US lawmakers to push for online piracy bill

"Blacklisting entire sites out of the domain name system" is a "reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech," it (EFF) said.

Senator Patrick Leahy
© AFP/File Mandel Ngan

AFP

WASHINGTON (AFP) - Democratic and Republican members of the US Congress pledged Monday to pass legislation that would give US authorities more tools to crack down on websites engaged in piracy of movies, television shows and music and the sale of counterfeit goods.

Senator Patrick Leahy, a Democrat from Vermont who chairs the Senate Judiciary Committee, said he would introduce a new version "soon" of a bill designed to combat so-called "rogue websites."

A previous bill co-sponsored by Leahy, called the Combating Online Infringement and Counterfeits Act, was approved by the Senate Judiciary Committee by a 19-0 vote in November, but never made it to the Senate floor.
Leahy, speaking to reporters on Monday, said: "Online infringement and the sale of counterfeit goods costs American creators, producers, and businesses billions of dollars and results in hundreds of thousands of lost jobs.

"This theft is unacceptable at any time; it is devastating in our current economic climate," he said.


House Judiciary Committee chairman Lamar Smith, a Republican from Texas, said: "The success of our economy is in part tied to the success of America's intellectual property industries.

"From movies and music to software and medicine, IP theft drains our economy and puts lives at risk," Smith said.

Leahy and Smith were joined by other lawmakers at the event along with representatives of the entertainment industry and labor organizations.

"The Internet has regrettably become a cash-cow for the criminals and organized crime cartels who profit from digital piracy and counterfeit products," said Representative John Conyers, a Democrat from Michigan.

The Obama administration has come in for some criticism for shutting down dozens of websites in recent months as part of a crackdown known as "Operation in Our Sites."

US authorities in November shut down 82 websites selling mostly Chinese-made counterfeit goods, including golf clubs, Walt Disney movies, handbags and other items.

Leahy said the bill would ensure a judicial review for websites accused of engaging in illegal activities and dismissed claims it threatened First Amendment protections of free speech.

The Electronic Freedom Foundation (EFF) last year decried the previous version of Leahy's legislation as an "Internet censorship" bill.

"Blacklisting entire sites out of the domain name system" is a "reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech," it said.

"I'm very concerned about the First Amendment," Leahy said Monday. "I'm also concerned about theft.

"There is no First Amendment right that protects thieves."

© AFP -- Published at Activist Post with license

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Can The Law Treat A Blogger Differently Than A Print Journalist?

Screenshot of the Cutler Files

David Makarewicz, Contributing Writer
Activist Post

The last few weeks have seen websites and blogs forced to fight back against copyright bullies, frivolous lawsuits and the United States Government.  Now, in Maine, a blogger has been forced to use the First and Fourteenth Amendments to the Constitution to fight back against the State's attempt to use its election laws to penalize him for anonymous posts he made in criticism of a political candidate.

This case raises important issues surrounding whether the law can apply different standards to print and online journalists, as well as whether a blogger has the right to post political criticism anonymously.

The issues arose during last year's election cycle.  While working on the gubernatorial campaign of candidate Rosa Scarcelli, Dennis Bailey created a blog called the Cutler Files, which launched in August 2010.  With the help of Scarcelli and her husband, Bailey used the blog to anonymously launch political attacks on Eliot Cutler, the Independent candidate for governor.

Bailey used the Cutler Files to publish a series of pages urging people to vote against Cutler for reasons ranging from Cutler's "elite private school" upbringing to hints that Cutler's incompetence as government manager "may have led to the deaths of 39 people."

Before the November election, Culter's campaign discovered the site and filed a complaint with the State Ethics Commission, claiming that the blog violated Maine election law as an "expenditure" made on behalf of a candidate that failed to disclose its publishers or state whether or not the blog was authorized by a candidate.

The Commission launched an investigation that led to the assessment of a $200 fine against Bailey for the disclosure violations.  Bailey challenged the decision, but on January 31, 2011, the Maine Commission on Governmental Ethics and Election Practices confirmed its finding that Bailey violated Maine election law and ordered him to pay the fine (copy of decision here).

The Commission found that Bailey violated the law by (a) failing to include his name and address on the website, and (b) failing to include a disclosure on his website that said the site was "not authorized by a candidate."  Additionally, even though Bailey paid less than $100 for the site, which is below the normal reporting threshold, the Commission found that the fact that the site received more than 30,000 page requests in about a month made the site a valuable enough asset to trigger the expenditure requirements.

The Maine Civil Liberties Union ("MCLU") has filed suit on behalf of Bailey, challenging the constitutionality of Maine's election laws as applied to Bailey.  The MCLU released a statement, arguing that fining a blogger for publishing information that the mainstream media was ignoring violates the Constitution.  “Political speech is the heart of the First Amendment,” said MCLU Legal Director Zachary Heiden.  “If the right to free speech means anything, it means that people will not be punished for criticizing candidates or speaking out about political ideas.”

Several Supreme Court cases have held that anonymous political speech is typically protected by the First Amendment.  Thus, a law that penalizes a publisher for failing to provide his name may be on a collision course with the Constitution.

In addition to violating the First Amendment, the MCLU argues that penalizing a blogger for falling short of the expenditure requirements may also violate the Fourteenth Amendment Equal Protection clause by not exempting a blog under Maine's statutory "news story exemption."  Maine law requires a disclaimer only when an "expenditure" is made.  However, 21-A M.R.S.A §1012(3)(B)(1) states that the term "expenditure" does not include:

Any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication, unless the facilities are owned or controlled by any political party, political committee, candidate or candidate's immediate family;

The MCLU claims that bloggers and other websites are not being afforded equal protection of the law because Maine, has written and applied the law to electronic journalists differently than it does to print journalists.  “Maine law has simply not kept up with new technology,” said Heiden.  “Many of us get our news from the internet, and there is no good reason to treat political speech on the internet differently from political speech on television or on the radio.”

The Comission disagreed and found that this exemption does not apply to the Cutler Files blog because the site was only dedicated to a single topic and was only online for a short period of time.  However, the Commission does not articulate why the scope or duration of the publication justifies applying the law differently to bloggers than they do to traditional media.  Maine's interpretation of the exemption is on even shakier ground in light of the fact that a similar exemption has been interpreted by the Federal Elections Commission to apply to websites and other Internet publications as well as print media.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs.  Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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Al Franken: ‘They're coming after the Internet’

Mike Zapler
Politico

AUSTIN, Texas — Sen. Al Franken claimed Monday that big corporations are "hoping to destroy" the Internet and issued a call to arms to several hundred tech-savvy South by Southwest attendees to preserve net neutrality.

"I came here to warn you, the party may be over," Franken said. "They're coming after the Internet hoping to destroy the very thing that makes it such an important [medium] for independent artists and entrepreneurs: its openness and freedom.”

Net neutrality, he added, is "the First Amendment issue of our time."

Receiving a hero's welcome from the liberal crowd, Franken took repeated shots at big telecoms, singling out Comcast.

Read Full Article

RELATED ARTICLE:
6 Threats to Free and Open Access to the Internet

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Media Bloggers Association Stands Up To Copyright Troll Righthaven

It is unfortunate that Righthaven and the companies it "buys" the copyrighted property from are willing to financially wreck a person, often for mere carelessness as they are attempting to add to the public conversation.

Media Bloggers Association

David Makarewicz, Contributing Writer
Activist Post

Today, the Media Bloggers Association ("MBA") filed its Reply Brief in theRighthaven, LLC v. Hyatt case.  The MBA is opposing Righthaven's attempt to convince the Nevada District Court to award it $150,000 in damages, the domain name for blogger Bill Hyatt's website (1ce.org)  and attorneys' fees.

Hyatt was sued by Righthaven last October after he allegedly copied a Las Vegas Review-Journalcolumn titled "FX's Manly Man Shows Hold Outsider Appeal."  When Hyatt did not respond to the lawsuit, he was defaulted by the court clerk's office.

A default is basically the equivalent of an admission of all liability by the defendant.  If the default is not set aside, the Court will skip the trial on the merits of the copyright claim and proceed directly to a determination of the damages against Hyatt.

The MBA, a national bloggers organization, filed an Amicus Brief last month against Righthaven.  An Amicus Brief is filed when an organization such as the MBA is not a party to a lawsuit but asks for permission to file a brief as a "friend of the court" that can offer arguments or information to assist the court in making its decision.

In its briefs, the MBA has argued three main points on behalf of bloggers such as Hyatt:

1.  Righthaven is not a legitimate copyright holder because Righthaven publishes nothing itself and only acquires the assignment of rights to the materials after discovering a copyright infringement that will provide the basis for a lawsuit.  Further, the MBA hints that the wording of the assignment of the rights might include a "reversion" that will restore the property rights to the Las Vegas Review-Journal after the lawsuit is concluded.

2.  The Las Vegas Review-Journal is violating Nevada law by “selling lawsuits” to Righthaven.  The MBA argues that if it is not selling lawsuits, the only alternative is that Righthaven is "simply a law firm in disguise, engaged in champerty."  Champerty is where someone without an interest in a lawsuit makes a financial arrangement by which it will fund the suit in exchange for a share of any verdict or settlement.  Most jurisdictions do not permit the practice.

3.  $150,000 and the loss of a domain name are grossly unfair damages that would violate the Due Process clause of the Constitution.  Among other protections, the Due Process clause ensures that a defendant normally is not required to pay damages beyond the amount the plaintiff actually suffered as a result of the defendant's actions.  In this case, MBA argues that the court should limit damages because of the public interest in citizen journalism and the fact that Hyatt was, at worst, an innocent infringer.  The MBA goes even further with its argument against awarding Hyatt's domain name to Righthaven because of the tremendous value of a domain name and Nevada's laws that prohibit a court from awarding personal property in a copyright case.

Righthaven has opposed the MBA's request to file the Amicus Brief and asked the Court to block the MBA from participating in the proceedings against Hyatt.  The Righthaven opposition filing stated, "MBA is by no means a friend of the court.  MBA is clearly acting in an adversarial capacity in defense of a defendant against whom default has been entered."

The MBA has responded that it is only interested in preserving the rights of the bloggers in its organization, not to act as a secret attorney for Hyatt.  In its Reply, the MBA stated, "Contrary to the insinuation by Righthaven, there is no alliance between [the MBA] and Defendant Bill Hyatt."

Internet publishers need to continue to pay close attention to the rulings that come out of all of these Righthaven cases.  The average blogger does not have the resources to simply buy his way out of a lawsuit like Drudge did last month.  Therefore, it is critical to know exactly what the law will and will not permit him to do with other sites' words and photos and exactly what the consequences will be if he ignores the law.

It is unfortunate that Righthaven and the companies it "buys" the copyrighted property from are willing to financially wreck a person, often for mere carelessness as they are attempting to add to the public conversation.  However, if there is an upside, it is that the challenges to these lawsuits, such as this one by the MBA, will hopefully give the Courts the opportunity to create a workable set of guidelines for Internet copyright that eventually puts an end to the uncertainty that allows these extortion schemes to succeed.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs.  Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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Jury Says Blogger Has To Pay For His Words Even Though He Did Not Lie

Blogger Johnny Northside

David Makarewicz, Contributing Writer
Activist Post

On Friday, a Minnesota jury found that a blogger must pay $60,000 in damages because of statements he published in his blog about a public figure who was subsequently fired from his job.  Internet publishers and free speech advocates should pay close attention to this case if it is appealed because the blogger was found liable even though the jury did not find that the blogger's statements were false.

This decision is the latest example of the law's apparent struggle to apply basic constitutional protections to internet publishers.  If the Minnesota ruling holds up, it will mean that bloggers will have to worry they will be forced to pay for true statements that they publish that cause a person damages.


In June 2009, Jerry Moore was fired from the University of Minnesota after blogger John Hoff a/k/a Johnny Northside wrote a blog post criticizing the college for hiring Moore.  In the post, Hoff criticized Moore's previous work as Executive Director of a community organization and linked Moore to a real estate scandal.  In the post, Hoff stated, "Repeated and specific evidence in Hennepin County District Court shows Jerry Moore was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave N."

Following his firing, Moore brought a lawsuit in Minnesota state court (copy of complaint), claiming Hoff was liable for defamation and intentional interference with his contract with the school.  The case went to trial last week and on Friday, the jury returned its verdict in favor of Hoff on the defamation claim but against him on the intentional interference with contract count.

The jury found Hoff was not liable for defamation because they were not convinced that the blogger's statements about Moore were false.  The jury returned the following interrogatory (answer in bold):

1.  Was the statement “Repeated and specific evidence in Hennepin County District Court shows that Jerry Moore was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” false? No

Although it has been reported elsewhere that the jury found that Hoff's statement was true, that is not precisely correct.  The jury found that Moore did not prove that Hoff's statement was false, not that the statement was true.

Since the publishing of a false statement is a basic element of a defamation claim, that finding was enough to defeat the defamation count.  Although the judge had previously ruled that Moore was a limited public figure, which would have also required the jury to find actual malice in order to prove defamation, the jury stopped at the first question and did not make a finding on actual malice.

Moore's failure to prove a false statement seemingly should have been the end of the entire case against Hoff, but it was not.  Even without a false statement, the court allowed the jury to find against the blogger on the intentional interference with contract claim and awarded Moore $35,000 in damages for lost wages and $25,000 for emotional distress.

Generally, intentional interference with contract occurs when someone knows about a contractual relationship and intentionally induces one of the parties to breach the contract.  If the other party to the contract suffers damages, he can sometimes sue to recover his losses.

In the absence of First Amendment protections, this case might be a reasonable example of an intentional interference with contract.  Hoff's blog posts give the impression that he knew about Moore's contract with the college and that his posts were at least partially intended to convince the college to fire Moore, which they did.  However, Constitutional free speech protections should not permit a plaintiff such as Moore to fail to make a defamation case against a publisher, but still be able to backdoor his damages through another claim.

The Minnesota case reminds me of the famous 1988 Hustler Magazine v. Falwell case, in which a jury found that Hustler publisher Larry Flynt was not liable for defamation, but found him liable for intentionally inflicting emotional distress on Reverend Falwell.  Unlike the Minnesota case, the Falwell case specifically focused on a publisher's right to publish satire of a public figure rather than the right to publish direct factual claims, but in both cases, a jury found against a publisher even though they found the publisher was not liable for defamation.

Hustler Falwell Parody

Flynt appealed the case to the United States Supreme Court, who overturned the jury finding in favor of Falwell because the First Amendment demands that the proper action against a public figure is a defamation suit, not a suit for intentional infliction of emotional distress.  The Court reasoned that criticism of public figures, such as Falwell or Moore, is sometimes going to cause unfortunate damages, but this important form of speech must be protected by "a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability."

This does not mean that a publisher is free to say anything about a public figure, whether true or false, without repercussions.  The Court explained that the First Amendment does not allow unfettered speech without any limits and culpability because of the particularly insidious nature of false statements.  The Court stated that a defamation claim, which requires a showing of a false statement, is the appropriate action to bring against a publisher because:

False statements of fact are particularly valueless; they interfere with the truthseeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective.

The same analysis should be applied to the Minnesota case.  Even if Hoff's statements damaged Moore, who was deemed a public figure, if those statements were not false and did not reach the level of defamation, the First Amendment should protect Hoff from having to pay damages.  Allowing Moore to recover for intentional interference with contract is not very different from allowing Jerry Falwell to recover damages for intentional infliction of emotional distress.  In both cases, a jury has ruled that the publisher's speech was not defamatory, yet the plaintiff is awarded the damages caused by that speech.

Legal commentator Eugene Volokh believes that the ruling against Hoff will be ruled unconstitutional if the case is appealed.  He also astutely adds that most states have a rule of intentional interference with contract that states that “One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation, by giving the third person … truthful information.”

Hoff's attorneys have stated they plan to appeal the decision and they should.  If a decision like this is allowed to stand, it could have a chilling effect on bloggers' ability to do the important work of making true factual accusations against politicians and other public figures.

Bloggers and other publishers must be free to expose these true facts, even if those facts bring a public figure down without fear that they will have to compensate the public figure for the fall.  Otherwise, would we find ourselves in a country where Woodward and Bernstein would have to had to pay Richard Nixon for the losses caused by his impeachment and loss of job as President even if they were telling the truth about Watergate?

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs.  Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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