Why Courts Should Use Restraint When Considering A “Prior Restraint”

There has been little fall-out or commentary about a March 12, 2012 Order by the Indiana Court of Appeals temporarily halting the South Bend Tribune from publishing a news story about an instance of suspected child abuse and the response of the Indiana Department of Child Services to those reports.  A panel of three well-respected appellate judges granted the Order unanimously, and although it was brief in duration (barring publication on a Friday until argument could be heard the following Monday), the South Bend Tribune wisely pulled the story from publication to comply with the Court’s Order.  The controversy was resolved only when Indiana Attorney General Greg Zoeller bravely stepped in and put a halt to the Department’s efforts to squash the paper from reporting on information it lawfully obtained from the Department.

Why should journalists, lawyers and free-speech advocates still be concerned about government censorship, a.k.a. “prior restraints?”  Since 1971 when the United States Supreme Court decided the so-called “Pentagon Papers” case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), there has been no doubt that injunctions against publication of the news are rarely, if ever, appropriate.  The Pentagon Papers case famously involved the New York Times’ publication of material from classified Pentagon documents about the Vietnam War.  By a 6-3 majority, the U.S. Supreme Court ruled that even national security interests were not sufficient to uphold an injunction stopping the publication of the news.

There is perhaps no greater threat to freedom than government regulation of the content of the news.  Democracy simply cannot function effectively without well-informed public oversight and participation.  One of the first things tyrants and dictators do when they seize power is take control of the news media.  The Founders of our Republic wisely recognized the fundamental role the media plays in the democratic process.

So, again, why should anyone be concerned about a short, court-ordered delay in the publication of a South Bend Tribune news story about the government’s reaction to reports of child abuse?  It is the principle at stake that matters the most.  Even a short delay in publication disrupts the exercise of independent editorial judgment of publishers and editors.  It is not any accident the news is called the “news,” as it can quickly become stale, and the public needs timely information for democracy to function.  In his concurring opinion in the Pentagon Papers case, Justice Douglas observed:

“The stays is these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment.”

403 U.S. at 724, 91 S. Ct. at 2146.

I certainly hope the Court of Appeals’ Order against the South Bend Tribune was an aberration and a sad episode that we won’t see again.  Please tell us what you think.

Posted in Censorship, First Amendment, Free Speech, Prior Restraint, Uncategorized | Tagged , , , , , | Leave a comment

Kinder, Gentler Illegal Download Prevention?

Before SOPA and PIPPA’s fifteen minutes of fame, the Center for Copyright Information (CCI) was formed last September as an experiment in cooperation between content provider representatives and internet service providers. If it had been fully functional last winter, there might have been a more bipartisan voice on the subject of how to achieve greater copyright enforcement through less drastic measures. But better late than never, CCI announced news this week that holds the possibility that it will provide that voice in the future.

The CCI stated this week that it appointed an executive director with some consumer advocacy background, formed an advisory board including people who were not fans of content provider litigation against consumers, and began a relationship with the American Arbitration Association to come up with a dispute resolution process.http://www.copyrightinformation.org/node/705

CCI was formed to develop a “Copyright Alert System” in which ISP’s would issue “educational notices” to consumers about copyrights. Although yesterday’s announcement begins by saying it is part of a “continued effort to ensure consumer protection,” the cynical view might be that the consumer protection in question is against being sued by CCI executive board participants Recording Industry Association of America (RIAA) and Motion Picture Association of American (MPAA). So CCI may only be the velvet glove on the iron fist.

But there is real promise here. Cynicism aside, this is a group where the RIAA and MPAA sit at the same table with Comcast, Viacom and AT&T representatives to develop the consumer early warning system, and that’s a plus. Not what it could be if Google and Facebook were sitting there, but maybe that is coming. Meanwhile, kinder, gentler copyright enforcement through warnings and education is a much more encouraging way to salvage respect for copyright law. (More about a copyright unified field theory coming next.)

Posted in Copyright Enforcement, Internet | Tagged , , , , | Leave a comment

Toward a Copyright Unified Field Theory–Part 1

A cluster of recent litigation reports leaves me more discouraged than ever by the lack of agreement about the purpose of federal copyright law. We need a reset, and the adversarial process isn’t producing it. Maybe the only hope is academics who aren’t hired by one side or the other, but I want to offer some ideas anyway. Admittedly grandiose, I use “unified field theory” from physics because I’m talking about the core of the core idea in the US:  what does it mean today to promote progress of useful arts?  Maybe you wouldn’t use those words, but our core document does.

Article 1, §8, cl. 8 of the US Constitution forces the purpose of copyright to be extruded from the power of Congress “To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.” It doesn’t even say “copyright” or “patent,” and it’s all we’ve got.  The federal courts try to interpret and apply what Congress does to interpret and apply these words, but someone has to file a lawsuit before that can happen.

In recent weeks,  (1) lawyers sued the largest electronic legal publishers and research providers for selling copies of pleadings and briefs the lawyers filed in court, (2) scientific publishers sued lawyers for copying the publisher’s articles and submitting them to the USPTO in patent prosecution, and (3) while the news was still all about the dramatic Megaupload arrests for massive internet copyright infringement, a major record company agreed to a proposed class action settlement for underpaying artists copyright royalties on, of all things, internet downloads.

Cases of lawyers suing legal publishers include a class action, White v. West Publishing, Case No. 12-CV-1340 (SDNY; Feb. 22, 2012). The defendants provide the Westlaw and Lexis electronic legal publishing and research systems. Most lawyers know that for a price, they sell searches of a giant array of legal documents and provide views and copies of the documents that make up the search results. For some time now, the documents have included pleadings and briefs filed by lawyers. The named plaintiff attorneys took the trouble of getting copyright registrations on a few of their motions and memos filed in court, and they allege copyright infringement by the publishers who copied and digitized the work without permission from them.

The commercial realities show that the argument hasn’t gained much traction, and it is not new. The White complaint has few details. For example, it doesn’t describe how Westlaw and Lexis get the lawyers’ work and copy it. Although on a vast scale, they presumably have to go to the same places as the rest of us:  the courts’ records systems managed by the court clerks.  That is almost always online in the federal court system where you can search and copy documents using PACER, but in other systems a person may have to go to a clerk’s office to get copies.

Either way, you get copies. And there’s usually a charge. So far the clerks aren’t getting sued for making unauthorized copies, but they could be. 28 USC §1498(b); 17 USC §511. Doesn’t the lawyers’ “exclusive right” under the Constitution apply to the clerks?

Much of the answer is that the fair use doctrine is a shield for the publishers. Fair use includes “criticism, comment…scholarship, or research.” 17 USC §107. Far beyond those general words, however, legal filings are a special category of documents. In the Seventh Circuit, the “public’s right of access to court proceedings and documents is well-established.”  Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994). It’s taken very seriously, and anybody who wants to keep documents from the public must show cause except for categories of personal information specified by rule.

So everyone is entitled to get copies of the plaintiff lawyers’ documents filed in court. You wouldn’t get the copies, of course, unless you knew something about the lawsuit in the first place and were checking what was filed. If you didn’t know about the lawsuit, Westlaw and Lexis search results might identify the lawyers’ documents for you. At that point there are at least two places to see them and get copies. You can get them from the clerks, or  you can get them from Westlaw and Lexis. Dozens of other non-subscription websites might have them too.

Aside from what motivated this particular lawsuit, it certainly poses questions. If the clerks are not going to be sued for copyright infringement when they provide copies, but Westlaw and Lexis are, what does that say about the purpose of copyright? And if the publishers are found to be copyright infringers, how does that promote progress of the useful arts? Part 2 coming soon.

Posted in Uncategorized | Tagged , , , , | Leave a comment

Indiana COA Upholds Rights of Internet Commenters to Remain Anonymous

In a case of first impression, the Indiana Court of Appeals held earlier this week that the identity of anonymous internet posters is protected under the First Amendment and Article I, Section 9 of the Indiana Constitution and should not be subject to subpoena unless the litigant requesting such identity meets a four-part test.  The case, The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234, was the subject of this blog when the appeal was initiated, on oral argument, and in light of related developments.  Here’s the link to the Court’s decision.

The opinion is well reasoned and well worth reading.  Here’s how it begins:

In keeping up with the proliferation of the internet and social media, news organizations allow readers to both read and comment on their stories online. While this practice facilitates discourse between readers and interaction with their online news products, it also opens the door to potentially objectionable material, as readers are allowed to post comments anonymously, hiding behind a pseudonym. This case addresses whether a non-party news organization can be compelled to disclose to a plaintiff who has filed a defamation lawsuit the identity of one such anonymous commenter. In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law, which provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment, the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” according to Indiana Code section 34-46-4-2. Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter’s identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.

The Court rejected the application of Indiana’s Journalist’s Shield Law.  In essence, the Court interpreted the word “source,” as used in the statute, to mean only news sources who provide “information that is then interpreted by the news organization.”  There was no evidence that the anonymous internet commenter, “DownWithTheColts,” ever provided any information to the Indianapolis Star that was used by the newspaper in connection with its news reporting function.

Under the modified Dendrite test adoted by the Court, litigants seeking disclosure of an anonymous internet commenter must:

“(1) notify the anonymous poster via the website on which the comment was made that he is the subject of a subpoena or application for an order for disclosure and allow him time to oppose the application or subpoena; (2) identify the exact statement [they] believe[] to be defamatory; and, (3) produce prima facie evidence to support every element of their cause of action before disclosure of the commenter’s identity.”

The one exception to the requirement of setting forth a prima facie case is that a plaintiff is excused from showing actual malice.  Actual malice must be shown as part of a prima facie case of defamation under Indiana law when the speech at issue addresses a matter of public concern.  The Court reasoned that unless the speaker’s identity is known, it would be virtually impossible to show actual malice.  (I would note that it is exceedingly difficult to prove actual malice, even when the writer’s identity is known.)

When litigants satisfy the above criteria, disclosure does not necessary follow.  Instead, the trial court must then “balance the defendant’s First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”  Factors that the trial court should consider as part of the balancing analysis include “the type of speech involved, the speaker’s expectation of privacy, the potential consequences of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party’s position, and the availability of other discovery methods.”

In re Indiana Newspapers will provide the standard in all future cases when a litigant seeks to pierce the anonymity of an internet poster, unless one of the parties to the appeal asks the Indiana Supreme Court to grant transfer.

Posted in Anonymous speech, Defamation, First Amendment, Free Speech, Internet, Journalist's Shield | Tagged , , , , , , , , , , , , | Leave a comment

Access Government Funded Research Free Online—The Next Battle?

The SOPA protest victory may be the energy behind coordinated legislative strikes in the six year old effort to make large amounts of government funded research available to all online. The Federal Research Public Access Act of 2012 (FRPAA) was simultaneously introduced in the U.S. House and Senate. doyle.house.gov/FRPA112FINAL.pdf This version of the bill is essentially the same as the first version introduced in 2006. It has enemies in the publishing industry.

In sleepy December before Wikipedia went dark and Google’s skewed black logo redaction, a bill favored by publishers called the Research Works Act (RWA) was more quietly introduced.  thomas.loc.gov/cgi-bin/query/z?c112:H.R.3699 A previous counterattack bill against FRPAA was supported by publishers and introduced in 2009.

FRPAA would make all outside work for federal agencies with research budgets of at least $100M available to the public online. RWA would stop all of it, regardless of budget, from being online without permission, and prevent federal agencies from building permission into their contracts with authors. FRPAA-like legislation is also being introduced at the state level, such as the “Taxpayer Access to Publicly Funded Research Act” (TAPFR) in New York. nyshei.org/2012/02/02/open-access-legislation-is-active/ Presumably countermeasures are being introduced there to boot.

The Copyright Act denies protection “for any work of the United States Government, but the United States Government is not precluded from receiving, and holding copyrights transferred to it.” 17 USC §105. If even a work made for hire can’t be owned by the government, its ability to receive copyrights surely allows it to make all such works available to the public if it chooses.

Publishers of works prepared for the government by people who are not government employees are publishing them for a plain reason—to sell copies. To do that they need author contracts that do not convey copyrights to the government. They also need either no new legislation, or adoption of RWA. The forces of open access may have the momentum today, but what are the legal arguments and fairness issues involved? 

An interesting place to provoke analysis is a dispute that began in 1997 when a “Regional Web” published online as a public service the local building codes of Anna and Savoy, Texas. The towns adopted the “Standard Building Code” written by the Southern Building Code Congress International, Inc., a non-profit. It owned the copyright in the code which was copied verbatim in the website, and sued for copyright infringement.

Building codes are complex technical documents produced at the cost of considerable expense and effort. The non-profit wanted to recover some of that investment by selling copies to contractors, architects, engineers, owners, and anyone else interested in constructing or renovating a building. The website operator wanted to make it possible for anyone to access the code online, but this was 1997 and that was a much smaller audience.

Years of litigation resulted in an en banc decision in favor of the website operator. Veeck v. Southern Building Code Congress International, 293 F.3d 791 (5th Cir. 2002). The question decided by the court was “the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become ‘the law.'” The court made two major findings.

First, law is made by the public and everyone is entitled to access to it–all of it. “[W]e hold that when Veeck copied only ‘the law’ of Anna and Savoy, Texas, which he obtained from SBCCI’s publication, and when he reprinted only ‘the law’ of those municipalities, he did not infringe SBCCI’s copyrights in its model building codes.”

Second, under the teaching of Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991), the “building codes of Anna and Savoy, Texas can be expressed in only one way; they are facts.” On the face of it, the non-profit still possessed a copyright which covered its sales of the Standard Building Code. Yet the code had become a group of facts instead of a creative work once it was adopted by a unit of government.

Is research by the private sector funded by the government like “the law” if it is “adopted” by a federal agency, but not if it isn’t? Since government works aren’t protected by copyright, does government funding alone make the research a fact? Political momentum may make such questions irrelevant, but if the opposing forces in this battle care to talk to each other, maybe they are worth considering.

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Free speech over the Internet put to the test

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.

Posted in Defamation, Free Speech, Internet | Tagged , , , | 3 Comments

Google Argues Authors Want Book Scanning Project to Continue

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.

Posted in Uncategorized | Tagged , , , | Leave a comment