When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. “I have since learned better,” he said.

What bothered Donnelly wasn’t the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. “I am all for having a completely open government,” he said, “but something needs to make this online shaming device stop.” Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many readers weighed in with their own take on what David Kravets described in Wired as a “racket.” According to Kravets’s article, self-described “reputation companies” are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.

“This is not a ‘mugshot business’ or ‘mugshot industry’,” wrote one reader. “This is extortion… The demand: Pay up or it stays up.” Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: “They’re not a ‘news organization’ by any stretch of the imagination,” that reader wrote. “They have zero/zilch bona fide news media credentials… [They] break every accountable, professional, bona fide news media/news-reporting ‘code of ethics’ out there.”

Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for “commercial purposes.” Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state’s FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.

At first blush, such an exemption seems conceptually absurd. Public records are considered such because the information they provide is of value to the community and necessary to maintain an informed citizenry. The information itself does not change based on the purpose and intent of the party distributing that information. The public is informed regardless and the objective of FOI law is met. There is also the issue of news media having commercial purposes, and so a commercial exemption could result in potential First Amendment conflicts. Further, if the intent of such a proposal is to distinguish journalists from mere profit-seekers such as the aforementioned reputation companies, then legislators would be marching into an ongoing battle over the definition of “journalist.”

Despite these immediate concerns, however, what Donnelly proposed is already being practiced. Indiana, for example, allows its agencies and “political subdivisions” to prohibit the release of public information in electronic form, if that information is to be used for commercial purposes. Ind. Code. § 5-14-3-3. This bar to public information does not apply to the “publication of news,” but as shown by one state official’s explanation, the distinction can be a difficult one to make. In a dispute last year over a website’s access to digital mugshot photos, Indiana’s Public Access Counselor, Andrew J. Kossack, wrote the following:

…if a newspaper received the type of records sought in the request at issue here, it could publish a story about some aspect of the arrest process generally or about the particular arrestees specifically… [But] the same newspaper could be restricted from establishing a for-profit, fee-based database on its website that used the information to “sell, advertise, or solicit the purchase of merchandise, goods, or services.”

So, it appears that an Indiana publication can safely publish a mugshot in its newspaper, but if that same mugshot is aggregated with others in a database for which access costs a fee, then there could be a violation. In both scenarios, the same information is being provided. Assuming it is not a free newspaper, both instances involve payment for that information. The difference under Indiana FOI regulations, is that once a mugshot becomes part of a database, it is no longer “news” but a commodity, as if there is no news value in the information that database provides. Many, including myself, would argue otherwise. Further, if that fee is removed to comply with the law, then with that fee will go any incentive to create the database in the first place. As most government agencies are lax in centralizing public records online, there should be more incentive for third parties to step in, not less.

The U.S. District Court in Rhode Island addressed the issue of “commercial purpose” exemptions in 1999, declaring a similar law partly unconstitutional. Rhode Island’s public records law states that “no person or business entity shall use information obtained from public records” to “solicit for commercial purposes. . . .” R.I. Gen. Laws § 38-2-6. Those doing so face a fine of up to $500 and imprisonment for up to a year. Id. The Rhode Island Association of Realtors, however, wanted to use public records to identify new or recent real estate licensees in the state to recruit new members. Rhode Island Assoc. of Realtors v. Whitehouse, 51 F.Supp.2d 107 (D.R.I. 1999), aff’d 199 F.3d 26 (1st Cir. 1999). Fearful that the statute prevented it from doing so, the association sought a declaratory judgment that the law violated its First Amendment rights. Rhode Island Assoc. of Realtors, 51 F.Supp.2d at 109. Using the Central Hudson test, the court found the statute was not narrowly tailored to address the state’s interest in protecting the privacy of its citizens. Id. at 114. That interest could instead be protected by excluding certain information from the statute’s scope, rather than creating distinctions based on the intent of the requestor. Id.

If privacy is the goal, a law that discloses private information to some requestors but not others fails to offer protection. The information is still disclosed. Ultimately, I believe this is where such “commercial purpose” exemptions falter. Even if a statute could adequately distinguish between bona fide news organizations (whatever that means) and those dealing in the mugshot trade (however that’s defined), the photo can still be released and the arrestee’s privacy vanquished.

The frustration of those like Donnelly is understandable. Because there is no central repository for public records, mugshot websites can exploit state FOI laws and profit from what seems like a shady practice. The practice seems shady because there’s a degree of unfairness when a private company plays gatekeeper to embarrassing information and then charges a heavy toll to keep it quiet. Though I may not agree with many of the proposed responses to this practice, I can certainly empathize with those whom are caught up in it and compelled to pay.

But as I told Donnelly, context is everything. Rather than making it more difficult to obtain information, it is almost always preferable to simply provide more. Having been arrested myself years ago — cuffed by an overzealous cop when I refused to leave a valid press area while working as a journalist — I remember the feeling of panic when a Google search of my name brought up reports of the arrest. To combat the misconceptions I believed existed, I took every opportunity to fill in the gaps left by those stories. By challenging what he perceives as a deceptive practice, Donnelly is sharing more about himself and creating a new impression, one that will eventually overshadow his previous indiscretions. The saying “fight speech with more speech” applies to not just speech, but all information — even if only that contained in a mugshot.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently an attorney based in Newton, Mass., and a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @justinsilverman.

(Screenprint of mugshots courtesy of Flickr user angus mcdiarmid licensed under a Creative Commons BY-NC license.) 

“April 29th, 1992, there was a riot on the streets,
tell me where were you?”

On that date Timothy Goldman was on the corner of Florence and Normandie in South Central Los Angeles, with a video camera.  That intersection was the epicenter of the Rodney King Riots that occurred twenty years ago.  That is where trucker Reginald Denny was pulled from his truck and nearly beaten to death.  That incident and another two hours of violence, destruction and chaos were captured on Mr. Goldman’s videotapes.

The riot footage and the video of the Rodney King beating, filmed by George Holiday, ushered in a new era of citizen journalism.   Mr. Goldman chose to publicize the footage and licensed it to several media outlets.  With that decision, his life turned upside down.   In interviews, he has chronicled how he was forced to move from his home due to constant threats on his life from members of his community.  His own brother deemed him a rat and a snitch for publicizing the acts of his neighbors.      

In addition to the personal upheaval, some other consequences followed.  Mr. Goldman became the key witness to several of the acts of violence that occurred on the tapes.   The LA Police Department tapped him to identify suspects from the videos.  Additionally he was subpoenaed to appear as a witness in several criminal proceedings and civil trials.  Mr. Goldman was also required to turnover footage that was not broadcast, failing to qualify as a reporter under California Shield laws.

Would he fair any differently today?

It would be a mistake to compare Mr. Goldman’s act of citizen journalism to most others, as his footage captured a monumental event in our history that few professional journalist could match.  But has the concept of citizen journalism gained more legal standing?

Recent court decisions indicate the answer is no.  One Oregon blogger was denied protection from a defamation claim because the judge ruled (in part) the blogger did not meet the statutory definition of a journalist.  In an Illinois case a website was denied protection under the state’s shield law because the site did not qualify as a news medium.  Some progress has been made, as California extended shield law protection to online news sites in O’Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006).

A guide to shield laws as applied to citizen journalists can be found here.

Photo LA Burns: From Nichols Canyon courtesy of Flickr user Dark Sevier under Creative Common License CC BY-NC 2.0.

Phillip Datz, a professional photojournalist, was working as an independent news stringer in the state of New York.   In July of 2011 he was covering a Suffolk County police chase through Bohemia, NY for a local news station.  The police chase ended on a public street and Mr. Datz began filming the police investigation from across the street on a public sidewalk.  Within seconds of beginning filming, an officer approached Mr. Datz and instructed him to “go away” despite the press credentials Mr. Datz had displayed.   Mr. Datz sought another location to film but was intercepted by the same police officer and arrested.  See the altercation below.

Mr. Datz was handcuffed, taken into custody and charged with misdemeanor obstruction of governmental administration.  The charges were later dropped by the Suffolk County District Attorney.  Mr. Datz has since filed a civil suit against the arresting officer and Suffolk County for obstructing the First Amendment right of the press and the public to record and gather news about police activity in public places.  The complaint seeks injunctive relief barring Suffolk County police officers from further interfering with the First Amendment rights of the public and press.

After the arrest, Suffolk Police Deputy Chief Chris Bergold publicly apologized for the incident and detailed plans to bring in media experts to train police officers.

The complaint alleges similar incidents have been on the rise within the county, but the same can likely be said for the nation as well.  Suffolk Media Law has detailed the issue of filming police activity and similar incidents here and here.  Most courts have sided with photographers or videographers in what seems like a clear infringement on First Amendment rights. 

Any defenders of the police conduct?

One high profile judge has commented “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.”  George Washington University Professor Jonathan Turley details some judicial ambivalence to the First Amendment here.

You can read the Datz complaint here.

 Attend and Learn:

• How to Design and Regulate Social Networks
• What Lawyers and Business Executives Need to Know About Protecting Their Company’s Copyrights, Trademarks, and Trade Secrets on Social Media Sites
• How to Protect Rights and Avoid Liability for IP on Social Networks
• How to Draft and Enforce Terms of Service Agreements for Users
• How to Minimize Employment Law Risks in Social Media and Liability for User-Generated Content
• How to Comply with International Social Media Regulations

 Event Details:

• When:  Friday April 13th
• Where: Suffolk Law School
• Cost:    $175 – $200 for attorneys and free for students
• Registration

Often we might view tying to be somewhat anti-consumer and anti-business competition.  But recently the Ninth Circuit Appeals Court did not overturn a lower court’s decision to dismiss a lawsuit alleging that select television programmers abused their market power to force consumers to accept certain types of cable bundles.  It is unlikely that a case against Comcast and Xbox would go forward because it is difficult to articulate how this type of bundling hurts competition and consumers.  Any case suing on behalf of consumers would most likely meet the same fate as the case just rejected by the Ninth Circuit.  There are many other options for the consumer who wants to stream video content.  The Xbox itself contains many options for streaming content, as well as other uses (playing video games) that it would be hard to say that these companies force the consumer into a certain product package.

Image courtesy of wikimedia commons.

Also debuting is an app from Comcast that allows customers the ability to stream video.   This is similar to an app Verizon and other media companies rolled out last year.  Potential problems for Comcast persist, as Comcast normally restricts the amount of data their customers can download in a month.   As Ars Technica points out, streaming video can eat up that data limit pretty quickly, so Comcast will not set data limits for people who use their Xbox app to watch the videos.  Tech Dirt questions if this is a violation of FCC rules, but there might be an additional legal problem with this practice: Tying.

For those of you unfamiliar with Antitrust law, the U.S. Department of Justice and the Federal Trade Commission define tying as:

A contractual or technological requirement, a seller conditions the sale or lease of one product or service on the customer’s agreement to take a second product or service.

While tying is technically a “per se violation” (automatically illegal), recent courts rarely find tying products to be illegal.  Here, there are a couple of issues.  Would be whether Comcast’s app for Xbox basically forces someone to buy an Xbox if they want to stream videos and not have it count against their Comcast data limit.   Are there some content that is exclusive only to Comcast that would force Xbox Live users to switch cable providers to Comcast to get it?  We can go on with this because tying is a very popular antitrust claim, but unfortunately it will probably not go anywhere at the time being.   All the new Xbox apps would probably cut against the tying argument because there are so many video options that probably will play some of the same content the Comcast app can play.  The data caps might be an issue, but that the FCC will probably handle it through their open internet policy, rather than having it go to the Justice department via an antitrust claim.

If you want to read more on this subject, here are some additional sources:

Los Angeles Times

Ars Technica

Tech Dirt

U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007)

Image courtesy of wikimedia commons.

Ms. Kowalski, a corporate lawyer and professional photographer, says that this is partially due to Pinterest etiquette that discourages photographers from pining their own work.  This type of behavior is derided as being self-promotional.   For their part, Pinterest distances themselves from any copyright liability in their terms of service.   Whether this forces Pinterest to go through the same growing process that You Tube did, as the the website Soshable suggests it might, remains to be seen.  Either way, users should be wary of what they pin.

For more information about this article, check out this article at Mashable by Advertising lawyer Gonzalo E. Mon.

To hear Ms. Kowalski in her own words, you can listen to her NPR interview, or watch an interview with her at Tech Crunch.

No picture was included in this article because the author refused to choose an image that wasn’t a pin-cushion. 

by Rasheed Townes

Reuters has an informative article on plans for a new internet company called Aereo that would combine the streaming capabilities of Hulu and Netflix with your high-def antenna.  Naturally, television broadcasters are upset with this plan by the billionaire Barry Diller to rebroadcast their content without paying them a fee, and without going through a cable-company to do it.  Reuters explains:

“[Aereo's plans] reveal flaws in the law governing copyrights…

Copyright law gives authors, musicians and other creative types the exclusive right to reproduce or perform their work publicly. But that simple concept has proven hard to enforce as newfangled means of distribution have advanced, and quickly, over the decades. The rise of player pianos, videocassette recorders and the like has required ever more elasticity in the definitions.

TV broadcasts present the latest challenge. Cable and satellite companies are technically reproducing and performing shows publicly, so must pay to retransmit them to customers. But individuals are allowed to pull signals from the air for free, as they have done for years with set-top and roof-top antennas. That’s the loophole Aereo is trying to squeeze through. And Barry Diller, one of the fledgling firm’s backers, knows a thing or two about such fights, having run Paramount and Fox before his Internet conglomerate IAC/Interactive.

Aereo’s innovation is a single dime-sized antenna for each subscriber. This should provide better reception in crowded cities and enables shows to be watched on computers and mobile devices. And a federal appeals court ruled in 2008 that a similar service using digital video recorders did not violate copyright law.”

Even though it might be hard to consistently enforce, people who create content do have a right to say where and how it is used.  Per the United States Copyright Office: “When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation.”  There is little mentioned how Diller plans on getting around this necessity.

If it ever comes to a lawsuit, one could try to argue for “fair use” as an affirmative defense.  (See, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)) This means that one has the burden of proving that their use of copyright material is fair to use, and not copyright infringement.  It is not enough to assume that a copyright holder, or a court for that matter, will assume that your use is fair.  It is up to you to prove it.

Click here for more information from Reuters on the lawsuits against Aerero.

Click here and here for more information about the fair use defense in copyright infringement cases.

[Image Source: Wikimedia Commons. A version of this article also appears on Coolhanddad.com]

Mark Miller took to Twitter to voice his opposition of a Cincinnati streetcar project, supporters of the project took Mr. Miller to the Ohio Elections Commission.  The streetcar supporters claimed Mr. Miller’s tweets violated a state law prohibiting false statements in political campaigns and they filed a complaint with the OEC.  The streetcar project passed public vote and the complaint was dropped. 

Mr. Miller’s coalition against the streetcar project has since sued the OEC (COAST v. Ohio Elections Commission), claiming the law is unconstitutional due to its chilling effect on free speech.  The OEC is represented by the Ohio Attorney General’s office and has moved to dismiss on procedural grounds.  In an interesting twist, Ohio’s attorney general Michael DeWine has filed a friend of the court brief suggesting the law is unconstitutional.  Mr. DeWine noted:

“[B]y its express terms the law applies to an individual blogger, to a person posting a comment on Facebook or other social media, or to a  homemade sign or pamphlet made by a single individual….

[A]n Ohio citizen who chooses to exercise his or her civic responsibilities by speaking out on the issues of the day may face the issuance of government subpoenas, targeting by a government-appointed investigative attorney  (even absent a finding of probable cause) and a Commission determination labeling her speech “false” just before the election, all with the threat of criminal prosecution in the background…

The idea that Ohio’s citizens must hire an attorney or even engage in extensive investigation before communication on Facebook or Twitter, however, undercuts the most basic norms of political participation and free speech…”

The motion to dismiss is currently under consideration by Judge Michael R. Barrett of Federal District Court in Cincinnati. 

Photo Courtesy of the Library of Congress Flickr Photostream.

On January 20, the Justice Department closed down the popular cyber-lock website Megaupload and charged its owners with criminal copyright infringement.  The website was shut down, and over $39 Million US dollars in company assets were seized by Customs officials in Hong Kong.

In a recent interview with a New Zealand television station, Kim Dot Com, the founder of Megaupload, just assumed that his website was not in violation of any law and that at most he would get sued in civil court, not brought up on criminal charges.

Given previous court decisions, such as the famous 2005 Grokster decision, we need to think about whether the company merely is not monitoring their service for infringing material, or if they are actively promoting copyright infringement.  The Justice Department is trying many new branches of this theory of infringement in prosecuting Megaupload, causing the commentators at Tech Dirt to scratch their head over what truly is illegal activity.  Some might remember that Megaupload was involved in a strange episode with Youtube, where it appears that a video promoting Megaupload was taken down by a rival firmthat has long been at odds with Megaupload. While Tech Dirt has some evidence that Megaupload is a small player in the file-sharing battle, and argue that there are other industry practices that do more harmthan file-sharing.  Still this argument is thinner than the near-obsolete compact disc because it is possible to vigorously prosecute infringement and seek out a new content distribution system.   All attempts to protect an outdated system will just make people leave the status quo, and all attempts to be disruptive for the sake of being disruptive will result in a status zero with no economic incentive for anyone to create anything new.

Who is Affected

All, legitimate AND illegitimate users of Megaupload are affected.  The data stored on those servers might be lost to its users, even if that data was used for non-copyright infringing purposes.   There is a controversy over who has current control over the data, with the Federal government saying that they do not have control over the servers, but the hosting company, Carpathia does.  Meanwhile, Carpathia Hosting company says that the users should contact Megaupload directlyto inquire about their data.  So far it is not exactly known when or if the data stored with Megaupload will ever be released.Over the past month the Justice Department did not simply affect cyberlocker sites, but a wide variety of sites that allegedly promote criminal copyright infringement.   Before Superbowl XLVI, the Justice Department seized several websites that illegally stream TV feeds.  Some bit torrent sites, like BT Junkie, shut down voluntarily.  The Pirate Bay moved their domains from .org to .se and vowed to continue to list possibly infringing material on their website, albeit through magnet links.

Other Options

PC World has a listing of six file-sharing services that remain open in the wake of Megaupload’s take down.  Please note that posting copyright-infringing material on these websites will not save you, or them, from the same consequences facing Megaupload.