significance is that the requirements for establishing the two claims are different.  Thus, a defendant in a copyright infringement case could argue – as Perez Hilton argued here – that his use of the copyrighted material was fair use under copyright law.  But if a plaintiff can show misappropriation – that is, access to the “stolen” property, actual taking of the property, and no valid claim of “right” to taking the property under property law – then the defendant’s copyright defense would not matter.

NFL Films

In another recent copyright preemption case, the US Third Circuit Court of Appeals held that federal copyright law does not preempt a state law right of publicity claim in Pennsylvania.  A state law right of publicity claim involves a person’s exclusive right to promote everything about themselves – including appearance and voice.  Like many right of publicity cases, the Pennsylvania case involved a claim of unauthorized or false endorsement of a product or service.

The case was brought by the estate of John Facenda, a man with a particularly distinct voice, one that many football fans referred to as “The Voice of God” for his voiceover work with NFL Films from 1965 until his death in 1984.  Under his contract with NFL Films, Facenda granted NFL Films exclusive rights to use his voice and image for any purpose except an endorsement of a product or service.

In 2005, NFL Films used Facenda’s voice in a TV special on the making of the Madden NFL ‘06 video game.  Facenda’s son Jack sued NFL Films, claiming it had violated his father’s right of publicity by using Facenda’s voice to endorse the video game.  The Third Circuit decision was an appeal of a summary judgment ruling in favor of the Facenda family in the District Court.

NFL Films argued that its rights to exploit the copyright to Facenda’s voice – by way of the rights it obtained under its contract with Facenda – preempted Facenda’s state law right of publicity claim.  The appeals court rejected the NFL Films’ preemption claim, finding that the privacy rights sought to be protected under state law – right of publicity, right to exploit your name and image, right to endorse products – were not “equivalent” to rights protected by the Copyright Act and held by NFL Films under its contract.

As with Perez Hilton, here we turn again to the issue of whether a work is used for creative or commercial purposes.  NFL Films argued that its program was a documentary, and since noncommercial therefore purely expressive – a core copyright subject.  Facenda’s family, however, persuaded the court that the program was essentially promotional material for a commercial product, a video game.  Of some significance to the ruling was determining whether Facenda’s voice had commercial value, something NFL Films was unable to refute.

*            *            *

It might be of interest that Perez Hilton now acknowledges the source of most photos on his site.  That might buttress his fair use arguments, though not likely relieve his exposure to misappropriation claims.  The NFL Films case is conceptually baffling because the commercial nature of the NFL’s self-promotion always seemed so obvious.  Not least including the “Voice of God” wrap-up summaries every Sunday.  Like so many areas of intellectual property law (READ: Tassini), the case might simply argue for better contract drafting rather than any serious reconsideration of policy.  That makes the NFL Films case materially different from Perez Hilton’s since it turns on questions of contract interpretation as much as arcane concepts of copyright.

Although most of your employees may offer advice in the company stores on a daily basis, isn’t allowing all of them to do it on the Internet a huge risk?  Wouldn’t everyone in the boardroom look at you like you were insane?

Best Buy decided to take this risk using Twitter.  One year later, the gamble appears to have paid off.

This July marks the one-year anniversary of Best Buy’s “Twelpforce” (i.e. Twitter help force), a social media experiment in customer service.  Any Best Buy employee can sign up using his or her own personal Twitter account, and whenever they add the hashtag “#twelpforce” the tweet gets added to the Twelpforce feed.  No tweet is added to the feed without the hashtag.

To ensure employee accountability and allow customers to build a relationship with a specific employee, each tweet posted on Twelpforce includes a signature at the end indicating the personal Twitter account of the employee.  Of course, not all employees sign up using their personal account.  They can create a new account with a name like “TwelpFromBob” to use just for Twelpforce contributions.  To date, over 2,500 employees have signed up to become part of the Twelpforce.  The account has over 28,000 followers and has generated over 31,000 tweets.

How does this work?

To understand how this thing works, we looked at some examples directly from the Twelpforce feed:

On July 23 @DespicableP tweeted:

@twelpforce Do you have any suggestions on fashionable ipod speakers?

A few hours later, this tweet showed up on the Twelpforce account:

@Despicable P This speaker dock by iHome is one of my personal favorites: http://bit.ly/cf96wy via @agent1834

In addition to recommendations, members of the Twelpforce answer tougher customer service questions.  Check out the following exchange, for example, from July 22:

@TWELPFORCE Hi, I am having problems with the geo location on my iphone … i am WAY off where I really am. anything I can do to correct it?

@PhoeLam have you turned on the GPS function? It will drain more battery, but be more accurate. via @bernierjohn

@PhoeLam Under Settings->General->Location Services (On/Off) Turn on for better Location… via @bernierjohn

In an age where most customer service hotlines consist of button pushing your way through five different menus just to reach the smooth jazz hold music, it’s nice to know that there are real human beings on Best Buy’s Twitter account who want to help.

Who Participates?

Best Buy marketed Twelpforce as if a small army of their employees wants to help every customer, as shown on this YouTube clip. The reality is a little different. On a given day, it appears that about ten to fifteen different Best Buy employees post on the Twelpforce feed.  At least five or six of those employees are Twelpforce regulars who answer numerous questions everyday.  The rest of the posts come from a variety of employees who may post one or two tweets and then not post again for a week.  Regulars include both of the Twelpforce responders from our examples above, @agent1834 and @bernierjohn.  As shown on their Twitter account home pages, @agent1834 is a member of Best Buy’s Geek Squad, the company’s technical support team, and @bernierjohn is John Bernier, the Digital Product Line Manager and Social Media Steward for Best Buy. Bernier essentially runs Twelpforce.

So what does it mean if only the man in charge and a handful of others contribute to the Twelpforce from day to day?  On the one hand, it means customers may not receive an avalanche of responses to one question, which may or may not be helpful.  Perhaps getting one response is better than getting buried with directly conflicting statements on store policy or how to resolve an issue.  Then again, fewer responses mean fewer options for a customer to choose from.

On the other hand, customers dealing with only a small number of Twelpforce members allows for all parties to build a relationship.  Even huge companies have learned that Twitter is better used for building relationships than for pushing products.  Best Buy customers appear to appreciate the Twelpforce, as they often tweet thank you notes and encourage others to take advantage of the service.

One critic early-on lamented a predicted lack of continuity in responsiveness.  Or in other words, the idea behind “relationship” or “community” building is terrific, but by definition the ability for any Best Buy employee to weigh in almost guarantees lack of consistency in individual responsiveness.  The relationship (if good) would tend to be with the knowledgeable and helpful individual staffer rather than the vast maw of Best Buyers.

One year after its start, an informal scan of press and Internet chatter about the Twelpforce remains positive.  The Twitter account clearly has some practical value to customers and (though more difficult to determine) marketing value for Best Buy.  Many people now credit Best Buy with setting the standard for customer service on social media.  With other large store chains like Kohl’s (@Kohls_Official) embracing the model, it seems only a matter of time before every company big and small feels the competitive pressure to offer support in 140 characters or less.

The domain name question in trademark is whether and how one can use established trademarks in domain names, in other words using the “LEXUS” trademark in your website URL when the use is anything but incidental but rather intentionally drawing on the value of the valuable brand.

Toyota, owner of the Lexus car brand, had sued to stop the auto brokerage from using the “LEXUS” trademark in the brokerage’s websites listed under “buy-a-lexus.com” and “buyorleaselexus.com”.  The brokerage defended its actions by arguing that the use of “LEXUS” was permitted (that is, non-infringing) as a fair use of the trademark.  Or as Judge Alex Kozinski explained in his appeals court opinion, the trademark was used to “refer to the trademarked good itself”.

This is the “nominative fair use” doctrine of trademark law.  In (hopefully) plain English, the defendant makes no argument to counter a trademark owner’s typical claims of trademark infringement such as likelihood of confusion or dilution of trademark and so forth.  Instead, the use of the trademark is permitted as a fair use since the use simply (and only) identifies the trademark.  Toyota did not dispute the legality of the brokerage’s business nor its authority to broker and sell Lexus vehicles.  The Lexus auto brokerage could therefore successfully argue that use of the “Lexus” was necessary to identify the product being sold.

Further to its case, though, the brokerage could argue that the use of the trademark implied no sponsorship or endorsement by the trademark owner, Toyota.  Among other things to this point:

[They] did not run their business at lexus.com, and their domain names did not contain words like “authorized” or “official.” … Reasonable consumers would arrive at the [brokerage] site agnostic as to what they would find. Once there, they would immediately see [a] disclaimer and would promptly be disabused of any notion that the [brokerage] website is sponsored by Toyota.

When Use of Trademark in Domain Names is Not Fair Use

It is not correct to conclude that this creates open season for use of trademarks in domain names.  Quite the contrary.  As Judge Kozinski noted in the Toyota case, “When a domain name consists only of the trademark followed by .com, or some other suffix like .org or .net, it will typically suggest sponsorship or endorsement by the trademark holder.” (emphasis in original)

And that – the suggestion of sponsorship or endorsement – is the crux of the test for nominative fair use in trademark: “The nominative fair use doctrine allows such truthful use of a mark, even if the speaker fails to expressly disavow association with the trademark holder, so long as it’s unlikely to cause confusion as to sponsorship or endorsement.”  It is in fact quite common to find permitted use of established trademarks in domain names, where typically the absence of sponsorship or endorsement is clear.  Judge Kozinski offers these examples:

You can preen about your Mercedes at mercedesforum.com and mercedestalk.net, read the latest about your double-skim-no-whip latte at starbucksgossip.com and find out what goodies the world’s greatest electronics store has on sale this week at fryselectronics-ads.com.

Creating More Confusion than it Resolves?

That is, at least, the opinion of one thoughtful commentator, Rebecca Tushnet. Tushnet notes that typically, demonstrating nominative fair use is the responsibility of the defendant.  However, she argues that in the Toyota case, Judge Kozinski shifted much of this burden to the plaintiff, requiring the defendant only to show that the use was nominative, that is: simply referring to the trademark.  It is the plaintiff who must DIS-prove the necessity of the use for the fair use purpose, and must show a “likehood of confusion” (a standard trademark infringement claim) by proving that the use of the trademark suggests sponsorship or endorsement:

So what exactly happens when a defendant shows that its use is referential? Apparently a plaintiff then has to show that the use is likely to confuse by showing that the use, while nominative, is not necessary (with necessary being defined broadly), uses more of the mark than necessary and/or suggests source or sponsorship. Even aside from the factor-three problem, this raises various questions. For example, what if the plaintiff shows that the use is not necessary even under a broad definition of necessary. Because the nominative fair use test is a substitute for the regular confusion test, does the defendant automatically lose, or do we then hold a confusion inquiry?

Tushnet makes a good point, particularly because there is a good deal of FACTUAL discussion (and rejection) by the court of Toyota’s claims of likelihood of confusion.  As Tushnet comments about Judge Kozinski’s views on use of  “a domain name consist[ing] only of the trademark followed by .com” as clearly infringing,

[The court’s] rule only works if courts are very confident of their ability to assess context and also very confident that consumer understandings of domain names remain static – as Judge Kozinski evidently is.

“All Songs Considered” was recently featured in The Washington Post as gaining the reputation of an indie rock tastemaker. Though perhaps not as scientifically sound as other methods, a comparison of the show’s Facebook page to that of other indie music blogs affirms this characterization. Indie music blogs Indie Rock Café and Stereogum respectively have 4,098 and 3,622 “Likes” on their Facebook pages. “All Songs Considered” has 12,839.

Is such a comparison even fair when considering NPR’s advantages? Probably not. Most indie music blogs do not have national radio shows, fully equipped studios, and salaried employees. NPR has clearly learned, though, from how these popular blogs engage an audience. Both Facebook and Twitter enable fans to comment on what songs they love or which new artist should be featured, while web polls allow NPR to track what listeners are enjoying the most. One recent episode of “All Songs Considered” focused on listeners’ picks for the best music of 2010 so far. Fans cast thousands of votes on the NPR Music website.

With “All Songs Considered” embracing a new media model and receiving a good deal of exposure for it, NPR helps to bridge a generational gap between young people and their parents. For those of older generations who do not download podcasts to their iPhone, they may end up reading about “All Songs Considered” and NPR music in The Washington Post or The New York Times (read the New York Times article here). The articles discuss the prominence of the website, podcasts and new iPhone application, so they may put down the paper and go to their children and grandchildren, asking, “How can I download a podcast?”

In this way, the rise of the program represents a recurring cycle in our society today: the new media attracts the traditional media and the traditional media audience is in turn drawn to the new media.

Stay tuned to see whether or not this leads to 20-year olds and their parents listening to the same music.  Fondly do we hope, fervently do we pray ….

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.

The candidate must be interested in new media and social media and communications.  Our business is a small law firm, so an interest in law is nice, but the individual need not be a lawyer (nor even a law student).

The internship would be paid, and part-time but on a regular weekly basis beginning as soon as possible and continuing into the summer and most likely beyond that into the fall as well.

We are looking for someone to assist with various social media and communications functions for the firm, as well as the more typical research and writing projects and various innovative things we’re trying to do.  We are not really looking for a lawyer because this will not typically be legal work.  We are looking for someone smart but creative, someone obviously looking for some work and to do some innovative things.  We can also tailor the job a bit to the personality of the person who does it, thought we do have some specific needs.

There will definitely be some tedious parts to this, involving boring research and legwork on various projects, but we intend to also make this attractive.

Interested people should please contact Andy Mirsky via the contact points on this site.  Thanks so much!

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 e 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.

The first will be Monday April 19th at 2pm, and called “Is this Barack Obama’s Real Facebook Page? Domains, Twitter Handles, Online Presence – real or fake? Intellectual Property, Cyber Identity, and More!”.  I will be joined on the panel by Jason Torchinsky of Holtzman-Vogel, Matt Sanderson of Caplin & Drysdale and Neal Seth of Baker Hostetler.

The second will be Tuesday April 20th at 10:30am, and called “Laws Affecting Digital Communications – Copyright, Privacy, Elections/FEC, Advertising, Libel, Contract Law, etc.  Rules, Regs, Fines and Community “Standards” Applicable to Communicating in Digital Media.”  On this panel, I will be joined by Jason Torchinsky of Holtzman-Vogel and John Stewart of Crowell & Moring.

Details at polc2010.com/.