Tag Archives: Blogging

Righthaven – Media Bloggers Association files amicus brief

Originally posted 2011-02-24 10:20:41. Republished by Blog Post Promoter

I’ve written a little bit about the Righthaven lawsuits before.  Now, as reported in the Las Vegas Sun, on behalf of the Media Bloggers Association I’ve helped write something that could matter, namely this amicus brief, the laboring oar of which was manned by Marc Randazza and J. Malcolm DeVoy out of Randazza’s shop:

The focus is on the propriety and scope of copyright statutory damages in the situation.

UPDATE:  They opposed; we replied.

Best of 2013: Cooley Law v. John Doe 1, in which Doe does not

First published May 1, 2013.Essex County Hall of Records (and courthouse), Newark NJ

Today I was preparing a brief in opposition to a subpoena served on a client seeking information to identify certain anonymous third parties.  [Update:  The result of our motion can be seen here.]  The argument against such business is pretty well established, as Paul Alan Levy and I had the experience of arguing together a little while back.  The up-to-date version of the argument, which of course also includes disclosure about anonymous bloggers, goes something like this:

The Internet is a public forum, and First Amendment rights fully apply to communications over the Internet.  The Supreme Court has treated the Internet as a forum of preeminent importance because it places in the hands of any individual who wishes to express his views the opportunity to reach other members of the public who are hundreds or even thousands of miles away at virtually no cost. Concomitantly, courts have also recognized the right to express oneself online anonymously (even at considerable social cost, it can be argued — and I’ve argued that side of it, too).

Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:

1. Give Notice: Require reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena;

2. Require Specificity: Require the petitioner to allege with specificity the speech or conduct that has allegedly violated its rights;

3. Ensure Facial Validity: Review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant;

4. Require An Evidentiary Showing: Require the petitioner to produce evidence supporting each element of its claims; and

5. Balance the Equities: Weigh the potential harm (if any) to the petitioner from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

Similarly, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court ruled that a town councilman who sued over statements attacking his fitness to hold office could identify the anonymous posters only upon a showing that he was not proceeding in bad faith and could establish that the statements about him were actionable because they might have a defamatory meaning. Though it rejected the balancing component of Dendrite, the Cahill case on all elements of a defamation claim that ought to be within his control without discovery, including that the statements are false. Other appellate and trial courts that have addressed the issue of subpoenas to identify anonymous Internet speakers, as well as several federal district courts, have adopted variants of the Dendrite or Cahill tests.

I didn’t say they all did, though, although I might well have thought so — and I might have been right until April 4, 2013, when the Court of Appeals of Michigan said “no” in a case called Thomas M Cooley Law School v John Doe 1.  The Westlaw version of the opinion, which does not appear yet to include any proprietary copyrightable material of West, is at the link.

And what did the Court of Appeals of Michigan have to say?   Read More…

Bloggers, Journalists, Reporting and Privilege

The New York State Bar Association’s Bright Ideas journal (Vol. 22, No. 2) 17 (Fall 2013) has just published my essay about shield laws entitled, Bloggers, Journalists, Reporting and Privilege.  And now you can read it.

UPDATE: The case reported in this article in the New York Law Journal (registration required) raises a question I didn’t at all address in this article, but wish I had:  The extent to which one state’s press shield law (in this case, New York’s) protects a journalist from revealing her sources in another state (Colorado).  Frankly, it’s inconceivable to me that Colorado courts should be bound by a decision made in Albany regarding the extent of shield protection to be awarded journalists on the ground that they are “New York-based” — which, essentially, the reporter’s lawyer is arguing that all journalists are.

Is that an argument for a uniform federal standard?  If you like these laws, perhaps it is, though I’m not sure exactly what constitutional basis there would be to hamstring state courts’ powers through such a statute.

Cooley Law v. John Doe 1, in which Doe does not

Essex County Hall of Records (and courthouse), Newark NJToday I was preparing a brief in opposition to a subpoena served on a client seeking information to identify certain anonymous third parties.  [Update:  The outcome of our motion can be found here.]  The argument against such business is pretty well established, as Paul Alan Levy and I had the experience of arguing together a little while back.  The up-to-date version of the argument, which of course also includes disclosure about anonymous bloggers, goes something like this:

The Internet is a public forum, and First Amendment rights fully apply to communications over the Internet.  The Supreme Court has treated the Internet as a forum of preeminent importance because it places in the hands of any individual who wishes to express his views the opportunity to reach other members of the public who are hundreds or even thousands of miles away at virtually no cost. Concomitantly, courts have also recognized the right to express oneself online anonymously (even at considerable social cost, it can be argued — and I’ve argued that side of it, too).

Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:

1. Give Notice: Require reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena;

2. Require Specificity: Require the petitioner to allege with specificity the speech or conduct that has allegedly violated its rights;

3. Ensure Facial Validity: Review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant;

4. Require An Evidentiary Showing: Require the petitioner to produce evidence supporting each element of its claims; and

5. Balance the Equities: Weigh the potential harm (if any) to the petitioner from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

Similarly, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court ruled that a town councilman who sued over statements attacking his fitness to hold office could identify the anonymous posters only upon a showing that he was not proceeding in bad faith and could establish that the statements about him were actionable because they might have a defamatory meaning. Though it rejected the balancing component of Dendrite, the Cahill case on all elements of a defamation claim that ought to be within his control without discovery, including that the statements are false. Other appellate and trial courts that have addressed the issue of subpoenas to identify anonymous Internet speakers, as well as several federal district courts, have adopted variants of the Dendrite or Cahill tests.

I didn’t say they all did, though, although I might well have thought so — and I might have been right until April 4, 2013, when the Court of Appeals of Michigan said “no” in a case called Thomas M Cooley Law School v John Doe 1.  The Westlaw version of the opinion, which does not appear yet to include any proprietary copyrightable material of West, is at the link.

And what did the Court of Appeals of Michigan have to say?   Read More…

Blogger rights and wrongs – From sea to shining sea

Surrogate's CourtLast week, on April 18th, I retweeted news of this court decision:

New Jersey blogger considered a journalist under state Shield Law
A New Jersey blogger qualifies for protection under the state’s shield law and does not have to reveal the names of government officials she accused of wrongdoing, a judge ruled.

Union County Superior Court Judge Karen Cassidy quashed county prosecutors’ subpoena served on blogger Tina Renna, who runs the website The County Watchers. Prosecutors sought the names of 16 local government officials Renna accused of misusing county generators after Hurricane Sandy in a December blog post. Cassidy ruled that Renna passed a three-part test that determines whether someone qualifies as a journalist and should receive protection under the shield law.

In the opinion, Cassidy considered the three factors: whether Renna had a connection to news media, whether her purpose was to gather or disseminate news, and whether she obtained her information through “professional newsgathering activities.”

“These original posts are arguably newsworthy and constitute ‘news’ under the Statute,” Cassidy wrote in her opinion released Friday. “In addition, her method of talking to sources, attending freeholder meetings, and using Open Public Records Act requests … is sufficiently similar to the methods used by traditional news media entities.”

The actual opinion is here.  I got a kick out of the fact that the blogger’s lawyer, a former journalist who has done a lot of media law, was the guy who first taught me how to defend a deposition when we were associates together (he much senior to me) at the same big New Jersey law firm.  (The same law firm I just defeated in a motion last month, in fact!)  We’ve both moved on since then, of course, and I was pleased to see the outcome — consistent with a position I’ve advocated for years.  Bloggers, obviously, are journalists, when they’re doing journalism, just as journalists, obviously, are something else when they merely act as propagandists or mouthpieces.  Journalism, as we said in the old Media Bloggers Association, is something you do, not something you are.

That was the question concerning whether one is a journalist or non-journalist, asked without reference to what one might be other than a journalist in that instance, which, the New Jersey court ruled, is not the inquiry — despite the insistence of another party, in that case a prosecutor, that the blogger is just “playing journalism” to avoid getting in trouble with the law:

Union County prosecutor Theodore Romankow . . .  has publicly questioned whether [blogger Tina] Renna made up the accusations and invoked the shield law so that she would not be caught.

“Personally, I believe she was caught in a lie and chose to waste time and money by hiding,” the prosecutor told the news website NJ.com on Friday.

In court, Romankow said Renna cannot be considered a journalist because many of her posts are unprofessional and related to her personal involvement in local politics.

The New Jersey court wasn’t buying.  Guess what:  Journalism isn’t a “profession,” it is, yes, an activity.  And weighing personal involvement in a topic of journalistic interest, besides being actually pretty common among journalists, cannot possibly be a good policy.

Patterico Public Enemy No. 1

Attacking bloggers for what they write, however, can take more vicious form than service of a subpoena for information, not that that can’t be quite destructive.  And, sometimes, that prosecutor shoe can be on the other foot.  

Read More…

The big guys

I try these days not to blog about blogging, but this item seemed like a good opportunity to depart from the general rule.

My friend Ray Dowd of Copyright Litigation Blog fame has caught a little attention with this post listing “the top 50 intellectual property law blogs of all time,” according to Justia’s Blawgsearch.  (Ray’s blog made the list, as did LIKELIHOOD OF CONFUSION® and pretty much all the usual suspects).

I don’t know what the criteria of “top” are, but I suspect there is in fact only one.  Tell me if I’m wrong — someone?  Ray? — but I guess it was generated off this list from Justia, which probably isn’t all that stable, despite being “all time,” and I assume it’s based on traffic.  But after all, as I pointed out in a tweet this morning, “all time” is a bit of a profound formulation, considering that — well how old can a blog be?  Not that old.  To be fair, what is a nice achievement is that some of them are, I believe, relatively young, and have built up such nice traffic in a relatively short time.  Even then, in blog years, you have to be doing something right, I suppose, to make the “all time” list.  (Unlike certain other lists.)

There are flaws in this methodology.  A lot of old traffic keeps you in the game, because Justia doesn’t seem to ever drop blogs from its listing.  So  Bill Patry’s copyright blog is number 26, but he hasn’t posted to it in a year.  Similarly, The Daily Does of IP blog is pushing eleven months.  There are quite a few others.

“All time” means all time.  But in Internet sensibility, you’re either there today, I would think, or you don’t really matter any more.  Well, Hank Aaron hasn’t hit a home run in a few years, either, I guess.  But I would be interested to see that list pared down to the top 50 all-time among active blogs.  Because, of course, mine would move up!  And that would make me a better person.

As would yours, Ray! ;-)

Trademark blogger Ron ColemanAdvice?  I get asked for advice.  Here it is:  The main thing bloggers — IP law bloggers, or whatever — can do right to be successful with their blogs is write them.  That means write them themselves, write them consistently (i.e., frequently) and, unless they can build up some extraordinary legacy of traffic like those ghost blogs on the list (not too many can) don’t stop writing them.

And if you can’t see yourself keeping it up, at least for a while, probably you should just as well not start.

UPDATE:  More thoughts about those top blogs from Ray.

I’ve got your blogger disclosure right here

Via Instapundit:

IRA STOLL: Vanguard Blogger Is Democratic Donor. “The Vanguard mutual fund official responsible for the pre-election Vanguard blog post crediting the Obama stimulus bill passed by Congressional Democrats with averting a second Great Depression has given $11,600 in campaign contributions over the past seven years — every last cent of it to Democrats.”

But… but… but… where was the FTC Commissariat of Blogger Disclosure?

And worth every penny!

Originally posted 2008-08-11 23:59:35. Republished by Blog Post Promoter

Free (and apolitical) IP advice for bloggers over at Right Wing News.

We don’t need no stinkin’ badges!

Originally posted 2007-04-12 17:09:13. Republished by Blog Post Promoter

Should there be a “blogger code of conduct“?

Bloggers are facing some high-profile peer pressure to please be a little more polite. Blogs, online journal-style Web sites, are growing in popularity on the Internet and so has the bad posting behavior that has sparked a call for a code of conduct. . . .
Reilly, the innovator behind the term Web 2.0., recently posted the code’s first draft on his own site and on wikia.com, which is run by Wikipedia founder Jimmy Wales.

The code includes a civility enforced standard that agrees not to post abusive, harassing, libelous, false or threatening comments. Content could not be used to stalk others.

Instapundit acknowledges the discussion, as well as the virtually certain vanity of it all. He suggests he’s ahead of the curve, and perhaps he is; but I was already waiting for him there with a length of pipe.

On the other hand, we are working on such a thing at the Media Bloggers Association, and adherence to it would be a condition of membership and access to benefits. We’ll get back to you when we solid up the benefits part, though.

Probably the best approach is the one suggested by Hank.