Free speech over the Internet put to the test

Posted on February 16, 2012 by

As featured in The Indiana Lawyer this week in the commentary section. http://bit.ly/AuczZ8

There is nothing like free expression to test how much we truly value that freedom. Views expressed in a free and open exchange are sometimes ugly, mean-spirited or profane. When such expression is unleashed, it requires a deep and abiding commitment to the core value of free expression not to squelch it at its source.

Free expression in this country has withstood repeated assault during times of political upheaval. In a case well known to free speech advocates, Cohen v. California, the United States Supreme Court overturned a man’s conviction of disturbing the peace because he appeared in court wearing a jacket that displayed an obscenity (i.e., “F – - – the Draft”). Justice Harlan’s majority opinion famously observed: “Those in the Los Angeles courthouse [offended by the jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” 403 U.S. 15, 21 (1971).

In our online 21st century world, averting our eyes is more difficult to do as we are bombarded by tweets, text messages, blogs and email. The availability and efficiency of the Internet makes it a potent weapon. If “the pen is mightier than the sword,” the tweet is thermo-nuclear. Yet, the technological development of the Internet should not change our society’s commitment to free expression.

Reactionaries among us are pushing back on what they view as expression run amuck. These folks compare the Internet to a lawless “Wild West” in which reputations can be shot with virtual impunity. Free speech advocates, on the other hand, liken the Internet to a super political pamphlet offering free world-wide publication for citizens wishing to express their views on public issues. These competing views of the Internet are being argued in full force in courtrooms around the country, including Indiana.

In Oregon, a federal jury recently awarded a lawyer a $2.5 million defamation verdict against self-styled “investigatory blogger” Crystal Cox. Cox authored a number of highly critical blogs about attorney Kevin Padrick and his investment firm, Obsidian Finance, using such unimaginative names as obsidianfinancesucks.com. Cox’s more lucid blog entries accused Padrick of misconduct while acting as bankruptcy trustee of a failed financial company. Full of name-calling and venom, not to mention misspellings and bad grammar, Cox’s blog would have presented a challenge for even the most persuasive First Amendment lawyer to defend. (Cox defended herself without legal representation.)

As outrageous and unsupported as Cox’s blogs may be, the verdict is troubling because of the strict liability standard the court applied. The court held Cox liable for defamation without regard to whether she knew or should have known what she wrote was false. Well-established First Amendment protection bars liability against a media defendant without some showing of fault or negligence. An even higher burden of proof, knowing falsity or reckless disregard, applies when the plaintiff is a public official or public figure or when punitive damages are imposed. The federal District Court judge concluded, however, that Cox was not entitled to such First Amendment protections because she was not a member of the news media. The court noted that Cox failed to show she had any journalistic training or followed any “journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

Closer to home, the Indiana Court of Appeals will soon decide whether and under what circumstances a plaintiff in a defamation lawsuit may require a non-party media organization to identify the author of anonymous comments to news stories published on the organization’s website. A Marion Superior Court ordered The Indianapolis Star to comply with a subpoena demanding the newspaper identify who commented anonymously to a news story on the newspaper’s website. The plaintiffs, Jeffrey and Cynthia Miller, allege that Jeffrey Miller’s former employer, Junior Achievement, Junior Achievement’s current president (Miller’s successor) and others defamed him by accusing him of financial mismanagement (or worse) in connection with certain Junior Achievement projects. The Indianapolis Star covered the controversy and its online publication of its news stories attracted a number of anonymous, online comments, some of which are the subject of the Millers’ lawsuit.

The appeal focuses on one particular commenter who’s been identified only by the pseudonym, “DownWithTheColts.” That commenter wrote: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the ELEF board. The ‘missing’ money can be found in their bank accounts.”

This anonymous post was mild in comparison to those posted by known commenters who the Millers are already suing. Nevertheless, the Millers have forced the issue by arguing that The Indianapolis Star (which is immune from suit under the Communications Decency Act) should not be permitted to withhold the identity of “DownWithTheColts” and deny the Millers the opportunity to add another name to the caption of their lawsuit.

Neither “DownWithTheColts” nor “investigatory blogger” Cox will ever be confused with Publius, the penname some of our Founding Fathers used to publish the Federalist Papers, or other great American political writers. But expressive freedom cannot be conditioned on content or viewpoint. It is not such a distant slip down the slope to censorship commonly seen in other countries, even other democracies. France, for example, recently made it a crime punishable for up to a year in prison to deny that the Ottoman Empire committed genocide against Armenians during World War I.

It is unfortunate that some act irresponsibly in expressing themselves on the Internet. However, our First Amendment rights are too fragile and too precious to be watered down or jeopardized because of the irresponsible actions of a small minority of the populace. Free expression is certainly not free of costs. There is a price we must pay, but in my view, the benefits of living in a free society are well worth it.

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Google Argues Authors Want Book Scanning Project to Continue

Posted on February 14, 2012 by

Amidst the simmering online piracy debate, Google tossed an attention-getting brief last Wednesday opposing class certification into the lawsuit aimed at stopping its Google Books Project. The Authors Guild Inc., et al. v. Google, Inc., Civ. Action No. 05 CV 8136, Doc. 1000 (SDNY). The project is the famous effort begun in 2004 to scan “every word of every book ever written.” The heart of the argument is that 58% of 880 authors surveyed want Google to keep on keepin’ on.

The survey is used to argue that a substantial percentage of the purported class has economic interests in conflict with the positions of the plaintiffs who seek to be class representatives. Also citing fact questions on the different circumstances of different kinds of authors, Google wants all copyright infringement claims based on the Books Project to be filed as individual lawsuits. The argument is a template that could be used to oppose class action lawsuits based on copyright infringement claims for virtually any other kind of creative work outside of publishing.

If individual authors qualify to participate, but are not satisfied with, Google’s takedown procedure which it calls “exclusion,” the thoughts in the January 31 post here “Lessons for Online Piracy Legislation from Comments on Copyright Small Claims” come into play. The percentage of those authors who can find a way to wage copyright infringement litigation against Google cannot be very large.

The numbers involved in the Book Project, however, are large. The brief says Google has scanned more than 20 million books so far, and 4 million are available for research that will produce “snippet view” results. The snippets are about an eighth of a page of the book in question, and no more than 3 snippet views are said to be returned as search results. Snippet views might include a thumbnail image of the book’s cover and “get book” information in the form of links to online booksellers with prices along with lending library information.

Google claims that many authors see snippet views as valuable, maybe the only, advertising for their works–and that is easy to believe. It also says no snippets are shown for reference works because the snippets might be all the searcher would want and the Books Project wants to be a way to find books, not a substitute for them.

The brief also describes the Google Partner Program with more than 45,000 publishers and 2.5 million books. Participation in the program means search results with full page displays, and apparently no takedown powers for authors whose publishers participate. By Google’s numbers, that still leaves at least 1.5 million works by non-Partner Program authors with snippet views returnable today, and about 16 million scanned works not discussed at all. Perhaps the plaintiffs will talk about them.

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Patent Misuse Defense and the Future of Traditional Publishing

Posted on February 3, 2012 by

An ITC ruling for Microsoft and against Barnes & Noble’s patent misuse defense on Tuesday comes on the heels of a thoughtful NYT piece linking the future of traditional publishing to B&N’s ability to keep the doors open. The dispute involves the importation of Nook readers using the Android operating system. Yes, Google’s operating system but Microsoft is the plaintiff –that’s another story. The Times article is “The Bookstore’s Last Stand” by Julie Bosman.

The patent misuse defense isn’t in the patent statutes, has always been tricky, and is rarely applied. It is invoked in situations where patents are alleged to be used in an anticompetitive way that goes beyond the normal scope of patent rights. That’s tricky because the whole idea of a patent is to confer monopoly rights on its owner to prevent all others from making, using, or selling the invention it covers. But the equitable defense is recognized even if it didn’t help B&N at this stage of the fight with Microsoft.

An interesting sidelight is how the ITC judge’s decision became known before Microsoft issued a statement. It was apparently sussed out by the blog Ross Patents which had enough information about the litigation to understand the implications of a one line docket entry for the ITC case. As mentioned here recently, a feature of the online piracy bill OPEN is the use of the ITC. The need for that active tribunal to make dockets and documents filed more accessible will be even greater if its portfolio is expanded.

Why is the fate of traditional book publishers closely linked to B & N as the last national book store chain left standing? The publisher’s role is seen as curator of the writing universe and guide to what’s worth reading. The “browsing” effect is cited by Ms. Bosman and supported by stats indicating that most people don’t walk out of a bookstore with what they came for. The same may be true to some extent online, but the vastness of offerings from Amazon and other sources is only mediated by “if you like this, you’ll also like the following” features–and what your friends tell you to read.

B & N is so small compared to Amazon, and the e-reader arms race is so fast and furious, the impact of IP litigation has to be much greater for the last national bookstore. Whether the ITC ruling in the lawsuit adds anything to the law of patent misuse remains to be–and maybe never will be–seen.

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Lessons for Online Piracy Legislation from Comments on Copyright Small Claims

Posted on January 31, 2012 by

The draft legislation called Online Protection & Enforcement of Digital Trade Act (OPEN) is having its moment in the sun as an approach favored by Google and other internet powers who are said to regard it as not threatening to damage the structure of the web. See, keepthewebopen.com. But thinking about the limelight suddenly bathing the question of how to deal with the serious harm of online piracy, few notice the challenge of how to empower individual and small enterprise owners of creative works. As in business generally, their importance is great and no practical solutions are even on the table.

OPEN has a good idea for larger players with enforcement proceedings in the US International Trade Commission (ITC, usitc.gov), but complaints before that body are too time consuming and expensive for most individuals and small businesses to pursue. If you’re interested in the full range of obstacles to enforcement, the Library of Congress offers a good collection of illustrations.

It all started six years ago with testimony before Congress titled “Statement of the United States Copyright Office before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.” copyright.gov/docs/regstat032906.html The problems laid out in the statement are as real today as they were in 2006. The statement was to be part of a process leading to reforms. What happened? Essentially nothing, and the Copyright Office to its credit has all but started from scratch again with a request for public comment on this important subject.

The comment period ended January 17. Everything submitted is collected under the heading “Comments on Small Claims.” copyright.gov/docs/smallclaims/comments/. Some of the statements give an accurate description of the near-impossibility of enforcing rights for many.

Photographers, for example, are said to earn an average of less than $50K annually and they must use a large part of that income for the technology that is now mandatory in their field. Getting a lawyer, filing a federal lawsuit, obtaining an injunction, receiving an award of attorney’s fees or even damages–one hurdle after another that can’t be jumped. The groups representing photographers and graphic artists see a huge need.

The performing rights societies that represent a great segment of the music industry see it differently. They argue that a copyright small claims type procedure isn’t needed because of their enforcement efforts. Of course those efforts aren’t effective enough to combat online piracy, and so more legislation is needed. But don’t expect ASCAP, SESAC, or BMI to see that needed legislation as including small claims type proceedings.

For the creative works that have the strength of large public and private organizations, like movies, music, video games, and as of now publishing, copyright enforcement against online piracy can work if the right legal tools are provided and the internet community is in accord. But for individual and small enterprise rights owners who want or need to enforce rights on their own, the Copyright Office comments are a warning that these concerns may be left behind again as new rounds of legislation are put forward.

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Digital Perspectives on Yesterday’s News

Posted on January 24, 2012 by

The Supreme Court ruled against warrantless GPS surveillance and mildly good news on digital music sales showed how relatively small that important industry is in the context of online piracy. A unanimous court speaking in many opinions held that police can’t attach a tracking device to a car without a search warrant. United States v. Jones ( No. 10–1259; January 23, 2012). Meanwhile in London, the International Federation of the Phonographic Industry (IFPI) issued its “Digital Music Report 2012 Expanding Choice. Going Global” finding an estimated $5.2 billion in global digital music revenues in 2011.

In Jones, Justice Scalia emphasized trespass–physical placement by police on private property, a suspect’s car. But from there surveillance was on the web, and he went out of his way to acknowledge that it ”may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy” — a fight he reserved for another day. Justice Sotomayor seemed ready to rule on that question yesterday,“Physical intrusion is now unnecessary to many forms of surveillance…”

Suspect’s private property and entirely electronic means will have to be at the heart of greater criminal copyright powers sought by content owners in the wake of the funeral for SOPA and PIPA. Jones may signal that it could survive constitutional attack.

As for the universally recognized need to combat piracy, the IFPI says its good news from 2011 was despite piracy, and not a reflection of successful copyright infringement enforcement. Chaired by the great one-man music business, Plácido Domingo, IFPI represents the global recording industry with members in 66 countries and affiliates in 45 more. ifpi.org/content/library/DMR2012.pdf.

A large chunk of digital music revenue is from iTunes, Apple’s pioneering legal download store. And Apple’s great success gives perspective Silicon Valley should keep as it and Hollywood hopefully negotiate an agreed approach to piracy. There’s an earnings call today, but Apple’s fourth quarter results were $28.27 billion–about six times digital music revenue for the whole world for a whole year.apple.com/pr/library/2011/10/18Apple-Reports-Fourth-Quarter-Results.html . Google’s fourth quarter was only double digital music sales. nvestor.google.com/financial/tables.html.

Rather than single companies, of course, music revenues are the work of thousands of copyright stakeholders. Apple and Google are the pinnacle of a great pyramid of technology companies, but they can have a place at any bargaining table if they want. Copyright owners have little choice but to be represented by industry associations. However the players come together, Jones is something to consider when they meet.

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Megaupload: International IP Enforcement Without SOPA But With Critics

Posted on January 20, 2012 by

After Congress and the rest of us saw a show of power by Internet players on Wednesday, Thursday saw indictments unsealed in the United States, arrests in New Zealand, and Hong Kong based Megaupload.com shut down. That’s not all. Search warrants executed in the US and 8 other countries led to seizure of about $50M of assets and 18 domain names. The accused individuals were alleged to be involved with Megaupload to carry out a criminal conspiracy which harmed copyright owners to the tune of half a billion dollars.

The story is widely reported today, but not much is known beyond the details in the Justice Department’s news release yesterday. http://www.justice.gov/opa/pr/2012/January/12-crm-074.html. The New Zealand police website likely has information, but I couldn’t access it. That may not be entirely an accident. There were also reports today of Anonymous claiming responsibility for attacks against the Justice Department’s website and several entertainment targets.

In the bipolar view of Hollywood v. Silicon Valley, it was a good day for Hollywood which has no love for Megaupload and its massive 4% of Web traffic. That puts it in the Pirate Bay class of websites major content owners want closed for good. Silicon Valley was not so happy. Many commentators saw the enforcement effort as an effort to win Hollywood back after the deathwatch on SOPA and PIPA began last Saturday with the Obama Administration statement and effectively ended with Wednesday’s powerful stands such as the black redaction block over Google’s logo and Wikipedia turning off the lights.

The best news today in my opinion is a New York Times story “Dodd Calls for Hollywood and Silicon Valley to Meet.” The headline says it all. Former US Senator Chris Dodd was speaking as the head of the Motion Picture Association of America. He makes it clear that representatives of copyright owners were as startled by Wednesday’s events as members of Congress, and Hollywood is “rethinking everything” including the relationship with Silicon Valley.

Who can disagree that the creativity and success of American entertainment and internet technology must both be protected? And who seriously imagines that website attacks will end government copyright enforcement and allow one side to win? Hollywood and Silicon Valley need each other, and our culture and economy need both. An important spokesperson saying out loud that they need to talk is music to my ears.

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Protect IP and SOPA Are DOA

Posted on January 17, 2012 by

The New York Times last Saturday in “Fighting Antipiracy Measure, Hackers Click on Media Chiefs” tells of exposure of top media executive’s personal information on the internet to personalize the fight over ProtectIP and SOPA. Later that day, the White House said what it would and would not support on antipiracy proposals, and the two bills were in the “would not” category. The statement raises serious objections to the bills on censorship and technical grounds. http://www.whitehouse.gov/blog/2012/01/14/obama-administration-responds-we-people-petitions-sopa-and-online-piracy. There is a consensus that the bills are dead.

The Obama Administration position was seen as a victory for a loose coalition of internet companies and a defeat for content providers, especially the film industry. Another round in the long piracy battle has ended, but unlike lawsuits against infringers this fight is between two camps of creators who both get protection from the Copyright Act. The push and pull between them has a momentum that will be hard to stop because there is merit on both sides and so much at stake.

Some large and countless small members of the internet community will agree to nothing less than a free and open environment for startups and success stories alike. Anything increasing the censorship burden or fooling with the code is opposed, and they will fight at the drop of a hat. Many players might feel no immediate impact if SOPA became law, but most think the slippery slope is too steep to safely take any more steps.

Music has been stolen from the early days of MP3 files, and it has only gotten worse. Technology developed and stealing movies has been catching up. We know, if not all believe, that people who create and distribute entertainment have been clobbered by piracy. They’ve gotten some help from government law enforcement, but so have the creators of operating systems and apps.

Like tax evasion and speeding, legal enforcement efforts can truly be effective if they create deterrence, but they fail if mindsets remain “everybody does it” or “what’s the big deal?” Wanting government to shoulder more of the burden is easy to understand, and the thought that the federal government is done legislating on copyright infringement is hard to imagine.

The White House statement includes a plea for the internet community and content providers to work together on solutions for piracy. It received little attention. Comments since Saturday mostly are about who won, who lost, and what kind of proposal might be next. But the wisdom of working together can’t be seriously questioned.

If creative people on both sides overcome the barriers and do that, we’ll all be wealthier. With congressional and presidential election season underway, working together is also the only obvious hope for a new law in 2012. If the pitched battle spills into another set of bills seen as favoring one side over the other, it will likely take Congress more than a year to seriously consider them. What’s the price tag on that?

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