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Suffolk University Law School will host an event where First Amendment Activist, Mary Beth Tinker, will detail the story of a small gesture of protest having an incredible impact. Because of said protest, the Supreme Court eventually ruled that teachers and students do not “shed their constitutional rights…at the schoolhouse gate.” Tinker v. Des Moines, 1969.

This event is sponsored by the Rappaport Center and Suffolk University Law School’s Marshall-Brennan Constitutional Literacy Project.  The vision of the Marshall-Brennan Project is to empower high school students to be responsible citizens and lifelong participants in the democratic process.

Please join us in welcoming Mary Beth on Friday, November 15, from 4-6pm at Suffolk University Law School, 120 Tremont Street, First Floor Function Room, Boston, MA 02108.

To find out more information and RSVP, please click on this link.

Tonight, Monday November 26th at 6pm, Suffolk Media Law hosts a panel event and reception at Suffolk University with Professor Mark Fischer and Mr. Gant Redmon on posting innovative projects to crowd funding resources. What risks that may lie in exposing project details on such fora as Kickstarter and Indiegogo? How can entrepreneurs balance divulging project details to establish authenticity while maintaining their rights? On the flipside, what do you do if you find your rights are infringed by someone on a crowd funding platform?

Join us for an informative and provocative examination of this topic!

Eventbrite: http://suffolkmedialawevent-eorg.eventbrite.com/#

 

Image created by flickr user thetaxhaven used via CC BY 2.0 license.

By Sarah GriffisImage

Patrons’ rights to confidentiality of their library use data have long been upheld by the American Library Association. However, as digital and online resources continue to entice librarians to build finding tools, more and more libraries are utilizing information generated by patrons to enhance their collections and bring efficiency to the pursuit of knowledge. While the goal to connect and describe information is incredibly valuable, there is a palpable fear in the profession of going beyond the intended goal and instead creating pathways that hint at specific users’ library trails.

Librarians’ concern about how emerging digital reliance affects privacy has been considered for over a decade, and librarians tend to be on the cutting edge of these topics. In 2001, cookies were already on the mind of Kim Guenther, who wrote that there is a need for libraries to develop privacy policies regarding digital media use, both to ensure the safety of patrons’ privacy and to inform patrons of what sort of data is collected and maintained by the library.

Different libraries face varying concerns related to the privacy of their patrons. School libraries are frequently confronted with conflicts pitting privacy rights against minors’ rights. Helen R. Adams discusses the efforts of school administrators, parents and teachers to access students’ borrowing records. She further analyzes the situation of state laws on the matter, as of April 2011. Since the Patriot Act was passed, public libraries have been assailed for patron use data by no less a frightening ghoul than the FBI, but in 2006 the ACLU aided a Connecticut library consortium in its battle to prevent having to turn over all of the browsing data and use records linked to a specific computer.

Librarians care deeply about the sanctity of patrons’ uninhibited access to knowledge and information at the same time as they seek to enhance access points to the enormous pile of available information. Last week, Marc Parry at The Chronicle of Higher Education sat down with librarians at Harvard’s Library Innovation Lab to gain their insight on the compatibility of digital media, libraries and user privacy rights. An experiment with Twitter where checked out book titles were tweeted with links to the library catalog page has recently underscored the importance of privacy to patrons. Even when no express identifying information was disseminated and the titles were tweeted in a randomized order, the concern that there was a possibility of connecting the titles to patrons shelved the project. Parry mentions several other software that incorporate user generated reviews or statistics and are currently in use at many types of libraries across the nation. Growth in applicability and popularity of these products increases the urgency of defining what is and is not confidential patron data.

California has taken an active role in legislating on the behalf of its population what sort of privacy is expected in a digital venue. Ariel Bogle of the independent publisher Mellville House celebrates the Reader Privacy Act passed in California in January of this year. The law attempts to extend rights enjoyed by library patrons to e-books, but it is unclear what big teeth the act may have, especially when pitted against the Patriot Act. 

Photo used without permission from flickr user Paul Lowry via CC license BY 2.0. 

By Sarah Griffis

On June 20th, 2012 the police report investigating the source of a heavily intoxicated 18 year old woman was leaked to WPRO, and on June 21st, the Providence Journal attempted to get their own copy by emailing a written request for “all records relating to Caleb Chafee and the investigation which arose from  occurrences at his home on May 28, 2012″ (Complaint, 3). According to the article from this week announcing Providence Journal’s lawsuit against the State Police and DPS Commissioner Colonel Steven G. O’Donnell, Katie Mulvaney at the Providence Journal writes, ” The state police denied three requests, arguing the records were exempt because Caleb Chafee was not arrested and that the case was civil, not criminal”. The complaint filed on October 22nd alleges that Department of Public Safety attorney, Danica Iacoi,  denied their request 2 times, after which on appeal Colonel O’Donnel also denied ProJo’s request for documents concerning the illegal drinking party (3-4).

R.I.G.L. §38-2 covers Access to Public Records, and seeks to strike a balance between facilitating “public access to public records” and preventing “unwarranted invasion of personal privacy” (Purpose). R.I.G.L. § 38-2-2 (5) (D) defines public record as “all documents… made or received pursuant to law”, with some limitations placed on criminal law enforcement records to safeguard due process and privacy concerns. Presumably the denial based on the civil nature of Chafee’s case does not protect the documents unless it is considered an unwarranted invasion of privacy to access the police report of a civil case. Providence Journal argues that the public’s interest in this case is compelling, and therefore documents relating to the May 28 investigation must be turned over.

Under R.I.G.L § 38-2-10, the burden of proof is on the public departments to show that the police report was in fact properly withheld from the news agency. Also, cases adjudicated in RI profess a strong preference for construing restricting language on freedom of information narrowly so as to privilege public access (In re Derderian, In re New England Gas Co.). The DPS and State Police may find their reasoning for turning down the request does not defeat the strong public policy emphasized by APRA. Providence Journal may win this battle to inform the public of underage drinking parties and hosts’ duties when it comes to highly intoxicated minors.

Image taken by flickr user NS Newsflash, licensed via Attribution 2.0 Generic (CC BY 2.0)

By Sarah GriffisImage taken by flickr user Jo Jakeman, licensed via Attribution 2.0 Generic (CC BY 2.0)

Scheduled for argument on Oct 29, Supap Kirtsaeng, dba Bluechristine99, v. John Wiley & Sons, Inc. will focus on whether the right to resell a legally purchased copy of material attaches to foreign purchased items. Forbes contributor John Villasenor writes that in this case, a student from Thailand was able to profit from reselling textbooks purchased in Thailand on the US market.

The appellate court held Kirtsaeng liable for copyright infringement, its ruling based on the fact that the books were purchased in a foreign country, and therefore the right of first sale did not apply (Keeley). Right of sale, as Lisa Schuchman points out, not only allows the holder to sell the material, it also gives display and lend material without clearing it with the copyright holder. This Clancco post describes the amicus arguments art institutes and museums have filed in preparation for the upcoming argument session.

Libraries also see their stock and trade threatened by the broad scope of the ruling. Allison Frankel writes an in-depth article on the potential impact on library collections. Since many books are published outside of the US, libraries would be required to seek extra licensing permissions to lend books manufactured in foreign countries. Imagine what the French Cultural Center Library holdings would look like after failed attempts to get licensing, either due to lack of response or excessive licensing fee requests.

Image taken by flickr user Jo Jakeman, licensed via Attribution 2.0 Generic (CC BY 2.0)

By Sarah GriffisImage

Gawker recently published an article spotlighting the man behind the infamous Violentacrez Reddit troll persona. Violentacrez is known as champion of the offensive, taking an active role in establishing and moderating such subreddits as /r/jailbait and /r/creepshots. Both of these pages have been taken down by Reddit Admins due to community and public outcry, but not without a heated discussion amongst Reddit users about how far we will protect free speech rights before drawing a line, and whether that line shows hypocrisy on the part of an oppressive majority. Jailbait featured mostly non-sexual pictures of underage females. CreepShots was a page dedicated to posting non-consensual, frequently sexualized photos of women taken in the public sphere. In response to the invasive, yet legal, images, Katie M. Baker of Jezebel writes that one young woman created a Tumblr page, Predditor, posting identifying information, scraped from the web, of the Reddit users who post these sorts of pictures.

The firestorm sparked by the controversy has led to the Predditor page being taken down (then put back up, taken down again, etc), Violentacrez’s profile being removed, and polarized arguments on both sides of the issue. Severe discomfort at having their online persona linked to their “real-life” identity plague the people being outed as Creep Shot posters, while the people digging up identifying information feel little to no sympathy for their pain. The Awl writer, Choire Sicha, points out that when posting on the internet, there is a severely decreased privacy interest, just as when walking on a public street.

Public shaming of creeps has also recently shown up in a more traditional forum. A prostitution ring/Zumba studio in Kennebunk, Maine maintained detailed records of the liaisons before getting busted, including unauthorized videos of the acts. Police in the area plan to release the names of the men involved in the market by publishing lists in the local newspaper, reports The Washington Post.

The questions cut both ways: on the part of Creep Shot takers and/or posters, and Creep outers. Is this legal? Ethical? Desirable in our society?

Image used, licensed without consent via CC BY 2.0. Image taken by flickr user Sister72.

By Brian Lynch

Late last month both houses of Congress introduced the Internet Radio Fairness Act in an effort to reduce the royalty rates internet radio stations pay to copyright holders of sound recordings.  The current fee structure for digital audio transmissions is set by a panel of three judges who make up the ImageCopyright Royalty Board.  This system has been criticized by internet radio stations because it has led to sites like Pandora paying out 50% of its revenues for royalties, while satellite radio stations pay a lower rate of 8% of gross revenues.  Pandora of course applauds the proposed law claiming “A more equitable rate structure would drive investment and innovation, bringing greater choice for consumers, and ultimately greater revenue for performing artists.”

The separate rate structure for satellite radio and internet radio stems from the Digital Millennium Copyright Act that in essence divided up non-interactive digital audio providers into two categories.  Satellite radio providers were allowed to fall under the fee standard in section 801(b) of the Copyright Act, while internet radio companies fell under a willing buyer/willing seller standard.  In the latter, fee decisions are based on the standard of what a willing buyer and a willing seller would agree to in a hypothetical marketplace.  This two tier system may have made sense 15 years ago when the DMCA was introduced, but the resulting gap in rates doesn’t seem to be fair today for entities using copyrighted works in the essentially the same way.

If one rate is now needed to level the playing field, which one should be used: 801(b) or Willing Buyer/Willing Seller?

The Internet Radio Fairness Act would apply the 801(b) standard to internet radio stations.  The standard involves four criteria used to determine a royalty rate:  Maximize the availability of creative works to the public; Insure a fair return for copyright owners and a fair income for copyright users; Reflect relative roles of capital investment, cost, and risk, and; Minimize disruptive impact on the industries involved.

A competing bill in the House, the Interim Fairness in Radio Starts Today Act, would adopt the willing seller/willing buyer standard.   This standard has been criticized for giving the seller (music publishers) too much leverage when acting as a group.  UCLA Professor John Villasenor makes a case for applying 801(b) across the board here.

Brian served as President of Suffolk Media Law from 2011-2012. 

Image used without flickr user birgerking's permission via CC BY 2.0 Creative Commons license.

By Sarah Griffis

Recently a clutch of cases tackled discoverability of social media accounts and their contained tweets, comments, posts, and pins. Although this issue has previously been in the courts, two cases decided within a week of each other manage to come to differing conclusions when applying discoverability rules to social media data. Seeing the writing on the wall, attorneys begin to warn their clients about the dangers of sharing too much via social media.

Social media discoverability law is taking some time to solidify in the courts, although cases on the issue have been considered since 2010. EEOC v. Simply Storage Management decided in 2010 that social media content is not “private” enough to avoid discovery. (Lynch , Batchoo)  This past June, Thompson v. Autoliv created a challenge method for parties to dispute the overbreadth of information demands. (Fluhr) However, Robinson v. Jones Lang LaSalle Americas, Inc. relied on Simply Storage logic to demand a large swath of communication because it was relevant to the claim or defense. (Lynch , Batchoo) Prior to these decisions, in 2005 Zubulake v. UBS Warburg foreshadowed many of the concerns surrounding electronic communications when it closely considered the discoverability of emails among other forms of electronic communication. (Krause)

Bob Ambrogi recently wrote an article comparing two cases’ approach to the scope of social media discovery. While the  facts of the cases were comparable, the difference in decisions illuminates the need for more detailed application of the law.

Image used without flickr user birgerking’s permission via CC BY 2.0 Creative Commons license.

By Sarah Griffis

On Wednesday, the Dutch  Civil Court in Amsterdam declared copyright Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)infringement may attach to an individual or organisation that links to infringing content. This is a new tendril of law that seeks to delineate the contours of infringing via hyperlinking. Some worry that this law poses a threat to nearly all webpages, and misses the legal mark when determining liability.

The case stems from links in an article GeenStijl.nl, a local (raunchy humor) news website, posted about a recent Playboy photoshoot featuring popular Dutch TV personality Britt Dekkers. The article in question focuses mainly on the leaked nature of the content, and invites the reader to click a link to the file of photos hosted on FileFactory.com. The events unfolded as Playboy issued a letter to FileFactory.com and asked them to remove the material, which they did. In response to the link going dead, GeenStijl.nl found a new source of the photos, and this  slapstick entertainment repeated itself a few more times through various outlets of the photos before Playboy and it’s Dutch publisher, Sanoma Media Netherlands, finally sued GeenStijl.nl itself for infringement.

In court, the judges introduced and discussed a three-prong test for determining whether linking would be considered infringing behavior. The court considered “intervention” “new audience” and “profit” as the factors to be analyzed in  the fact pattern. Loek Essers at PC Advisor writes that the three prong theory in this case was inspired by a recent EU Court of Justice, which ruled that “hyperlinks can infringe on copyrights if their publisher intervened, reached a new public and wanted to profit from their publication.” According to Marjolein van der Heide at Future of Copyright, in GeenStijl.nl’s case, the court applied the test to the facts and determined that the news-page had intervened by facilitating the publicity of the file by providing a direct link, had gained a new audience for the file which did not previously exist, and intended to and did profit from the increased web traffic generated by the article linking to infringing material.

While some groups are celebrating the ruling, Mike Masnick at Techdirt worries that the law has mistakenly put liability on a non-infringing party. GeenStijl.nl rages after its negative verdict that the judges have in fact banned Google with their new rule. However, Dutch law professor Dirk Visser dismisses this as a complete exaggeration of this narrow rule.

Given that here in the US embedding video is not considered infringement– even when the content does infringe, this strikes as a controversial decision. Does the Dutch ruling draw ascertainable lines to prevent abuse of the internet via this precedent?

Image used courtesy of  Flickr user dullhunk without permission via CC BY-NC-SA 2.0 license.

By Sarah GriffisImage

Google announced on Friday that it has updated its algorithm to downgrade websites for alleged copyright infringement. The new filter takes count of valid copyright removal notices, and websites that achieve a “high” number of notices are punished with lower ranking. A downgrade results in the webpage being displayed deeper in the results list, thereby reducing traffic to the site. Google does stress that it will not remove sites from search returns, and there is an internal dispute mechanism referred to as the “counter-notice”.

Despite Google’s attempts to soften the impact of its new algorithm, plenty of citizens see potential for abuse and misapplication of the downgrading procedure. David Angotti at Search Engine Journal points out that this punishment may target sites unfairly if, for example, a third party user is responsible for putting the infringing content on the net. John Bergmayer at Public Knowledge is concerned that Google’s steps may be manipulated to argue for a precedent that other search engine companies cannot maintain. Writers at EFF examine the risk of downgrading websites based on “false positives” among takedown requests.

Google seems to have more than the stakes of the copyright holders in mind with its recent modification of the results algorithm. Wired writer David Kravets explains that as Google expands into a media dissemination giant, it makes less and less sense to give top billing to websites that both leech traffic and tick off its business allies. The balance Google strikes is to push these sites off the first page even though they may be relevant to the search. Anthony Wing Kosner at Forbes has softened the accusation that Google also would give specific preferential treatment to YouTube; nevertheless, the partner site is protected under a category labeled “user generated content”.

Photo used without flickr user scobleizer’s permission via Attribution 2.0 Generic (CC BY 2.0) license.

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