By Justin Silverman

I’m not one for local news broadcasts. When I do watch, it’s to enjoy the unintentional humor brilliantly parodied by those like the Onion News Network. But WHDH-TV’s Pete Bouchard recently made me reconsider the comedic opportunities of local news, delivering an instant classic one-liner that quickly found its way onto YouTube.

During an on-air forecast last month, Bouchard said: “Picking up some snow are we? Yes we are. In Princeton we picked up 9 inches of snow and in Billerica we had 7.” Then, delivered with a pause and an eyebrow raise, Bouchard boldly stated, “The biggest amount I could find—almost as big as me—about 9 inches.”

For a TV meteorologist to reveal his most private of measurements, would take, eh, balls. It’s more likely, though far less funny, that WHDH’s explanation is true. Still, finding the humor, I quickly posted the YouTube clip to my Facebook page. But before my friends could share in the laugh, a takedown message appeared where the original clip once did: “This video is no longer available due to a copyright claim by WHDH-TV.” Apparently Channel 7 isn’t interested in advertising the size of its weatherman’s weather vane.

Fortunately others are, and the clip lives on. But, the fact that it was removed from YouTube at all is a frustrating lesson in the Digital Millennium Copyright Act. Under the DMCA’s safe harbor provisions, websites are protected from copyright liability for hosting videos posted by users so long as they promptly remove the infringing material when notified by the copyright holder. WHDH didn’t want its weatherman creating a storm, so as the copyright owner of the news program it could request that YouTube pull the video from its site.

The DMCA’s notice-and-takedown mechanism puts the onus on the individual who posted the material to send a counter-notice asking that the material be put back up and usually raising some defense to copyright infringement, such as fair use.  In this case there’s a fairly strong argument that the 27-second clip of Bouchard is fair. The amount of the original broadcast used is very small, the purpose of the clip is to spur public discussion, and there is arguably no effect on WHDH’s news market. It’s likely WHDH either didn’t consider fair use before ordering the clip’s takedown, or it simply didn’t care.

Either way, this lack of concern for fair use is common: A music publisher tried to silence a critical podcast. A blogger sought to block an advocacy ad. Opponents of same-sex marriage looked to remove an unflattering YouTube clip. These and other “Takedown Hall of Shame” inductees likely think that it is difficult to punish a copyright holder for failing to consider fair use (it’s hard to prove), and probably take comfort in the fact that many ordinary Internet users lack the knowledge, time, or resources necessary to challenge the takedown.

The Electronic Frontier Foundation has always been at the forefront of the effort to turn this situation around.  EFF tackles the problem both by training public attention on abusive takedown practices and through litigation aimed at recovering money damages and legal fees from bad actors. It looks like there might be a decisive ruling soon in the most high profile of this latter category of cases, Lenz v. Universal Music, which is pending in federal district court in California.

The facts are probably familiar to most. EFF represents Stephanie Lenz, a Pennsylvania mom who created a video of her then-13-month-old son dancing to Prince’s “Let’s Go Crazy” in the kitchen of their home.  She uploaded it YouTube, and counsel for Universal music sent a takedown notice. Lenz got help from EFF, the video went back up, and she sued Universal for violation of 17 U.S.C. § 512(f), which creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice.  The case is notable because, in August 2008, the court denied Universal’s motion to dismiss the case, ruling that it had a duty to consider fair use before sending the takedown notice.

EFF is now asking the court to grant summary judgment in Lenz’s favor, which would determine key issues in the case without the need to have a trial.  According to one press account, in a December hearing EFF told the court that Lenz is entitled to over $430,000 in legal fees and other damages. At that hearing, Federal District Judge Jeremy Fogel indicated that he would rule in January, so a decision may be coming any day.

There is not a lot of precedent in this area (but see one of our favorites, Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004)), but if Lenz’s suit succeeds, a threat of damages would hang over every takedown notice, significantly altering the risks and incentives involved.  To me, requiring copyright owners to make a good-faith evaluation of fair use before shooting off a takedown notice seems like a reasonable check on the power of big content. But some commentators have expressed reservations. Although he supports EFF’s effort, Peacefire.org founder Bennett Haselton offers a couple counter-arguments: Small, independent artists would be deterred from issuing legitimate takedown notices if one mistake could levy a crushing damages award. Further, he writes, large attorney’s fees don’t just discourage frivolous lawsuits, but also non-frivolous suits in which there is a chance of losing.

To Haselton’s points: The language of § 512(f) requires bad faith. The copyright holder must “knowingly materially” misrepresent the infringement claim before incurring liability. Judge Fogel’s previous ruling made this point clear: it is the copyright owner’s subjective belief that determines section 512(f) liability, not an objectively reasonable assessment of what fair use permits. If applied correctly, this rules out liability for honest mistakes, whether on the part of an independent artist or a big record company.  While this may help assuage the fears of content owners, it also means that it may be extremely difficult to win a § 512(f) case like Lenz’s.

EFF, for its part, believes its claims against Universal have a good chance of succeeding. During the hearing in December, Universal argued that Lenz didn’t suffer any economic loss in the case and isn’t entitled to any damages. EFF countered: That’s not the point. It’s deterrence that’s the goal.

We’ll be keeping our eyes on this one. It’s a cause that even Bouchard may appreciate. Among the pastimes listed in his video bio are woodworking and, yes, watching YouTube videos.

Justin is president of the Media and Communications Law Society. He is also an intern at the Citizen Media Law Project where his posts can be read. Visit CMLP’s blog here.

By Justin Silverman

A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger’s “Flagpole Sitta.” In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the song’s end.

Sean Nelson, the frontman for Harvey Danger, wrote to Vimeo’s co-founder Zach Klein: “That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you’s.”

The problem, however, is that some of the friends mouthing those catchy lyrics were employees of Vimeo. Several record labels working under the EMI Music group filed a complaint on December 10, 2009, alleging that Vimeo not only hosts high-quality, full-length recordings of their music, but also “actively encourages” and “induces” its users to post that music as part of original work, most commonly “lip dubs.” No doubt based on videos like the one above, the complaint also alleges that Vimeo staff participates in “making, selecting, commenting on, and at times choosing to delete audiovisual works that comprise the Video website.”

EMI is pointing fingers at videos like this, this, and this as evidence of the site’s infringement and awareness of that infringement. That awareness is important because it could distinguish this case froma similar one against Veoh.com, in which that video-sharing site found protection under the Digital Millennium Copyright Act’s “safe-harbor” provisions. Those provisions prevent sites from being liable for the copyright infringement of their users so long as they promptly remove infringing material once notified by the copyright owner. In any event, Vimeo is refusing to remove the videos in question. Klein called lip-dubbing “harmless” and “fun.”

But a more pressing question: Is it also fair?

Take the following video for example. A couple aboard a plane passes the time by recording themselves lip-syncing Elton John’s “Rocket Man.” Copyright law gives the original producer of a sound recording certain exclusive rights in the work. 17 U.S.C. §106. This means that, unless Elton John or his label permits “Rocket Man” to be reproduced, distributed or performed publicly—that includes online—anyone who does so infringes the copyright and could be liable unless the use qualifies as a fair use.

So, the couple that made the video incorporating “Rocket Man” may be infringing, but their use may be fair. EMI is targeting Vimeo instead of the couple, but to the extent their use is fair Vimeo would likely be off the hook.  Fair use permits uses of copyrighted materials considered beneficial to society.  These uses include those for “purposes of criticism, comment, news reporting, teaching, scholarship or research,” 17 U.S.C. §107, but there is no hard-and-fast litmus test.

To determine whether fair use applies, courts consider four well-known factors: (1) The purpose and character of the use, including whether the use is of commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.

Though work done for commercial purposes doesn’t preclude a fair use defense, it does weigh against the defendant. Campbell v. Acuff Rose Music, 510 U.S. 569 (1994). Lip dub videos by themselves aren’t commercial. They are made for fun and shared with no expectation of profit. Vimeo, however, is a commercial website, and it features videos to attract viewers and advertising revenue, something EMI is at pains to point out in its complaint.

Either way, a case could be made that these lip dubs are transformative, meaning they differ from the original work in a way that creates new meaning. Adding video arguably turns the original sound recording into a new expression altogether. Elton John’s “Rocket Man” becomes less about the music when it’s accompanied by two people rocking out on a plane. The viewer is no longer concerned with the music and lyrics, so much as how the people look when singing the words. The thrust of the new work is humor: the humor in watching ordinary people mouthing the words of big pop stars in incongruous places while engaged in incongruous activities.

Not convinced? Consider the choreography that’s behind the Harvey Danger lip dub or how ridiculous this girl looks trying to sing along to The Proclaimers. That type of creativity transcends the audio and creates something new altogether.

A problem for Vimeo, though, is Elton John’s work is also creative. Under the second fair use factor, the more creative a copyrighted work is, the more protection it generally receives. Consider a creative spectrum with static on one end and Mozart on the other. Elton John is clearly more Mozart than static and the court will likely, in this respect, favor EMI’s interest in protecting his work.

On factor three, lip dub videos generally use the entire copyrighted recording, which also weighs against fair use.  This might also weigh against Vimeo on factor four, the effect on the market (or a potential market) for the copyrighted work. If a court determines that fewer consumers will buy the original recording because lip dubs make the whole thing available for free online, that’s bad for Vimeo.  On the other hand, who would actually substitute a goofy lip-synch for a legit copy of the song that can be played on a home stereo or portable mp3 player? Maybe it’s not as outlandish as it sounds—one could simply play the video, minimize the window, and enjoy the original, high-quality recording without watching the performers. Rather than paying 99 cents to iTunes, one could strip the song from the video and create a new track, ready for shifting to that mp3 player. Copyright law exists to protect the economic interests of creators. Do they stand to gain or lose from lip dub videos? You get a sense of why factor four of the fair use test can be tricky sometimes.

Video sites have a history of featuring material that may not be protected by fair use. Wanting to hear a song by The Roots one night, but in the car and unable to purchase it, I accessed YouTube on my iPhone and played one of several videos that used the entire song while showing nothing more than the cover art to Rising Down. This is clearly the type of “video” that should be challenged, but I don’t think lip dubs are the same. They have independent value. They are creative. They transcend the copyrighted material and become something new. At the very least, they’re funny. Although I’m skeptical a court will favor this type of expression over what may be the economic interests of copyright holders, I do hope that in some way, on some site, lip dubs will stick around.

Justin is president of the Media and Communications Law Society. He is also an intern at the Citizen Media Law Project where his posts can be read. Visit CMLP’s blog here.

By Justin Silverman

“I’m willing to admit that the policeman has a difficult job, a very hard job. But it’s the essence of our society that the policeman’s job should be hard. He’s there to protect, protect the free citizen, not to chase criminals, that’s an incidental part of his job. The free citizen is always more of a nuisance to the policeman than the criminal. He knows what to do about the criminal.” — Orson Welles

Orson Welles said these words in a 1955 BBC program called Sketchbook, during which he spoke of, among other things, the role of police. In light of a string of arrests made by Massachusetts police under the state’s wiretapping law, his words seem especially relevant. The free citizen—in this case, the individual recording public law enforcement—is unfortunately considered a nuisance, and a law created to protect the free citizen is now being used against him. 

That law is the Massachusetts wiretapping statute,MGL Ch. 272 § 99. Its preamble clearly outlines two goals: To allow law enforcement to listen to the private conversations of those suspected of organized crime, and to protect everyone else from having their private conversations recorded. To protect those private conversations, the law requires all parties to consent to the recording. That means, for example, a reporter cannot legally record a telephone call unless the source on the other end gives permission to do so. (There is an exception for police investigations; a police officer can record a conversation if he/she is a party to the converstation or obtains the consent of one party to the conversation. See § 99(B)(4) (defining “interception”).) Most states, however, allow recording with only one party’s consent. But not Massachusetts, and that’s how those like Simon Glik end up in jail.

Boston police arrested Glik in 2007 when he began recording three officers struggling to pull a plastic bag from a teenager’s mouth during an apparent drug bust. Thinking that the force used by the officers might have been excessive, Glik, a lawyer, used his cellphone camera to record the incident as it played out in public view near Tremont Street. Finding his curiosity to be a distraction, the officers arrested Glik under the wiretapping statute because his recording captured audio, and they hadn’t consented. See, police are trained on how to make a drug bust and how to treat a criminal. They are not trained on how to treat a law-abiding citizen whose camera phone may be distracting or embarrassing. That citizen, like Glik, is the nuisance referred to by Welles.

An article last week in the Boston Globe suggests that such arrests are becoming increasingly common. It’s unfortunate. The recording of a public arrest is clearly not one of the “grave dangers to the privacy of all citizens” the authors of the wiretap law sought to prevent. A court eventually dismissed the charge against Glik, finding that using a camera in plain sight doesn’t constitute a “secret” recording as required by the statute. Still, the freedom to openly record is not enough. Those who secretly record, like Michael Hyde, are still vulnerable.

Hyde used a hidden device to record the police who pulled him over in 1998. For reasons that aren’t clear, the officers ordered Hyde from his vehicle and began to search him. Hyde and the officers exchanged profanities, but the officers let him go. Upset about the incident, Hyde filed a complaint with the Abington, Massachusetts police department and provided the recording to support his claims. A subsequent internal investigation exonerated the officers of any misconduct, and the department filed a criminal complaint against Hyde for violating the wiretap law. The Supreme Judicial Court upheld the conviction because Hyde made the recording secretly.

Professor Eugene Volokh put it well when he criticized the result of the Hyde decision: “the law aimed at protecting privacy ends up wrongly restricting people’s liberty, and people’s ability to protect themselves against police misconduct.”

The wiretap law reasonably protects private individuals with an expectation of privacy from having their conversations recorded. But it should stop there. It shouldn’t bar the recording, even if done secretly, of anyone acting without an expectation of privacy or carrying out a public duty (at least theoretically) in the public interest. Both of these conditions apply to police officers. Whether pulling a car over on a public road or pulling a bag out of a teenager’s mouth in the middle of a street, police have no expectation of privacy. They are acting in public and—by definition—in the public interest. There are strong First Amendment grounds to support recording in these circumstances and Massachusetts should acknowledge them. (Read a recent law review note on the topic here.)

Police know what to do about the criminal: Use the wiretap law how it was intended and gather evidence of organized crime. It’s what to do with the camera toting, though law abiding, citizen that seems to baffle them. Here’s a suggestion: Leave him alone. There is little doubt that recording the police will make their jobs more difficult, perhaps even very hard. But, like Welles said, the policeman’s job should be hard. They are responsible for protecting the freedom of citizens even when they consider that freedom to be a nuisance.

Justin is president of the Media and Communications Law Society. He is also an intern at the Citizen Media Law Project where his posts can be read. Visit CMLP’s blog here.

By Justin Silverman

There are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and§ 422.  These two laws don’t address same-sex marriage, discrimination, or even access to courts, as you may have expected.  Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person.

The Justices should take comfort in these laws. They are significant because the opportunity to view what could be a watershed case for gay rights is being prevented by a concern for the safety of witnesses.  Ironically, those witnesses do not happen to be the persecuted homosexuals of bygone days, but instead those who now support a state measure to deny same-sex couples the right to marry.  The trial began yesterday in San Francisco, and U.S. District Judge Vaughn Walker originally agreed to a delayed broadcast of each day’s proceedings on YouTube.  But yesterday the Supreme Court issued an order (.pdf) temporarily stopping the broadcast at the request of Prop 8’s supporters.

“The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence,” according to the petitioner’s application for a stay (.pdf).  “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube.”

So, despite the Ninth Circuit Judicial Council’s decision (.pdf) last month to allow cameras in district courtrooms on an experimental basis, this already highly publicized case may not be viewed by the public—well, most of the public as there are, in the Court’s defense, a whopping 20 seats available.  The rest of the world can either cram into other rooms of the courthouse to see real-time streaming of the trial or remain in the relative dark relying on text-only accounts.

Rather then spending time on the virtues of cameras in the courtroom, let me just say that my support for them is rooted in both a desire for transparency and the practical concern best worded by an old journalism professor of mine: What good is giving the press freedom if it is not allowed to use the tool of its trade?  In this case, that tool is a video camera.  Similarly, law enforcement has many tools of its trade, the most important being the law.  In California, the law includes prohibiting the very acts Prop 8 supporters and—apparently—the Justices are so concerned about.  Perhaps it’s too much to ask, but can we just let both journalists and police do their jobs?

By staying the broadcast of this trial—and impliedly finding that Prop 8 supporters will suffer “irreparable harm” absent a stay—the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement.  In a sense, there’s a backwards Heckler’s Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them.  Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.

And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that “public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast.” Further, “all of the petitioners’ witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan.”

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I’m skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination.  Do they not realize that, without a single camera, the San Jose Mercury Newsis reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak?  That there are already websites identifying Prop 8 supporters and where they live?  Banning a broadcast, I believe, will not change this.  But to allow a broadcast, I’m certain, will further enlighten the debate over same-sex marriage, if not provide insight into our judicial system altogether.

But to help do that, the speaker, regardless of whether they are preaching in a town common or testifying in a trial, should be heard and, in this case, seen. When the petitioners argue that broadcasting the trial would “vastly increase the likelihood” that trial participants would face retaliation, the Supreme Court should acknowledge that this is an unfortunate price for press freedom, and the reason our police officers suit up each day.

Tomorrow is an opportunity for the Justices to do just that.

Justin is president of the Media and Communications Law Society. He is also an intern at the Citizen Media Law Project where his posts can be read. Visit CMLP’s blog here.

By Denise Ouellet

Tired of watching “The North Face” logo transform from a brand of apparel into a status symbol in the halls of his school, Jimmy Winkelmann created his own brand of clothes mocking the outdoor clothing line called “The South Butt.”  Winkelmann’s company uses a logo very similar to that of The North Face but mocks its “Never stop exploring” attitude with an alternative message, “Never stop relaxing.”

As funny as some are finding it, The North Face is anything but amused. They filed suit in mid-December alleging a variety of federal and state trademark violations including infringement, dilution by blurring, dilution by tarnishment, and false designation of origin.

Typically I don’t follow a lot of trademark cases but reading about this case frustrated me. The general consensus is that people know the difference between a “face” and a “butt” and that The North Face is ridiculous for bothering to sue this kid. However, no one has bothered to consider the alternative. Sometimes, yes, it’s nice to be able to point fingers at the “corporate man” for sticking it to the little man but I don’t think that’s fair in this case.

If you’re in The North Face’s position, you HAVE to sue this kid. In trademark law, you don’t get to pick and choose when you decide to protect your mark. You have to constantly police it and prevent others from using or diluting it to maintain strong protection. I think the misunderstandings looming in the articles I’ve been reading stem from the popular misconception that trademark law protects the look and design of a mark. While it is true that trademark law protects “marks” per se, it doesn’t protect what you see. This would fall into copyright law. Trademark law protects something you don’t see. It protects the association consumers have with what they see and the source of that good or service. Remember that power for trademark law is derived from the Commerce Clause of the Constitution and thus requires some basis in interstate commerce to regulate. Protecting the consumer’s association with a good or service is how trademarks are regulated by the Commerce Clause. Trademark protection allows consumers to know that when they see a certain mark, they know it’s a certain brand and therefore they can reasonably expect the same product or service as they have had before.

If you’re a company that owns trademarks and you don’t police your mark, or watch that others are not using it, you can effectively abandon your mark and lose all protection. Therefore, as prudent counsel for the corporation, effectively patrolling use of your trademarks is essential. So if you’re The North Face, you have to protect your mark against this type of alleged infringement or you risk losing all protection the next time an infringer comes along.

By Justin Silverman

Diane Bond, a public housing tenant in Chicago, accused five of the city’s police officers of sexual, physical and psychological abuse in 2004. Her lawyer, University of Chicago law professor Craig Futterman, requested the disciplinary files of the entire force, intending to show a pattern of police misconduct. The files were turned over to Futterman though they were never publicly released because Bond settled with the city in 2007 and the suit was consequently dismissed.

Realizing the importance of those files to the public, journalist-activist Jamie Kalvin petitioned the court to unseal those records. News organizations such as the Chicago Reader, the Chicago Tribune and The New York Times all rallied in support. The court agreed with Kalven’s public interest argument and said it would unseal the records but would first allow the city to file an appeal. That appeal has since been considered and on Tuesday the Seventh Circuit ruled: Keep those files sealed, confidential and undisclosed to the public.

To advocates of open government and those looking to expose police misconduct, the decision is a disappointing one, if not unsurprising. Records of ongoing investigations, such as ones involving police, are usually closed to the public. This is the case in Illinois as well as in nearly all other states. Most states have laws explicitly making records of ongoing investigations closed to the public or instituting a balancing test that favors non-disclosure. Many states, including Illinois, make no distinction between ongoing and closed investigations. That means that even though all investigation and legal proceedings are completed, the records can still be kept secret. Within Illinois and throughout the country, the burden is on the journalist to compel disclosure when, I believe, it should be on the state to convince a court otherwise.

Journalists scored a win this week, however, in New Jersey. An appeals court there ruled that police use-of-force reports are public and cannot be withheld as investigatory records. These reports are completed any time a police officer uses force against a citizen. The court found that because they are required for documentary purposes, not for particular investigations, they do not fall under any public record exemption. Whether or not they would be used in an investigation is speculative and police therefore cannot use that as a reason to keep the public uninformed.

According to The Reporters Committee for Freedom of the Press, there is a concern among city officials in West Milford, where the suit arose, that officers will now withhold information in their reports so it doesn’t become public. This, I argue, would be an affront to the New Jersey attorney general’s requirement that those reports are completed. It would be an intentional rebuke of the spirit of the law and any officer that did this should be disciplined.

Though the New Jersey ruling doesn’t address those records that are part of an investigation, it does provide a small tear in that cloak of secrecy. I think other states should consider amending their statutes to allow the same.

Here are links to the open record laws of each state. Scroll down to “Record Categories — Open or Closed” and then to “Police Records.” There you will find the state’s law on investigatory documents.

By Justin Silverman

Last spring I wrote about Dwight Whorley and his conviction under the federal obscenity statute. The materials in question were Japanese anime-style cartoon depictions of children having sex with adults and emails Whorley wrote describing his fantasies of having sex with minors. Before the obscenity conviction could occur, the materials needed to first be found obscene. The jury determined this by answering a three-part test developed in Miller v. California, 413 US 15 (1973):

1. Would “the average person, applying contemporary community standards” find that the work, taken as a whole, appeals to the prurient interest?
2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by an applicable state law?
3. Does the work, taken as a whole, lacks serious literary, artistic, political, or scientific value?

The first prong of this 36-year-old test focuses on “contemporary community standards.” The community to consider is that from which the juror comes; it’s a local one. Depending on the jurisdiction, that community could be very conservative and what it would consider obscenity may not be considered as such elsewhere. Across the country, under this test, the definition of obscenity could vary greatly. This didn’t pose a significant problem at the time of Miller because publishers knew where they were distributing the material. They were the ones handing out pamphlets or addressing envelopes.

Publishing online or through email poses its own difficulties. Because a website can be accessed in every jurisdiction, its material would be subject to every community’s standard. Justice Stephen Breyer wrote in Ashcroft v. ACLU, 535 US 564 (2002): “Adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the nation.” Similarly, when an email is sent, there’s no way to know where it will be opened. Will the recipient be in a conservative jurisdiction or a more liberal one? How will that particular area judge what is or isn’t obscenity? When Whorley sent his emails describing fantasy sex with children, there was no way for him to know just where those emails would be read or by what definition of obscenity they would be judged. In cases like this, prosecutors could forum shop for the most conservative jurisdiction and ask the jurors there: “Does your community find the material here to appeal to a prurient interest”?

Now, according to the 9th Circuit, that community just got a lot bigger — and consequently, more friendly for defendants.

In United States v. Kilbride, the court last week found that in federal obscenity cases involving emails, a national standard should apply. The defendants conducted a spamming business, in which they emailed at least two sexually explicit images. They argued that before determining whether these images were obscene under Miller, the jury should have been instructed to apply a national community standard. To do otherwise, they said, would subject their emails to the standards of the least tolerant community in the country. This would unacceptably burden First Amendment protected speech. Relying on the concerns of five justices in ACLU, the court found that a “national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.”

That means jurors should no longer ask, what does my community consider obscenity, but instead, what does the country as a whole consider obscenity? That’s a dramatic change in obscenity law — and a welcome one. Publishers can better anticipate the legal consequences of their actions. There is consistency. Though the Volokh Conspiracy questions whether the opinion is on firm constitutional ground, as it currently stands, it will make obscenity convictions much more difficult. Just consider how different pedophilia-themed anime could be perceived: Distasteful. Offensive. Disgusting. This is all protected speech. Obscene? This makes it unprotected and represents the difference between jail time and walking free.

How obscenity is defined still comes down to the average community member’s sensibilities. But with the 9th Circuit’s ruling, that community just grew exponentially.

By Justin Silverman

Keyes

Attorney Kimberley Keyes of Prince Lobel Glovsky & Tye LLP will visit Suffolk Law on Nov. 2 as part of a general interest meeting for the Media and Communications Law Society. All those interested in learning about MCLS and meeting Keyes, a Suffolk Law alumna and lawyer at one of the area’s preeminent media law practices, are invited to attend. The event will be in Room 245 at 5 pm.

Keyes is an associate in the Domestic Relations, Litigation, Media and Intellectual Property Practice Groups. Her diverse practice includes representing clients in all aspects of divorce, modification and contempt actions, litigating civil and criminal cases, and conducting pre-publication review for media clients.

She also helps to staff the firm’s hotline for the New England Press Association.  A journalist-turned lawyer, Keyes was the 2004-2005 McCormick-Tribune Legal Fellow at The Reporters Committee for Freedom of the Press in Arlington, Virginia, where she submitted amicus briefs and formal comments to courts and legislatures advocating for the interests of the news media.

After graduating from Boston University’s College of Communication with a degree in journalism, Keyes spent six years working as an award-winning reporter and editor with MPG Newspapers in Plymouth, Massachusetts, and Mariner Community Newspapers in Marshfield, Massachusetts. She also hosted a cable TV access program on the South Shore.

While at Suffolk, Keyes served as a volunteer defender in the Quincy District Court, and as articles editor of the Suffolk University Law Review. Her note, inspired by her previous career as a journalist and entitled “Freedom Without Responsibility: Do Massachusetts Media Defendants Need the Neutral Reportage Privilege?” was cited by the Massachusetts Appeals Court in Reilly v. The Associated Press, 797 N.E.2d 1204 (2003). She also has published articles in News Media & the Law and The Federal Lawyer magazines, and has co-authored an annual update of access law for the Practising Law Institute’s Communications Law program in New York. In 2006, she presented seminars on Massachusetts access law for MCLE and Lorman Education Services, among others.

Before joining Prince Lobel, Keyes served as a law clerk to the Honorable Francis X. Spina of the Massachusetts Supreme Judicial Court, and to the Honorable Charlotte A. Perretta of the Massachusetts Appeals Court.

MCLS is a Suffolk University Law School student organization, entirely student-run and created in 2009 in accordance with the school’s regulations and those of the Student Bar Association. The purpose of MCLS is to provide all Suffolk University Law School students an opportunity to discuss and learn of topics related to communications law and media policy. Through dialogue and sponsorship of relevant events, MCLS intends to help further the school community’s understanding of this growing and changing body of law. It is also the intent of MCLS to help students with professional interest in this field by creating networking and career advancement opportunities.

By Justin Silverman

Professor Marc Rodwin is hosting a luncheon with journalist Trudy Lieberman at noon on Wednesday in the Suffolk University Law School Function Room. She will be discussing the current state of health care policy as well as its media coverage. Those interested in attending the event, which features a complimentary lunch, can reserve a seat by emailing lparker@suffolk.edu. Professor Rodwin is also inviting any MCLS member to meet Lieberman personally after the event. If you are interested in doing so, please email me at president@suffolkmedialaw.com.

Lieberman

Lieberman, a journalist for 40 years, is the director of the health and medical reporting program at the Graduate School of Journalism, City University of New York. Most recently she was director of the Center for Consumer Health Choices at Consumers Union. She is a contributing editor to the Columbia Journalism Review, a contributor to The Nation, and has written a column about health and the marketplace for the Los Angeles Times. She also blogged on the coverage of health care during the presidential campaign for the Columbia Journalism Review.

She began her career as a consumer writer for the Detroit Free Press where her reporting became a model for consumer writers across the country. She has won numerous honors and awards including two National Magazine Awards, 10 National Press Club Awards, five Society of Professional Journalists Deadline Club Awards, a Fulbright Fellowship to study health care in Japan, a John J. McCloy Fellowship to study health care in Germany, a Joan Shorenstein Fellowship from Harvard University to study media coverage of medical technology, and an honorary doctorate of humane letters from the University of Nebraska. Lieberman is the author of five books including Slanting the Story: The Forces That Shape the News and the Consumer Reports Complete Guide to Health Services for Seniors, which was named one of the best consumer health books for 2000 by Library Journal. She is working on another book about health care in America.

Lieberman has taught media ethics in the Science, Health and Environmental Reporting Program at New York University, has been an adjunct professor of journalism at Columbia University, and was a Beamer-Schneider SAGES Fellow at Case Western Reserve University in 2006 where she has taught courses on media ethics and the ethics of health care delivery. She was appointed the James H. Ottaway journalism professor at SUNY New Paltz where she taught a course on the media and the marketplace. She is president of the Association of Health Care Journalists. She has served on the board of directors for the National Committee for Quality Assurance and the Medicare Rights Center and is a member of the California Health Benefits Review Program.

By Justin Silverman

Looking to terminate intrusive paparazzi tactics, California Gov. Arnold Schwarzenegger amended a privacy law this week to allow claims against media outlets if they pay for any photo or video of celebrities with, among other things, their families spending quality time they consider to be private.

Real-Life Mr. Freeze

The amendment (.pdf) is to a 1998 law that in itself raises First Amendment questions. The original law created a new invasion of privacy standard that held a person liable if he or she attempted to record the plaintiff engaging in “personal or familial activity” under circumstances in which that plaintiff had a reasonable expectation of privacy. Personal or familial activity includes the plaintiff’s “personal life, interactions with the plaintiff’s family or significant others or other aspects of the plaintiff’s private affairs or concerns.”

The law as it was sounded broad: There’s no cut-out for news of greater importance than celebrity minutiae. And this reasonable expectation of privacy? No clarification there, which has me worried given some celebrities unreasonable expectations. Consider Jennifer Aniston in 1999 who argued that privacy included her open backyard even though neighbors need only look out their windows to see her sunbathing topless. Granted, the photographer in Aniston’s case trespassed onto the neighbor’s property, but under this law, trespass was not required. That means a nosy neighbor could have been liable as well. Don’t get me wrong, I’m all about seeing topless photos of Jennifer Aniston, but that’s not why I’m criticizing this law. I’m most concerned with what happens when it’s a celebrity engaged in activity that is truly newsworthy. I don’t like the court making judgments on what is and is not news.

The law, California Civil Code §1708.8, now goes a step further and singles out the media outlets that pay paparazzi for those photos and recordings. Here is the relevant text:

(f) (1) The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) shall not constitute a violation of this section unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold or offered for sale, the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subdivision (a), (b), or (c), and provide compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

So, the law before this amendment prohibited the paparazzi photographer from taking a shot of a celebrity while with his or her family and while that celebrity had the reasonable expectation of privacy. It didn’t matter whether that photographer physically trespassed or not; just zooming in with a camera made it illegal. Now, intending to remove the financial incentive to invading a celebrity’s privacy, the amendment bars any media outlet from paying that photographer for the material. A nosy neighbor couldn’t take a photo of Aniston topless without liability and now a magazine can’t pay that neighbor for the photo without risking a claim. The result? No more topless photos of Jennifer Aniston. That seems to be the general spirit of the legislation.

But what would happen if Aniston and all her former Friends gathered for a night of partying. Does this fall under the familial definition? Is this a private affair? They’re loud, rowdy. Neighbors are complaining. A group of cameramen are able to record the entire incident from the sidewalk because Matthew Perry left the estate gate open. Is there an expectation of privacy? If the answer is yes to both questions, the cameramen are liable for constructive invasion of privacy under the law and media outlets are now liable if they pay for the recordings. But the cameramen aren’t sure if they’ve violated the law and the editors they pitch their material to aren’t sure either. So in fear of a lawsuit, the editors turn down the opportunity to inform the world of this wild reunion. Worse yet, had there occurred news of even higher importance, it too might fall under this law and the editors may still balk.

Some press advocates concede the difficulty in prosecuting under the law. As the title of this post implies, the law may provide less of a tumor on the First Amendment than a headache for those relying on its protection. Still, it casts into question the principle that the press can publish illegally obtained information provided by third parties that is of public concern. Maybe the line to be drawn is the exchange of money for that information. The government’s interest in reducing crime and stopping media organizations from paying those who commit crimes — regardless of whether you think it should be a crime to begin with — seems to be a compelling interest.

The law as it’s written though makes it difficult to know just where the current lines are drawn. In fear of crossing them, the press may play conservatively when handed a photo of a celebrity and that’s exactly what Schwarzenegger, a real-life Mr. Freeze wants: A chilling effect.