media law in the digital age [the berkman center]

Produced by Kennesaw State University’s Center for Sustainable Journalism and Harvard Law’s Berkman Center for Internet and Society.

mediaLawintheDigitalAge

S e p t e m b e r 2 5 , 2 0 1 0

This Conference is made possible in part by the generous support of the Harnisch Foundation.

(www.thehf.org)

CLE MATERIALS

MEDIA LAW IN THE DIGITAL AGE: THE RULES HAVE CHANGED, HAVE YOU?

SEPTEMBER 25, 2010

CLE Handouts

TABLE OF CONTENTS

Copyright: Using the Work of Others and Licensing Your Own Work

1. Copyright Law and the Internet: Challenges of Today and Tomorrow 2. Unbundling Copyright Owner’s Rights in the Licensing of “Atomized” Content 3. The Rise of the News Aggregator: Legal Implications and Best Practices 4. All the News That’s Fit to Own: Hot News on the Internet & the Commodification of

News in Digital Culture 5. Hot News Misappropriation: Barclays v. TheFlyontheWall.com

Exercising Your Right to Know: Getting Access to Government Information

1. Federal Open Records Law: Freedom of Information Act (FOIA) 2. Georgia Open Records Laws 3. Comparison Between Florida and Georgia Public Records and Open Meetings Laws

Libel and Privacy: Minimizing the Risks of Publishing Online

1. Libel & Privacy: Minimizing the Risks of Publishing Online 2. Recent Developments: Defamation and Invasion of Privacy

Advertising Law for Online Publishers

1. Legal Topics in Advertising Law for Online Publishers 2. FTC Issues Final Guides on the Use of Endorsements and Testimonials in Advertising 3. Some Online Advertising Law Lingo

Newsgathering Law: How to Stay Out of Trouble When You’re Gathering Information for a Story

1. Newsgathering Law: How to Stay Out of Trouble When You’re Gathering Information for a Story

2. Topics in Newsgathering Law 3. Update on the Free Flow of Information Act 4. State Shield Laws: An Overview 5. The Georgia Open Records Act – Caselaw Summary

Media Law in the Digital Age: The Rules Have Changed, Have You?

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Safe Harbors: Building and Managing Online Communities

1. Recent Developments: Section 230, Communications Decency Act 2. Recent Developments: Online Anonymity 3. Recent Developments: Section 512, Digital Millennium Copyright Act

Starting an Independent News Organization: Business Law and Other Considerations

1. Starting an Independent News Organization: Business Law and Other Considerations 2. Legal Entity/Liability Considerations for a New Media Company 3. A Start‐up Independent News Organization’s Guide to Contributor Agreements 4. Other Considerations When Launching an Online Publishing Venture 5. The Newspaper Revitalization Act 6. Protecting Your Intellectual Property: Trademark and Copyright Basics

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COPYRIGHT LAW AND THE INTERNET: CHALLENGES OF TODAY AND TOMORROW

CHRISTOPHER A. WIECH Troutman Sanders LLP

600 Peachtree Street, NE Suite 5200 Atlanta, GA 30308‐2216

T: 404.885.3691 F: 404.962.6703

E: [email protected]

I. Introduction How we use and disseminate information, thoughts, and ideas has changed dramatically over the past 5‐10 years. Traditional mediums – newspapers, books, magazines, encyclopedias, the nightly news – have, to some extent, given way to the Internet – blogs, YouTube, Facebook, Twitter, news websites – as society’s source for information and its preferred medium for the expression of thoughts and ideas. Indeed, the Internet is becoming ubiquitous – anyone can access it from anywhere in the world with a mobile device or computer and a network connection. Compared with traditional mediums, information on the Internet is also more easily published, distributed, updated, modified, and shared. Content on one webpage can be cut and copied to another webpage, and then another, in an instant, which makes it difficult to keep track of who actually owns the content we view and use. Given these realities of the Internet, most people naively assume that just about everything on the web is free, unprotected, and theirs to use without limitation. Is this good or bad? Does the Internet encourage innovation and sharing, or does it stifle creativity? On one hand, the Internet encourages the free flow of thoughts and ideas. Take Wikipedia, for example, which aggregates the collective knowledge of anonymous users from around the world, without regard to who owns what. But, on the other hand, the Internet is an emerging commercial marketplace, where ownership and revenues really do matter; and the stakes are high because of the potential revenue associated with the relative ease of distributing content to millions of users. So, how do we balance free use with protection of ownership? It’s not easy. Particularly, in the world of copyrights, the Internet poses many challenges. Despite Congress’ attempt to keep pace with the Internet by enacting the Digital Millennium Copyright Act (“DMCA”), which sought to extend federal copyright protection to Internet content, there is still much confusion over how to treat content on the Internet. Traditional copyright laws are not well tailored to Internet content, leaving the courts to interpret and apply the law as best they can, which isn’t always consistent. For now, in light of such uncertainty over how copyright law will evolve with the Internet, the best practice – whether you’re using someone else’s content on the Internet or you’re the owner of content – is to stay aware. Stay aware of the content you use; stay aware of your content and how it’s being used; and stay aware of the law as it evolves. For all you know, you may be pirating someone else’s

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copyright‐protected work or your copyright‐protected work may be being pirated right under your nose. The purpose of this article is to promote a basic awareness of the legal issues pertaining to how we use and disseminate copyright‐protected information on the Internet, beginning with what constitutes copyright infringement (Section II), monetary relief for acts of infringement (Section III), and ways to avoid liability (Sections IV, V, and VI). II. Breaking the law: what you need to know about copyright infringement A copyright owner has the exclusive right to reproduce his or her copyrighted work; to prepare derivate works based on the copyrighted work; distribute copies of the work to the public (sell rights, lease, etc.); and publicly perform or display the work, including posting photographs or streaming music or video on the Internet. These exclusive rights can be infringed directly or indirectly. Direct infringement can by shown (1) with direct evidence of copying – or, at least, by showing that the infringer had access to the copyrighted work – and (2) substantial similarity between the copyrighted work and the infringing work. In the context of the Internet, courts have required some kind of direct volitional act in order to find direct infringement. Direct infringement can be pretty black‐and‐white, but indirect infringement has many shades of gray. As a result, it’s much easier to fall victim to, or be a victim of, indirect infringement. Indirect infringement, at the outset, requires an underlying act of direct infringement. And indirect infringement can be contributory or vicarious. Contributory infringement is shown where the user (1) has actual or constructive knowledge – meaning they knew or should have known – of the direct infringement, and (2) the user contributed to or inducted the direct infringement by, for example, advertising or promoting the infringing work. The standards for contributory infringement have evolved with two U.S. Supreme Court cases: Sony Corp. v. Universal City Studios, Inc., in which the Supreme Court established that selling a product with substantially non‐infringing use is not contributory infringement; and MGM Studios, Inc. v. Grokster, Ltd., in which the Supreme Court held that distributing a product with infringing and non‐infringing uses may nevertheless still constitute infringement if the promotion of the product and its ultimate use is infringing. Ask yourself, is the primary objective of your website to encourage others to infringe copyright‐protected work? If so, you could be liable for contributory infringement. Finally, vicarious infringement occurs when the vicarious infringer has (1) a financial interest in the infringing activity, which can be shown by examining its business model, and (2) the right or ability to control the direct infringer. Consider, for example, YouTube. Thousands of users post video content on YouTube each day. YouTube has a financial interest in its users doing so – it’s what attracts users to its site and thus attracts advertising revenue. Moreover, YouTube has the ability to control what content is posted on its site. So, when a user knowingly and without authorization posts a copyrighted video on YouTube, YouTube can be vicariously liable for that

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act. Fortunate for YouTube and other websites like it, Congress has made life easier with safe harbors under the DMCA, which are discussed below in Section IV. III. Paying the piper for breaking the law Copyright owners whose works have been infringed are entitled to recover actual damages or statutory damages and/or injunctive relief from infringers. Actual damages are your actual losses resulting from infringement (e.g., lost profits), which can be difficult to prove, and the reason why most copyright owners seek statutory damages, which are an amount of damages prescribed by the federal Copyright Act. The Act allows for statutory damages of $750‐30,000 for each instance of infringement, and the court has discretion to reduce (down to $200) or raise (up to $150,000) that amount depending on whether the infringement was innocent or willful. Moreover, because digital media on the Internet is so easily uploaded and frequently shared, the potential for a massive statutory damages award exists. To put this in perspective, Viacom International, the multimedia conglomerate, which owns countless copyrights, has sued YouTube, alleging infringement of at least 150,000 video clips. Statutory damages in that case, at a minimum, would be $112.5 million (i.e., $750 x 150,000), and that doesn’t account for multiple instances of infringement. That’s why Viacom is seeking over $1 billion in damages. On a lesser scale – one you and I might better appreciate – a jury in Massachusetts awarded Sony statutory damages of $675,000 against a graduate student for willful infringement of songs – at $22,500 per song. Depending on where you stand – content user or content owner – this may seem harsh or not harsh enough. IV. Congress tries to strike a balance: the DMCA Undoubtedly, the Internet is the unknown frontier when it comes to copyrights. What makes the Internet superior over traditional mediums (e.g., books, movies) – the relative ease with which copyrighted content can be inexpensively distributed to millions – also makes it riskier – acts of infringement are much grayer and, if found liable, staggering damages awards are possible because of the relative ease of distribution. To balance these benefits and risks, Congress enacted the DMCA in 1998 to give “greater certainty to [Internet] service providers concerning their legal exposure for infringements that may occur in the course of their activities.” A “service provider” is “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received,” including “a provider of online services or network access, or the operator of facilities therefor.” For example, Comcast, Google, and even some blogs qualify as “service providers” under the DMCA. In particular, the DMCA provides safe harbor from liability resulting from various activity on the Internet: • acting as a conduit for transmission of infringing content;

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• temporary storage of infringing content for purposes of improving network efficiencies; • providing server space for an infringer’s content, such as a website or blog; or • referring or linking users to an online location containing infringing material or infringing activity (e.g., search engines). To be eligible for safe harbor protection under the DMCA, the service provider must adopt and reasonably implement, and inform users of, a policy that provides for termination in appropriate circumstances of users who are repeat infringers. In adopting a policy, the most common way to protect yourself as a service provider is to require your users to accept your terms and conditions as a prerequisite to using your website. The terms and conditions should, among other things, set out the website’s right and discretion to remove content or use content added to it by users. For example, we all had to agree to Facebook’s terms and conditions before we could create our profiles, and in doing so, we all granted Facebook “a non‐exclusive, transferable, sub‐licensable, royalty‐free, worldwide license” to use anything we post on Facebook, regardless of any intellectual property ownership rights we may have in what we post. Notably, terms and conditions that require affirmative acceptance by the user – e.g., clicking “I accept these terms and conditions” – are more easily enforced than terms and conditions that are simply posted somewhere on the site. Reasonably implementing a policy typically requires some form of monitoring your website site to ensure infringing activity is not taking place, nor is infringing content being added to the site. Commercially available filtering software can be used to identify infringing material as well as repeat infringing users. In addition, service providers must accommodate, and not interfere with, standard technical measures used by copyright owners to identify or protect their copyrighted works. This is known as copyright management information (“CMI”). All copyright‐protected works should contain some type of identifier that alerts the user as to the author or owner of the work. If you remove or alter the CMI on a work, the DMCA’s safe harbor provisions won’t apply to you. For user‐generated content, in addition to the requirements above, the service provider must not have actual knowledge that its systems or networks contain infringing material or infringing activity is occurring, nor can it turn a blind eye to red flags indicating possible infringement. Once the service provider is aware of the infringing activity – typically, upon receiving notice from the copyright owner – the service provider must act expeditiously to remove the infringing content or disable access to it. However, if the service provider does actually remove content based on notice, knowledge, or even suspicion that the content is infringing, the service provider must notify the user whose content has been removed or disabled. The user then may counter‐notify the service provider that its content has been removed or disabled by mistake, in which case, the service provider must put the content back up within 10‐14 days unless the copyright owner initiates legal action against the user.

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Last, the service provider cannot receive a direct financial benefit from infringing activity that it has the right or ability to control. Why be bothered with all of this? By following these procedures under the DMCA, the service provider can immunize itself from liability for posting or removing content, regardless of whether the content infringed. In a fight between the copyright owner and alleged infringer, the service provider is usually stuck in the middle. Before the DMCA, the service provider could remain stuck in the middle based on potentially liability as an indirect infringer. Now, by following the simple procedures set forth above, the service provider can extricate itself from the fight, and won’t be on the hook for damages. Moreover, the copyright owner and user can both be liable to the service provider for misrepresenting whether content is protected. V. What’s fair is fair – the fair use defense to copyright infringement. Maybe you’re not a “service provider” and therefore not entitled to the safe harbor provisions under the DMCA, or the DMCA doesn’t apply to your circumstances? In that case, traditional copyright law principles will apply. Obviously, the best way to avoid liability for copyright infringement is to obtain permission from the copyright owner to use its copyrighted work. That’s not always possible, and sometimes, it’s too late because the work has already been used without permission. Permission aside, the most widely used and most widely litigated defense to copyright infringement is fair use. A colleague once said, “Everything is fair use, and nothing is fair use.” That statement, perhaps, best sums up the law on fair use. You can read countless court opinions, as well as treatises, about what is and is not fair use, and still not have a clear understanding. That’s because the fair use defense is fact‐specific, and can vary greatly depending on the circumstances. The Copyright Act, though, sets out factors to aid in determining whether use of a copyrighted work is fair. This is important because if use is fair, there is no infringement – direct or indirect. Nature of the use. This first factor considers how the copyrighted work is being used. Socially desirable uses, such as for education or journalism, are more likely to qualify as fair use than are commercial uses. In addition, transformative use – use that adds something new to the original content or alters the character or use of the work – is more likely to be considered fair use, whereas redistributive use – essentially repeating all or portions of the original work for the same intended purpose or use – is not as likely to be considered fair use. For example, copying portions of a copyrighted material for purposes of providing commentary or criticism on it – a lot of what bloggers do – is generally transformative use because the copyrighted material is being used for a different purpose than its original purpose. Moreover, the commentary or criticism is, itself, a new expression of thought. But, simply verbatim copying of all or a portion of copyrighted work, without adding to or altering its original purpose, is not fair use. Parodies are a much discussed example of fair use. A parody is a work that pokes fun at or criticizes another work. Without reference to the original work, the parody wouldn’t be

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understandable. But the incorporation of the original work into the parody is permissible – it is fair use – because the parody transforms the original work. Nature of copyrighted work. This second factor looks at the degree of creativity in the copyrighted material. Is it fact or fiction? Is the work published or unpublished? Taking from factual works and published works is more likely to qualify as fair use. Amount of work copied. This factor considers the quantity and quality of the work used. Wholesale verbatim copying is typically considered not fair use. But, even copying a small portion of a work, if that small portion captures essentially the heart of the work, may not be fair use either. Market effect. This last factor gives great weight to how the use affects the market for the copyrighted work. Courts consider not only the market effect of the particular user’s use of the material, but also whether similar use (by others) would substantially and adversely impact the potential market for the copyrighted work or derivative works. A good example of these factors at work is United States v. American Society of Composers, Authors, and Publishers. In that case, musicians and composers sued AT&T for copyright infringement for AT&T’s use of ringtone previews on its website. AT&T defended on the grounds of fair use, but the court ruled against it. The court found that AT&T’s use of the ringtone previews was not transformative, but rather for a commercial purpose, because AT&T used the previews to attract visitors to its site to facilitate ringtone sales and to attract third‐party advertising. Moreover, it did not matter that each ringtone preview was only 10‐30 seconds long because these short snippets captured the heart of each song. Finally, AT&T’s use impeded the market for licensing ringtone previews because AT&T used the ringtones for more than promotional purposes. VI. A factual wrinkle: “hot news” misappropriation Fair use comes into play when the subject work being used is copyrighted. Facts, however, cannot be copyrighted. Indeed, a long‐standing principle of copyright law is that facts are in the public domain. Websites, like Google News and the Drudge Report, that aggregate news headlines and excerpts from, as well as link to, other websites rely on this principle that facts are free. However, while facts may be free, that doesn’t necessarily mean you’re free from liability for using them. “Hot news” misappropriation is a tort claim, which was first recognized by the U.S. Supreme Court in 1918 and is recently gaining popularity among news‐reporting organizations, that protects information conveyed as “breaking news.” Just last March, Flyonethewall.com, an Internet‐based financial news website which aggregates and publishes stock recommendations taken from various Wall Street firms, was found liable for misappropriation by a federal court in New York, in Barclays Capital Inc. v. Flyonthewall.com. The court found that this particular news aggregator was engaging in “free‐riding activity that is directly competitive with the [Wall

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Street] Firms’ production of time‐sensitive information, thereby threatening their incentive to continue in the business.” However, in that case, Agora Financial, LLC v. Samler, the court found that the financial investment recommendations at issue were not “hot news,” but more likely subject to copyright protections. The court noted, “[A] recommendation to invest in a company is not a fact, but instead an ‘original’ work, which . . . entails ‘judgment’ and ‘creativity.’ . . . While plaintiffs may be able to protect their ‘original’ investment recommendations under federal copyright law, they cannot protect these recommendations under the ‘hot news’ misappropriation theory.” The distinction, therefore, between the rights protected under a copyright infringement claim and a "hot news" misappropriation claim is that copyright law protects a copyright holder's exclusive right to reproduce, distribute, perform, or display "original" material while the "hot news" misappropriation theory protects an individual's exclusive right to profit or otherwise benefit from the labor expended in discovering, gathering, and generating certain "non‐original" material, such as factual information. On their surface, Barclays and Agora both involved use of another’s financial investment advice, but each had a different outcome on whether the content at issue was subject to copyright law or the tort claim of hot news misappropriation. What is for sure, like infringement and fair use, hot news misappropriation is also a highly factually dependent; there is no bright‐line rule. With the advent of news aggregator websites and original source news‐reporting websites starting to charge subscriber fees for full access, more lawsuits, whether grounded on copyright infringement or hot news misappropriation (in those states that recognize the claim), are sure to follow. Perhaps, even facts aren’t safe anymore. Just be aware of what’s being used and how it’s used. VII. Parting Suggestions When dealing with the Internet, simply being able to spot potential pitfalls with using and distributing content, puts you ahead of the curve. Awareness is the key. For content users:

• Consider the content itself – does it contain any CMI (copyright management information) signaling that it is copyright protected; is it the type of content that could be subject to copyright protects, like creative work as opposed to facts (if facts, though, are they time‐sensitive?)

• Pay attention to the source of the content you’re using – are you taking content that’s already been infringed?

• Consider your use of the content – is it infringing or fair use? Should you obtain permission to use from the copyright owner?

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• Consider whether the DMCA applies to you, if you’ve met its requirements, and are thus entitled to its safe harbors from monetary liability.

For content owners: • Identify your ownership of your content – make sure it contains CMI. • Monitor, to the extent possible, use of your content by others on the Internet. • Rely on notice‐and‐take down provisions of DMCA. • Enforce your rights – send cease and desist letters to infringers, require licenses to

use your content, and resort to litigation or alternative forms of dispute resolution, if necessary.

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UNBUNDLING COPYRIGHT OWNERS’ RIGHTS IN THE LICENSING OF “ATOMIZED” CONTENT

ERIC J. HANSON Hunton & Williams LLP

Bank of America Plaza, Suite 4100 600 Peachtree Street, NE Atlanta, Georgia 30308

T: (404) 888‐4040 F: (404) 602‐8850

E: [email protected] Opportunities for creating and consuming licensed digital content are virtually limitless in today’s “app economy.” As demand grows for quickly digestible digital content “nuggets,” digital works are increasingly “atomized” into extracted works for license and distribution to a variety of uses. Original “parent” works, such as books, articles, content libraries, software programs, multimedia works, and audiovisual compositions, give rise to atomized content such as excerpts, images, audiovisual clips, feeds, and samplings. Because copyright protection extends to such atomized content, a digital content owners’ copyright licensing options multiply beyond a basic license of an owner’s bundle of rights in an original work to a licensee. Often the licensors’ and licensees’ needs for use and copying of atomized works is different from the licensing considerations for the use of the original digital parent works. Depending on, for example, what atomized content is to be used, the various distribution interfaces and scope of permitted redistribution, the copyright owner’s bundle of rights may be unbundled and licensed under content and distribution specific terms to meet the copyright owners’ and licensees’ needs. Further, license fees for use of the original work may be very different than for use and distribution of the atomized content. Under Section 106 of the U.S. Copyright Act (17 U.S.C. §106) a copyright owner’s primary bundle of rights includes the exclusive right to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly

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by means of a digital audio transmission. From computer, television, mobile device and social network “apps” to embedded web page media and text feeds, given the increasing number of possible interfaces from which atomized content is served and re‐served to both end users and by third party digital content distributors, copyright licensors must consider how this bundle of rights might be licensed for their atomized content works in comparison to the original works. For example, a web‐based magazine “WebZine” might provide a collection of reviews for various home theater products on its website. Each product review includes, for example, a digital article with text expressing the author’s evaluation and opinion of a device together with review photographs and videos. A typical article might therefore be a joint work of authorship of a technical review writer and the photographer/videographer. If the parties only consider the basic end‐use of the entire review article on WebZine’s website through the interface of an Internet browser, the parties might contemplate only a simple transfer of the authors’ entire bundle of rights by assignment or license to WebZine. Such basic “bundled” transfers might occur as “work for hire” employment or the authors’ individual license contracts with WebZine. However, each WebZine review has the potential to be atomized and licensed for distribution of the atomized content by the authors, WebZine and/or third parties to many other digital content interfaces beyond WebZine’s web pages including only the full review. The valuable copyrighted atomized content may include product images, product video and text excerpts from the review. Individually or in selectable combinations such atomized content may be specifically licensed for digital consumption to a variety of third party uses, such as other review and retail web sites, device apps, feeds, dashboard widgets, comparison interfaces, video platforms, image platforms and other distribution interfaces. If the authors have already transferred all of their copyright interests to WebZine, WebZine is the owner and licensor to structure potential licensing relationships of both the full work and these potential atomized works. WebZine would consider the unbundling of its copyright rights with respect to atomized content and what uses will be licensed to potential licensees. WebZine might establish different content license fees for particular uses, particular distribution channels and for third party downstream sublicense rights. WebZine might also syndicate atomized content, require tracking of content use, require attribution and establish limits on how content may be repurposed. If the authors have not transferred their copyright ownership interests by assignment or exclusive license to WebZine, such as under an existing employment relationship or contract, the authors remain individual owners and licensors for determining the licensing of their bundle of rights as to both the entire work and to atomized content. In an author ownership scenario, the author‐licensors might grant certain rights to WebZine regarding use of the full review on the WebZine site while reserving rights to atomize and license content themselves. The author‐licensors might also grant exclusive rights to WebZine in both the full work and atomized

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content, but establish different license fees applicable to different uses by WebZine in downstream licensing of the atomized content. Such monetization strategies might include the authors attempting to establish an appropriate schedule of fees applicable to atomized content based on WebZine’s potential sublicensed distribution channels. In addition, or alternatively, the authors might provide WebZine with general sublicense rights subject to a requirement of establishing license rates as WebZine’s sublicense opportunities arise. Further, depending on the specific atomized content, such as atomized text, atomized images and atomized video, a particular author or authors of certain atomized content may have specific owner and licensor rights apart from the author(s) of other atomized content in the original work. Different copyright owners of different atomized content might therefore have different license considerations and establish different agreements for their individual rights applicable to particular licensed content. Whether WebZine or an author is a copyright owner and licensor of atomized content, some of the many considerations relating to licensing and unbundling of Section 106 rights under the hypothetical example may include: Right to reproduce the copyrighted work in copies or phonorecords

• What portions may or may not be copied as atomized content? • In what forms and to what distribution interfaces can the content be reproduced? • Are there limits on the number of copies or how much copying is permitted? • What license fees are applicable to particular content, copiers

(commercial/personal) and form and use of copied content? • Are there limitations on copying with respect to certain distribution channels,

commercial uses, non‐commercial uses or those permitted to copy? • Are licensed reproduction rights exclusive or non‐exclusive as to particular content,

copiers and distribution channels? • How long is a copier granted the reproduction right as to particular content? • Is attribution of copyright ownership, owner branding, website link or required

notices required in connection with copied uses? • Is sublicensing of reproduction rights from licensee to other licensees permitted? • If sublicensing is permitted, is content and license tracking required to monitor

locations and uses of copied atomized content? • Are there restrictions on the digital environment and context in which copied

content will be used? • In what digital and non‐digital media is reproduction of the content permitted? • Will the copyright owner have audit rights to confirm the licensee’s copying and the

copying by sublicensees to determine applicable license fees and compliance with license terms?

• Are there restrictions on where licensed content resides and where it is reproduced for display and other licensed uses? o Copyright owner’s servers? o Licensee’s servers?

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o Downloadable? Right to prepare derivative works based upon the copyrighted work

• Any restrictions on how atomized content may be incorporated to create new content?

• Does the incorporation of licensed atomized content create any license‐back rights to the licensor in the licensee’s derivative work including the atomized content?

• Does the incorporation of licensed atomized content create any licenses right to third parties (including other third party licensees of the atomized content) in a licensee’s derivative work including the atomized content?

• Does the right to create different types of derivative works with the licensed content represent different license fees?

• In what digital and non‐digital media may derivative works be created? • Who is granted the right to create derivative works and may the right be

sublicensed? Right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

• What licensees and sublicensees are granted distribution rights to the atomized content?

• What monetization rights (such as digital sales, rentals, subscriptions, syndication, etc.) are granted to licensees?

• Is particular atomized content subject to different distribution rights than other atomized content?

• Are different license fees applicable to obtaining a license of distribution rights compared to copying rights for a licensee’s end use?

Right to perform the copyrighted work publicly ‐‐ literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

• Apart from terms governing making copies of content, are further license terms to be applicable to publicly performing authorized copy of atomized content? o Content, such as audiovisual clips, to be publicly performed in transmission to an

audience (e.g. trade show, instructional)? o Content to be publicly performed in commercial environment (e.g. retail home

theater store publicly performing an authorized copy of an audiovisual clip from a review for customers)

• Are specific license fees applicable to licensing a public performance right? Right to display the copyrighted work publicly ‐‐ literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work

• Apart from terms governing making copies of content, are further license terms to be applicable to publicly displaying an authorized copy of atomized content?

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o Content, such as digital image or text, to be publicly displayed in transmission to an audience (e.g. trade show, instructional)?

o Content to be publicly displayed in commercial environment (e.g. retail home theater store publicly displaying an authorized copy of text or image content from a review to customers)

• Are specific license fees applicable to licensing a public display right? Right to perform the copyrighted work publicly by means of a digital audio transmission ‐‐ sound recordings

• Apart from terms governing making copies of content, are further license terms to be applicable to public performance of audio atomized content that is digitally transmitted? o Sound recording audio to be played publicly by digital transmission transmitted

to an audience (e.g. Internet broadcast)? o Sound recording audio to be publicly played in commercial environment (e.g.

retail home theater store publicly playing an authorized copy of an audio clip from a review to customers)

Are specific license fees applicable to licensing a public performance of audio content digitally transmitted?

THE RISE OF THE NEWS AGGREGATOR: Legal Implications and Best Practices

By Kimberley Isbell and the Citizen Media Law Project

During the past decade, the Internet has

become an important news source for

most Americans. According to a study

conducted by the Pew Internet and

American Life Project, as of January 2010,

nearly 61% of Americans got at least some

of their news online in a typical day.1 This

increased reliance on the Internet as a

source of news has coincided with

declining profits in the traditional media

and the shuttering of newsrooms in

communities across the country.2 Some

commentators look at this confluence of

events and assert that, in this case,

correlation equals causation – the Internet

is harming the news business.

One explanation for the decline of the

traditional media that some, including

News Corporation owner Rupert Murdoch

and Associated Press Chairman Dean

Singleton, have seized upon is the rise of

the news aggregator. According to this

theory, news aggregators from Google

News to The Huffington Post are free-

riding, reselling and profiting from the

factual information gathered by traditional

media organizations at great cost. Rupert

Murdoch has gone so far as to call

Google’s aggregation and display of

newspaper headlines and ledes “theft.”3 As

the traditional media are quick to point out,

the legality of a business model built

around the monetization of third-party

content isn’t merely an academic question

– it’s big business. Revenues generated

from online advertising totaled $23.4

billion in 2008 alone.4

Building a business model around

monetizing another website’s content isn’t

novel, and methods for doing so have been

around for almost as long as the Internet

has been a commercial platform. Consider

the practice of framing, or superimposing

ads onto embeded websites.5 There’s also

in-line linking, or incorporating content

from multiple websites into one single

third-party site.6 These days, it’s news

aggregators that are generating a lot of

Producing journalism is expensive. We

invest tremendous resources in our project

from technology to our salaries. To

aggregate stories is not fair use. To be

impolite, it is theft.

— Rupert Murdoch, Chairman and

Chief Executive of News Corporation

December 1, 2009

scrutiny. But are they legal?

WHAT IS A NEWS AGGREGATOR?

Before tackling the legal questions

implicated by news aggregators, we should

first define the term. At its most basic, a

news aggregator is a website that takes

information from multiple sources and

displays it in a single place.7 While the

concept is simple in theory, in practice

news aggregators take many forms. For

this reason, any attempt to talk about the

legal issues surrounding “news

aggregation” is bound to fail, unless we

take into consideration the relevant

differences among the various models.

For the purposes of our discussion, we will

group news aggregators into four

categories: Feed Aggregators, Specialty

Aggregators, User-Curated Aggregators,

and Blog Aggregators.8

FEED AGGREGATORS

As used in this discussion, a “Feed Aggregator” is closest to the traditional conception of a news

aggregator, namely, a website that contains material from a number of websites organized into various

“feeds,” typically arranged by source, topic, or story. Feed Aggregators often draw their material from a

particular type of source, such as news websites or blogs, although some Feed Aggregators will contain

content from more than one

type of source. Some well

known examples are Yahoo!

News (and its sister site, My

Yahoo!) and Google News.

Feed Aggregators generally

display the headline of a

story, and sometimes the

first few lines of the story’s

lede, with a link to where the

rest of the story appears on

the original website. The

name of the originating

website is often listed, as

well.

SPECIALTY AGGREGATORS

For the purposes of this white paper, a

“Specialty Aggregator” is a website that

collects information from a number of sources

on a particular topic or location. Examples of

Specialty Aggregators are hyper‐local websites

like Everyblock and Outside.In and websites

that aggregate information about a particular

topic like Techmeme and Taegan Goddard’s

Political Wire.

Like Feed Aggregators,

Specialty Aggregators

typically display the

headline of a story, and

occasionally the first few

lines of the lede with a link

to the rest of the story,

along with the name of the

website on which the story

originally appeared. Unlike

Feed Aggregators, which

cover many topics, Specialty

Aggregators are more

limited in focus and typically

cover just a few topics or

sources.

CAN THEY DO THAT?

For all of the attention that news

aggregators have received, no case in the

United States has yet definitively

addressed the question of whether their

activities are legal. Only a small number of

lawsuits have been brought against news

aggregators, and all of them have settled

before a final decision on the merits.

Before trying to answer the question of the

legality of news aggregators under U.S. law,

let’s take a closer look at the cases that

have been brought to see what arguments

both sides of the debate are making.

AFP V. GOOGLE NEWS

While still a young company relying on

private capital, Google launched a news

aggregator in 2002 that was intended as a

companion to its increasingly popular

search engine.9 Using Google’s Internet

search prowess to crawl through

thousands of online media sources, Google

News, as the service would be called,

featured various news stories published

over the past 30 days. At the time AFP

filed suit, Google News displayed the

headline, lede, and accompanying photo of

articles published by the different news

providers accessed by Google’s news

crawler.10 Google also provided a link to

the original story as it appeared on the

website from which the story was

accessed.

USER‐CURATED AGGREGATORS

A “User‐Curated Aggregator” is a website that features user‐submitted links and portions of text taken

from a variety of web‐

sites. Often, the links on

a User‐Curated Aggrega‐

tor will be culled from a

wider

variety of sources than

most news

aggregators, and will

often include links to

blog posts and

multimedia content like

YouTube videos, as well

as links to more

traditional media

sources.

BLOG AGGREGATORS

Of the four types of news aggregators discussed in this

paper, the final category, what we’re calling “Blog

Aggregators,” looks the least like a traditional news

aggregator. Blog Aggregators are websites that use

third‐party content to create a blog about a given

topic. The Gawker media sites are perhaps one of the

best known examples of Blog Aggregators, and also

illustrate the different forms that the use of third‐party

content can take on these sites. One method of using

third‐party content on Blog Aggregators is as raw

material for blogger‐written content, synthesizing

information from a number of sources into a single

story (occasionally, but not always, incorporating quotes from the original articles) and linking to the

original content in the article, at the end, or both. Elsewhere, a post

may consist of a two to three sentence summary of an article from a

third‐party source, with a link to the original article. Yet other posts

are composed of short excerpts or summaries from a number of

articles strung together, all with links back to the original articles.

Another popular Blog Aggregator is the Huffington

Post, which likewise uses third‐party content in a

number of different ways. The Huffington Post

website is organized into several sections, the front

pages of which typically feature links to a mixture of

different types of content, including original articles

authored by Huffington Post writers, AP articles

hosted on the Huffington Post website, and articles

hosted on third‐party websites. In linking to content

on third party websites, the Huffington Post some‐

times uses the original headline, and other times will

use a headline written by Huffington Post editors.

Many of the articles that appeared in

Google News were written by wire services

such as Agence France Presse (“AFP”) and

The Associated Press, but displayed on

third-party websites.11 Wire services like

the AFP generally do not distribute news

freely on their own websites as do many

newspapers; instead, they license their

content to other news providers, such as

local newspapers. According to AFP, then,

the headline, lede and photo displayed by

Google News was licensed content, and

the only parties that were authorized to

publish them were those that paid

licensing fees. By providing this content,

even in an abbreviated form, AFP claimed,

Google News was infringing their copyrights

and stealing their product.

AFP filed a lawsuit against Google in

federal district court in Washington, DC in

2005. The Amended Complaint asserted

claims against Google for copyright

infringement in AFP’s photos, headlines,

and ledes; a claim for removal or alteration

of AFP’s copyright management

information; and a claim for “hot news”

misappropriation.12 Google responded to

AFP’s claims by filing two separate motions

to dismiss: the first, based on AFP’s failure

to identify with particularity all of those

works it alleged Google to have infringed,13

and the second, a partial motion to dismiss

AFP’s claim for copyright infringement of

AFP’s headlines, on the grounds that the

headlines constituted uncopyrightable

subject matter.14

After nearly two years of litigation and

extensive discovery, AFP and Google

settled the case, entering into a licensing

deal granting Google the right to post AFP

content, including news stories and

photographs, on Google News and on other

Google services.15

ASSOCIATED PRESS V. ALL HEADLINE NEWS

Almost three years later, the Associated

Press (“AP”) filed a lawsuit against another

news aggregator, All Headline News. On its

website, All Headline News described itself

as a “global news agency and content

service.”16 According to the AP’s

complaint, however, All Headline News “ha

[d] no reporters,” and instead prepared its

content by having employees “copy[] news

stories found on the internet or rewrite[e]

Page 6

such stories.” All Headline News then

repackaged and sold this content to clients

that included newspapers, Internet web

portals, websites, and other redistributors

of news content.17 The AP asserted claims

against All Headline News for “hot news”

misappropriation, copyright infringement,

removal or alteration of copyright

management information, trademark

infringement, unfair competition, and

breach of contract.18

All Headline News filed a partial motion to

dismiss most of the AP’s claims, except the

claim for copyright infringement.19 Nearly

a year later, the Southern District of New

York issued an order granting in part and

denying in part All Headline News’

motion.20 The court dismissed the AP’s

trademark infringement claims, but

retained the remaining claims against All

Headline News, including hot news

misappropriation.21 Four months later, the

parties settled. Under the settlement

agreement, All Headline News agreed to

cease using AP content and paid an

unspecified sum “to settle the AP’s claim

for past unauthorized use of AP expression

and news content.”22

GATEHOUSE MEDIA V. NEW YORK TIMES CO.

One of the more recent news aggregation

cases pitted two traditional media

companies against each other. GateHouse

Media, which at the time operated more

than 375 local newspapers and their

respective websites, claimed that The New

York Times Co. copied the headlines and

ledes from GateHouse’s Wicked Local

websites as part of its own local news

aggregation effort on the Boston.com

website.23 GateHouse’s Complaint

asserted claims against The New York

Times Co. for copyright infringement,

trademark infringement, false advertising,

trademark dilution, unfair competition, and

breach of contract (for failure to comply

with the provisions of the Creative

Commons license under which the Wicked

Local content was distributed).24

Concurrently with filing the Complaint,

GateHouse filed a motion requesting a

temporary restraining order and

preliminary injunction prohibiting The New

York Times Co. from using content from the

Wicked Local websites.25 The court denied

GateHouse’s motion for a restraining order

and consolidated the motion for a

preliminary injunction with an expedited

trial on the merits.26 The parties settled on

the eve of trial, with both sides agreeing,

among other things, to remove the others’

RSS feeds from their websites.27

SO IS IT LEGAL?

As the foregoing discussion illustrates,

there are two doctrines that need to be

considered when attempting to determine

whether news aggregation is legal:

copyright and hot news misappropriation.

We turn to each of these below.

COPYRIGHT

Under U.S. copyright law, a work is

protected if it (1) is an original work of

authorship, and (2) is fixed in a tangible

medium of expression that can be read

directly or with the aid of a machine or

device (i.e., is recorded or embodied in

some manner for more than a transitory

duration).28 With certain exceptions, the

owner of a copyrighted work has the right

to prohibit others from reproducing,

preparing derivative works from,

distributing copies of, or publicly

performing or displaying the work.29

While most news articles meet the second

prong of the copyrightability test, this does

not end the inquiry. To be protected by

copyright, the material copied by the news

aggregator also needs to be original (i.e.,

both independently created by the author

and minimally creative).30 Under U.S.

copyright law, ideas and facts cannot be

copyrighted, but the way a person

expresses those ideas or facts can be.31 It

is also a generally accepted proposition of

U.S. copyright law that titles and short

phrases are not protected under copyright

law.32

These last two propositions are cited by

many news aggregators to claim that the

headlines of news stories (and, less

frequently, the ledes) do not qualify for

copyright protection, and thus the

reproduction of this material on a news

aggregator’s website does not constitute

copyright infringement. According to this

argument, a headline is an uncopyrightable

title or short phrase. Moreover, the

argument goes, headlines are highly

factual and thus the merger doctrine would

prohibit copyright protection. The merger

doctrine denies protection to certain

expressions of an idea (or set of facts)

where the idea and its expression are so

inseparable that prohibiting third parties

from copying the expression would

effectively grant the author protection of

the underlying idea.33

In its litigation against AFP, Google

asserted a variant of this argument. Noting

that AFP’s headlines “often consist of

fewer than 10 words,” Google argued that,

though they may be “painstakingly

created,” they were nonetheless not

entitled to copyright protection because

they “generally seek to encapsulate the

factual content of the story,” and did not

contain protectable original expression that

was separable from their factual content.34

While this argument has some appeal

when directed at short, highly factual

headlines, it becomes a harder argument

to make when directed at text from the

article, such as the lede. For, as the

Supreme Court noted in Feist Publications,

Inc. v. Rural Telephone Service Co., Inc.,

the level of creativity required for a work to

be “original” and thus protectable is

extremely low — a work satisfies this

requirement as long as it possesses some

creative spark, “no matter how crude,

humble or obvious it might be.”35

FAIR USE

Assuming that headlines and ledes are

copyrightable subject matter, a news

aggregator’s reproduction of them is not

actionable if its use of the material

qualifies as a fair use. The Copyright Act

sets forth four nonexclusive factors for

courts to consider when determining

whether a use qualifies as a fair use.

These factors include: (1) The purpose and

character of the use, including whether the

use is of a commercial nature or is for

nonprofit educational purposes; (2) The

nature of the copyrighted work; (3) The

amount and substantiality of the portion

used in relation to the copyrighted work as

a whole; and (4) The effect of the use upon

the potential market for or value of the

copyrighted work.36 This section will take

each of these factors in turn, and apply

them to the four categories of news

aggregators previously discussed.

THE PURPOSE AND CHARACTER OF THE USE. The

first thing courts will consider when

evaluating this factor whether the use is

commercial in nature. Because most (but

not all) news aggregators contain

advertisements, it is likely that a court

would find the use to be commercial,

cutting against a finding of fair use.37 The

fact that the websites are commercial does

not end the inquiry into the first fair use

factor, however.38 In addition to looking at

whether the use is commercial in nature,

courts also look at whether the use is

“transformative” — namely, does the new

work merely serve as a replacement for the

original work, or does it instead add

something new, either by repurposing the

content, or infusing the content with a new

expression, meaning, or message.39

Applying the transformative test to the four

categories of news aggregators yields

slightly different results.

Applied to Feed Aggregators, the first fair

use factor cuts slightly in favor of a finding

of fair use because of the transformative

nature of the categorization and indexing

functions performed by the Feed

Aggregators. The Ninth Circuit has

repeatedly found that certain

reproductions of copyrighted works by a

search engine are a “transformative” use.

In Kelly v. Arriba Soft Corp., the Ninth

Circuit found that the reproduction of

thumbnails of plaintiff’s photographs in

defendant’s search engine results was

transformative, noting that “[the search

engine’s] use of the images serves a

different function than [plaintiff’s] use —

improving access to information on the

internet versus artistic expression.”40

Likewise, in Perfect 10, Inc v.

Amazon.com, Inc., the court noted the

significant public benefit provided by

Google’s image search “by incorporating an

original work into a new work, namely, an

electronic reference tool,” and observed

that “a search engine may be more

transformative than a parody because a

search engine provides an entirely new use

of the original work, while a parody typically

has the same entertainment purpose as

the original work.”41

But, it is worth noting, the case for

transformative use isn’t as strong for a

news aggregation site as it was for a pure

search engine. While the uses were clearly

of a different nature in Kelly and Perfect 10

(artistic/entertainment purposes for the

original photographs versus an

informational searching and indexing

function for the search engine’s

reproduction of the images), a Feed

Aggregator serves a similar function to a

newspaper’s website — to collect and

organize news stories so that they can be

read by the public.42 Nonetheless, the

Feed Aggregator does provide its user with

the convenience of accessing stories from

a large number of sources on one web

page, categorizing those feeds and

permitting searching of the feeds, which is

at least minimally transformative.

In many cases, Specialty Aggregators will

have an even stronger argument that their

use is transformative. Specialty

Aggregators have a narrower focus than

many of the websites from which they draw

material, providing readers with the benefit

of collecting all (or most) of the reporting

on a particular topic in one place.43

Specialty Aggregators thus contribute

something new and socially useful by

providing context and enabling

comparisons between sources covering a

story that would not otherwise be possible.

Similarly, User-Curated Aggregators can be

viewed as somewhat more transformative

than Feed Aggregators because users

collect the stories. This feature enables

the additional function of determining what

stories are popular among a certain group

of Internet users. User-Curated

Aggregators often further the additional

purpose of promoting community

commentary on the posted stories.44

In many cases, Blog Aggregators will have

the strongest claim of a transformative use

of the material because they often provide

additional context or commentary

alongside the material they use.45 Blog

Aggregators also often bring to the material

a unique editorial voice or topic of focus,

further distinguishing the resulting use

from the purpose of the original article.

THE NATURE OF THE COPYRIGHTED WORK. In

deciding whether the nature of the

copyrighted work favors a finding of fair

use, courts look to a number of factors,

including, “(1) whether the work is

expressive or creative, such as a work of

fiction, or more factual, with a greater

leeway being allowed to a claim of fair use

where the work is factual or informational,

and (2) whether the work is published or

unpublished, with the scope for fair use

involving unpublished works being

considerably narrower.”46 Here, the factual

nature of the news articles primarily used

by all of types of news aggregators weighs

slightly in favor of a finding of fair use. The

Supreme Court has recognized that “[t]he

law generally recognizes a greater need to

disseminate factual works than works of

fiction or fantasy.”47 Likewise, the fact that

news aggregators are making use of

published stories would weigh in favor of a

finding of fair use.

THE AMOUNT AND SUBSTANTIALITY OF THE

PORTION USED IN RELATION TO THE COPYRIGHTED

WORK AS A WHOLE. In evaluating this factor,

courts look at the amount of the

copyrighted work that is reproduced both

quantitatively and qualitatively. Looked at

from a quantitative perspective, most news

aggregators use only a small portion of the

original work — usually just the headline,

and sometimes a few sentences from the

lede. This would weigh in favor of finding

fair use. Many content originators argue,

however, that the portion of a story

reproduced by news aggregators is much

more significant when looked at from a

qualitative perspective. This is because,

they argue, the headline and lede often

contain the most important parts of the

story — in other words, they constitute the

“heart” of the article. The Supreme Court,

as well as a number of lower courts, has

found that the reproduction of even a short

excerpt can weigh against a finding of fair

use if the excerpt reproduces the “heart” of

the work.48 Given the factual nature of this

inquiry, it is not possible to say definitively

how courts would view all news

aggregators. In some instances, the first

few sentences may contain the heart of the

work. In other instances this will not be the

case.

THE EFFECT OF THE USE ON THE POTENTIAL

MARKET FOR THE COPYRIGHTED WORK. This is

perhaps the most hotly debated of the four

fair use factors when it comes to the

practice of news aggregation. Content

originators like AFP, the AP, and others

would argue that a well-defined market

currently exists for the reproduction and

syndication of news articles, and that news

aggregators’ use of the content without

paying a licensing fee directly threatens

that market.49 Likewise, content

originators are likely to argue that for many

consumers, the use of their content by the

news aggregators replaces the need for the

original articles. In support of this

contention, they can cite to studies like one

recently released by the research firm

Outsell, which found that 44% of Google

News users scan the headlines without

ever clicking through to the original articles

on the newspapers’ websites.50

In response, news aggregators like Google

News are likely to argue that, despite

studies like this, their services are still a

net benefit to newspapers by driving traffic

to their websites from consumers that

would be unlikely to otherwise encounter

their content.51 Further, news aggregators

could argue that the type of consumer that

would only skim the headlines and ledes

on the news aggregators’ website is not the

type of consumer that is likely to visit

individual news websites and read full

articles, and thus would be unlikely to be a

source of traffic for the newspapers’

websites if the news aggregators did not

exist.

As the foregoing analysis shows, the

question of whether news aggregators are

making fair use of copyrighted content is a

complicated inquiry, the outcome of which

heavily depends on the specific facts of

each case. Even within the four categories

of aggregators discussed here, there is

considerable variation in how the fair use

factors would likely play out. Websites that

reproduce only headlines, and not ledes,

are likely to have an easier time making a

case for fair use.

HOT NEWS MISAPPROPRIATION

Another theory of liability that has been

asserted against news aggregators is hot

news misappropriation. The hot news

misappropriation doctrine has its origins in

a 1918 Supreme Court decision,

International News Service v. Associated

Press.52 The case arose from a unique set

of circumstances involving two competing

newsgathering organizations: the

International News Service (“INS”) and the

Associated Press (“AP”). Both the INS and

AP provided stories on national and

international events to local newspapers

throughout the country, which subscribed

to their wire services and bulletin boards.53

In this way, papers with subscriptions to

either the INS or AP were able to provide

their readers with news about far-flung

events without undertaking the expense of

setting up their own foreign bureaus.54

During World War I, however, the two

services were not equally well positioned to

report on events occurring in the European

theater. William Randolph Hearst, the

owner of the INS, had been an outspoken

critic of Great Britain and the United

States’ entry into the war and openly

sympathized with the Germans. In

retaliation, Great Britain prohibited

reporters for the INS from sending cables

about the war to the United States, thus

hampering INS’s ability to report on war

developments.55 To ensure that its

subscribers were still able to carry news

about the war, INS engaged in a number of

questionable practices, including bribing

employees of newspapers that were

members of the AP for pre-publication

access to the AP’s reporting.56 At issue

before the Supreme Court, however, was

INS’s practice of purchasing copies of East

Coast newspapers running AP stories

about the war, rewriting the stories using

the facts gleaned from the AP’s reporting,

and sending the stories to INS’s

subscribers throughout the United States.

In some cases, this practice led to INS

subscribers on the West Coast “scooping”

the local competitor carrying the original AP

story.57

In order to prevent this activity, the

Supreme Court crafted a new variant of the

common law tort of misappropriation,

referred to by commentators as the “hot

news” doctrine. As set forth in the Court’s

opinion, the essence of the tort is that one

competitor free rides on another

competitor’s work at the precise moment

when the party whose work is being

misappropriated was expecting to reap

rewards for that work. The Court drew

upon a view of property and human

enterprise theories inspired by John Locke

in establishing the common law doctrine of

hot news misappropriation: it wanted to

reward the AP for the time and expense

involved in gathering and disseminating

the news. The Court viewed INS’s

activities, through which it was able to reap

the competitive benefit of the AP’s

reporting without expending the time and

money to collect the information, as an

interference with the normal operation of

the AP’s business “precisely at the point

where the profit is to be reaped, in order to

divert a material portion of the profit from

those who have earned it to those who

have not.”58 The Court reasoned that “he

who has fairly paid the price should have

the beneficial use of the property,”

sidestepping arguments that there is no

true “property” to be had in the news by

relying upon the court’s equitable powers

to address unfair competition.59 The Court

affirmed the circuit court’s decision,

leaving in place an injunction against INS

taking facts from the AP’s stories “until [the

facts’] commercial value as news to the

complainant and all of its members has

passed away.”60

The INS case was decided in a unique

historical context that in some ways differs

from the contemporary competitive

landscape. At the time, there were

relatively few news services able to

undertake the costs and logistical hurdles

of reporting on events in the European

theater for newspaper readers in the

United States. Thus, as a result of the

British government’s sanctions against

INS, the resulting costs of reporting on the

war in Europe fell almost entirely on the AP.

This was also the decade where the

number of U.S. daily newspapers peaked.61

Every major city had multiple daily

newspapers, and thirty minutes of lead

time for a paper could mean thousands of

extra readers that day.

In addition, INS was decided before the

advent of modern First Amendment

jurisprudence, which can largely be traced

to two cases decided by the Supreme Court

the following year: Abrams v. United States,

290 U.S. 616 (1919), and Schenck v.

United States, 249 U.S. 47 (1919).62

Accordingly, the majority opinion in INS did

not address the First Amendment at all,

and Justice Brandeis’s famous dissent,63

while hinting at the tension between

freedom of expression and the theory of

hot news misappropriation, likewise failed

to consider the First Amendment as an

independent limitation on the brand new

doctrine.

While the current competitive landscape is

different than in the time of INS, the

modern doctrine of hot news

misappropriation relies on the same

essential theoretical underpinnings as

those outlined by the Supreme Court in

that case. There is one key difference,

however. While the Supreme Court in INS

adopted the hot news misappropriation

doctrine as federal common law, since INS,

recognition of the misappropriation

doctrine has shifted to the states.64 Today,

only five states have adopted the INS hot

news tort as part of state unfair

competition law.65

THE MODERN HOT NEWS DOCTRINE

The Second Circuit’s decision in NBA v.

Motorola typifies the modern application of

the hot news misappropriation doctrine

and stands as its leading case.66 In NBA,

the National Basketball Association sued

Motorola over a pager service by which

Motorola provided its customers with

scores and other statistics about ongoing

NBA basketball games. Motorola paid

people to watch or listen to the games and

upload game statistics into a data feed,

which Motorola sent to its pager

customers. The NBA claimed that

Motorola’s operation of the pager service

constituted a form of misappropriation and

sought to enjoin the service.

At the start of its analysis, the Second

Circuit Court of Appeals addressed whether

or not the 1976 Copyright Act, which

provides copyright protection only for

original expression, preempted the state-

law misappropriation claim. After looking

at the legislative history behind the Act and

using the “extra-element” test for

preemption,67 the Second Circuit ruled that

a narrow version of the hot news

misappropriation tort survived the

enactment of the 1976 Copyright Act.68

The NBA court formulated the elements of

the surviving hot news tort as follows:

(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on

the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.69

As articulated by the Second Circuit, the

modern form of the misappropriation

doctrine thus affords plaintiffs some

limited copyright-like protection for facts

under narrowly defined circumstances.

Applying its test to the facts of the case,

the Second Circuit found that the NBA

failed to make out a hot news claim

because operation of Motorola’s pager

service did not undermine the NBA’s

financial incentive to continue promoting,

marketing, and selling professional

basketball games. In other words, this was

not a situation in which “unlimited free

copying would eliminate the incentive to

create the facts in the first place.”70

The plaintiffs were more successful in a

recent case out of the Southern District of

New York. In Barclays Capital Inc. v.

TheFlyOnTheWall.com,71 the district court

issued a permanent injunction requiring

the financial news website

FlyOnTheWall.com (“Fly”) to delay its

reporting of the stock recommendations of

research analysts from three prominent

Wall Street firms, Barclays Capital Inc.,

Merrill Lynch, and Morgan Stanley. The

injunction, which issued after a finding by

the district court that Fly had engaged in

hot news misappropriation, requires Fly to

wait until 10 a.m. E.S.T. before publishing

the facts associated with analyst research

released before the market opens, and to

postpone publication for at least two hours

for research issued after the opening bell.

Notably, the injunction prohibits Fly from

reporting on stock recommendations

issued by the three firms even if such

recommendations have already been

reported in the mainstream press.72

The decision is currently on appeal to the

Second Circuit Court of Appeals.

Like the Supreme Court in INS, however,

both the Second Circuit in NBA and the

district court in Barclays failed to

undertake any analysis of whether the hot

news misappropriation doctrine comports

with the requirements of the First

Amendment. Specifically, as the Supreme

Court has recognized on many subsequent

occasions, one of the principal aims of the

First Amendment is to “secure the ‘widest

possible dissemination of information from

diverse and antagonistic sources.’”73 To

that end, the Supreme Court has

recognized — in cases decided subsequent

to INS — that the First Amendment protects

truthful reporting on matters of public

concern.74 Since the hot news

misappropriation doctrine contemplates

restrictions on or liability for the publication

of truthful information on matters of public

concern, even when lawfully obtained, the

doctrine as currently articulated raises First

Amendment concerns. It is unclear at this

point how a court would ultimately weigh

the state interest in assisting news

gatherers to reap the benefits of their work

against the First Amendment interest in

widely disseminating truthful information

about matters of public import.

APPLICATION OF THE HOT NEWS

MISAPPROPRIATION DOCTRINE TO NEWS

AGGREGATORS

Because of the lack of decisions on the

merits in recent hot news misappropriation

cases, it is difficult to determine how a

court would ultimately apply the elements

of the tort to news aggregators.

Nonetheless, it is worth briefly reviewing

the elements.

PLAINTIFF GENERATES OR GATHERS INFORMATION

AT A COST. As to this factor, a plaintiff that

undertook original reporting and had some

(or all) of the contents of that reporting

repurposed by news aggregators would

likely be able to satisfy this prong. Unlike

the fair use situation, however, Blog

Aggregators may be more vulnerable to a

hot news claim than Feed Aggregators or

Specialty Aggregators, since the former

usually incorporate more of the facts from

a story in their work. In contrast, Feed

Aggregators and Specialty Aggregators

usually limit themselves to reproducing the

headline and some portion of the lede of

the source article, which may or may not

contain information that was costly to

gather. (User-Curated Aggregators are

likely to fall somewhere in the middle,

since additional information about the

contents of the article will often appear in

the comments below the article.75)

THE INFORMATION IS TIME-SENSITIVE. This

factor, rather than looking at the

defendant’s use of the information, looks

exclusively to the nature of the plaintiff’s

information. Accordingly, application of

this factor is unlikely to vary among our

four types of news aggregators, and would

be determined on a case-by-case basis.

DEFENDANT’S USE OF THE INFORMATION

CONSTITUTES FREE RIDING ON THE PLAINTIFF’S

EFFORTS. Here, courts would likely look to

the nature of the defendant’s use of the

information. While plaintiffs are likely to

characterize any use of their material

without a license as “free riding,” Blog

Aggregators that add additional

information or context to a story are less

likely to be considered free riders than a

spam blog or service like All Headline News

that merely rewrites and repurposes the

plaintiff’s content. Likewise, Feed

Aggregators, Specialty Aggregators and

User-Curated Aggregators arguably add

their own effort by collecting in one

location information from many places on

the web, making it more accessible to the

public, although the Barclays court found

that such aggregation activities were

insufficient to overcome a finding that

defendant’s activities constituted “free

riding.”

THE DEFENDANT IS IN DIRECT COMPETITION WITH A

PRODUCT OR SERVICE OFFERED BY THE

PLAINTIFFS. In most of the hot news

misappropriation cases decided to date,

this has been one of the two most difficult

prongs for plaintiffs to successfully

establish. It is perhaps more likely that a

Feed Aggregator like Google News or

Yahoo! News would be found to be a direct

competitor of a newspaper website, than a

Specialty Aggregator, User-Curated

Aggregator or Blog Aggregator.76 This is

because Feed Aggregators can in some

cases serve as a replacement for visiting

the website of a newspaper like The New

York Times, since they often cover many of

the same stories, and the majority of the

stories found on the newspapers’ websites

are likely to be reproduced on the Feed

Aggregator’s website. In contrast, a

Specialty Aggregator like TechMeme would

contain only a small subset of the articles

one would find on the Times’ website, and

thus would be likely to serve a different

audience. (Of course, TechMeme would

likely be considered a direct competitor of

a highly-specialized publication like

Macworld.)

DEFENDANT’S ACTIONS WOULD REDUCE THE

INCENTIVE TO PRODUCE THE INFORMATION TO A

POINT WHERE ITS EXISTENCE OR QUALITY WOULD

BE SUBSTANTIALLY THREATENED. This has

likewise been a difficult prong for plaintiffs

to establish in hot news misappropriation

cases, and, in fact, formed the basis for the

Second Circuit holding in favor of the

defendant in NBA. Here, the analysis turns

less on the type of aggregator, than the use

the aggregator makes of the information.

Two factors courts would likely consider

important in determining whether a news

aggregator engages in hot news

misappropriation are (1) the extent to

which viewing the information on the news

aggregator’s website would replace reading

the original content, and (2) the size and

nature of the news aggregator’s

readership. Thus, a Blog Aggregator that

summarizes all of the relevant information

from a news article or a Feed Aggregator

that reproduces the entire lede of the story

are likely to have a greater deleterious

effect on the plaintiff’s incentive to invest

in news gathering than a Feed Aggregator

or Specialty Aggregator that displays only a

headline or a few words from the lede.

Likewise, a news aggregator with a small

BEST PRACTICES

If you are the creator of a news

aggregation website, what should you do

to protect yourself against lawsuits?

Short of licensing all of the content you

use, there are certain best practices that

you can adopt that are likely to reduce

your legal risk.

Reproduce only those portions of the

headline or article that are necessary

to make your point or to identify the

story. Do not reproduce the story in its

entirety.

Try not to use all, or even the majority,

of articles available from a single

source. Limit yourself to those articles

that are directly relevant to your

audience.

Prominently identify the source of the

article.

Whenever possible, link to the original

source of the article.

When possible, provide context or

commentary for the material you use.

readership or a readership that did not

significantly overlap with the plaintiff’s core

readership would be unlikely to threaten

the continued existence of a newspaper,

while Google News or a website that

targets the same consumers could perhaps

be more damaging.77

CONCLUSION

As the foregoing discussion illustrates,

there is a good bit of legal uncertainty

surrounding news aggregation activities,

and it is difficult to provide a definitive

answer in a paper like this. Both fair use

and hot news misappropriation claims are

highly fact specific. There is great variation

in the legal analysis between different

categories of news aggregators, as well as

within the categories. Further, it remains

to be seen whether the hot news

misappropriation doctrine as currently

formulated will remain viable in light of

First Amendment concerns. Nonetheless,

there are certain steps that news

aggregators can take to mitigate their legal

risks, as outlined in the “Best Practices”

section.

While the authors anticipate that the

debate regarding news aggregators will

continue to be fought in the courts and in

public policy circles, we would like to sound

a note of caution for those seeking to

“save” journalism by addressing the issue

of news aggregation. We are in the midst

of a sea change in the way in which

journalism is practiced in the United

States. The past few years have seen an

explosion of innovative approaches to both

the practice and business of journalism. At

a time of great flux in the media

ecosystem, it would be premature, and

likely counterproductive, to create rules

which would have the effect, if not the

purpose, of privileging one journalistic

business model over others. In order for

experimental business models to flourish,

we need legal rules that promote flexibility

and free access to information, not closed

systems that tilt the playing field in favor of

incumbents.

ENDNOTES

1 Pew Internet & American Life Project,

Understanding the Participatory News Consumer, at

5, March 2010, available at http://

www.pewinternet.org/Reports/2010/Online-

News.aspx (last visited Apr. 10, 2010).

2 The Pew Project for Excellence in Journalism

estimates that advertising revenue for American

newspapers dropped nearly 43% between the end

of 2006 and the end of 2009. Pew Project for

Excellence in Journalism, The State of the News

Media 2010, Chapter 4: Newspapers, March 15,

2010, available at http://

www.stateofthemedia.org/2010/

newspapers_summary_essay.php (last visited Apr.

10, 2010).

3 David Sarno, Murdoch accuses Google of news

‘theft’, Los Angeles Times, Dec. 2, 2009, available

at http://articles.latimes.com/2009/dec/02/

business/la-fi-news-google2-2009dec02 (last

visited Apr. 10, 2010). Murdoch has pointed to free

riding by news aggregators as a hurdle to the

creation of quality news: “Without us, the

aggregators would have blank slides. Right now

content producers have all the costs, and the

aggregators enjoy [the benefits]. But the principle

is clear. To paraphrase a great economist, [there is]

no such thing as a free news story.” Mercedes

Bunz, Rupert Murdoch: ‘There’s no such thing as a

free news story’, guardian.co.uk, December 1,

2009, available at http://www.guardian.co.uk/

media/2009/dec/01/rupert-murdoch-no-free-news

(last visited Apr. 10, 2010).

4 PricewaterhouseCoopers Industry Survey, IAB

Internet Advertising Revenue Report, March 2009,

http://www.iab.net/media/file/

IAB_PwC_2008_full_year.pdf, (last visited Feb. 26,

2010).

5 See Digital Equip. Corp. v. AltaVista Tech., Inc.,

960 F. Supp. 456, 461 (D. Mass. 1997).

6 See Kelly v. Arriba Soft Corp., 336 F.3d 811,

816 (9th Cir. 2003).

7 Many definitions of “news aggregator” use the

term interchangeably with the terms “news reader”

and “RSS aggregator.” See, e.g.,

BusinessBlogSchool, Blog Tips: A Glossary of Blog

Terms, available at http://businessblogschool.com/

business-blogging/blog-tips-a-glossary-of-blog-

terms/ (last visited Apr. 10, 2010) (“News

aggregator: A website or application that collates

feeds into a customised [sic] newspaper/home

page. Also called a news readers, feed reader or

RSS aggregator.”). Popular usage appears to have

expanded beyond this definition, however, as

websites like The Huffington Post are often

described as “aggregators.” See, e.g., Andrew L.

Deutsch, Protecting News in the Digital Era: The

Case for a Federalized Hot News Misappropriation

Tort, 1003 PLI/Pat 511, 596 n.8 (Apr. 2010).

8 These are by no means the only ways to

categorize news aggregators. ReadWriteWeb, a

weblog devoted to “Web Technology news, reviews

and analysis,” categorizes news aggregators into

five categories based on their aggregation

techniques: single stream aggregation, single page

aggregation, meme aggregation, people powered

aggregation, and edited aggregation. Josh Catone,

5 News Aggregation Methods Compared,

ReadWriteWeb, July 10, 2007, available at http://

www.readwriteweb.com/archives/

news_aggregation_methods.php (last visited Apr. 8,

2010).

9 The Official Google Blog, And Now, News, Jan.

23, 2006, http://

googleblog.blogspot.com/2006/01/and-now-

news.html (last visited Feb. 21, 2010).

10 Similar to other types of websites, a newspaper

that did not want its content indexed by Google

could exclude Google’s crawlers by modifying the

website’s Robots.txt file, which would effectively

render the site invisible to Google’s search engines.

Google, News (publishers) Help: Additional Tips:

Robots, available at http://www.google.com/

support/news_pub/bin/answer.py?

hl=en&answer=93977 (last visited Apr. 8, 2010).

11 The relationship between Google and The

Associated Press would likewise prove contentious.

The two companies settled a dispute in 2006 over

the use of AP content on Google News and have

recently been renegotiating a new licensing

agreement. See Russell Adams, AP Stories

Reappear on Google News, Wall Street Journal

Digits Blog, Feb. 9, 2010, available at http://

blogs.wsj.com/digits/2010/02/09/ap-stories-

reappear-on-google-news/ (last visited Feb. 22,

2010).

12 First Amended Complaint, Agence France

Presse v. Google, Inc., No. 1:05CV00546 (GK)

(D.D.C. Apr. 29, 2005).

13 Google’s Motion And Memorandum For

Judgment Dismissing The Complaint For Failure To

State A Claim, Agence France Presse v. Google, Inc.,

No. 1:05CV00546 (GK) (D.D.C. Oct. 12, 2005).

14 Google’s Motion and Memorandum for Partial

Summary Judgment Dismissing Count II for Lack of

Protectable Subject Matter, Agence France Presse

v. Google, Inc., No. 1:05CV00546 (GK) (D.D.C. Oct.

12, 2005).

15 Caroline McCarthy, Agence France-Presse,

Google settle copyright dispute, CNET News, Apr. 6,

2007, available at http://news.cnet.com/2100-

1030_3-6174008.html?part=rss&tag=2547-1_3-0-

20&subj=news (last visited Apr. 8, 2010).

16 All Headline News, About AHN / Company

Background, available at http://web.archive.org/

web/20071231082631/

www.allheadlinenews.com/corp/ (last visited May

29, 2010).

17 Complaint at ¶¶ 4-5, The Associated Press v. All

Headline News Corp., No. 1:08-cv-00323-PKC

(S.D.N.Y. Jan. 14, 2008).

18 Id.

19 Defendants’ Motion and Notice of Motion To

Dismiss Under Federal Rule of Civil Procedure 12,

The Associated Press v. All Headline News Corp.,

No. 1:08-cv-00323-PKC (S.D.N.Y. Feb. 29, 2008).

20 The Associated Press v. All Headline News

Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009).

21 Id. at 461. In declining to dismiss the AP’s

claim for hot news misappropriation, the Court

found that the AP, a New York-based company,

could assert a claim under New York common law

against the Florida-based All Headline News.

22 Press Release, Associated Press, AP and AHN

Media Settle AP’s Lawsuit Against AHN Media and

Individual Defendants (May 13, 2009), available at

http://www.associatedpress.com/pages/about/

pressreleases/pr_071309a.html (last visited May

29, 2010).

23 See Complaint, GateHouse Media, Inc. v. The

New York Times Co., No. 0-12114-WGY (D. Mass.

filed Dec. 22, 2008).

24 Id.

25 See Plaintiff’s Motion for Temporary Restraining

Order and Preliminary Injunction and Request for

Expedited Hearing, GateHouse Media, Inc. v. The

New York Times Co., No. 0-12114-WGY (D. Mass.

Dec. 22, 2008).

26 See Notes from Hearing, GateHouse Media, Inc.

v. The New York Times Co., No. 0-12114-WGY (D.

Mass. Dec. 22, 2008).

27 See Letter Agreement Re: GateHouse Media,

(Jan. 25, 2009), available at http://

www.citmedialaw.org/sites/citmedialaw.org/

files/2009-01-25-Letter%20Agreement.pdf (last

visited Feb. 26, 2010).

28 17 U.S.C. § 102(a) (2010).

29 17 U.S.C. § 106. The two primary exceptions to

these exclusive rights are certain compulsory

licenses built into the Copyright Act, and the fair use

doctrine, which is discussed in detail below.

30 Feist Publ'ns, Inc. v. Rural Telephone Service

Co., 499 U.S. 340, 345 (1991).

31 Id. This is known as the idea/expression

dichotomy in copyright law.

32 See CMM Cable Rep., Inc. v. Ocean Coast

Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir. 1996)

(titles and short phrases uncopyrightable); Aryelo v.

Am. Int'l Ins. Co., No. 95-1360, 1995 WL 561530 at

*1 (1st Cir. Sept. 21, 1995) (per curiam, table,

unpublished) ("The non-copyrightability of titles in

particular has been authoritatively established”); 37

C.F.R. § 202.1(a) (excluding from copyright

protection “[w]ords and short phrases such as

name, titles, and slogans. . . .").

33 See, e.g., Yankee Candle Co. v. Bridgewater

Candle Co., 259 F.3d 25, 34 (1st Cir. 2001);

Concrete Mach. Co. v. Classic Lawn Ornaments,

843 F.2d 600, 609 n.9 (1st Cir. 1988).

34 Google Inc.’s Answer and Counterclaims at 22,

Agence France Presse v. Google, Inc., No.

1:05CV00546 (GK) (D.D.C. May 19, 2005).

35 499 U.S. 340, 345 (1991).

36 17 U.S.C. § 107.

37 Courts have previously found services like

Google’s search services to be commercial because

of the incorporation of advertising. See, e.g., Perfect

10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1166

(9th Cir. 2007).

38 Campbell v. Acuff-Rose Music, Inc., 510 U.S.

569, 584, 114 S. Ct. 1164 (1994) (commercial

nature of work is not dispositive on the first fair use

factor).

39 Id. at 578 (internal citations omitted).

40 Kelly v. Arriba Soft Corp., 336 F.3d 811, 819

(9th Cir. 2003).

41 Perfect 10, Inc., 508 F.3d at 1165.

42 A Feed Aggregator like Google News will

sometimes cover a broader range of topics than

some of the news sources that it aggregates, but

this is not always the case. It is not hard to imagine

a situation where Google News and a national news

website, like CNN.com, would have many of the

same stories on their front pages.

43 This will not always be true. For example, the

transformative nature of the Specialty Aggregator

would be less when it draws its information from

another source with a similarly narrow focus, such

as a website that collects information about Apple

products reproducing news from a magazine

devoted to Apple fans. Likewise, in GateHouse

Media, Inc. v. The New York Times Co., you had one

hyper-local blog aggregating content from another

hyper-local blog, both of which covered the same

geographic area.

44 Even if user-curated aggregation doesn’t qualify

as fair use, the website operator is likely insulated

from liability for copyright infringement under the

Digital Millennium Copyright Act, 17 U.S.C. § 512(c),

which provides interactive service providers with a

safe harbor against copyright infringement claims

based on content uploaded by third parties, so long

as they comply with the requirements of the statute

(such as registering a DMCA agent with the

Copyright Office and responding expeditiously to

take-down notices).

45 Although, again, this is not always the case –

such as when Gawker paraphrases an article

without providing additional commentary. (Although

Gawker would likely argue that the user comments

below the article provide additional commentary on

the piece, and thus increase the transformativeness

of the use.)

46 Blanch v. Koons, 467 F.3d 244, 256 (2d Cir.

2006).

47 Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539, 563, 105 S. Ct. 2218 (1985).

48 See, e.g., Harper & Row, 471 U.S. at 564-65.

49 This argument is likely bolstered by the fact that

Google ultimately negotiated a license for AFP and

AP content that appears on the Google News site.

50 Robin Wauters, Report: 44% Of Google News

Visitors Scan Headlines, Don't Click Through,

TechCrunch, Jan. 19, 2010, available at http://

techcrunch.com/2010/01/19/outsell-google-

news/ (last visited Apr. 10, 2010).

51 This argument is likely to be stronger when the

plaintiff is a small, regional newspaper or blog. For

larger news websites like The New York Times or

CNN.com, it is less likely that users would be

unlikely to find their content but for the news

aggregator. Of the four types of news aggregators

discussed herein, the Specialty Aggregator has

perhaps the strongest argument that it drives new

traffic to the content originator’s website, since the

niche audience targeted by the Specialty Aggregator

will often not overlap significantly with the news

website’s current readership.

52 248 U.S. 215 (1918).

53 See INS, 248 U.S. at 230.

54 See id. at 231.

55 Douglas G. Baird, Common Law Intellectual

Property and the Legacy of International News

Service v. Associated Press, 50 U. Chi. L. Rev. 411,

412 (1983).

56 248 U.S. at 231.

57 Baird, 50 U. Chi. L. Rev. at 412.

58 248 U.S. at 240.

59 Id.

60 Id. at 245.

61 University of Minnesota, Media History Project,

http://www.mediahistory.umn.edu/timeline/1910-

1919.html (last visited Apr. 10, 2010).

62 See, e.g., David Lange & H. Jefferson Powell,

No Law: Intellectual Property in the Image of an

Absolute First Amendment, 149, 167, 171-72

(2009); Diane Leenheer Zimmerman, Information

as Speech, Information as Goods: Some Thoughts

on Marketplaces and the Bill of Rights, 33 Wm. &

Mary L. Rev. 665, 685 n.139, 726 (1992); Eugene

Volokh, Freedom of Speech and Information

Privacy: The Troubling Implications of a Right to

Stop People from Speaking About You, 52 Stan. L.

Rev. 1049, 1070 (2000).

63 “The general rule of law is, that the noblest of

human productions—knowledge, truths ascertained,

conceptions, and ideas—become, after voluntary

communication to others, free as the air to common

use.” INS, 248 U.S. at 250 (Brandeis, J., dissenting).

64 As an instance of federal common law, INS is

no longer authoritative after Erie Railroad v.

Tompkins, 304 U.S. 64 (1938).

65 See McKevitt v. Pallasch, 339 F.3d 530 (7th

Cir. 2003) (Illinois); Pollstar v. Gigmania Ltd., 170 F.

Supp.2d 94 (E.D. Cal. 2000) (California); Fred

Wehrenberg Circuit of Theatres, Inc. v. Moviefone,

Inc., 73 F. Supp.2d 1044 (E.D. Mo. 1999)

(Missouri); Pottstown Daily News Publ’g Co. v.

Pottstown Broad. Co., 192 A.2d 657 (Pa. 1963)

(Pennsylvania); NBA v. Motorola, 105 F.3d 841

(2nd Cir. 1997) (New York). Hot news

misappropriation has also been asserted in cases in

Massachusetts (Complaint, GateHouse Media, Inc.

v. The New York Times Co., No. 0-12114-WGY (D.

Mass. Dec. 22, 2008)) and the District of Columbia

(First Amended Complaint, Agence France Presse v.

Google, Inc., No. 1:05CV00546 (GK) (D.C. Dist.

April 29, 2005)), although neither court had

occasion to rule on whether the tort was recognized

in their state.

66 105 F.3d 841 (2nd Cir. 1997)

67 Id. at 850-53 (finding three extra elements in

hot news misappropriation claims).

68 It is unclear whether the Second Circuit’s

finding that the hot news misappropriation doctrine

is not preempted by the Copyright Act would survive

the Supreme Court’s holding in Dastar Corp. v.

Twentieth Century Fox Film Corp., 539 U.S. 23

(2002).

69 105 F.3d at 845.

70 Richard Posner, Misappropriation: A Dirge, 40

Hous. L. Rev. 621, 631 (2003).

71 No. 06 Civ. 4908, --- F. Supp.2d ----, 2010 WL

1005160 (S.D.N.Y. Mar. 18, 2010).

72 The district court noted that Fly obtained the

information it reprinted from a variety of publicly-

available sources, describing the process thus:

According to Etergino, he checks first to

see what Recommendations have been

reported on Bloomberg Market News.

Then he checks Dow Jones, Thomson

Reuters, and Fly's competitors such as

TTN, StreetAcount.com, and Briefing.com.

Next, he visits chat rooms to which he

has been invited to participate by the

moderator. . . . Etergino also receives

“blast IMs” through the Bloomberg,

Thomson Reuters, or IMTrader messaging

services that may go to dozens or

hundreds of individuals. Finally, Etergino

exchanges IMs, emails, and more rarely

telephone calls with individual traders at

hedge funds, money managers, and other

contacts on Wall Street.

2010 WL 1005160, at *12.

73 New York Times Co. v. Sullivan, 376 U.S. 254,

266 (1964) (quoting Associated Press v. U.S., 326

U.S. 1, 20 (1945)).

74 See, e.g., Bartnicki v. Vopper, 532 U.S. 514,

527-28, 533-35 (2001) (First Amendment barred

imposition of civil damages under wiretapping law

for publishing contents of conversation relevant to

matter of public concern); Florida Star v. B.J.F., 491

U.S. 524, 534 (1989) (First Amendment barred

imposition of civil damages on newspaper for

publishing rape victim’s name); Smith v. Daily Mail

Publ’g Co., 443 U.S. 97, 103-06 (1979) (First

Amendment barred prosecution under state statute

for publishing names of juvenile offenders without

court’s permission); Landmark Commc’ns, Inc. v. -

Va., 435 U.S. 829, 841-42 (1978) (First

Amendment barred criminal prosecution for

disclosing information from a confidential judicial

disciplinary proceeding); Cox Broad. Corp. v. Cohn,

420 U.S. 469, 491 (1975) (First Amendment barred

civil cause of action for publishing name of rape

victim when information lawfully obtained from

court records).

75 It is possible that the owner of a User-Curated

Aggregator website would be considered immune to

hot news misappropriation claims based on

information contained in user comments under

Section 230 of the Communications Decency Act,

47 U.S.C. §230, which bars claims against a

website operator based on content supplied by

users. This assumes that courts would not consider

a claim under the hot news misappropriation

doctrine to be an intellectual property claim, since

intellectual property claims are specifically excluded

from the protections of Section 230.

76 Although many in the news business appear to

view The Huffington Post as a direct competitor.

77 In evaluating this factor, the court would need

to balance additional traffic received by the news

website from the news aggregator against any

alleged harm.

WAKE FOREST

INTELLECTUAL PROPERTY

LAW JOURNAL

VOLUME 10 2009 - 2010 NUMBER 1

ALL THE NEWS THAT’S FIT TO OWN:

HOT NEWS ON THE INTERNET & THE COMMODIFICATION OF NEWS

IN DIGITAL CULTURE

By Clay Calvert♣

Kayla Gutierrez⊗

Christina Locke⊕

INTRODUCTION

Thousands of hard copies of newspapers across the country—

particularly editions of college newspapers—are reported pilfered each

year.1 But just as the theft of print newspapers can occur at news

racks, can online news stories that flow on the Internet also be stolen?

♣ Brechner Eminent Scholar in Mass Communication at the University of Florida,

Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of

the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996,

Communication, Stanford University. Member, State Bar of California. Professor

Calvert thanks Dean John Wright, Executive Associate Dean Linda Hon and the

entire staff in the Dean’s Suite of the College of Journalism and Communications for

helping to make his transition from Penn State to the University of Florida a smooth

one. ⊗ Masters student in Media Law at the University of Florida, Gainesville, Fla. B.S.,

2008, Telecommunication, University of Florida. ⊕ Doctoral student and Joseph L. Brechner Graduate Assistant at the University of

Florida, Gainesville, Fla. J.D. (with Honors) and M.A.M.C. (with Distinction),

2007, University of Florida. Member, State Bar of Georgia. 1 See Student Newspapers Hit By Theft Nationwide, STUDENT PRESS L. CENTER REP.,

Spring 2009, at 35, available at

https://www.splc.org/report_detail.asp?id=1508&edition=49 (last visited Sept. 5,

2009) (observing that “theft of free student newspapers is one of the most common

means of censorship in college media,” and citing instances of theft of college

newspapers in 2009 at universities including, among others, Virginia

Commonwealth University, Massachusetts Institute of Technology, and Catholic

University of America). See generally Clay Calvert, All the News That’s Fit to

Steal: The First Amendment, a “Free” Press & a Lagging Legislative Response, 25

LOY. L.A. ENT. L. REV. 117 (2004) (providing an examination of the legal issues and

legislation surrounding the theft of free newspapers in the United States).

2 WAKE FOREST INTELL. PROP. L.J. Vol.10

That question, as this article demonstrates, is no idle academic

query or a wasted exercise in verbal gymnastics distinguishing

newspapers from news and news stories.2 In fact, it is at the heart of

some battles now being fought over news on the Internet.

It is, of course, a fundamental tenet of copyright law in the

United States that ideas cannot be owned.3 Similarly, as the United

States Supreme Court observed nearly twenty years ago, “facts are not

copyrightable,”4 adding that this proposition is “universally

understood.”5 The implication of these twin principles for the practice

of journalism and the often poorly explicated concept of news itself6 is

that while “the words and arrangement of a news story would be

copyrightable expression,”7 when they are assembled in an original

manner and fixed in a tangible medium of expression,8 “the underlying

news itself—the facts and events being recounted—of course could

not be the subject of copyright protection.”9 In other words, as one

federal appellate court put it, “[c]opyrightable material often contains

uncopyrightable elements within it.”10 This would seem to protect

rewrites of news articles when those rewrites involve re-ordering, re-

working, and using the underlying facts—the uncopyrightable

underlying “news element,” as the United States Supreme Court once

called it11—in different ways.

2 As Elvis Costello once so aptly put it in a way that attorneys and long-winded legal

scholars would be wise to obey, “spare us the theatrics and the verbal gymnastics.”

Elvis Costello, The Loved Ones, on IMPERIAL BEDROOM (Rykodisk 1982). 3 See 17 U.S.C. § 102 (b) (2006) (providing, in relevant part, that “in no case does

copyright protection for an original work of authorship extend to any idea”). See

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (noting

the distinction “between copyrightable expression and uncopyrightable facts and

ideas”). 4 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991).

5 Id.

6 See generally BRUCE D. ITULE & DOUGLAS A. ANDERSON, NEWS WRITING &

REPORTING FOR TODAY’S MEDIA 11 (7th ed. 2007) (writing that “the definition of

news is elusive,” observing that definitions of news range from “[s]omething you

haven’t heard before” to “[w]hat editors and reporters say it is,” and ultimately

determining that “[w]hatever it is, news is an extremely complex term, and it is

different things to different people”). 7 Gary Myers, The Restatement’s Rejection of the Misappropriation Tort: A Victory

for the Public Domain, 47 S.C. L. REV. 673, 675 (1996). 8 See 17 U.S.C. § 102 (a) (2006) (providing, in pertinent part, that “[c]opyright

protection subsists, in accordance with this title, in original works of authorship

fixed in any tangible medium of expression,” including literary works). The United

States Supreme Court long ago recognized that a news “article, as a literary

production, is the subject of copyright.” Int’l News Serv. v. Associated Press, 248

U.S. 215, 234 (1918). 9 Myers, supra note 7, at 675.

10 Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 849 (2d Cir. 1997).

11 Int’l News Serv., 248 U.S. at 234.

2009 ALL THE NEWS THAT’S FIT TO OWN:

HOT NEWS ON THE INTERNET & THE

COMMODIFICATION OF NEWS IN DIGITAL CULTURE

3

But that does not end the legal inquiry. Copyright principles

do not provide the only legal framework for considering possible

redress when one news agency or news service believes another

company is, in a nutshell, ripping off its news articles. As the

Associated Press proved in 2009, the common law tort of hot news

misappropriation provides a viable method—at least in those states

that recognize it12 and do not view it as pre-empted by the federal

Copyright Act13 and in those circumstances that fall within its rather

narrow confines14—of fighting back against the alleged digital piracy

of news stories online where, as one law journal article contended, the

“ease of free riding on the investment of others via Internet-related

technological advances threatens to be a serious disincentive to

investment in the development of data-based informational

products.”15

In July 2009, the Associated Press settled for an undisclosed

dollar amount16 a lawsuit asserting that, in layperson’s terms, its news

content was being stolen by the All Headline News Corp. (hereinafter

“AHN” or “All Headline News”), a Florida-based business that bills

itself as “a leading provider of news, weather, and other content for

web sites, wireless, digital signage, interactive applications, broadcast

12 The tort of hot news misappropriation originally was a “creature of the federal

common-law,” and “while the federal common-law no longer provides the source for

the action of misappropriation, state law can provide the basis for such protection.”

Schuchart & Assocs. v. Solo Serve Corp., 540 F. Supp. 928, 942, n.9 (W.D. Tex.

1982). 13 See 17 U.S.C. § 301 (2006) (providing, in general, for the preemption of “all legal

or equitable rights that are equivalent to any of the exclusive rights within the

general scope of” federal statutes governing copyright, and governing preemption

issues of federal copyright law). Importantly, courts have held that the hot news

misappropriation tort is “a branch of the unfair competition doctrine not preempted

by the Copyright Act.” Fin. Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d

204, 209 (2d Cir. 1986). 14 See infra note 81 and accompanying text (identifying the five elements of this

cause of action that, according to courts within one federal appellate circuit, must be

demonstrated in order for a plaintiff to succeed). 15 Rex Y. Fujichaku, Recent Development, The Misappropriation Doctrine in

Cyberspace: Protecting the Commercial Value of “Hot News” Information, 20 U.

HAW. L. REV. 421, 425 (1998). 16 See Press Release, Associated Press, AP and AHN Media Settle AP’s Lawsuit

Against AHN Media and Individual Defendants (July 13, 2009) (on file with Wake

Forest Intellectual Property Law Journal), available at

http://www.associatedpress.com/pages/about/pressreleases/pr_071309a.html (noting

that “[t]he settlement includes payment by AHN to AP of an unspecified sum to

settle the AP’s claim for past unauthorized use of AP expression and news

content.”).


and print use.”17 The AP, which conversely trumpets itself as “the

largest and oldest news organization in the world”18 and “the backbone

of the world’s information system serving thousands of daily

newspaper, radio, television and online customers,”19 alleged in its

January 2008 complaint that “AHN has no reporters and is simply a

vehicle for copying news reports and misappropriating news gathered

and reported by real news services such as AP.”20 As such, the AP

asserted that AHN was “free-riding on AP’s significant and costly

efforts to collect, report and transmit newsworthy information,”21

thereby creating a low-cost news service with “no journalistic

infrastructure”22 that “directly competes with AP’s own news

services.”23

Although the AP’s complaint included multiple causes of

action, such as breach of contract,24 trademark infringement,

25 and

copyright infringement,26 the most journalistically intriguing legal

theory upon which the AP sued AHN was for hot news

misappropriation under the common law of New York.27 In

Associated Press v. All Headline News Corp.,28 the AP successfully

reached back in time and stretched a ninety-one-year-old precedent—

one developed many decades before the Internet enabled the type of

appropriation engaged in by AHN—found in the United States

Supreme Court’s opinion in International News Service v. Associated

Press.29

In that 1918 decision, a majority of the United States Supreme

Court determined that, in situations of direct competition where “both

parties are seeking to make profits at the same time and in the same

field,”30 news that is gathered by one of those parties “must be

17 About AHN/Company Background, http://www.allheadlinenews.com/corp (last

visited Sept. 2, 2009). 18 Associated Press, Facts & Figures, http://www.ap.org/pages/about/about.html (last

visited Sept. 5, 2009). 19 Id.

20 Complaint at 2, Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454

(S.D.N.Y. 2009) (No. 08 Civ. 323) [hereinafter Complaint]. 21 Id. at 19.

22 Id. at 24.

23 Id. at 19.

24 See id. at 26-27 (setting forth the AP’s seventh cause of action for breaches of

contract). 25 See id. at 22-23 (setting forth the AP’s fourth cause of action for infringement of a

registered trademark). 26 See id. at 20-21 (setting forth the AP’s second cause of action for copyright

infringement). 27 See id. at 19-20 (setting forth the AP’s first cause of action for hot news

misappropriation). 28 608 F. Supp. 2d 454 (S.D.N.Y. 2009).

29 248 U.S. 215 (1918).

30 Id. at 236.




5

regarded as quasi property”31 that possesses “an exchange value to one

who can misappropriate it.”32 In particular, the Court reasoned that

the “peculiar value of news is in the spreading of it while it is fresh,”33

implying that when news is no longer “fresh”—a term not defined in

International News Service—the property right that one news service

possesses against another disappears.

Rejecting as “untenable”34 the notion that “news is abandoned

to the public for all purposes when published in the first newspaper,”35

the Supreme Court focused instead on fiscal concerns—the concept of

unfair competition,36 “the business of making [news] known to the

world,”37 and the equitable principle “that he who has fairly paid the

price should have the beneficial use of the property.”38 Put more

bluntly, because the AP in International News Service had gathered

and distributed news due to “a large expenditure of money, skill, and

effort,”39 it deserved to profit from the “novelty and freshness”

40 of its

news and to stop a free-riding rival news service from

“misappropriating it for the purpose of disposing of it to his own profit

and to the disadvantage of”41 the Associated Press.

The case has thus been called by one law professor “the most

famous reap/sow case”42 of the twentieth century, drawing from

Justice Mahlon Pitney’s underlying concern for fairness that defendant

International News Service was “endeavoring to reap where it has not

sown.”43 As Professor John Tehranian aptly summed up the majority

ruling, International News Service “granted news organizations

temporary ownership of factual information in order to preserve their

incentive to expend resources on news-gathering without fear of

having rivals free ride on the information by scooping them without

payment.”44

31 Id. (emphasis added).

32 Id. at 238.

33 Id. at 235.

34 Id. at 240.

35 Id.

36 See id. at 235 (“[I]t seems to us the case must turn upon the question of unfair

competition in business.”). 37 Id.

38 Id. at 240.

39 Id. at 238.

40 Id.

41 Id. at 240.

42 Wendy J. Gordon, On Owning Information: Intellectual Property and the

Restitutionary Impulse, 78 VA. L. REV. 149, 178 (1992). 43 Int’l News Serv., 248 U.S. at 239.

44 John Tehranian, Whither Copyright? Transformative Use, Free Speech, and an

Intermediate Liability Proposal, 2005 BYU L. REV. 1201, 1225.


The “practical needs and requirements of the business” of

making and disseminating news thus prevailed before the Supreme

Court in International News Service. 45 The case represents, as

Professor Dale P. Olson put it a decade ago, “the genesis of

misappropriation,”46 and it “formed—and continues to form—the

basic contours of the doctrine of misappropriation of publicly

disclosed trade values.”47 The continuing formation and evolution of

that doctrine and, in particular, the tort of hot news misappropriation

in 2009 in Associated Press v. All Headline News Corp. is the focus of

this article. And although the federal common law that gave rise to the

International News Service decision is now long defunct,48 the hot

news misappropriation tort is alive and well in the age of the Internet

in New York.

Part I of this article analyzes the case of Associated Press v. All

Headline News Corp., tracing it from the filing of the complaint

through the July 2009 settlement. Importantly, it uses the actual

pleadings and briefs filed by the parties, as well as other background

information about the parties, to better contextualize the story behind

the case. Part II then explores the legal precedent underlying the hot

news misappropriation theory that was at issue in the case, as well as

some of the criticisms and comments that legal scholars have launched

against it over the years. Next, Part III goes beyond a pure legal

analysis to explore the potential implications of the hot news

misappropriation doctrine for a digital culture in which freshness and

up-to-the-minute information is privileged and prized. Part III also

identifies the different interests at stake in cases like Associated Press

v. All Headline News Corp. Finally, Part IV concludes by suggesting

future avenues of research related to the conduct of companies such as

All Headline News Corp., including analyzing their behavior from an

ethical perspective, not simply a legal one. In brief, journalism

ethicists should analyze both the case and hot news doctrine from their

viewpoint and position.

I.RE-WRITING THE NEWS OR RE-WRITING THE LAW?THE ASSOCIATED

PRESS’S BATTLE AGAINST ALL HEADLINE NEWS CORP.

45 Int’l News Serv., 248 U.S. at 241.

46 Dale P. Olson, Common Law Misappropriation in the Digital Era, 64 MO. L. REV.

837, 878 (1999). 47 Id.

48 See Gary R. Roberts, The Scope of the Exclusive Right to Control Dissemination

of Real-Time Sports Event Information, 15 STAN. L. & POL’Y REV. 167, 171 (2004)

(“The legal foundation for the INS decision, federal general common law, has since

been eliminated by the Supreme Court in the famous Erie Railroad case in 1938.”).




7

“AP is a leader in protecting intellectual property rights

through monitoring, licensing and enforcement efforts.”49

High-profile evidence buttressing that assertion, which the

Associated Press conveys on its website,50 was on full display in 2009

when the news service contended that artist Shepard Fairey engaged in

a “willful and blatant violation of The AP’s copyright in a photograph

of President Obama”51 that Fairey used to create his so-called Obama

Hope poster.52 Tom Curley, president and chief executive officer,

proclaimed that the AP’s countersuit against Fairey—the artist had

initially sued the AP—“is about protecting the content that The

Associated Press and its journalists produce every day, with creativity,

at great cost, and often at great risk.”53

Beyond this skirmish over a now iconic image,54 the

Associated Press in July 2009 announced it was “creating a way to

track and control the distribution of its articles online.”55 The move

arose because, as the Wall Street Journal reported, “some bloggers and

other Web sites run stories without permission.”56 Tom Curley, AP’s

chief executive, incorporated language in a press release echoing the

reap/sow principle at the heart of International News Service,57

emphasizing that the AP has “stood by too long and watched other

people make money off the hard work of our journalists. We have

decided to draw a line in concrete.”58

49 Associated Press, Protecting AP’s Intellectual Property,

http://www.associatedpress.com/iprights (last visited Sept. 1, 2009). 50 Id.

51 Answer, Affirmative Defenses and Counterclaims of Defendant, the Associated

Press at 10, Fairey v. Associated Press, No. 09-01123 (S.D.N.Y. Mar. 11, 2009). 52 See generally Christopher Borrelli, Street Artist Fairey at a Crossroad, CHI. TRIB.,

Feb. 9, 2009, at 3 (reporting on “an allegation from The Associated Press that Fairey

infringed its copyright by appropriating one of its photos for the ‘Hope’ poster”). 53 Press Release, Associated Press, Associated Press Defends Lawsuit Brought by

Shepard Fairey over Obama Poster (Mar. 11, 2009) (on file with Wake Forest

Intellectual Property Law Journal), available at

http://www.ap.org/pages/about/pressreleases/pr_031109.html. 54 See James C. Goodale, What’s Fair is Fair. But What is Fair?, 241 N.Y. L.J. 3,

(2009) (“Mr. Fairey downloaded the photo from the Internet, cast Mr. Obama in red,

white and blue tones, and added ‘Hope’ underneath. The poster became a campaign

icon.”) (emphasis added). 55 Russell Adams & Shira Ovide, AP Creates Way to Track Distribution of Articles

Online, WALL ST. J., July 24, 2009, at B6. 56 Id.

57 See supra notes 43-45 and accompanying text (discussing this principle within the

context of International News Service). 58 Press Release, Michael Liedtke, Business Editor, Associated Press, AP Setting Up

Tracking System for Web Content (July 23, 2009) (on file with Wake Forest



In addition to such policing and monitoring of its content on

the Internet via built-in beacons that track where a story moves and

posts online,59 the AP demonstrated its resolve on intellectual property

matters in very different way in Associated Press v. All Headline News

Corp.60In particular, it used an aging doctrine that was developed at a

time when print newspapers ruled the day.

AHN, based in Wellington, Florida, is owned by a former

police officer named Jeffrey Brown, who founded the company after a

customer of another website he operated, BridalClicks.com, asked for

news content.61 He had no previous journalism experience.

62 Despite

the lack of relevant bona fides, the business took off fast, and Brown

was quoted in 2008 as stating that “despite the troubling and uncertain

economy, we’re on track to double our revenues this year.”63

With AHN’s operation apparently becoming a success, AP

filed its lawsuit against AHN and Brown in federal court in New York

in January 2008.64 The AP alleged that AHN hires poorly paid

individuals, instructs them to surf the Internet for new stories, and then

has them either copy the stories verbatim or re-write them, all the

while carefully omitting any identifying information about their

origin.65 In its First Amended Complaint, filed in April 2008, the AP

asserted that AHN’s writers “do no independent research and

newsgathering in preparing news stories.”66 In fact, the AP contended

that—like so many businesses today in the United States—AHN off-

shored part of the re-writing process to people in Malaysia, with the

cost savings allowing AHN to sell what once really were the AP’s

stories at a price to subscribers cheaper than the AP could sell them.67

Once the stories are edited, the AP claimed they are “aggregated by

AHN into a news feed which it then distributes to its customers and

displayed and/or distributed via AHN’s servers.”68

http://www.ap.org/pages/about/whatsnew/wn_072309a.html. 59 Id. (stating that the AP will be “bundling its text stories in an ‘informational

wrapper’ that will include a built-in beacon to monitor where stories go on the

Internet”). 60 See Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D.N.Y.

2009). 61 Bill Frogameni, Associated Press Sues News Provider Based in Wellington, S.

FLA. BUS. J., June 20, 2008, available at

http://www.bizjournals.com/southflorida/stories/2008/06/23/story10.html. 62 Id.

63 Id.

64 See Complaint, supra note 20.

65 Id. at 2-3.

66 First Amended Complaint at 16, Associated Press v. All Headline News Corp.,

608 F. Supp. 2d 454 (S.D.N.Y. 2009) (No. 08 Civ. 323) [hereinafter First Amended

Complaint]. 67 Id. at 20.

68 Id. at 16.




9

Striking to the economic heart of its hot news misappropriation

claim, the AP asserted that AHN’s conduct

is likely to usurp AP’s business relationships and

opportunities. AHN’s “news service” directly competes

with AP’s own services. Both services are sold to the same

potential customer base. Most customers of news service

only carry one service. When a company or entity decides

to subscribe to AHN’s “news service,” this effectively

excludes AP from selling its service to that company or

entity.69

Asking the court to enjoin AHN’s actions, the AP closed its argument

on the hot news misappropriation cause of action by conjuring up the

proverbial parade of horrors that would result in the absence of such a

judicial decree:

If Defendants are not enjoined from misappropriating AP’s

efforts and investments in this manner, the acts of

Defendants and other free-riders will so reduce AP’s

incentive to gather and report the news that the existence

and/or quality of the news services that AP provides to AP

Members, subscribers and other licensees, and thereby to the

public, will be substantially threatened.70

AHN, of course, attempted to paint the case as a battle in the

David-and-Goliath tradition, arguing that “this case is an attempt by

Plaintiff Associated Press to crush by weight of litigation a small

company that it views as a competitor in the business of online news

distribution.”71 But it defended against the hot news misappropriation

cause of action not primarily on the merits of the case, but rather by

claiming that the law of Florida—not New York—applied, and Florida

did not recognize such a legal theory.72 As the attorneys for AHN and

Brown wrote, “Defendants are not aware of any Florida state court

opinions that have recognized a theory of misappropriation like that

asserted by Plaintiff here.”73 AHN also asserted that the International

News Service opinion itself was no longer good law,74 as it claimed the

hot news misappropriation doctrine found in International News

Service was part of the federal common law that was later eliminated

69 Id. at 20.

70 Id.

71 Memorandum in Support of Defendants’ Motion to Dismiss Under Federal Rule

of Civil Procedure 12 at 1, All Headline News Corp., 608 F. Supp. 2d 454 (No. 08

Civ. 323). 72 Id. at 3-10.

73 Id. at 9.

74 Id. at 7, n.2.


by the U.S. Supreme Court in Erie Railroad Co. v. Tompkins.75

These arguments failed to gain traction, however, with the court.

In February 2009, U.S. District Judge P. Kevin Castel refused to

dismiss the Associated Press’s hot news misappropriation claim, as he

determined that the cause of action “remains viable under New York

law”76 and is not pre-empted by federal copyright law.

77 Quoting from

a 1997 ruling by the United States Court of Appeals for the Second

Circuit that also recognized such a theory under New York law,78

Judge Castel articulated five elements that must be present for a

successful cause of action for hot news misappropriation:

(i) a plaintiff generates or gathers information at a cost; (ii)

the information is time-sensitive; (iii) a defendant’s use of

the information constitutes free riding on the plaintiff's

efforts; (iv) the defendant is in direct competition with a

product or service offered by the plaintiffs; and (v) the

ability of other parties to free-ride on the efforts of the

plaintiff or others would so reduce the incentive to produce

the product or service that its existence or quality would be

substantially threatened.79

Judge Castel did not apply these elements to the facts of the case,

however, as AHN’s motion to dismiss focused only on the pre-emption

argument and the contention that Florida law, rather than New York,

controlled.80

75 Id. For an in-depth discussion of the Erie Doctrine, see generally Joseph R.

Oliveri, Converse-Erie: The Key to Federalism in an Increasingly Administrative

State, 76 GEO. WASH. L. REV. 1372, 1375-76 (2008) (observing that “the Erie

doctrine – the cornerstone of analysis of the relationship between federal and state

law in federal courts – provides that federal courts, except in matters governed by the

Constitution or federal statutes, shall apply the substantive law of the forum state,”

and adding that in Erie, “the Supreme Court overturned the previous rule of Swift v.

Tyson, rejecting the notion of a ‘federal general common law’ to which federal

courts had previously looked to find the applicable rule of decision”) (citations

omitted). 76 Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 461 (S.D.N.Y.

2009). 77 Id.

78 See Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997)

(involving the application of the hot news misappropriation tort in the context of a

dispute about the transmission of scores and other data about NBA games in

progress via paging devices). 79 All Headline News Corp., 608 F. Supp. 2d at 461 (quoting Motorola, 105 F.3d at

845). 80 See All Headline News Corp., 608 F. Supp. 2d at 458 (writing that the motion to

dismiss the hot news misappropriation cause of action was based “on two grounds,”

including the contention that “choice of law requires that plaintiff’s claim of

misappropriation of hot news be considered under the law of Florida, which,

defendants contend, has rejected such a cause of action” and the assertion “that a

claim for misappropriation of hot news is preempted by the federal Copyright Act”).




11

In lauding Judge Castel’s decision, the AP’s director of media

relations, Paul Colford, stated the “ruling reaffirms the viability of the

hot news misappropriation doctrine, and thereby protects AP’s

investments in news gathering and reporting against copying by free-

riders.”81 Colford also pointed out that the case was not simply about

the AP’s right to make money, but the public’s right to receive

information, as he stated that “by preserving the economic incentive to

gather and report hot news, this decision will further the public interest

in having access to such news and also encourage the efforts of

journalists.”82 This framing

83 of the case attempts to place the AP in

the noble position of protecting the public interest rather than casting it

as a greedy entity trying to eliminate a competitor.

Significantly, when the case settled,84 the agreement between

the parties included a provision under which AHN acknowledged that

“the tort of ‘hot news misappropriation’ has been upheld by other

courts and was ruled applicable in this case by U.S. District Court

Judge P. Kevin Castel.”85 This appears to be a warning shot fired by

the AP—a shot targeting other news services and news aggregators86

like AHN—that the AP will use the same theory again to challenge

their actions. Ethan K. Ackerman, a Washington, D.C.-based attorney

who has worked in the U.S. Senate as technology counsel, observed

“settlements don’t validate legal theories, court opinions do. That

said, part of the settlement required AHN to pseudo-admit the viability

of the hot news misappropriation doctrine.”87In its own—albeit much

shorter—press release, AHN acknowledged paying the AP an

81 Press Release, Associated Press, AP Statement on All Headline News Court

Ruling (Feb. 18, 2009) (on file with Wake Forest Intellectual Property Law Journal),

available at http://www.ap.org/pages/about/pressreleases/pr_021809b.html. 82 Id.

83 See generally Jeongsub Lim & Hyunjin Seo, Frame Flow Between Government

and the News Media and its Effects on the Public: Framing of North Korea, 21 INT’L

J. PUB. OPINION RES. 204, 205-07 (2009) (providing an overview of the concept of

framing and framing effects). 84 See Order of Dismissal at 1, All Headline News Corp., 608 F. Supp. 2d 454 (No.

08 Civ. 323) (providing, in relevant part, that the court was “advised that all claims

asserted herein have been settled,” and dismissing the case without prejudice to re-

opening it within 60 days if the settlement was not consummated). 85 Press Release, Associated Press, AP and AHN Media settle AP’s lawsuit against

AHN Media and individual defendants (July 13, 2009) (on file with Wake Forest


http://www.associatedpress.com/pages/about/pressreleases/pr_071309a.html. 86 See generally Barb Palser, Is It Journalism?, AM. JOURNALISM REV., June 2002, at

62, ## (discussing the concept of news aggregators and, in particular, Yahoo! News). 87 Posting of Ethan Ackerman, to Technology & Marketing Law Blog,

http://blog.ericgoldman.org/ (July 22, 2009, 09:44 PST).


undisclosed amount of money, but it continued to deny the AP’s

allegations.88

With this analysis of the Associated Press v. All Headline

News case in mind, the next part of this article turns to the

development of the tort at issue in it, as well as a review of scholarly

legal commentary about it.

II.THE EVOLUTION OF THE HOT NEWS MISAPPROPRIATION TORT:

A REVIEW OF LEGAL PRECEDENT AND SCHOLARLY LITERATURE

The U.S. Supreme Court’s decision in International News

Service v. Associated Press was handed down in 1918, a time when

consolidation in the print newspaper industry was first beginning.89

Media mogul William Randolph Hearst had created what would

become the International News Service90 (“INS”) some twelve years

earlier to compete against the Associated Press, which had been

formed in the mid-1800s.91 The dispute at issue between the two news

services began when INS, lacking international cables connecting

Europe to the United States, began “clipping news from AP member

newspapers”92 and “copying it from AP bulletin boards.”

93 By

pilfering AP-based content from early editions of East Coast

newspapers, INS was actually able to beat the AP, given time-zone

differences, to the West Coast newspapers with the AP’s own

content,94 As Professor Paul W. Sullivan observes in an excellent

88 Melvin Baker, Press Release, All Headline News, AHN, AP Settle Lawsuit (July

13, 2009) (on file with Wake Forest Intellectual Property Law Journal), available at

http://www.allheadlinenews.com/articles/7015776639?AHN,%2520AP%2520Settle

%2520Lawsuit. 89 “Let Munsey Kill It!”: The Birth of the Newspaper Chain, in 1 AMERICAN

DECADES 350, 350-51 (Vincent Tompkins ed., 1996) (writing that “[i]n 1890 New

York had fifteen English-language daily newspapers. By 1932 it had half that

number. The twentieth-century trend toward newspaper consolidation began in

earnest during the century’s first decade” and pointing out that “[i]n upstate New

York Frank E. Gannett bought a partial interest in the Elmira Gazette in 1906 and

then merged it with the Elmira Star. In the 1910s he bought two papers in Ithaca

and combined them, and in the 1920s acquired others in Rochester, Utica, and in

other northeastern states, laying the groundwork for the largest chain in the

country”). 90 In 1958, United Press absorbed International News Service to become United

Press International. Richard A. Schwarzlose, International News Service: William

Randolph Hearst’s News Wire, in HISTORY OF MASS MEDIA IN THE UNITED STATES:

AN ENCYCLOPEDIA 275 (Margaret A. Blanchard, ed., 1998). 91 Laura Bergheim, Press Associations, in 6 DICTIONARY OF AMERICAN HISTORY

458, 458 (Stanley I. Kutler ed., 2003). 92 Paul W. Sullivan, News Piracy: An Interpretation of the Misappropriation

Doctrine, 54 JOURNALISM Q. 682, 683 (1977). 93 Id.

94 Id.




13

examination of the case that should be read by anyone wanting a

complete analysis of it, the “AP objected that some of its own

members in the western part of the country were not receiving the

news as quickly as INS customers were receiving the pirated news.”95

Importantly, the AP did not argue that its stories were

copyrighted. As Professor Eric Easton writes, the “AP argued that

securing copyright for its dispatches was impractical and that those

dispatches were beyond the scope of the Copyright Act. AP’s

property interest lay exclusively in protecting its business from

freeriders.”96

As described in the Introduction, Justice Pitney and the

majority of the court sided with the Associated Press, expressing deep

concern about what it considered to be unfair competition by INS and

finding a quasi property right in the fresh news stories that it spent

time, money, and labor to gather and produce.97 The property interest

held by the AP, Justice Pitney made clear, was not as against all of the

world or the newspaper reading public, but only as against its

competitors, writing:

The question here is not so much the rights of either party as

against the public but their rights as between themselves.

And although we may and do assume that neither party has

any remaining property interest as against the public in

uncopyrighted news matter after the moment of its first

publication, it by no means follows that there is no

remaining property interest in it as between themselves. For,

to both of them alike, news matter, however little susceptible

of ownership or dominion in the absolute sense, is stock in

trade, to be gathered at the cost of enterprise, organization,

skill, labor, and money, and to be distributed and sold to

those who will pay money for it, as for any other

merchandise.98

From a public policy perspective that centers on an

unenumerated First Amendment right to receive speech,99 this is an

95 Id.

96 Eric B. Easton, Who Owns ’The First Rough Draft of History?’: Reconsidering

Copyright in News, 27 COLUM. J.L. & ARTS 521, 547 (2004). 97 See supra footnotes 43-45 and accompanying text (describing Justice Pitney’s

opinion for the majority of the high court). 98 Int’l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) (emphasis added)

(citation omitted). 99 See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853,

867 (1982) (opining that “the right to receive ideas is a necessary predicate to the

recipient's meaningful exercise of his own rights of speech, press, and political

freedom”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (writing that “the

right of freedom of speech and press includes not only the right to utter or to print,

but the right to distribute, the right to receive, the right to read”); Martin v. Struthers,


important dichotomy. It suggests that the majority opinion is not

intended to deprive the public of news but is, instead, only intended to

provide profit and incentive for the gathering of that news by

depriving another business entity—a rival/competitor—from profiting

from it. In other words, the hot news misappropriation doctrine that

was to emerge from the case was not to be used against the public, but

against rival businesses.

The court also made it clear that, even as against a

rival/competitor, the quasi property interest held in news is ephemeral,

lasting only so long as the news at issue is fresh. As Justice Pitney

wrote:

[T]he view we adopt does not result in giving to complainant

the right to monopolize either the gathering or the

distribution of the news, or, without complying with the

copyright act, to prevent the reproduction of its news

articles; but only postpones participation by complainant’s

competitor in the processes of distribution and reproduction

of news that it has not gathered, and only to the extent

necessary to prevent that competitor from reaping the fruits

of complainants efforts and expenditure, to the partial

exclusion of complainant, and in violation of the principle

that underlies the maxim sic utere tuo, etc.100

Finally, Justice Pitney and the majority attempted to make it

clear that the misappropriation cause of action could not be used to

prevent or thwart one competitor from taking “the news of a rival

agency as a ‘tip’ to be investigated, and if verified by independent

investigation the news thus gathered is sold.”101

The Court here drew

another dichotomy, this time between the uses that a rival could

properly make of a competitor’s fresh news content:

• Permissible: Use the information as a tip to be

independently investigated and corroborated for one’s

own story.

• Forbidden: “the bodily appropriation of another’s

labor in accumulating and stating information.”102

319 U.S. 141, 143 (1943) (writing that the First Amendment freedom to distribute

literature “necessarily protects the right to receive it”). 100 Int’l News Serv., 248 U.S. at 241 (emphasis added). The phrase “sic utere tuo ut

alienum non laedas” reflects an ancient common law maxim in nuisance law that

means “use your own so as not to injure another.” Joseph H. Guth, Law for the

Ecological Age, 9 VT. J. ENVTL. L. 431, 447 (2008). As Professor Gregory

Alexander recently observed, “the negative obligation of the Anglo-American

common law to avoid committing nuisance” reflects an approach that “is captured by

the sic utere tuo maxim.” Gregory S. Alexander, The Social-Obligation Norm in

American Property, 94 CORNELL L. REV. 745, 753 (2009). 101 Int’l News Serv., 248 U.S. at 243.

102 Id. (quoting Associated Press v. Int’l News Serv., 245 F. 244, 247 (2d Cir. 1917)).




15

In summary, the majority opinion, although failing to clearly

delineate the precise elements of the hot news misappropriation tort

that would evolve from the International News Service case, seemed

to place three limitations on it, at least in the opinion of the authors of

this article:

1. It can only be used by one rival against another

rival, not against the public.

2. The quasi property right in news that is instilled by

the tort does not last forever against a rival, but

merely “postpones participation”103

in the news by

the rival, hence the idea that it merely is a “hot

news” tort.

3. A rival is free to use a competitor’s fresh news for

purposes of providing it with a tip or lead to be

independently investigated and produced as its own

news story.

The majority opinion in International News Service has been

the subject of much legal commentary and writing over the years. For

instance, University of Chicago Law Professor Richard Epstein

observes that Justice Pitney’s opinion “rests upon the idea of property

rights in news,”104

rights that the AP possessed in its fresh news as

against a direct competitor, INS.105

These rights, however, last only

while the news is fresh and, in addition, only against a direct

competitor.106

This echoes two of the three limitations set forth above.

The notion of finding a property right in news, however, is one

of the fundamental reasons that International News Service is

criticized by legal scholars. For example, Professor Leo J. Raskind

blasts the “‘quasi-property’ foundation on which the INS majority

relied”107

in order to side with the AP and divine a theory of

misappropriation as “question-begging.”108

Raskind suggests that the

majority’s concern with unfair competition—the “unique commercial

‘dirty trick,’”109

in Raskind’s words, in which INS “took AP news in

103 Int’l News Serv. v. Associated Press, 248 U.S. 215, 241 (1918) (emphasis added).

104 Richard A. Epstein, International News Service v. Associated Press: Custom and

Law as Sources of Property Rights in News, 78 VA. L. REV. 85, 112 (1992). 105 Id. at 92.

106 See id. at 114 (observing that Justice “Pitney describes the defendant’s interest in

its news as ‘quasi property,’ which is good only for a short period of time (less than

a day) and then only against the direct competitor of the plaintiff”). 107 Leo J. Raskind, The Misappropriation Doctrine as a Competitive Norm of

Intellectual Property Law, 75 MINN. L. REV. 875, 900 (1991). 108 Id.

109 Id. at 881.


order to have a saleable product”110

and passed it off as its own

work—should not have led it to adopt a property foundation for

grounding the opinion. As Raskind writes:

Introducing the concept of “quasi-property” diverts the

inquiry. The defect in the majority opinion is that it relies on

a legal doctrine relating to the marketing side of competition

[passing off] and cloaks that doctrine with the status of

property. The majority then sought to provide an analysis of

a taking of an undefined property interest in the context of a

competitive market in which taking is the very nature of the

relationship.111

Others also object to the notion of using a property right to

protect information. Professor Michael Pendleton describes what he

calls “the inappropriateness of property as a conceptual/legal device

for ordering rights among the groups of persons who have legitimate

interests in protecting as well as accessing (within limits) the

substantial labour, skill, effort and investment of time and money

involved in creating information ‘products.’”112

Another criticism of the International News Service decision

relates to the separation of powers and roles between judges and

legislators. As Professor Douglas G. Baird writes, “[critics] argue that

judges are poorly situated to identify the policies at stake in an

intellectual property dispute and that judges therefore should not

recognize intellectual property rights until the legislature has done

so.”113

Supporting this proposition that legislators should create the

law here is the idea that “the federal system of intellectual property

derives from the clause of the Constitution that gives Congress the

power to give authors and inventors exclusive rights to their writings

and discoveries for a limited time for the purpose of promoting ‘the

Progress of Science and useful Arts.’”114

In this line, Professor L. Ray

Patterson observes that International News Service actually “can be

viewed as a copyright case in the guise of unfair competition”115

because, although the AP’s stories were copyrightable, it had not

copyrighted them.116

As a copyright case in the United States, it would

be governed by legislative rules, not by a court-created doctrine that

110 Id. at 885.

111 Id. at 886-87.

112 Michael D. Pendleton, Balancing Competing Interests in Information Products: A

Conceptual Rethink, 14 INFO. & COMM. TECH. L. 241, 246 (2005). 113 Douglas G. Baird, Common Law Intellectual Property and the Legacy of

International News Service v. Associated Press, 50 U. CHI. L. REV. 411, 417 (1983). 114 Id. at 415 (quoting U.S. CONST. art. I, § 8, cl. 8).

115 L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1, 59

(1987). 116 Id. at 58-59.




17

was, as Professor Raskind contends, launched “in an ad hoc fashion”

to fill a vacuum in favor of the Associated Press.117

More generally but certainly not less importantly, the majority

opinion has been criticized as being at odds with the First Amendment

freedom of speech. As Professor Diane Zimmerman writes about the

majority’s rationale that hard work and effort in gathering news should

be rewarded with property rights for exclusive use:

Taken at face value, this principle suggests that property

rules are appropriately applied whenever someone exploits

for profit information generated by the personality,

activities, or intellectual efforts of someone else – and that

the First Amendment is not offended by the requirement that

the user first bargain for that right with the source of the

value. Certainly, no evidence suggests that First

Amendment jurisprudence has ever accepted this view.118

Given these criticisms of the opinion, it is not surprising that

the justices themselves split in International News Service. In

particular, Justice Louis Brandeis dissented at length,119

while Justice

Oliver Wendell Holmes, Jr. issued a very brief concurrence that was

joined by Justice Joseph McKenna.120

Brandeis, who parsimoniously

defined news as “a report of recent occurrences,”121

objected to the

idea that news is property. He opined:

An essential element of individual property is the legal right

to exclude others from enjoying it. If the property is private,

the right of exclusion may be absolute; if the property is

affected with a public interest, the right of exclusion is

qualified. But the fact that a product of the mind has cost its

producer money and labor, and has a value for which others

are willing to pay, is not sufficient to ensure to it this legal

attribute of property. The general rule of law is, that the

noblest of human productions – knowledge, truths

ascertained, conceptions, and ideas – become, after

voluntary communication to others, free as the air to

common use.122

Brandeis also emphasized the danger to the right of the public

to receive information that might be affected by extending a property

117 Raskind, supra note 107, at 881.

118 Diane Leenheer Zimmerman, Information as Speech, Information as Goods:

Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV.

665, 722 (1992). 119 Int’l News Serv. v. Associated Press, 248 U.S. 215, 248-267 (1918) (Brandeis, J.,

dissenting). 120 Id. at 246-248 (Holmes, J., concurring).

121 Id. at 249 (Brandeis, J., dissenting).

122 Id. at 250.


right in news, writing that an extension of property rights in news

would lead to “a corresponding curtailment of the free use of

knowledge and of ideas; and the facts of this case admonish us of the

danger involved in recognizing such a property right in news, without

imposing upon news-gatherers corresponding obligations.”123

Even if

one were to extend such a right, Brandeis opined that such a decision

should be made by a legislative body, not a judicial one, writing that

“courts are ill-equipped to make the investigations which should

precede a determination of the limitations which should be set upon

any property right in news or of the circumstances under which news

gathered by a private agency should be deemed affected with a public

interest.”124

Brandeis here seemed clearly concerned about potential harm

to the public’s interest in news that might be caused by the majority’s

holding. As Professor Geraldine Szott Moohr observes, Brandeis

believed that “a new rule, unless carefully crafted, could injure the

general public,”125

and thus “preferred a rule that encouraged free use

of knowledge and ideas.”126

A number of lower federal court opinions have since

considered, to varying degrees, the viability and elements of the hot

news misappropriation tort,127

but probably the most important

opinion for purposes of the AP’s case against AHN, given its decision

by the United States Court of Appeals for the Second Circuit, is

National Basketball Ass’n v. Motorola, Inc.128

The case did not

involve either news stories or news agencies, but centered instead on

the real-time transmission of NBA game scores and statistics, taken

from television and radio broadcasts of games in progress, via a

paging device manufactured by Motorola and compiled by a service

123 Id. at 263.

124 Id. at 267.

125 Geraldine Szott Moohr, Federal Criminal Fraud and the Development of

Intangible Property Rights in Information, 2000 U. ILL. L. REV. 683, 695 (2000). 126 Id. at 696.

127 See, e.g., Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997);

Fin. Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d 204 (2d Cir. 1986);

Scranton Times v. Wilkes-Barre Publ’g Co., No. 3:08-cv-2135, 2009 WL 585502

(M.D. Pa. Mar. 6, 2009); X17 v. Lavandeira, 563 F. Supp. 2d 1102 (C.D. Cal. 2007);

McGraw-Hill Cos. v. Int’l Sec. Exch., Inc., No. 05 Civ.1129(HB), 2005 U.S. Dist.

LEXIS 18674 (S.D.N.Y. Sept. 1, 2005); Lowry’s Reports, Inc. v. Legg Mason, Inc.,

271 F. Supp. 2d 737 (D. Md. 2003); Scholastic, Inc. v. Stouffer, 124 F. Supp. 2d 836

(S.D.N.Y. 2000); Morris Commc’ns. Corp. v. PGA Tour, Inc., 117 F. Supp. 2d 1322

(M.D. Fla. 2000); Gannett Satellite Info. Network, Inc. v. Rock Valley Cmty. Press,

Inc., No. 93 C 20244, 1994 U.S. Dist. LEXIS 15736 (N.D. Ill. 1994); Nash v. CBS,

Inc., 704 F. Supp. 823 (N.D. Ill. 1989); P.I.T.S. Films v. Laconis, 588 F. Supp. 1383

(E.D. Mich. 1984); Schuchart & Assocs. v. Solo Serve Corp., 540 F. Supp. 928

(W.D. Tex. 1982); Harper & Row Publishers, Inc. v. Nation Enters., 501 F. Supp.

848 (S.D.N.Y. 1980). 128 105 F.3d 841.




19

called Sports Team Analysis and Tracking Systems.129

The case is

important for two primary reasons: it recognized the existence of the

hot news misappropriation tort in New York,130

and it articulated the

same five elements131

of the cause of action spelled out by Judge

Castel in the AP’s battle against AHN. In specifying those elements,

the appellate court in Motorola called the hot news misappropriation

tort “properly narrowed,”132

suggesting it is cabined quite closely by

the Second Circuit.

The Second Circuit in Motorola interpreted the Supreme

Court’s International News Service decision as founded on the goal of

“the protection of property rights in time-sensitive information so that

the information will be made available to the public by profit-seeking

entrepreneurs.”133

As such, a viable hot news misappropriation claim

will only survive preemption by the Federal Copyright Act if three key

thingsare present: (i) the factual information at issue is time sensitive;

(ii) there is a free-riding defendant; and (iii) there is a threat to the very

existence of the product or service provided by the plaintiff.134

If it

survives preemption, then a court will turn to the five elements of the

tort itself.

III.NEWS, CULTURE AND CONTROL OF INFORMATION IN THE DIGITAL

AGE:RAMIFICATIONS OF THE HOT NEWS MISAPPROPRIATION TORT

The hot news misappropriation tort originated in 1918 when

people obtained their news via newspapers. Today, people get their

news on the Internet, BlackBerrys and iPhones, as well as on

television and even Twitter;135

an August 2008 report by the Pew

Research Center for the People & the Press, for instance, found that

“since the early 1990s, the proportion of Americans saying they read a

newspaper on a typical day has declined by about 40%.”136

Conversely, the same survey found that “since 2006, the proportion of

Americans who say they get news online at least three days a week has

129 Id. at 843-44.

130 Id. at 845.

131 See supra note 81 and accompanying text.

132 Motorola, 105 F.3d at 848.

133 Id. at 853.

134 Id.

135 See Bob Franklin, The Future of Newspapers, 9 JOURNALISM STUD. 630, 630-31

(2008) (observing that today’s news content is delivered on “multiple media

platforms” and “delivered by the Internet, pod casts and mobile telephony, more

often than by newspaper delivery boys and girls”). 136 PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, AUDIENCE SEGMENTS IN A

CHANGING NEWS ENVIRONMENT 3 (2008),

http://people-press.org/reports/pdf/444.pdf.


increased from 31% to 37%.”137

We also live in a culture that thrives on the constant flow of

information. As the website for Twitter states, “In countries all around

the world, people follow the sources most relevant to them and access

information via Twitter as it happens—from breaking world news to

updates from friends.”138

Twitter has more than 20 million users,139

and as the Philadelphia Inquirer observed, it has played “a growing

role in disseminating news and organizing social and protest

movements.”140

Might the use of the hot news misappropriation tort

hinder or otherwise stanch the flow of news in such a faster-is-better

world?

The dramatic changes in the speed at which news is conveyed, as

well as the manner and mode of its receipt, can be a double-edged

sword when intellectual property concerns are put into the equation.

As Brian Cooper, the executive editor of the Telegraph Herald in

Dubuque, Iowa, recently observed:

In this Internet Age, with thousands of media outlets

available at the click of a mouse, it is easier than ever to

follow news events anywhere – from your hometown to the

other side of the world. And it is also easier than ever for

less-scrupulous outlets to appropriate that news and label it

their own. Simply copy, paste, delete credit lines and –

voila!141

The Associated Press clearly is concerned about the ease at

which such piracy can occur. It explains on its website why it has

chosen to fight such battles so aggressively:

The Associated Press is a not-for-profit news cooperative

that spends hundreds of millions of dollars every year

gathering and sharing news of public interest from around

the world. Licensing of this content by our members is

critical to support our news operations. In the new digital

content economy, however, a significant amount of AP news

and news from AP members is used without permission or

fair compensation. This situation has serious consequences:

it dilutes the value of news for licensors and advertisers; it

fragments and disperses content so widely that consumers

end up relying on fragmented coverage to get their news

137 Id. at 4.

138 About Twitter, http://twitter.com/about (last visited Sept. 1, 2009) (emphasis

added). 139 See Verne Kopytoff, Virtually Famous Folks, S.F. CHRON., July 27, 2009, at A1

(noting that Twitter has 21 million users and describing how it turns ordinary people

into popular figures on the service). 140 John Timpane, Tweeting Twitter Seriously, PHILA. INQUIRER, July 30, 2009, at

A1. 141 Brian Cooper, Say, Where Did That News Story Come From?, TELEGRAPH

HERALD (Dubuque, Iowa), June 3, 2008, at A4.




21

despite the availability of comprehensive and authoritative

coverage on a 24-hour basis.142

The AP’s actions likely have a large impact on so-called online

news aggregating sites that, as attorney Jeffrey D. Neuburger writes,

“have become ubiquitous on the Internet.”143

An adjunct Professor at

Fordham University School of Law, Nueburger points out the AP had

previously been successful in obtaining settlements from other online

news aggregators, including Google News and Verisign.144

The AP’s

win in federal court against AHN gives it more leverage to obtain

further settlements in the future.

The potential ramifications of the AP’s current use of the hot

news misappropriation tort stretch beyond the Internet to also affect

television and radio journalism. As journalist Ken Robertson of the

Tri-City Herald in Washington State wrote in early 2009:

[I]t’s common practice for radio and TV “news” readers to

simply rip their stories off from their local newspaper,

seldom bothering to credit the newspaper.

This kind of theft has been commonplace for

decades, and we newspaper people called it “rip and read”

and joked that you could often hear the sound of the

newspaper being folded on the air.145

The practice of rip-and-read journalism on the radio may be

increasing today, Robertson points out, as economic pressures mean

that “radio and TV stations have even smaller staffs and thus even less

time to do any original reporting and must rely more and more on rip

and read.”146

The AP’s newspaper clients—who pay for and work

together with the AP—might now invoke the hot news

misappropriation tort to forbid a local radio station from reading its

stories on the air. “In Boise, Idaho, for example, the newspaper has

told AP to forbid Boise radio and TV stations from using the

newspaper’s news that is shared on the AP wire,”147

Robertson writes.

Perhaps one of the most interesting questions involving the

ramifications of Associated Press v. All Headline News Corp. is

whether the hot news misappropriation doctrine can be successfully

used to squelch the speech of bloggers and citizen journalists who

make use of online news like that conveyed by the AP. In other

142 Associated Press, Protecting AP’s Intellectual Property,

http://www.associatedpress.com/iprights/faqiprights.html (last visited Sept. 1, 2009). 143 Posting of Jeffrey D. Neuburger to New Media & Technology Law Blog,

http://newmedialaw.proskauer.com (Feb 26, 2009). 144 Id.

145 Ken Robertson, Opinion: AP’s Suit Over Theft of ‘Hot News’ Should Rattle TV,

Radio, TRI-CITY HERALD (Kennewick, Wash.), Feb. 20, 2009, at Commentary. 146 Id.

147 Id.


words, will the hot news doctrine jeopardize the rapid and free

exchange of information on what the U.S. Supreme Court once called

“the vast democratic forums of the Internet?”148

Conversely, could a

blogger who gets a scoop and breaks an important political news story

be able to own the story, as it were, for a brief amount of time—as

long it is “hot” news—and thereby stifle its dissemination to the wider

public that relies on information conveyed by news services like the

Associated Press? This is particularly important because, as Paul

Farhi recently noted in the American Journalism Review:

Two of the biggest campaign trail scoops came not from a

professional journalist, but from a blogger named Mayhill

Fowler. . . . Using her own money to follow the campaign

around the country, the 61-year-old Fowler recorded

Obama’s comments, made at a fundraiser in San Francisco,

that “bitter” small-town voters “cling to guns and religion.”

(Fowler never identified herself as a blogger; she was

admitted to the closed event because she was an Obama

contributor.) In June she encountered Bill Clinton at a rally

in South Dakota and (again, failing to identify herself) asked

about an unflattering profile of him in Vanity Fair. When

Clinton launched into a tirade about the article's author,

former New York Times reporter Todd Purdum (“sleazy!” “a

scumbag!”), Fowler recorded that, too, and posted it

online.149

The answer to each these questions would generally seem to be

no. Why? Because the elements of the hot news misappropriation

cause of action frame the tort so narrowly that most cases involving

bloggers and citizen journalists on one side of the case, and a news

service like the AP on the other side, simply would not fall within it.

In particular, the fourth element of the tort as framed by Judge Castel

in Associated Press v. All Headline News Corp.—and quoting the

Second Circuit’s opinion in National Basketball Ass’n v.Motorola—

requires the plaintiff to prove that “the defendant is in direct

competition with a product or service offered by the plaintiffs.”150

The

operations of the Associated Press or a news service like the United

Press International151

simply are not in “direct competition” with the

148 Reno v. ACLU, 521 U.S. 844, 868 (1997).

149 Paul Farhi, Off the Bus, AM. JOURNALISM REV., Dec. 2008-Jan. 2009, at 28, 31.

150 Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 461

(S.D.N.Y. 2009) (citing Nat’l Basketball Ass’n v. Motorola, 105 F.3d 841, 845 (2d

Cir. 1997)). 151 The United Press International describes itself as “a leading provider of critical

information to media outlets, businesses, governments and researchers worldwide.

UPI is a global operation with offices in Beirut, Hong Kong, London, Santiago,

Seoul and Tokyo.” About United Press International, http://about.upi.com (last

visited Sept. 5, 2009).




23

services provided by a blogger or citizen journalist. The tort will only

be successful if there are rivals in direct competition with each other.

Bloggers simply are not news services; both may supply

important information that many people may consider to be news, but

merely trafficking in similar information does not put them in direct

competition. For instance, the Associated Press: 1) has more than 240

bureaus in 97 countries; 2) features 4,100 editorial, communications

and administrative employees worldwide; 3) is owned by its 1,500

newspaper members; and 4) offers to its members news, photos,

graphics, audio, and video.152

The stereotypical “blogger in his

pajamas,”153

in comparison, may hit an important scoop from time to

time, but he or she simply does not fulfill the same function—

supplying newspapers, radio stations, and websites across the country

with a constant and steady stream of information and different formats

of mediated content—and consistently discover the same type of

information that is dug up “by skilled reporters working beats day in

and day out.”154

The AP can, to put it bluntly, be in many different

places at one time, spanning the globe; the isolated blogger simply

cannot. If the AP thus sued an individual blogger for taking one of its

breaking news stories and posting it on the blogger’s website, as his or

her own work, without either attribution or permission, the blogger

certainly may have violated fundamental ethical tenets of journalism

prohibiting plagiarism,155

but surely he or she has not committed the

tort of hot news misappropriation.

152 Associated Press,Facts & Figures, http://www.ap.org/pages/about/about.html (last

visited Sept. 5, 2009). 153 This phrase is often used by the news media themselves to stereotype bloggers.

See, e.g., Carl Carter, Who Will Pay for the News? The Internet has Walloped

Newspapers, BIRMINGHAM NEWS (Ala.), Mar. 8, 2009, at 1F (contending that

“bloggers in pajamas” cannot replace mainstream newspapers because those

bloggers, along with “cell-phone photographers,” merely “piggyback on the real

work done by real reporters”); Marc Fisher, Politics 24/7: No One Can Hear You

Scream, WASH. POST, Oct. 14, 2007, at M1 (using the twin phrases “bloggers in their

pajamas” and “pajamas media”); Logan Jenkins, What’s the Future of the U-T? Read

On, For Now, SAN DIEGO UNION-TRIB., Jan. 26, 2009, at B2 (arguing in favor of the

importance of traditional newspapers and contending that there is “no way can a

loose network of bloggers in pajamas – or, for that matter, time-challenged broadcast

outlets – match our concerted effort to inform in detailed depth”). 154 Editorial, Burris Scoops Show How Much Newspapers Matter, CHI. SUN-TIMES,

Feb. 17, 2009, at 16. 155 For instance, the ethics code of the Society of Professional Journalists bluntly

admonishes journalists to “never plagiarize.” Society of Professional Journalists,

Code of Ethics, available at http://www.spj.org/pdf/ethicscode.pdf (last visited Sept.

1, 2009). See Norman P. Lewis, Plagiarism Antecedents & Situational Influences,

85 JOURNALISM & MASS COMM. Q. 353, 353 (2008) (observing that “plagiarism

seems to stick to journalism like a leech, despite universal prohibitions, zero-

tolerance policies, and fallout from the 2003 Jayson Blair episode”). See generally


Ultimately, the Associated Press should be entitled to some

form of qualified protection for its time, labor, and efforts in gathering

breaking news, but not against bloggers or citizen journalists. The

question really centers on defining the precise scope and range of the

protection to which it should be entitled, given the competing interests

at stake, against rival news services and news aggregators.

Those interests, in the opinion of the authors of this article,

would seem to be at least threefold:

• the interests of the AP as the gatherer and creator of

the newsstories;

• the interests of the AP’s competitors and, in particular

news aggregators; and

• the interests of the audience, recipients, and users of

the news stories.156

In light of these three interests, one might ask the following

threshold question: Why is it important to protect the Associated Press

in the first place, as it gathers information and writes news stories,

when the public (the third possessor of an interest noted above) can

obtain information from so-called citizen journalists and bloggers so

readily today? Professor Michael Schudson of the University of

California, San Diego, addressed that same issue in 2009, concluding

that “matters of professional training, experience, and judgment are as

or more important than ever”157

in the world of journalism and

reasoning that “one need not idealize the newspaper press to recognize

that to this day television, radio, and online news feed off the basic

reporting that to an overwhelming extent comes from organizations

whose economic survival no one knows how to guarantee.”158

In other

words, there remains a fundamental difference in quality and content

that separates professional journalists from bloggers and citizen

journalists, even if that difference stems from a desire for economic

survival.

According to a 2007 article published in Journalism & Mass

Communication Quarterly:

Aggregators produce little original news content, instead

providing a platform for established news producers and

access for users to multiple news sources. Arguably the

most popular online news portal, Yahoo!News, allows users

Marie Dunne White, Plagiarism and the News Media, 4 J. MASS MEDIA ETHICS 265

(1989) (discussing the concept of plagiarism and the related issue of lack of

attribution in news media ethics). 156 Cf. Pendleton, supra note 114, at 246 (identifying a very similar list of competing

interests that must be taken into account in any dispute over intellectual property

where time and labor are expended to gather and produce information). 157 Michael Schudson, Ten Years Backwards and Forwards, 10 JOURNALISM 368,

370 (2009). 158 Id..




25

to identify favorite topics—politics, business, science,

entertainment—from various sources including Associated

Press (AP), Agence France-Presse (AFP), Reuters, CNN,

and others. A recent Pew study determined that 23% of

online news consumers chose Yahoo!News, and while

Yahoo!News usage has continued to increase, competitor

aggregators, such as Google News, and online news

providers, such as MSNBC.com and CNN.com, have lost

users.159

When a news aggregator has permission and explicit

authorization from a company or news service to post links to its

feeds, there clearly is no possibility of a hot news misappropriation

claim. Lack of permission, however, raises the distinct possibility.

While Judge Castel did not address the actual merits of such a scenario

involving a news aggregator versus a news service,160

it is clear that,

as David Simon, a writer and former Baltimore Sun reporter, recently

wrote in Columbia Journalism Review, “the relationships between

newspapers and online aggregators—not to mention The Associated

Press and Reuters—will have to be revisited and revised.”161

The

interests of society and the reading public—the third possessor of an

interest identified above by the authors of this article—require the

economic viability of professional news services because while

“amateur journalistsmay have wise and clever things to say,”162

they

are not in the practice of regularly breaking news stories and

subscribing to journalistic principles of neutrality and supposed

objectivity.163

Finally, it is important to note that Judge Castel did not address

what attorney Jeffrey D. Neuburger calls “the more difficult and

complex questions concerning the use of news reports by bloggers and

others who do not merely excerpt and link to online news reports such

as those produced by the AP, but add commentary to them as well.”164

In the opinion of the authors of this article, it would seem that legal

analysis of such blogger-added-commentary situations should

159 Joe Bob Hester & Elizabeth Dougall, The Efficiency of Constructed Week

Sampling for Content Analysis of Online News, 84 JOURNALISM & MASS COMM. Q.

811, 811 (2007). 160 See supra notes 78-79 and accompanying text (describing how Judge Castel only

considered the issues of choice of law, preemption and the viability of the hot news

misappropriation theory under New York law). 161 David Simon, Build the Wall, COLUM. JOURNALISM REV., July-Aug. 2009, at 36,

36. 162 Michael Shapiro, Open for Business, COLUM. JOURNALISM REV., July-Aug. 2009,

at 29, 35. 163 See generally Michael Schudson, The Objectivity Norm in American Journalism,

2 JOURNALISM 149 (2001) (discussing objectivity in journalism). 164 Neuburger, supra note 145.


incorporate and borrow fair-use factors from copyright law.165

In

particular, 17 U.S.C. § 107 specifically notes that criticism and

comment of an otherwise copyrighted work may be protected.166

In

fact, such commentary might even be considered a form of “news

reporting”167

protected as a fair use. If the blogger is not making a

commercial profit—per the first fair use factor168

—this too would

militate in favor of protecting such a use in a blogger-added-

commentary situation. In addition, the smaller the portion of the

original article that is appropriated for purpose of commentary, the

better for the blogger, as the fair-use statute asks courts to factor in

“the amount and substantiality of the portion used in relation to the

copyrighted work as a whole.”169

This issue, of course, remains

unresolved, and the article now turns to the Conclusion to offer some

ideas of future research and to summarize some of its own findings.

IV.CONCLUSION

This article has attempted to illustrate the origin, evolution, and

continuing viability of the hot news misappropriation doctrine nearly a

century after it was first developed and at a time when we are, as one

communication scholar recently put it, “in the midst of an epochal

transformation of the news media.”170

While the news media and the

very nature of journalism may be changing today, the principles of

unfair competition and reap/sow equity that gave rise in International

News Service v. Associated Press to the hot news misappropriation

remain vital, despite the scholarly criticism of them reviewed earlier in

this article.171

The AP’s lawsuit against AHN was not the first time in recent

years the venerable news service has sued a business for allegedly

ripping off its content,172

but it was the first time this century that the

AP has coaxed a very favorable judicial ruling to use as precedent in

165 See 17 U.S.C. § 107 (2006) (setting forth four fair-use factors).

166 Id.

167 Id.

168 See id. § 107(1) (2006) (providing that courts should consider, when making a

fair-use determination, “the purpose and character of the use, including whether such

use is of a commercial nature or is for nonprofit educational purposes”). 169 Id. § 107(3) (2006).

170 Schudson, supra note 159, at 369.

171 See supra notes 109-23 and accompanying text (providing the commentary of

other legal scholars on the high court’s decision in International News Service). 172 See Ken Robertson, Opinion, More Trouble Ahead for Copyright Scofflaws, TRI-

CITY HERALD (Kennewick, Wash.), July 14, 2009, http://www.tri-

cityherald.com/942/story/646943.html (“In 2007, [the Associated Press] sued

Moreover Technologies Inc. and its parent, VeriSign Inc., for using AP headlines,

photos and stories without permission. That case also was settled for undisclosed

terms.”).




27

other cases in which it invokes the hot news misappropriation doctrine

in New York. The Associated Press thus may also consider itself

fortunate that it is headquartered in New York City,173

within a

jurisdiction that recognizes the hot news misappropriation tort, such

that it can haul defendants into, quite literally, its home court within

the Second Circuit.174

Significantly, another state with a large

concentration of media entities—California—also recognizes the hot

news misappropriation doctrine and recently has applied it to images,

not simply news stories, in a case involving celebrity gossip-monger

Perez Hilton.175

The fact that both New York and California recognize

the hot news misappropriation tort brings increased power to the

media companies headquartered there to fight back against nefarious

competitors.

AHN’s alleged conduct of stripping AP’s stories of attribution

and having them masquerade as AHN’s own work raises perhaps as

many worthy ethical issues—business ethics and journalism ethics—

as legal ones, but they are beyond the scope of this law-focused article.

It is worth noting here, however, that the term plagiarism—a cardinal

sin in journalism ethics176

—is derived from the Latin word for

kidnapper,177

and that moniker perhaps provides an apt way of

viewing AHN’s conduct that, in turn, tees up media ethics issues.

Given that there are even ambiguities about what constitutes

plagiarism in journalism, as University of Florida Professor Norman

Lewis recently pointed out in a detailed study,178

there may even be a

fundamental issue of whether what AHN allegedly did with the AP’s

stories even constitutes plagiarism. Future articles should address the

ethical aspects of AHN’s conduct and that of similar entities and news

aggregators.

The news business, of course, is highly competitive. There

have been lawsuits filed over the alleged stealing of sources,179

much

173 See Associated Press, Contact AP, http://www.ap.org/pages/contact/contact.html

(last visited Sept. 1, 2009) (identifying the AP’s headquarters as being located at 450

W. 33rd St. in New York, NY). 174 A discussion of the jurisdictional issues and choice-of-law issues is beyond the

scope of this article. 175 See X17, Inc. v. Lavandeira, 563 F. Supp. 2d 1102, 1107 (C.D. Cal. 2007)

(involving a case about the use of photographs by Mario Lavandeira, who does

business under the name Perez Hilton, and holding that “the hot news tort is

cognizable in California”). 176 See supra note 157 and accompanying text (discussing plagiarism and journalism

ethics). 177 White, supra note 157, at 267.

178 Lewis, supra note 157, at 355.

179 See Kathryn S. Wenner, It’s My Source and I’ll Sue If I Want To, AM.

JOURNALISM REV., Oct 2001, at 16, 16. (describing a lawsuit filed in California


less the stealing of news stories. Thus, it is not surprising that the hot

news doctrine would be used today, more than ninety years after it was

created, and that other news entities beyond the AP would invoke it.

For instance, the doctrine was at the heart of a dispute in 2009

between the Scranton Times and the Times Leader, rival newspapers

in Northeastern Pennsylvania, in Scranton Times v. Wilkes-Barre

Publishing Co.180

The dispute did not exactly involve what one might

typically consider to be news; it focused, instead, on the allegation that

the print edition of one newspaper was copying from the various

websites of the other newspaper’s obituaries.181

United States District

Judge A. Richard Caputo did not reject the possible existence of a hot

news misappropriation claim within Pennsylvania and the U.S. Court

of Appeals for the Third Circuit, but he did find that, on the specific

facts of the case, the claim was preempted by federal copyright law

because “the Defendant’s alleged copying and re-use of obituaries

originally found in Plaintiffs’ publications did not pose a threat to the

existence of Plaintiffs’ publications or the ability of those publications

to continue the timely publication of obituaries.”182

But future battles are more likely to occur in scenarios like

those involving the Associated Press and All Headline News

Corporation. When a court finally addresses the actual merits of such

a case on the five specific elements of the hot news misappropriation

doctrine, it will trigger an opinion meriting a further scholarly

analysis. For now, as this article has illustrated, the tort that exists (at

least in New York) is quite narrowly articulated and seems unlikely to

quash the work of bloggers and citizen journalists in situations where

they might be sued by the Associated Press.

Finally, it seems that one important issue that must be resolved

in such a future case, heard on the merits, is determining for exactly

how long news actually remains “hot” or “fresh” in a world of

instantaneous, digital communication. When, in other words, does

news become cold? As our social expectations of faster and quicker

news delivery change due to technology, does this mean that a

concomitantly briefer period of quasi property ownership, per a 91-

year-old case, should be allowed under the hot news misappropriation

tort? Although one attorney recently proposed a very precise formula

for such situations under copyright law (rather than the common law

hot news misappropriation tort at issue in International News

involving competing journals that cover the wood and pulp industries and centering

on the claim that the sources used by one of the journals were its trade secrets and

could not be used by its former employees who went to work for the rival

publication). 180 No. 3:08-cv-2135, 2009 WL 585502 (M.D. Pa. Mar. 6, 2009). 181 Id. at **1-2. 182 Id. at **12-14.




29

Service),183

it would seem this is indeed an area that requires the

flexibility in equity that gives judges discretion when deciding

whether to enjoin the likes of AHN for its alleged news piracy.

183 See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting, 13 J. TECH. L. & POL’Y 1, 3 (2008) (proposing “a change to current copyright law to bring more profit to news reporting” that “centers around allowing journalists, and the companies they work for, to own 98% of the investigated and researched facts they uncover for twenty-four hours after the story is first published”).


1

HOT NEWS MISAPPROPRIATION AND BARCLAYS V. THEFLYONTHEWALL.COM

In 2003, prolific legal scholar and 7th Circuit Judge Richard Posner published a law

review article entitled "Misappropriation: A Dirge," which discussed—among other things—the

continued viability of "hot news" misappropriation, a theory of unfair competition that dates

back to the Supreme Court's 1918 case, International News Service v. Associated Press, 248 U.S.

215 (1918), which involved unauthorized re‐publication of wire service reports.1 Contrary to

what Posner's title might suggest, the article didn't outright announce the death of the hot

news doctrine, but it did paint a picture of a legal doctrine on the ropes—disdained by noted

jurists, unwise as a matter of policy, and limited in practical significance. For better or worse, a

decision issued on March 18, 2010 shows the doctrine to be very much alive and relevant. In

fact, the case raises some disturbing prospects for news aggregation and sharing of information

on the Internet more generally.

In Barclays Capital Inc. v. TheFlyOnTheWall.com, ‐‐‐ F.Supp.2d ‐‐‐‐, 2010 WL 1005160

(S.D.N.Y. Mar. 18, 2010), Judge Denise Cote of the United States District Court for the Southern

District of New York issued a permanent injunction requiring the Internet‐based financial news

site FlyOnTheWall.com ("Fly") to delay its reporting of the stock recommendations of research

analysts from three prominent Wall Street firms, Barclays Capital Inc., Merrill Lynch, and

Morgan Stanley. The injunction requires Fly to wait until 10 a.m. E.S.T. before publishing the

facts associated with analyst research released before the market opens, and to postpone

publication for at least two hours for research issued after the opening bell.

The injunction is based on Judge Cote's finding, after a bench trial, that Fly engaged in

hot news misappropriation, "free‐riding activity that is directly competitive with the Firms'

production of time‐sensitive information, thereby substantially threatening their incentive to

continue in the business." Barclays, at *32. Morgan Stanley and Barclays also succeeded on

copyright infringement claims relating to Fly's unauthorized copying and distribution of

excerpts from their research reports for a few weeks in 2005, but the court awarded relatively

minor damages on those claims and this doesn't impact Fly's current business practices, which

no longer involve verbatim reproductions or close paraphrases of analyst research.

Background

Like other Wall Street firms, Barclays, Merrill Lynch, and Morgan Stanley produce

analyst research reports on stocks. The firms distribute these reports for a fee to their clients,

usually large institutional investors. The firms often release these reports before the NYSE

opens for the day, and the reports contain recommendations (buy/sell/hold) that, according to

the firms, often spur investors into making trades, usually through the firm that issued the

1 Richard A. Posner, Misappropriation: A Dirge, 40 HOU. L. REV. 621 (2003).


2

report. As a result, the release of a report often has a significant impact on the market price for

the stock in question.

The firms' paying clients gain access to the reports through several means, including the

firms' password‐protected websites, licensed third‐party distributors like Bloomberg and

Thomson Reuters (presumably also using some sort of password protection), and email

messages. In addition, the firms host private conference calls or webcasts in which their

analysts discuss their research reports and recommendations with clients. Access to these calls

and webcasts is restricted to those with the required passcode or login.

The firms take various precautions to ensure that the reports go only to paying clients.

For example, they forbid employees from sharing the reports, their licensing agreements

purport to forbid the clients from redistributing the research content, and licensed distributors

like Bloomberg and Thomson Reuters contractually agree to maintain a "firewall" so that their

media arms can't obtain information from their research arms.

Inevitably, though, the research reports and the recommendations contained in them

leak out, and Fly pioneered the business model of publishing this information for its own clients

on a newsfeed over the Internet. The model has caught on, and, according to the court,

presently "there is a crowded marketplace with small internet companies and major news

organizations reporting the Firms' Recommendations before and after the market opens."

Barclays, at *13.

According to Judge Cote's opinion, it looks like Fly's operations have changed

significantly over the last few years, largely in response to the firms' lawsuit. Before 2005, Fly

relied primarily on employees at the firms who emailed research reports to Fly after they were

released to clients (this was pretty clearly a violation of the employees' duties of loyalty and

confidentiality to the firms). At that time, Fly staff would type the recommendation as a

headline, sometimes accompanied by a verbatim reproduction or close paraphrase of a passage

from the report explaining the basis for the recommendation. Barclays, at *12. Hence the

copyright claims for Fly's conduct in 2005.

As a result of the lawsuit, however, Fly apparently changed its information‐gathering

process. According to testimony from Ron Etergino, Fly's president and majority owner, he "no

longer feels free to look at the research reports, even if someone should send them to him," id.,

and he now gathers information about the firms' reports from other sources:

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News. Then he checks Dow Jones, Thomson Reuters, and Fly's competitors such as TTN, StreetAcount.com, and Briefing.com. Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives "blast IMs" through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals. Finally, Etergino


3

exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

Id. In other words, Fly acquires information about the reports through a process that looks a

whole lot like good‐old fashioned journalism. And it largely relies on information that is publicly

available through mainstream and Internet media reports, IM blasts, and what appear to be

open chat rooms. The result is a headline like this: "EQIX: Equinox initiated with a Buy at

FofA/Merrill. Target $110." Barclays, at *10.

Hot News and Copyright Law

As noted, the main dispute in the Barclays case was not about verbatim copying, but

about Fly publishing time‐sensitive facts from the firms' research reports—essentially, the

buy/sell recommendations. Facts are not protected by copyright law. Feist Publ'ns, Inc. v. Rural

Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). While the firms' recommendations aren't

exactly facts in the same way as "hard news," the firms appeared to concede that they couldn't

stop Fly's current reporting practices through resort to copyright law. Enter the hot news

misappropriation doctrine, which is controversial precisely because it provides IP‐like

protection to facts despite copyright law's bedrock policy that facts are in the public domain.

In International News Service v. Associated Press, 248 U.S. 215 (1918), the Supreme

Court created the hot news misappropriation doctrine as a matter of federal common law, and

some state courts, like those in New York, adopted it as part of state unfair competition law.

The INS case arose after British and French censors barred INS from sending war dispatches to

the United States because its owner, Hearst, had offended the British and French by siding with

Germany at the outset of WWI. See Posner, at 627. INS employees got around this problem by

paraphrasing AP dispatches published in east coast newspapers and sending them by telegraph

to the West Coast for publication in Hearst newspapers. See INS, 248 U.S. at 231‐32 (at issue

was INS's practice of "copying news from bulletin boards and from early editions of

complainant's newspapers and selling this, either bodily or after rewriting it, to defendant's

customers"); id. at 259‐60 (Brandeis, J., dissenting) ("The means by which the International

News Service obtains news gathered by the Associated Press is also clearly unobjectionable. It is

taken from papers bought in the open market or from bulletins publicly posted.").

The INS Court acknowledged that AP had no copyright claim because it had failed to

register and/or place copyright notices on its news reports (now no longer a requirement under

U.S. copyright law), and because copyright law did not extend to the facts contained in the

reports. But, the Court nonetheless enjoined INS from using AP's news reports in direct

competition with the news service, finding that the INS's free riding "speaks for itself and a

court of equity ought not to hesitate long in characterizing it as unfair competition in business."

Id. at 240. Justices Holmes and Brandeis wrote powerful dissents, decrying the majority's

opinion as unprecedented, unnecessary, and unwise.


4

The main policy justification advanced by the majority, which remains the motivating

principle behind the hot news doctrine today, is that protecting hot‐news‐type information is

necessary to preserve the incentives that drive economic actors to make the substantial

investment required to produce a socially valuable product or service in the first place. Posner

characterizes this policy impulse as protecting against the danger of "killing the goose that laid

the golden eggs." Posner, at 628.

In the Barclays case, the idea is that Wall Street research reports are a social good—they

help disseminate information important to the proper functioning of the securities markets that

otherwise would not be produced. This may be a disputable proposition, but it's one the court

accepted. And, the theory goes, Wall Street firms like Barclays and Merrill Lynch won't go to the

expense of producing these socially valuable reports if companies like Fly can free ride off of

them and undermine the money‐making potential of the practice. Again, it's disputable

whether Fly's conduct, rather than other economic factors (like international economic

meltdown), has hurt demand for the firms' reports, but Judge Cote found as a matter of fact

that Fly's activities did create a substantial disincentive.

It’s an open question whether or not all of this is wise economic policy. But from a legal

perspective, the hot news doctrine creates an obvious tension with copyright law because, as

noted above, it creates a pseudo‐property right in facts that copyright law says are in the public

domain. This raises the specter of preemption: that is, a situation where federal law displaces

inconsistent state law under the Supremacy Clause. Judge Cote's opinion in Barclays does a

very thorough job on this issue and determines that federal copyright law does not preempt

hot news misappropriation, or at least a narrow version of it. This result was a foregone

conclusion for Judge Cote because the Second Circuit Court of Appeals had already said as

much in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), which is

controlling precedent in the Southern District of New York.

Under NBA, the narrow version of hot news misappropriation that survives copyright

preemption has the following elements:

(i) a plaintiff generates or gathers information at a cost; (ii) the information is time‐sensitive; (iii) a defendant's use of the information constitutes free riding on the plaintiff's efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free‐ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Barclays, at *20 (quoting NBA, 105 F.3d at 845). Posner says that the "meat" of the test is in

element (v), with (i) through (iv) describing a situation where (v) is likely to be satisfied. Posner,

at 632. Therefore, "[t]he criterion appears to mean that states can protect fact gathering

without running afoul of the preemption provision in the federal copyright statute only when


5

unauthorized copying of the facts is likely to deter the plaintiff or others similarly situated from

gathering and disseminating the facts that the defendant has copied." Id. The test is "alarmingly

fuzzy once the extreme position of creating a legal right against all free riding is rejected, as it

must be." Id. at 638.

In other words, the hot news doctrine presents an inherently subjective and necessarily

fact‐specific standard, and one would expect courts to be cautious in finding it met, if for no

other reasons than to avoid the potential conflict with copyright law and to promote the

public's access to information. In Barclays, the firms convinced Judge Cote at trial that each

element was satisfied, demonstrating that, while it may take a unique set of facts, it's not an

impossible task.

What About the First Amendment?

Notably lacking from Judge Cote's very thorough opinion is any discussion of how hot

news misappropriation interacts with the First Amendment. This could be because Fly didn't

argue the point in its final papers, at least not directly. (Although Fly did raise the First

Amendment as an affirmative defense in its answer.) As we'll see below, though, Fly

undoubtedly raised factual arguments that bear on the question.

The First Amendment issue is an important one because the Supreme Court didn't

address it in INS. Justice Brandeis's dissent gives us a First Amendment tingle in his famous

statement, "[t]he general rule of law is, that the noblest of human productions—knowledge,

truths ascertained, conceptions, and ideas—become, after voluntary communication to others,

free as the air to common use," 248 U.S. at 250 (Brandeis, J., dissenting), but even he didn't

seem to appreciate the constitutional implications of the case. It's also an important question

because First Amendment doctrine has developed considerably since 1918, and free speech

concerns of which the Justices then had only a vague inkling now have become an accepted

part of the constitutional landscape.

A long line of Supreme Court cases hold that the First Amendment protects truthful

speech on matters of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527‐28, 533‐35

(2001) (First Amendment barred imposition of civil damages under wiretapping law for

publishing contents of conversation relevant to matter of public concern); Florida Star v. B.J.F.,

491 U.S. 524, 534 (1989) (First Amendment barred imposition of civil damages on newspaper

for publishing rape victim’s name); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103‐06 (1979)

(First Amendment barred prosecution under state statute for publishing names of juvenile

offenders without permission of court); Landmark Comms., Inc. v. Virginia, 435 U.S. 829, 841‐42

(1978) (First Amendment barred criminal prosecution for disclosing information from a

confidential judicial discipline proceeding). Therefore, “if a newspaper lawfully obtains truthful

information about a matter of public significance then state officials may not constitutionally


6

punish publication of the information, absent a need to further a state interest of the highest

order.” Smith, 443 U.S. at 103; accord Bartnicki, 532 U.S. at 527‐28.

In Bartnicki v. Vopper, members of a teachers union sued a radio announcer under state

and federal wiretapping laws after he played an unlawfully recorded telephone conversation on

the air. The radio show host had received the recording from a third party who himself had

received the tape in the mail from an anonymous source. The Supreme Court held that the First

Amendment prohibited the recovery of damages against the radio show host for publishing the

tape, explaining that “a stranger’s illegal conduct does not suffice to remove the First

Amendment shield from speech about a matter of public concern.” 532 U.S. at 535. The

constitutional principle in Bartnicki and other Supreme Court cases is not limited to traditional

forms of media like newspapers and radio broadcasters. See Mary T. Jean v. Massachusetts

State Police, 492 F.3d 24 (1st Cir. 2007) (First Amendment barred criminal prosecution for

posting illegally recorded video online when recording made by third party, even if knowing

receipt of the recording constituted a crime under Massachusetts law).

In Barclays, Judge Cote considered it unimportant that Fly obtained the information it

published from other news services that were publishing the firms' recommendations on the

Internet in advance of Fly's own publication. The court said that "the conduct of third parties is

simply of no moment in finding Fly liable for hot‐news misappropriation," and "it is not a

defense to misappropriation that a Recommendation is already in the public domain by the

time Fly reports it." Barclays, at *22. This may be a faithful application of the INS case itself—

recall that INS involved taking facts from publicly available bulletin boards and published

newspaper accounts—but INS never considered the First Amendment, so it can't resolve the

issue.

Under Bartnicki and the cases mentioned above, if Fly obtained the information in

question through lawful means, then the First Amendment protects its right to publish that

information. There is nothing inherently unlawful about Fly reading about a stock

recommendation on a newsfeed provided by another news service or participating in a public

chat room where Wall Street "rumors" are discussed (accessing a passcode‐protected

conference call would be another matter). The court says that Fly has engaged in "illegal

conduct" by publishing the information it did, Barclays, at *22, but this label begs the

question—that is, whether the state may constitutionally penalize publication of truthful

information relating to a matter of public concern that was not obtained in violation of any

other applicable laws.

To be sure, the person who originally leaks a firm research report to a news service or

chat room participant may violate a legal duty owed to one of the firms, but "a stranger's illegal

conduct" is not sufficient to remove First Amendment protection under Bartnicki. The question

is closer for Fly's pre‐lawsuit‐era publication of reports received directly from firm employees


7

who violated a duty of loyalty and confidentiality. It might be independently "unlawful" in the

constitutional sense to knowingly induce a breach of these duties, but even in the trade secrets

sphere this question has not been resolved with any clarity. Furthermore, it would not be

"unlawful" for Fly to communicate by email or telephone with firm clients who are willing to

convey the substance of the recommendations, though this probably violates the client's

license agreement. Regrettably, the court did not differentiate between Fly's different

information‐gathering tactics, and it enjoined publication of information obtained through at

least some practices that clearly aren't "unlawful" in any meaningful sense.

The court might well respond to all this by arguing that the firms' reports are not facts

related to a matter of public concern like ordinary news, but rather "subjective judgments

based on complex and imperfect evidence." Barclays, at *29. There may well be a

constitutionally significant distinction between reporting the subjective recommendations

generated by these Wall Street firms and objective, external facts that are discovered "out

there" in the world. On the other hand, these subjective judgments have objective, real‐world

consequences, and the announcement of a recommendation is itself a newsworthy event

because it may cause a change in a stock's price. It is difficult, and potentially hazardous, to try

to distinguish between reporting the "subjective" recommendations versus reporting the

"objective" fact that they were made, especially when the publication in question looks like

this: "EQIX: Equinox initiated with a Buy at FofA/Merrill. Target $110."

The court may have ameliorated some of the First Amendment concerns by clarifying

that the scope of its injunction, like the scope of hot news misappropriation, is narrow:

[T]o the extent Fly alters its business and begins to engage in actual analysis of market movements, and refers on occasion after the market opens in New York to one of the Firms' Recommendations in the context of independent analytical reporting on a significant market movement that has already occurred that same day, such conduct will not run afoul of the injunction.

Id. at *32. But, this description of speech activity (the court doesn't frame it in terms of speech)

that won't be enjoined displays an obvious preference for original/sweat of the

brow/"analytical" content‐creation over the free transmission of facts and information, which is

a lot of what happens on the Internet.

FEDERAL OPEN RECORDS LAW: FREEDOM OF INFORMATION ACT (FOIA)

CITIZEN MEDIA LAW PROJECT

OVERVIEW

The Freedom of Information Act ("FOIA"), enacted in 1966, provides access to the public records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President. FOIA does not cover the sitting President, Congress, or the federal judiciary. The statute requires federal agencies to:

1. Provide access to their records and information, barring certain exceptions; 2. Suffer penalties for refusing to release covered information; 3. Appoint a FOI officer charged with responding to information requests; and 4. Publish agency regulations and policy statements, including their rules for

handling FOIA information requests, in the Federal Register.

FOIA gives the right to request access to government records to any person for any reason, whether the person is a U.S. citizen or a foreign national. Requests can be made in the name of an individual or an organization (including a corporation, partnership, or public interest group). Individuals have the same access rights as professional journalists, though journalists who work for established media organizations sometimes receive better treatment from records‐keepers. Individuals probably won’t qualify for some of the perks afforded to media professionals, such as fee waivers and expedited processing, but they are just as capable of using records requests to reveal information that is important to the public. In fact, according to one study, more FOIA requests come from ordinary citizens than from professional media organizations.

FOIA covers records from all federal regulatory agencies, cabinet and military departments, offices, commissions, government‐controlled corporations, the Executive Office of the President, and other organizations of the Executive Branch of the federal government. 5 U.S.C. § 552(f).

FOIA does NOT apply to the President, Congress (or members of Congress), or the federal courts and federal judiciary. Some federally funded organizations may not be covered by FOIA if the government does not control or regulate their operation. However, any of those organizations’ records that are filed with federal agencies may be covered. No private persons or organizations are covered by FOIA. State and local governments are not covered by FOIA, including federally‐funded state agencies, but all states and some local governments have passed freedom of information laws. Requests for information from a state or local governments must be made under that jurisdiction's freedom of information legislation.

All non‐exempt electronic and physical records held by federal agencies must be disclosed under FOIA. Federal agencies covered by FOIA are permitted to withhold

documents, or redact portions of documents, if the records (or information in the records) are covered by one of the nine exemptions established by FOIA. One of the most common exemptions relied on the exemption for national security.

There are a number of ways that you can receive government records. The easiest method is to access an agency's online “reading room” which provides free access to certain government documents.

AGENCY RECORDS SUBJECT TO FOIA

Any records created, possessed, or controlled by a federal regulatory agency, cabinet and military departments, offices, commissions, government‐controlled corporations, the Executive Office of the President, and other organizations of the Executive Branch of the federal government must be disclosed unless the information contained in the records is covered by a specific FOIA exemption. FOIA only extends to existing records; you cannot compel an agency to create or search for information that is not already in its records. Nor can you use FOIA to compel agencies to answer your general questions under FOIA. However, you sometimes can agree to accept information in an abbreviated form rather than the actual documents.

Agencies are required to make the following records available for public inspection and copying without a formal FOIA request via the Federal Register:

• final opinions made in the adjudication of cases; • unpublished policy statements and agency interpretations; • staff manuals that affect the public; • copies of records released in response to previous FOIA requests have been or

will likely be the subject of additional requests; and • a general index of released records determined to have been or likely to be the

subject of additional requests.

Physical records of any description can be requested under FOIA. Traditional typed documents, as well as maps, diagrams, charts, index cards, printouts and other kinds of paper records can be requested.

The increasing availability of electronic versions of government records is one of the most important developments in public access to government information. “E‐records,” as these records are sometimes called, generally are simpler and quicker to obtain, easier to analyze, and otherwise better suited to citizen use. With the invention of online reading rooms and FOIA sections of agency websites, many records take no more effort to access than personal e‐mail. Information from e‐records can be organized into databases, searched, and plugged into tables and charts, making it possible to perform in‐depth analysis in much less time—which opens up new possibilities for public use of government information.

Besides quicker access and (possibly) cheaper reproduction costs, electronic records have several advantages over their paper‐based counterparts. E‐records can be compiled into databases for easy searching and comparison. They are easier to sort through quickly, possibly making it easier to find patterns and discrepancies. This can make the information‐gathering process significantly simpler and more efficient, which is a great help to those who don’t have the time and resources to mount in‐depth investigations. For more information on ways to use electronic records, the Poynter Institute has an online bibliography of computer‐assisted reporting (CAR) primers and other sources of information.

Electronic records are becoming more and more prevalent as the government continues to expand its use of technology. Because of this, any record you seek could be available in electronic format. Whether you’re talking directly to a records‐keeper or filing an official FOIA request, you should consider asking for electronic copies of the records you are requesting. Depending on the agency, you may be able to specify whether you receive e‐records by e‐mail attachment, CD, or other medium. Some states, for instance, allow the requester to receive records in the format of their choice. An agency must make requested records available in electronic format at the request of a person if the record is readily reproducible by the agency in electronic format (§ 552(a)(3)(B)).

Congress extended the Freedom of Information Act to electronic records by enacting the Government Printing Office Electronic Information Enhancement Act of 1993 ("Electronic Information Act") and the Electronic Freedom of Information Act Amendments of 1996 ("E‐FOIA"). The Electronic Information Act requires government to maintain an online directory of Federal electronic information, including the Congressional Record, the official record of Congress’ proceedings and debates, as well as the Federal Register, which contains agencies’ regulations and policy statements. E‐FOIA requires that government agencies:

• prepare electronic forms of records and record indexes; • offer access to those records; • have a FOIA section of their websites, on which they must post agency

regulations, administrative opinions, policy statements, staff manuals, and other records;

• identify common records requests and make those records available online; • create online reading rooms that include information available in traditional

reading rooms; and • create reference guides for accessing agency information, which must be

available online.

While the records you've requested might be covered by FOIA, the information contained in the records may relate to certain subject areas that are exempt from disclosure under FOIA. FOIA contains nine exemptions that might impact your request:

1. Classified Documents‐‐information classified in the interests of national security or foreign policy can be withheld (§ 552(b)(1)(A)).

2. Internal Agency Personnel Rules‐‐ information relating to internal agency practices is exempt if it is a trivial administrative matter of no genuine public interest (e.g., a rule governing lunch hours for agency employees) or if disclosure would risk circumvention of law or agency regulations (e.g., an employee's computer user id) (§ 552(b)(2)).

3. Information Exempt Under Other Laws‐‐an agency is prohibited from disclosing information that protected from disclosing under other federal laws. For example, federal tax laws prohibit the disclosure of personal income tax returns (§ 552(b)(3)).

4. Trade Secrets or Confidential Commercial Information‐‐this exemption applies to trade secrets (commercially valuable plans, formulas, processes, or devices) and commercial information obtained from a person (other than an agency) that would be likely to harm the competitive position of the person if disclosed (such as a company's marketing plans, profits, or costs (§ 552(b)(4)).

5. Internal Agency Memoranda and Policy Discussions‐‐in order to protect the deliberative policymaking processes of government, internal agency memoranda and letters between agencies discussing potential policy options are exempted from disclosure (§ 552(b)(5)).

6. Personal Privacy‐‐private data held by agencies about individuals is exempt if disclosure would constitute a clearly unwarranted invasion of privacy, but a person is not prevented from obtaining private information about themselves (§ 552(b)(6)).

7. Law Enforcement Investigations‐‐this exemption allows the withholding of information that would, among other things, interfere with enforcement proceedings or investigations, deprive a person of a right to a fair trial, breach a person's privacy interest in information maintained in law enforcement files, reveal law enforcement techniques and procedures, or endanger the life or physical safety of any individual (§ 552(b)(7)).

8. Federally Regulated Banks‐‐information that is contained in or related to reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, are exempt (§ 552(b)(8)).

9. Oil and Gas Wells‐‐geological and geophysical data about oil and gas wells are exempted from disclosure (§ 552(b)(9)).

Other than exemption number 3 ‐‐ which relates to information exempt under other federal law ‐‐ these exemptions are permissive, not mandatory. This means that FOIA

allows an agency to refuse to disclose otherwise covered records, or to redact portions of documents, but it does not compel the agency to do so.

An agency must state which exemption it is relying on when it withholds documents or redacts information. In addition, agencies are required to disclose all non‐exempt information, even if it is contained in a record that contains other information that is exempt from disclosure. In other words, if an exemption only applies to a portion of a record, the agency must release the remainder of the document after the exempt material has been redacted.

ACCESSING FEDERAL GOVERNMENT RECORDS

FOIA requires that all federal agencies maintain online reading rooms that provide electronic versions of their regulations, policy statements, and records. Reading rooms are the easiest method of obtaining certain types of government information, because accessing them requires only a few clicks on an agency’s website. Therefore, you should always start by checking to see if the records you are seeking are already available in the reading room. The type and amount of information available in the reading rooms vary greatly by agency, but many include a number of useful records.

If you can't get what you want through a reading room, you should carefully consider how (and in what form) you want the responding agency to provide the documents to you.

If the information is not available online, you can try simply asking for it. Agencies are required to make the following records available for public inspection and copying without a formal FOIA request:

• final opinions made in the adjudication of cases • unpublished policy statements and agency interpretations • staff manuals that affect the public • copies of records released in response to previous FOIA requests that are of

sufficient interest to the public that they will likely be the subject of additional requests

• a general index of released records determined to have been or likely be the subject of additional requests

Explain what records you’re seeking and that you’re prepared to file an official request if necessary. A record‐keeper familiar with FOIA might honor a request made in‐person or via telephone, saving both you and the agency time and (possibly) money. If that doesn’t work, you can try speaking to the agency’s FOIA officer.

If you cannot access the records through these informal means, you then will need to file a formal FOIA request.

The United States Government Manual contains a list of federal agencies and a brief description of their functions. The Manual also contains the addresses and telephone numbers for each agency. Online Directories to Government Information provide information on which agencies have responsibility for various subject areas. The Library of Congress provides links to congressional committees, publications, and other information. While Congress is not subject to FOIA, the Library of Congress has extensive records on many government agencies. The National Archives and Records Administration contains extensive records from across the federal government, including the historical records of federal agencies, congressional bodies, and courts.

In your request you can ask to receive either an electronic copy or a physical copy of the records. If the records already exist in the form that you request them in, then the agency must generally provide the records in your preferred form. However, if you request an electronic copy of records that only exist in paper form, then the agency must only provide you with an electronic copy if it is reasonably able to do so, meaning that the record is "readily reproducible" in the alternate format. If you would prefer a certain type of electronic format, the agency need only provide the records in that specific format if it is reasonably able to do so. See 5 U.S.C. 552(a)(3)(B).

Depending on the agency, physical copies of records may usually be mailed or faxed to you, while electronic copies of records may either be e‐mailed to you or sent to you on a CD‐ROM or other disk drive. Because of the various ways you can receive the records, it is very important that you specify your preferred method when you initially file your request.

WRITTEN FOIA REQUESTS

Written requests are the only way to legally assert your FOIA rights. These should be mailed, faxed, e‐mailed, or hand‐delivered to the relevant agency’s offices, depending on which methods the agency allows. A quick online search of the agency's name and "FOIA" should provide you with specific information about how the particular agency accepts FOIA requests. If you can't find the information through an online search, check the Federal Register, which should include this information.

A FOIA request should be addressed to the agency's FOIA officer or the head of the agency. It must include:

• Your name and contact information, including your address if you want the records mailed to you or your e‐mail address if you are requesting that electronic records be e‐mailed to you.

• A statement that you are seeking records under the Freedom of Information Act.

• A description of the record(s) you are seeking. The only requirement is that you “reasonably describe” the records. Basically, this means that you must give enough information that a record‐keeper would be able to find the records without an undue amount of searching. It is generally advisable to make the request as specific as possible, so if you know the title or the date of a particular document, or can precisely describe the class of documents you seek, you should set out these details. Being specific helps you avoid paying fees for records that you actually do not need and helps to expedite your request.

In addition to the required elements listed above, you might want to include some of the following additional information in your request:

• Your preferred method of contact for any questions about the record(s) you are seeking, whether it be mail, e‐mail, or telephone.

• Your preferred medium for receiving the record(s), such as paper, CD‐ROM, microfiche, e‐mail attachment, etc. (note that you are not always guaranteed to receive the records in your preferred format, but the agency will attempt to honor such requests if possible). See the section on Requesting Electronic Records in this guide for more information.

• You do not need to tell the government organization why you want the information; every person has a right to request records regardless of his or her profession. That said, you may want to inform the record‐keeper that you plan to use the information to publish on a matter of public interest.

• A request for a fee waiver or expedited review for your request, if applicable. • The maximum fee you are willing to pay for your record(s). You should indicate

that you wish to be contacted if the charges will exceed this amount.

Your FOIA request should be addressed to the relevant agency's FOIA officer or the head of the agency. The U.S. Department of Justice has a fairly comprehensive list of FOIA contacts at federal agencies. If the agency you want isn't listed there, you can usually find the information easily by conducting a quick web search; just type in "agency's name" and "FOIA contact." If you are unsure of which agency to send your request to, the US Government Manual may be of assistance. You will likely receive a faster response if you make your request in accordance with the agency's own FOIA regulations (these can be viewed in the Code of Federal Regulations), but the above minimum requirements are sufficient to make a valid FOIA request.

Technically, government organizations must respond to a FOIA request with a denial or grant of access within 20 business days. Note that the agency must only respond within 20 days; it does not have to deliver the records within the 20‐day time period. The time period does not begin until the proper agency or office actually receives your request. Furthermore, under the new 2007 FOIA amendments, the agency may exceed the 20‐day time limit if it needs to request more information from you in order to process your request.

Agencies may extend this time limit by up to 10 additional working days (they must inform you they are doing so) if one of the following "exceptional circumstances" exists: the record‐keeper must search an extraordinary amount of records; the search involves records from multiple offices; or the search involves records from multiple organizations. If your request cannot be fulfilled within these time periods, the agency may ask you to reasonably modify your request or allow for an alternative time frame.

Realistically, many agencies do not comply with these time limits. Some agencies may have a large backlog of requests, and they are usually permitted to treat requests on a "first come, first served" basis as long as they devote a reasonable amount of staff to responding to the requests. These agencies generally have a processing system that allows simpler requests to be handled quickly so that these requests do not have to "wait in line" behind more complex requests.

Expedited processing

FOIA provides for requests to receive “expedited review” if the request meets certain requirements. Generally speaking, you will be entitled to expedited treatment if health and safety are at issue or if there is an urgent public interest in the government activity at issue.

If you think there is a compelling reason why you need the information sooner than the normal period under FOIA, you should clearly explain your reasons in your initial FOIA request. Agencies must decide whether or not to grant expedited processing within 10 calendar days of the request. Aside from these specific circumstances listed above, agencies may use their discretion in deciding whether or not to grant expedited review. So, it doesn’t hurt to ask even if you don’t meet the requirements.

You should also check the individual agency's requirements to see if they allow other types of requests to receive expedited treatment. The Department of Justice, for instance, offers expedited review “for requests concerning issues of government integrity that have already become the object of widespread national media interest” or “if delay might cause the loss of substantial due process rights.”

Checking the Status of Your Request

Under the 2007 FOIA amendments, the agency must provide you with a tracking number if your request will take longer than 10 days to process. Then, if you haven't heard back from an agency or are unsure about the status of your request, you can use the tracking number to find out more information. Each agency is required to have at least one "FOIA Requester Service Center" that can give information about the status of pending FOIA requests. The agency must tell you the date that it received your request

and must give an estimated date that it will complete your request. The centers can generally be contacted by mail, e‐mail, or telephone.

FEES

Federal agencies are allowed to charge “reasonable” costs for responding to your FOIA request. This typically includes fees for the time the record‐keeper spends searching for the correct documents as well as the cost of duplicating those documents. See 5 U.S.C. 552(a)(4)(A).

FOIA breaks down requesters into three categories for determining fees:

• Commercial use requesters, who must pay all fees for search, duplication, and review

• Requesters from the professional media, educational institutions, and scientific institutions, who do not have to pay search fees and only pay duplication costs after the first 100 pages

• All other requestors, who pay search fees after the first two hours and duplication costs after the first 100 pages

Note that this means that small requests should always be free as long as the information is not intended for commercial purposes. Also, you should always be as specific as possible when describing the documents in your initial FOIA request. This will reduce the amount of time that the record‐keeper must spend searching for the documents, which will potentially save you money.

Non‐traditional journalists generally will fall into the last category ‐‐ and thus may be on the hook for search fees ‐‐ even if they intend to publish the information in blogs, websites, or other media. If you are not associated with professional media, you can always request that you should be considered under the second category because of your intent to publish. The New FOIA Reform Act, which goes into effect in December 2008, seems to broaden the scope of the "professional media" category. Under the new amendment, a person can be considered part of the news media if he or she gathers information that is of public interest, creates a distinct work, and distributes that work to an audience. However, the Reform Act cautions that this is not an all‐inclusive category, so it remains to be seen if bloggers and other citizen journalists will be able to benefit from fee waivers generally only reserved for "professional" media.

The Reporters Committee for Freedom of the Press's FOIA Guide breaks down some of the actual fees you can expect to pay:

• Search fees generally range from $11 to $28 per hour, based on the salary and benefits of the employee doing the search. Fees for computer time, which are described in each agency’s FOI regulations, vary greatly. They may be as high as

$270 per hour. Photocopying costs are normally between 3 and 25 cents per page.

• If you think your request could involve a significant amount of search time or copying, make sure your FOIA request includes a limit on the fees you’re willing to pay. You may also want to ask in advance for an estimate of what the expected fees may be.

Here are some additional things to keep in mind when dealing with fee issues:

• Agencies can charge search fees even if they don’t find any documents that satisfy your request, since the futile search still took time.

• As long as you aren’t requesting the information for commercial purposes, agencies cannot charge you for time they spend deciding whether documents should be exempt or time they spend blacking out restricted information from the documents.

• Organizations can’t require you to pay in advance if the expected fee is less than $250 and you don’t have a prior history of failing to make payments with the organization.

Under FOIA, organizations are required to publish fee schedules in the Federal Register. An organization’s FOI officer should be able to provide you with the schedule, though some are available on organizations’ websites. The fee schedule includes information about how much the particular agency charges for searching, copying, etc.

You can always try asking the organization to waive or reduce fees, even if you haven't formally requested a fee waiver.

Fee waivers and fee reductions

Under the Freedom of Information Reform Act of 1986, your FOIA requests could be eligible for total or partial waiver of fees if you can show that the disclosure of the information is in the public interest—even if you aren’t a professional journalist. This requires that you specifically request a waiver or reduction of fees and explain why you think the public has an interest in understanding the information. You also must explain any financial interest you have in the information, though a financial stake in publishing the information ‐‐ such as if you are paid to blog ‐‐ should not pose a problem.

Agencies consider fee waiver requests on a case‐by‐case basis. You can appeal fee or waiver decisions in the same way you appeal request denials.

LEGAL REMEDIES UNDER FOIA IF YOUR REQUEST IS DENIED

You have several options if your FOIA request is denied in whole or in part. First, you can attempt to resolve informally any disputes you have with the responding agency. If informal resolution fails, you should appeal the denial within the relevant agency before taking any other action. If your appeal is unsuccessful and the agency withheld the information because it is classified, you can apply to have the information declassified. If these options have failed to resolve the dispute, you can seek mediation through the newly authorized FOIA ombudsman or file a lawsuit in court to enforce your rights under FOIA.

Informal Resolution

The simplest ‐‐ and often most effective ‐‐ remedy is to seek informal resolution of the dispute. Delays are frequently due to the overworked nature of most FOIA officers. Your offer to "revise" or "narrow" the scope of your request can go a long way toward getting faster, and better, treatment of your request. If you revise your request, be sure to make clear that you willingness to compromise is not considered a "new" request by the agency (a new request will start the FOIA clock running again). If the agency tells you that the records don't exist, ask them to describe their search methodology. Perhaps they aren't looking for the right things or in the right places. It might also help if you offer to resolve fee or fee waiver issues by paying a small amount.

While you engage in informal resolution be sure and keep records of all of your contacts with the agency. Track all time and response deadlines carefully.

Appealing within the Relevant Agency

If the agency denies your request or does not respond within the required time period, you can appeal to the agency's FOIA Appeals Officer. If the agency sent you a denial letter, it should set out the agency's appeal procedures. Take special note of the time limitation for appeals, which are usually around thirty days. If you haven't received any response from the agency (an excessive delay in complying with a request constitutes a denial under FOIA) you should send your appeal to the head of the agency.

Appeal letters can be used to challenge the agency's failure to respond in a timely fashion, a decision not to release records in whole or in part, the adequacy of the search used to locate responsive records, and the agency's refusal to grant you a fee waiver.

In your FOIA appeal letter you should:

• Cite section 552(a)(6) of FOIA and clearly list your grounds for appeal; • Attach copies of the original request letter and the denial letter;

• Take some time to explain the reasons why the denial should be reconsidered (for example, because the exemption does not properly apply to the document, or because the agency should waive the exemption in the current case); and

• State that you expect a final ruling on your appeal within 20 working days, as required by FOIA.

Sample appeal letters can be found on the Reporters Committee for Freedom of the Press' website and at the National Security Archive.

Make sure you are familiar with the exemptions to FOIA so you can argue that the records you are seeking are not or should not be exempted. If the agency denies your appeal or does not respond within 20 days, you may file a lawsuit in federal court.

If the agency denied your request because the information is classified (i.e. the agency relied on the national security exemption), you can make a separate request for mandatory declassification review of the information. You can learn more about declassification review procedure by going to the Reporters Committee for Freedom of the Press' FOIA Guide.

Filing a Lawsuit

If your request is denied, and your internal appeal does not reverse this decision, you may sue the agency in the United State District Court in your state of residence, in the state where the records are located, or in the District of Columbia. It is generally recommended that you retain an attorney to bring such a suit. If your lawsuit is "substantially successful", the agency will be ordered to pay your attorney's fees. However, you have the right to appear on your own behalf in court by filing a complaint pro se.

Obtaining records through legal action can be a costly and drawn‐out process. Some lawsuits over FOIA denials can last more than a year. If you assert that there is a public interest in your timely access to the records, the court could speed up your case through “expeditious consideration.”

Lastly, keep in mind that if you file a lawsuit, you must do so within six years from the date of your initial FOIA request, even if you receive no response or an incomplete response from the agency.

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Media Law in the Digital Age Exercising Your Right to Know: Getting Access to Government Information

Kennesaw State University September 25, 2010

Open Records

I. General A. Georgia has a long and proud tradition of encouraging openness in governmental

meetings and records. Principles of openness in government are found in the Constitution of Georgia, our state statutes, and the decisions of the appellate courts of the State of Georgia. The two statutes which apply to most meetings and records are known as the “Sunshine Acts.” These consist of the open and public meetings laws (Official Code of Georgia [O.C.G.A.] §§ 50-14-1 through 50-14-6) and the open and public records laws (O.C.G.A. §§ 50-18-70 through 50-18-76).

II. General provisions of openness

A. United States Constitution 6th Amendment

B. Georgia Constitution Article 1 § 1 Paragraph 11 III. Open records act

A. Definition of open records act

1. The Act provides that public records shall be open for a personal inspection by “any citizen of this state.” See O.C.G.A. § 50-18-70(b). Records are also to be made available to non-residents of Georgia as well. See 93 Op. Atty. Gen. 27 (1993).

C. What is a public record?

1. The statute lists the following as public records. See O.C.G.A. § 50-18-70(a).

a. Documents;

b. Papers; c. Letters; d. Maps;

e. Books; f. Tapes;

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g. Photographs; h. Computer based or generated information (see below); or,

i. Similar material prepared and maintained or received in the course of the operation of a public office or agency.

2. Public records subject to disclosure also include these items when they are

received or maintained by a private person, corporation, or other private entity on behalf of a public office or agency. In other words, placing public records in private hands does not protect them from disclosure. See O.C.G.A. § 50-18-70(a).

C. Whose records are public records?

1. The open records act incorporates the definition of agency set forth in the open meetings act (see below).

2. The open records act also states that private entities that act as “vehicles”

of an “agency” are subject to the open records act. An entity acts as a “vehicle” when it carries out the functions or responsibilities of an agency or other governing body covered by law. See O.C.G.A. § 50-18-70(a).

D. What records can be legally withheld? (most commonly referenced)

1. Medical records. See O.C.G.A. § 50-18-72 (a)(2).

2. Confidential personnel evaluations from outside sources (and some other personnel documents). See O.C.G.A. § 50-18-72 (a)(5).

a. Records relating to the discipline of public employees are

to be released 10 days after the materials are presented to the agency for action, or 10 days after the investigation terminates. See O.C.G.A. § 50-18-72 (a)(5).

3. In 1992, the state legislature enacted an optional special procedure for

access to information regarding those who were applying for, or were being considered for, positions such as a department head or county manager or county administrator. See O.C.G.A. § 50-18-72 (a)(7). Upon a request to the agency:

a. At least 14 calendar days prior to the meeting at which the

final action or vote is to be taken for the position, the agency shall release all documents which came into its possession with respect to as many as three persons considered finalists for the job. See O.C.G.A. § 50-18-72 (a)(7).

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b. An applicant at this time can withdraw his/her name from consideration and thereby avoid disclosure, in which case the identity and records of the next most qualified candidate are to be disclosed. O.C.G.A. See § 50-18-72 (a)(7).

4. Public disclosure is not required for trade secrets which are submitted to

public agencies under requirement of law. Georgia law has defined a trade secret as a secret process not patented but known only to certain individuals using it in trade having commercial value, as opposed to the mere privacy which an ordinary commercial business is carried on. See O.C.G.A. § 50-18-72 (b)(1).

5. Public disclosure is not required for real estate records pertaining to

acquisition until after the transaction. Public disclosure is not required for engineers’ costs estimates and rejected or deferred bid proposals concerning road projects until such time as the final award is made. See O.C.G.A. § 50-18-72 (a)(6)(A)(B).

6. Public disclosure is not required for criminal investigation records when

they concern a case still under active investigation. See O.C.G.A. § 50-18-72 (a)(4).

a. Regardless of the status of an investigation, the initial police, arrest, and initial incident report is an open record and must be disclosed. Because the Act also covers audio and video records, 911 calls and videos of traffic stops, etc., must be disclosed as well. Individual accident reports are available under the open records act upon the submission of a written statement of need by the requesting party. See O.C.G.A. §§ 50-18-72 (a)(4)(4.1)(16).

7. An individual’s social security number and insurance or medical

information in personnel records may be redacted from such records. See O.C.G.A. § 50-18-72 (a)(11.1).

8. Public disclosure is not required for a public employee’s home address,

home telephone number, social security number, and insurance or medical information. See O.C.G.A. § 50-18-72(a)(13)(13.1).

9. Public disclosure is not required for records acquired by a public agency

related to carpooling and ridesharing. See O.C.G.A. § 50-18-72(a)(14).

10. Public disclosure is not required for records of security plans which would compromise security against sabotage or criminal or terrorist acts and the nondisclosure of which is necessary for the protection of public safety. See O.C.G.A. § 50-18-72 (a)(15).

4

E. How much can we charge for copying public records?

1. The public agency has the right to assess a copying charge of up to $.25

cents per page, as well as reasonable search and retrieval fees. See O.C.G.A. § 50-18-71 (c)(d).

2. The first 15 minutes of search and retrieval time is free. See O.C.G.A. §

50-18-71 (d).

3. The charges for finding and segregating the public records that are requested must be based on the rate of pay of the lowest paid employee authorized to search for and organize those records. See O.C.G.A. § 50-18-71 (d).

4. A “fee may not be imposed under O.C.G.A. § 50-18-71 when a citizen

seeks only to inspect records that are routinely subject to public inspection, such as deeds... “ McFrugal Car Rental v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992).

5. Before a public agency can collect copying costs, it must give an estimate

of what those costs will be. See O.C.G.A. § 50-18-71.2.

F. When do we release public records?

1. The individual in control of the records has a reasonable time, not to exceed three business days, to determine whether the requested records are subject to access and to permit inspection and copying. See O.C.G.A. § 50-18-70 (f).

2. Where responsive records exist, but are not available within three business

days of the request, a written description of such records, together with a timetable for their inspection and copying shall be provided within that period. See O.C.G.A. § 50-18-70 (f).

3. If access to the requested records is denied in whole or in part, the specific

legal authority exempting such records from disclosure must be specified by Code section, subsection, and paragraph in writing. See O.C.G.A. § 50-18-72 (h).

a. No addition to or amendment of such designation shall be permitted thereafter, except that such designation may be amended or supplemented one time within five days of discovery of an error or within five days of the institution of an action to enforce the release of records. See O.C.G.A. § 50-18-72 (h).

5

G. Are computer records public records?

1. In 1992, the state legislature made clear that computer-based or computer-generated information is a public record. See O.C.G.A. § 50-18-70 (a).

2. No new fees other than those directly attributable to providing access shall

be assessed where records are made available by electronic means. See O.C.G.A. § 50-18-71.2.

3. Records maintained by computer shall be made available where

practicable by electronic means, including internet access, subject to reasonable security restrictions preventing access to non-requested or non-available records. See O.C.G.A. § 50-18-70 (g).

H. Penalties

1. A person who knowingly and willfully violates the open records act by

failing to provide proper access, or failing to provide access within the proper time limits, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $100. See O.C.G.A. § 50-18-74.

2. The superior courts have jurisdiction in law and equity to hear actions

pertaining to violations of the Open Records Act. See O.C.G.A. § 50-18-73 (a).

3. The attorney general has jurisdiction to enforce open records violations.

See O.C.G.A. § 50-18-73 (a).

4. Any agency or person who provides access to information in good faith reliance on the requirements of the Open Records Act shall not be liable in any action on account of having provided access to such information. See O.C.G.A. § 50-18-73 (c). As recently retired Chief Justice Norman Fletcher wrote, “if there is the slightest doubt, or any questions whatsoever... DO NOT CLOSE.” Steele v. Honea, 261 Ga. 644 (1991).

Prepared by: Georgia First Amendment Foundation 150 E. Ponce de Leon Avenue Suite 230 Decatur, GA 30030 (404) 525-3646 www.gfaf.org 08/16/10 [email protected]

1

Acc

essi

ng P

ublic

Rec

ords

– a

Com

pari

son

betw

een

Flor

ida

and

Geo

rgia

Publ

ic R

ecor

ds a

nd O

pen

Mee

tings

Law

s

G

eorg

ia A

cces

s Law

s in

Gen

eral

:

Fl

orid

a’s A

cces

s Law

s in

Gen

eral

:

Prin

cipl

es o

f ope

nnes

s in

gove

rnm

ent a

re fo

und

in th

e C

onst

itutio

n of

Geo

rgia

, sta

te st

atut

es, a

nd th

e de

cisi

ons o

f the

ap

pella

te c

ourts

of t

he S

tate

of G

eorg

ia.

The

two

stat

utes

whi

ch

appl

y to

mos

t mee

tings

and

reco

rds a

re k

now

n as

the

“Sun

shin

e A

cts.”

The

se c

onsi

st o

f the

ope

n an

d pu

blic

mee

tings

law

s (O

ffic

ial C

ode

of G

eorg

ia [O

.C.G

.A.]

§§ 5

0-14

-1 th

roug

h 50

-14-

6) a

nd th

e op

en a

nd p

ublic

reco

rds l

aws (

O.C

.G.A

. §§

50-1

8-70

th

roug

h 50

-18-

76).

Flor

ida

has s

ome

of th

e ol

dest

ope

n re

cord

s and

mee

tings

law

s in

the

coun

try.

Flor

ida’

s ope

n re

cord

s law

was

ena

cted

in 1

909,

and

th

e “G

over

nmen

t in

the

Suns

hine

” la

w th

at o

pene

d up

acc

ess t

o m

eetin

gs o

f jus

t abo

ut e

very

asp

ect o

f Sta

te a

nd lo

cal g

over

nmen

t w

as e

nact

ed in

196

7. F

la. S

tat.

§§11

9.01

, 286

.011

. A

dditi

onal

ly,

Arti

cle

1 of

Sec

tion

24 o

f the

Flo

rida

Con

stitu

tion

indi

cate

s tha

t th

ere

is a

righ

t of a

cces

s to

reco

rds a

nd m

eetin

gs in

volv

ing

publ

ic

busi

ness

. Ev

en th

ough

the

term

s of t

he p

ublic

reco

rds a

nd

mee

tings

law

s ten

d to

be

broa

d an

d th

e ex

empt

ions

are

dra

fted

narr

owly

, the

re is

als

o a

priv

acy

right

set f

orth

in th

e st

ate

cons

titut

ion

that

cou

rts h

ave

used

to c

urb

the

right

to a

cces

s on

occa

sion

.

G

eorg

ia’s

Pub

lic R

ecor

ds L

aws

Flor

ida’

s Pub

lic R

ecor

ds L

aws

• Th

e A

ct p

rovi

des t

hat p

ublic

reco

rds s

hall

be o

pen

for a

pe

rson

al in

spec

tion

by “

any

citiz

en o

f [th

e] st

ate.

” S

ee

O.C

.G.A

. § 5

0-18

-70(

b).

Rec

ords

are

als

o to

be

mad

e av

aila

ble

to n

on-r

esid

ents

of G

eorg

ia a

s wel

l. S

ee 9

3 O

p.

Att’

y. G

en. 2

7 (1

993)

.

• Pu

blic

reco

rds a

re th

ose

held

by

agen

cies

or p

rivat

e en

titie

s act

ing

on b

ehal

f of a

genc

ies.

O.C

.G.A

. § 5

0-18

-70

(a).

“Age

ncie

s” a

re d

efin

es a

s mos

t sub

-div

isio

ns o

f st

ate

or lo

cal g

over

nmen

t. O

.C.G

.A. §

50-

14-1

(a)(

1).

• Th

e st

atut

e de

fines

pub

lic re

cord

s as d

ocum

ents

, pap

ers,

lette

rs, m

aps,

book

s, ta

pes,

phot

ogra

phs o

r com

pute

r

• Th

e Fl

orid

a C

onst

itutio

n st

ates

that

“[e

]ver

y pe

rson

has

th

e rig

ht to

insp

ect o

r cop

y an

y pu

blic

reco

rd m

ade

or

rece

ived

in c

onne

ctio

n w

ith th

e of

ficia

l bus

ines

s of a

ny

publ

ic b

ody,

off

icer

, or e

mpl

oyee

of t

he st

ate,

or p

erso

ns

actin

g on

thei

r beh

alf,

exce

pt w

ith re

spec

t to

reco

rds

exem

pted

pur

suan

t to

this

sect

ion

or sp

ecifi

cally

mad

e co

nfid

entia

l by

this

Con

stitu

tion.

Thi

s sec

tion

spec

ifica

lly

incl

udes

the

legi

slat

ive,

exe

cutiv

e, a

nd ju

dici

al b

ranc

hes

of g

over

nmen

t and

eac

h ag

ency

or d

epar

tmen

t cre

ated

th

ereu

nder

; cou

ntie

s, m

unic

ipal

ities

, and

dis

trict

s; a

nd

each

con

stitu

tiona

l off

icer

, boa

rd, a

nd c

omm

issi

on, o

r

2

info

rmat

ion.

O.C

.G.A

. § 5

0-18

-70(

a).

en

tity

crea

ted

purs

uant

to la

w o

r thi

s Con

stitu

tion.

” •

Fla.

Sta

t. §1

19.0

1: “

it is

the

polic

y of

this

stat

e th

at a

ll st

ate,

cou

nty,

and

mun

icip

al re

cord

s sha

ll at

all

times

be

open

for a

per

sona

l ins

pect

ion

by a

ny p

erso

n”

• A

“pu

blic

reco

rd”

is a

ll "d

ocum

ents

, pap

ers,

lette

rs, m

aps,

book

s, ta

pes,

phot

ogra

phs,

film

s, so

und

reco

rdin

gs, d

ata

proc

essi

ng so

ftwar

e, o

r oth

er m

ater

ial,

rega

rdle

ss o

f ph

ysic

al fo

rm, c

hara

cter

istic

s or m

eans

of t

rans

mis

sion

, m

ade

or re

ceiv

ed p

ursu

ant t

o la

w o

r ord

inan

ce o

r in

conn

ectio

n w

ith th

e tra

nsac

tion

of o

ffic

ial b

usin

ess b

y an

y ag

ency

." F

la. S

tat.

§ 11

9.01

1(12

).

• N

on-g

over

nmen

tal b

odie

s tha

t are

“ac

ting

on b

ehal

f” o

f a

publ

ic a

genc

y ar

e al

so su

bjec

t to

the

publ

ic re

cord

s law

, Fl

a. S

tat.

§ 11

9.01

1(2)

C

omm

only

Enc

ount

ered

Exe

mpt

ions

: •

Med

ical

rec

ords

– e

xem

pt fr

om th

e pu

blic

reco

rds l

aw

unde

r O.C

.G.A

. §

50-1

8-72

(a)(

2)

• Pe

rson

nel R

ecor

ds -

Pers

onne

l eva

luat

ions

from

out

side

so

urce

s are

exe

mpt

from

the

publ

ic re

cord

s law

und

er

O.C

.G.A

. §

50-1

8-72

(a)(

5).

Rec

ords

rela

ting

to th

e di

scip

line

of p

ublic

em

ploy

ees a

nd a

pplic

atio

ns fo

r go

vern

men

t em

ploy

men

t are

exe

mpt

for a

cer

tain

per

iod

of ti

me

afte

r the

y co

me

into

the

hand

s of a

n ag

ency

.

O.C

.G.A

. §

50-1

8-72

(a)(

5) &

(7).

Publ

ic d

iscl

osur

e is

not

re

quire

d fo

r a p

ublic

em

ploy

ee’s

hom

e ad

dres

s, ho

me

tele

phon

e nu

mbe

r, so

cial

secu

rity

num

ber,

and

insu

ranc

e or

med

ical

info

rmat

ion.

O.C

.G.A

. § 5

0-18

-72

(a)(

13)(

13.1

) •

Tra

de S

ecre

ts –

exe

mpt

ed fr

om p

ublic

dis

clos

ure

unde

r O

.C.G

.A.

§ 50

-18-

72 (b

)(1)

•

Rea

l Est

ate

Rec

ords

– R

ecor

ds m

ade

by o

r for

a st

ate

entit

y re

late

d to

real

est

ate

purc

hase

s are

not

pub

lic u

ntil

Com

mon

ly E

ncou

nter

ed E

xem

ptio

ns:

• M

edic

al R

ecor

ds –

Hea

lth c

are

prov

ider

s are

dire

cted

not

to

rele

ase

pers

onal

ly id

entif

iabl

e m

edic

al re

cord

s und

er a

fe

dera

l law

– th

e H

ealth

Insu

ranc

e Po

rtabi

lity

and

Acc

ount

abili

ty A

ct. A

utop

sy re

cord

s are

exe

mpt

from

pu

blic

vie

w u

nder

Fla

. Sta

t. §

406.

135.

Pur

suan

t to

an

atto

rney

gen

eral

’s o

pini

on, p

ublic

hos

pita

l rec

ords

are

op

en u

nder

Flo

rida

Rec

ords

law

. Op.

Att'

y G

en. F

la. 9

7-49

. •

Pers

onne

l Rec

ords

– G

ener

ally

det

erm

ined

by

the

cour

ts

to b

e op

en u

nles

s it i

nvol

ves m

edic

al re

cord

s.

Law

en

forc

emen

t and

crim

inal

just

ice

pers

onne

l rec

ords

–

incl

udin

g th

ose

of ju

dges

, sta

te a

ttorn

eys,

and

publ

ic

defe

nder

s -- c

onta

inin

g ad

dres

ses,

tele

phon

e nu

mbe

rs o

r pi

ctur

es o

f tho

se p

erso

nnel

or t

heir

spou

se o

r chi

ldre

n ar

e ex

empt

und

er §

119

.071

(4)(

d). P

ublic

Uni

vers

ities

are

gr

ante

d pe

rmis

sion

to p

rom

ulga

te ru

les e

xem

ptin

g re

cord

s of

facu

lty a

nd a

dmin

istra

tors

from

the

publ

ic re

cord

s law

.

3

afte

r the

tran

sact

ion

is c

ompl

eted

or a

band

oned

. O.C

.G.A

. §

50-1

8-72

(a)(

6)(A

)(B

). •

Cri

min

al In

vest

igat

ions

– R

ecor

ds o

f act

ive

crim

inal

in

vest

igat

ions

are

exe

mpt

from

pub

lic d

iscl

osur

e un

der

O.C

.G.A

. §

50-1

8-72

(a)(

4), e

xcep

t for

the

initi

al p

olic

e,

arre

st, a

nd in

itial

inci

dent

, whi

ch a

re p

ublic

reco

rds a

t all

times

. •

Soci

al S

ecur

ity N

umbe

rs –

An

indi

vidu

al’s

soci

al

secu

rity

num

ber a

nd in

sura

nce

or m

edic

al in

form

atio

n in

pe

rson

nel r

ecor

ds m

ay b

e re

dact

ed fr

om su

ch re

cord

s. S

ee

O.C

.G.A

. §

50-1

8-72

(a)(

11.1

) •

Secu

rity

Pla

ns –

Pub

lic d

iscl

osur

e is

not

requ

ired

for

reco

rds o

f sec

urity

pla

ns th

at w

ould

com

prom

ise

secu

rity

agai

nst s

abot

age

or c

rimin

al o

r ter

roris

t act

s and

the

nond

iscl

osur

e of

whi

ch is

nec

essa

ry fo

r the

pro

tect

ion

of

publ

ic sa

fety

. Se

e O

.C.G

.A.

§ 50

-18-

72 (a

)(15

Fla.

Sta

t. §

1012

.91.

Rec

ords

of i

nter

nal i

nves

tigat

ions

of

law

enf

orce

men

t per

sonn

el o

r pub

lic u

nive

rsity

facu

lty o

r ad

min

istra

tors

are

als

o ex

empt

ed u

ntil

the

inve

stig

atio

n is

co

mpl

ete.

Fla

. Sta

t. §

112.

533(

2).

• T

rade

Sec

rets

– e

xem

pt u

nder

Fla

. Sta

t. §

815.

045

• R

eal E

stat

e R

ecor

ds –

The

follo

win

g st

atut

es p

rote

ct

reco

rd re

gard

ing

a pr

oper

ty a

cqui

sitio

n by

a st

ate

or lo

cal

gove

rnm

ent e

ntity

unt

il af

ter a

con

tract

for s

ale

has b

een

inke

d: F

la. S

tat.

§§ 1

25.3

55, 1

66.0

45, 1

013.

14

• C

rim

inal

Inve

stig

atio

ns –

Rec

ords

of a

ctiv

e cr

imin

al

inve

stig

atio

ns th

at w

ill le

ad to

inte

llige

nce

gath

erin

g ab

out

ongo

ing

crim

inal

act

ivity

are

exe

mpt

from

the

publ

ic

reco

rds l

aw. F

la. S

tat.

§ 11

9.07

1(2)

. T

o w

hat e

xten

t ac

cide

nt re

ports

, pol

ice

blot

ters

and

inci

dent

repo

rts d

o no

t co

ntai

n re

cord

s of a

ctiv

e cr

imin

al in

vest

igat

ions

, the

y ar

e op

en u

nder

the

publ

ic re

cord

s law

. •

Soci

al S

ecur

ity N

umbe

rs –

Age

ncie

s hav

e to

kee

p so

cial

se

curit

y nu

mbe

rs c

onfid

entia

l und

er F

la. S

tat.

§ 11

9.07

1(5)

unl

ess t

hey

are

open

und

er a

noth

er st

atut

e.

• Se

curi

ty P

lans

– S

ecur

ity p

lans

that

wou

ld re

veal

secu

rity

syst

ems,

plan

s or p

roce

dure

s of a

ny st

ate

agen

cy o

r priv

ate

entit

y ar

e ex

empt

ed fr

om th

e pu

blic

reco

rds l

aw. F

la. S

tat.

§ 11

9.07

1(3)

. Fe

es: •

Rec

ords

cus

todi

ans m

ay c

harg

e up

to $

.25

cent

s per

pag

e fo

r cop

ies,

as w

ell a

s rea

sona

ble

sear

ch a

nd re

triev

al fe

es.

O.C

.G.A

. §

50-1

8-71

(c)(

d)

• Th

e ch

arge

s for

find

ing

and

segr

egat

ing

the

publ

ic re

cord

s th

at a

re re

ques

ted

mus

t be

base

d on

the

rate

of p

ay o

f the

lo

wes

t pai

d em

ploy

ee a

utho

rized

to se

arch

for a

nd

orga

nize

thos

e re

cord

s, bu

t the

firs

t 15

min

utes

of

sear

chin

g is

free

. O

.C.G

.A.

§ 50

-18-

71 (d

)

Fees

: • Pu

blic

bod

ies c

an c

harg

e th

e ac

tual

cos

t of d

uplic

atio

n fo

r re

cord

s, no

t to

exce

ed 1

5 ce

nts a

pag

e fo

r let

ter o

r leg

al

size

cop

ies.

Fla.

Sta

t. §

119.

07(4

)(a)

(1).

• A

spec

ial s

ervi

ce c

harg

e ca

n be

cha

rged

if a

requ

est

requ

ires e

xten

sive

use

of t

echn

olog

y re

sour

ces o

r cle

rical

su

ppor

t to

com

pile

but

shou

ld b

e a

reas

onab

le c

harg

e ba

sed

on th

e ac

tual

cos

ts to

the

agen

cy F

la. S

tat.

§ 11

9.07

(1)(

b)

4

• N

o fe

e ca

n be

cha

rged

for a

sim

ple

insp

ectio

n of

the

reco

rd. O

.C.G

.A.

§ 50

-18-

71

Com

pute

r R

ecor

ds:

Com

pute

r-ba

sed

or c

ompu

ter-

gene

rate

d in

form

atio

n is

a p

ublic

re

cord

. If

an

agen

cy m

aint

ains

a re

cord

in e

lect

roni

c fo

rm, i

t mus

t pr

ovid

e it

in th

at fo

rm u

pon

requ

est.

O.C

.G.A

. §

50-1

8-70

(g)

Com

pute

r R

ecor

ds:

The

publ

ic re

cord

s act

cov

ers e

lect

roni

c re

cord

s, an

d if

an a

genc

y m

aint

ains

a re

cord

in e

lect

roni

c fo

rm, i

t mus

t pro

vide

it in

that

fo

rm u

pon

requ

est.

Fla

. Sta

t. §

119.

01(2

)(f)

Pe

nalti

es:

• A

per

son

who

kno

win

gly

and

will

fully

vio

late

s the

ope

n re

cord

s act

by

faili

ng to

pro

vide

pro

per a

cces

s, or

faili

ng

to p

rovi

de a

cces

s with

in th

e pr

oper

tim

e lim

its, s

hall

be

guilt

y of

a m

isde

mea

nor a

nd u

pon

conv

ictio

n sh

all b

e pu

nish

ed b

y a

fine

not t

o ex

ceed

$10

0. O

.C.G

.A.

§15-

18-

74

• A

requ

esto

r can

brin

g an

act

ion

for a

vio

latio

n of

the

Ope

n R

ecor

ds A

ct in

supe

rior c

ourt.

O.C

.G.A

. §

50-1

8-73

(a).

Als

o, th

e at

torn

ey g

ener

al h

as ju

risdi

ctio

n to

en

forc

e op

en re

cord

s vio

latio

ns. O

.C.G

.A.

§ 50

-18-

73 (a

). •

Any

age

ncy

or p

erso

n w

ho p

rovi

des a

cces

s to

info

rmat

ion

in g

ood

faith

relia

nce

on th

e re

quire

men

ts o

f the

Ope

n R

ecor

ds A

ct sh

all n

ot b

e lia

ble

in a

ny a

ctio

n on

acc

ount

of

havi

ng p

rovi

ded

acce

ss to

such

info

rmat

ion.

O.C

.G.A

. §

50-1

8-73

(c).

Pena

lties

: •

A re

cord

s cus

todi

an w

ho w

illfu

lly a

nd k

now

ingl

y de

fies

the

term

s of t

he p

ublic

reco

rds s

tatu

te c

omm

its a

m

isde

mea

nor t

hat i

s pun

isha

ble

by u

p to

one

yea

r of

pris

on a

nd a

fine

up

to $

1000

. Fla

. Sta

t. 11

9.10

•

A re

ques

tor c

an su

e in

circ

uit c

ourt

for d

enia

l of a

cces

s to

reco

rds a

nd if

they

win

can

get

atto

rney

s fee

s. Fl

a. S

tat.

§ 11

9.12

(1).

Geo

rgia

’s O

pen

Mee

tings

Law

s

Fl

orid

a’s O

pen

Mee

tings

Law

s G

ener

al te

rms o

f the

stat

ute:

M

eetin

gs o

f a st

ate

or lo

cal g

over

nmen

t ent

ity a

re o

pen

to th

e pu

blic

. O

C.G

.A. §

50-

14-1

(a)(

2).

The

term

“m

eetin

g” is

def

ined

as

a q

uoru

m o

f the

gov

ernm

ent b

ody

whe

n of

ficia

l act

ion

is ta

ken,

di

scus

sed

or p

rese

nted

. O

.C.G

.A. §

50-

14-1

(a)(

2).

Gen

eral

term

s of t

he st

atut

e:

"All

mee

tings

of a

ny b

oard

or c

omm

issi

on o

f any

stat

e ag

ency

or

auth

ority

or o

f any

age

ncy

or a

utho

rity

of a

ny c

ount

y, m

unic

ipal

co

rpor

atio

n, o

r pol

itica

l sub

divi

sion

. .”

mus

t be

open

to th

e pu

blic

. Fl

a. S

tat.

§ 28

6.01

1(1)

. M

eetin

g is

furth

er d

efin

ed b

y ca

se la

w to

be

a ga

ther

ing

of tw

o or

mor

e m

embe

rs o

f the

go

vern

men

tal b

oard

or c

omm

issi

on a

t iss

ue.

Dee

rfie

ld P

ublis

hing

In

c. v

. Rob

b, 5

30 S

o.2d

510

(Fla

. 4th

DC

A 1

988)

5

Not

ice:

Ev

ery

publ

ic m

eetin

g m

ust b

e no

ticed

by

post

ing

a no

tice

incl

udin

g th

e pl

ace

and

date

of t

he m

eetin

g in

a c

onsp

icuo

us p

lace

w

here

the

gove

rnm

ent b

ody

usua

lly m

eets

. O

.C.G

.A. 5

0-14

-1

Not

ice:

Th

e bo

ard

or c

omm

issi

on m

ust p

rovi

de re

ason

able

not

ice

of th

e m

eetin

g. F

la. S

tat.

§ 28

6.01

1(1)

. M

inut

es o

f the

mee

ting

mus

t be

reco

rded

and

ava

ilabl

e to

the

publ

ic. F

la. S

tat.

§ 28

6.01

1(2)

. C

omm

only

Enc

ount

ered

Exe

mpt

ions

: •

Pend

ing

litig

atio

n - M

eetin

g w

here

gov

ernm

ent e

ntiti

es

will

con

sult

with

lega

l cou

nsel

abo

ut p

endi

ng o

r pot

entia

l lit

igat

ion

are

exem

pt fr

om th

e pu

blic

mee

ting

law

. O

.C.G

.A. §

50-

14-2

•

Em

ploy

men

t dec

isio

ns- M

eetin

gs in

volv

ing

disc

ussi

ons

or d

elib

erat

ions

rega

rdin

g em

ploy

ee a

ppoi

ntm

ents

, hiri

ng

or d

isci

plin

ary

actio

ns a

re c

lose

d. O

.C.G

.A. 5

0-14

-3(6

).

How

ever

, vot

es o

n th

ese

sam

e is

sues

mus

t be

take

n in

pu

blic

. •

Rea

l Est

ate

– M

eetin

gs d

iscu

ssin

g fu

ture

real

est

ate

purc

hase

s are

exe

mpt

from

the

open

mee

tings

act

. O

.C.G

.A. 5

0-14

-3(4

) •

Tra

de S

ecre

ts –

The

re is

no

men

tion

of tr

ade

secr

ets i

n th

e op

en m

eetin

gs a

ct.

• St

uden

t Rec

ords

– M

eetin

gs in

volv

ing

stud

ent r

ecor

ds

are

not e

xem

pted

from

the

open

mee

tings

law

. Re

d &

Bl

ack

Publ

ishi

ng C

. v. B

oard

of R

egen

ts, 4

27 S

.E. 2

d 25

7 (1

993)

.

Com

mon

ly E

ncou

nter

ed E

xem

ptio

ns:

• Pe

ndin

g lit

igat

ion

- A c

omm

issi

on o

r boa

rd m

ay m

eet i

n pr

ivat

e to

dis

cuss

pen

ding

litig

atio

n w

ith th

e en

tity’

s at

torn

ey, b

ut a

tran

scrip

t nee

ds to

be

take

n, w

hich

shou

ld

be re

leas

ed to

the

publ

ic a

fter t

he li

tigat

ion

is o

ver.

Fla.

St

at. §

286

.011

(8)

•

Tra

de S

ecre

ts -

Trad

e se

cret

s sha

ll no

t be

disc

lose

d at

a

publ

ic m

eetin

g. F

la. S

tat.

§403

.111

. •

Stud

ent R

ecor

ds -

Mee

tings

invo

lvin

g a

pare

nt o

r gu

ardi

an’s

cha

lleng

e to

a st

uden

t rec

ord

are

exem

pt fr

om

the

publ

ic m

eetin

gs st

atut

e. F

la. S

tat.

§ 28

6.01

1

Em

ail:

Alth

ough

the

open

mee

tings

law

doe

sn’t

addr

ess e

mai

l, th

e G

eorg

ia S

upre

me

Cou

rt ha

s fou

nd th

at m

eetin

gs c

ondu

cted

on

emai

l are

subj

ect t

o th

e op

en m

eetin

gs a

ct.

Kilg

ore

v. R

.W. P

age

Cor

p., 2

61 G

a. 4

10, 4

05 S

.E.2

d 65

5 (1

991)

.

Em

ail:

An

atto

rney

gen

eral

opi

nion

indi

cate

s tha

t the

ope

n m

eetin

gs la

w

appl

ies t

o m

eetin

gs c

ondu

cted

on

emai

l. O

p. A

tt'y

Gen

. 200

1-20

(2

001)

.

Pena

lties

: A

n el

ecte

d of

ficia

l tha

t vio

late

s the

ope

n m

eetin

g ac

t can

be

subj

ect t

o a

reca

ll el

ectio

n. O

.C.G

.A. §

21-4

-3

Pena

lties

: •

Mem

bers

of a

boa

rd o

r com

mis

sion

who

atte

nd a

mee

ting

that

is in

vio

latio

n of

the

open

mee

tings

law

can

be

6

conv

icte

d of

a se

cond

deg

ree

mis

dem

eano

r, pu

nish

able

by

a te

rm in

pris

on u

p to

60

days

and

a fi

ne o

f up

to $

500.

Fl

a. S

tat.

§ 28

6.01

1(3)

(b).

Any

oth

er g

over

nmen

t off

icia

l vi

olat

ing

the

term

s of t

he s

tatu

te c

an b

e fin

ed u

p to

$50

0.

Fla.

Sta

t. §

286.

011(

3)(a

) Pr

epar

ed b

y:

Cat

herin

e J.

Cam

eron

Pr

ofes

sor o

f Leg

al S

kills

St

etso

n U

nive

rsity

Col

lege

of L

aw

1401

61st

St.

So.

Gul

fpor

t, Fl

337

07

(727

)562

-788

4 cc

amer

on@

law

.stet

son.

edu

Muc

h of

the

info

rmat

ion

rega

rdin

g G

eorg

ia la

w w

as ta

ken

from

the

wor

k of

: H

ollie

Man

heim

er

Geo

rgia

Firs

t Am

endm

ent F

ound

atio

n

1

LIBEL & PRIVACY: MINIMIZING THE RISKS OF PUBLISHING ONLINE CITIZEN MEDIA LAW PROJECT

An online publisher is exposed to potential legal liability with every news article, blog post, podcast, video, or even a user comment. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world. Often the legal risks are small, but not always. The risk can take a number of forms, depending on what and the nature of the publication. The section that follows is intended to help online publishers identify potential “red flags” when publishing something that might result in liability, and can know to be extra careful to take the necessary steps to minimize potential legal risks. First, if what is published contains information that harms the reputation of another person, group, or organization, the online publisher may be liable for "defamation" or "false light." Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). False light, which is similar to defamation, generally involves untrue factual implications. The crux of both of these claims is falsity; truthful statements and implications that harm another's reputation will not create liability, although they may open the online publisher up to other forms of liability if the information published is of a personal or highly private nature. Second, if the news website publishes private or personal information about someone without their permission, the online publisher is exposed to legal liability even if its portrayal is factually accurate. For example, in most states a publisher can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person's medical condition, sexual activities, or financial troubles. If the online publisher uses someone else's name, likeness, or other personal attributes without their permission for an exploitative purpose it could also face liability for what is called misappropriation or right of publicity. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial.

2

Third, if the news website has web forums, allow reader comments, host guest bloggers on the site, or if the site reposts information received from RSS feeds, section 230 of the Communications Decency Act (“CDA 230”) will likely shield online publishers from liability for problematic statements made by their users, guests and other third‐parties. This important federal law protects website operators from tort liability for statements contained in these materials – and any other user‐submitted content – published on the site. Online publishers will not lose this immunity even if they edit this content, whether for accuracy or civility, and are entitled to immunity so long as the edits do not substantially alter the meaning of the original statements. Keep in mind that CDA 230 will only protect online publishers – and not the online publisher itself, an employee or someone acting under its direction – posts something on the blog or website. It does not shield online publishers from its own statements. PUBLISHING INFORMATION THAT HARMS ANOTHER'S REPUTATION Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open an online publisher up to other forms of liability if the information published is of a personal or highly private nature). Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can ‐‐ and often do ‐‐ vary from state to state. Generally speaking, a person who brings a defamation lawsuit must prove the following:

1. The defendant published the statement. In other words, that the defendant uttered or distributed it to at least one person other than the plaintiff. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If something is published on the Internet, it can be assumed that this requirement has been met.

2. The statement is about the plaintiff. The statement need not name the person explicitly

if there is enough identifying information that those who know the person will recognize the statement as being about him or her.

3

3. The statement harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade.

4. The statement was published with some level of fault. Fault requires that the defendant

did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.

5. The statement was published without any applicable privilege. A number of privileges

may be available depending on what the defendant published and the source(s) he relied on for the information.

In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false. In cases involving matters of purely private concern, in many states the burden of proving truth is on the defendant. This is not to say that every detail published must be perfectly accurate to avoid liability. If a few minor details are wrong, this will not necessarily negate the truth of what is published so long as the statement at issue is substantially true. Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion). Keep in mind that the republication of someone else's defamatory statement can itself be defamatory. In other words, an online publisher won't be immune simply because it is quoting another person making the defamatory statement, even if it properly attributes the statement to its source. For example, if an online publisher quotes a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, it can't hide behind the fact that it was merely republishing the witness' statement (which would likely be defamatory). On the other hand, if an online publisher repeats what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect online publishers provided that it attributes the information and is accurate in its reporting.

4

There also is an important provision under section 230 of the Communications Decency Act that may protect an online publisher – but not the publisher itself or its employee ‐‐ posts something on the blog or website that is defamatory.

Damages for Defamation In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize "per se" defamation, where damage is presumed if the defamatory statement relates to one of the following subjects: • Impugns a person's professional character or standing; • States or implies that an unmarried person is unchaste (e.g., is sexually active); • States or implies that a person is infected with a sexually transmitted disease; or • States or implies that the person has committed a crime of moral turpitude (e.g., theft or

fraud). If a plaintiff succeeds in proving defamation, he or she is entitled to recover what is called compensatory damage, which is the payment of money to compensate the plaintiff for the wrong that has been done. This includes not only out‐of‐pocket expenses (e.g., doctor's bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant. Note that some states require that a plaintiff must first ask the defendant to correct or remove the defamatory statement in order to be entitled to certain types of damages. FALSE LIGHT CLAIMS False light is one of the four categories of "privacy torts" (the others being misappropriation, intrusion, and publication of private facts). While the nature of false light claims vary by state, they generally protect people from offensive and false facts stated about them to the public. Not all states recognize claims for false light. In the states that do recognize a cause of action for false light, the specific requirements to raise a claim vary.

5

Generally speaking, a false light claim requires the following: 1. The defendant published the information widely (i.e., not to just a single person, as in

defamation); 2. the publication identifies the plaintiff;

3. it places the plaintiff in a "false light" that would be highly offensive to a reasonable

person; and 4. the defendant was at fault in publishing the information.

See Restatement (Second) of Torts § 652E.

Distinguishing Between False Light and Defamation Claims False light is similar to defamation. Most states that allow false light claims recognize some differences between false light and defamation, but there is still a great deal of overlap. In fact, a number of states do not recognize false light claims at all because of the overlap with defamation and because the vague nature of the tort might chill free speech. Several states that allow both false light claims and defamation claims differentiate the two by saying they protect people against different harms flowing from false statements. These states indicate that defamation protects a person's public reputation while false light remedies the victim of a false statement for his or her emotional distress. For example, California holds that unlike defamation, false light concerns untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a stock photograph of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim. Several states view false light as more narrow than defamation in certain respects ‐‐ that is, someone might be able to sue for defamation but not false light. For instance, false light requires broad publication to many people, while a defamatory statement could be made to only a few people. Some states note that false light requires the statement in question to be highly offensive to a reasonable person, while defamation does not require offensiveness so

6

long as the statement actually harmed the reputation of the plaintiff. Finally, a number of states require the plaintiff to make a stronger showing that the defendant is at fault for false light than for defamation.

Avoiding False Light Claims False light lawsuits often arise on the margins of stories, rather then at their core. For example, one might use a stock photo of a particular street to illustrate a story on local prostitution, and inadvertently create the impression that a person caught at random in the photo was frequenting the prostitutes. An online publisher should be careful about what is used to illustrate its work Always be careful to check all facts and document the support for all of the information published. Statements that may seem innocuous or harmless may offend a reader and could give rise to a lawsuit if they are also false. When working online, be particularly mindful of the formatting of the site. Be sure that the website doesn't get reformatted in such a way as to create an unwitting juxtaposition of images and stories that creates a connotation that the online publisher had not intended. PUBLISHING PERSONAL AND PRIVATE INFORMATION If a reporter physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other way intrude into a person's privacy (by, for example, opening the person's mail), she could be liable for a violation of what is called "intrusion upon seclusion." If the reporter collects certain personal data, this can also intrude into a person's private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion if the method used meets the four general elements for an intrusion claim. Generally speaking, however, an online publisher/ reporter would not be liable for intrusion if she photographs or captures video of people in public places, even if they have not consented to being recorded, because individuals cannot have a reasonable expectation of privacy when in public. Nor will she be liable for intrusion if she gathers private information from documents that are available to the general public. Online publishers should note that it is not necessary that the photographs or information are published; an intrusion claim rests solely on the way in which information is gathered. If the

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private information is subsequently published, the online publisher can also face liability for what is called “publication of private facts.” When an online publisher publishes information about someone without permission, it is potentially exposed to legal liability even if the portrayal is factually accurate. Most states have laws limiting a publisher’s ability to publish private facts about someone and recognizing an individual’s right to prevent use of his or her name, likeness, and other personal attributes for certain exploitative purposes, such as for advertising goods or services. These laws originally sprang from a policy objective of protecting personal privacy; the aim was to safeguard individuals from embarrassing disclosures about their private lives and from uses of their identities that are hurtful or disruptive of their lives. Over time, the law developed and also recognized the importance of protecting the commercial value of a person's identity ‐‐ namely, the ability to profit from authorizing others to use one's name, photograph, or other personal attributes in a commercial setting. Specifically, there are two types of legal claims that relate to unauthorized publication of personal and private information: Publication of Private Facts: The legal claim known as "publication of private facts" is a species of invasion of privacy. An online publisher commits this kind of invasion of privacy by publishing private facts about an individual, the publication of which would be offensive to a reasonable person. This legal claim can only be successful, however, if the facts in question are not legitimately newsworthy. So, for instance, if the online publisher discloses the fact that a person has an embarrassing health condition, it might be liable for publication of private facts. If, however, this medical condition is particularly relevant to some topic of public interest ‐‐ say, the person’s fitness to serve in public office, a court might find that the publication is lawful. Determining what facts are of legitimate public concern is often difficult to determine, so the online publisher may want to get permission before disclosing potentially embarrassing information about an individual. Using the Name or Likeness of Another: The legal claim known as "misappropriation of name or likeness" is a species of invasion of privacy. Over time the courts also recognized a legal claim for violation of the "right of publicity," which is closely related. An online publisher commits misappropriation and/or violates the right of publicity when it uses an individual's name, likeness, or other personal attributes without permission for an exploitative purpose. These legal claims usually apply to the use of a name or image in a commercial setting, such as in advertising or other promotional activities, but they may apply anytime an online publisher takes advantage of another person's identity for its own benefit. However, individuals cannot

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stop every mention, discussion, or reporting on their lives or activities, and many states explicitly exempt news reporting and other expressive activities from liability. For example, if the online publisher advertises its website using the photograph of a famous rival blogger (or even an unknown rival blogger) without permission, then it might be liable for misappropriation of that person’s likeness. (Another way of saying this is that it might be liable for violating the blogger's "right of publicity.") But, if the online publisher writes an article commenting on the posts of that same blogger and include his picture, it generally won't be liable for using the blogger's name without permission or including the photograph for illustrative purposes. While these laws can create pitfalls for citizen media creators, the risks are manageable and online publishers can take certain steps to protect themselves. Most importantly, if online publishers stick to reporting or commenting on matters of legitimate public interest and only portray people who have a reasonable relationship to the topic, then it generally can avoid liability. As a general rule, if online publishers follow good journalistic practices and standards ‐‐ being thorough, fair, and accurate in what they publish, carefully attributing their sources and quotes, and not phrasing statements in such a way as to create implications that they do not intend or do not have the evidence to support ‐‐ this will minimize the likelihood that they will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make their work more accurate and credible). PRIVILEGES AND DEFENSES There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available depending on what was published and the source(s) relied upon for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because an online publisher has a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if an online publisher publishes a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim cannot succeed because of the right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.

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Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information an online publisher is performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Possible privileges and defenses include: • Substantial Truth: "Truth" is an absolute defense to an action for defamation.

• Opinion and Fair Comment Privileges: Statements of opinion generally cannot support a

cause of action for defamation, even if they are outrageous or widely off the mark. A defense similar to opinion is "fair comment on a matter of public interest."

• Fair Report Privilege: This very important privilege may apply if an online publisher relied

on a public document or a statement by a public official for the incorrect information, made clear that the public document or statement was the source, and fairly and accurately used the source.

• Neutral Reportage Privilege: The neutral reportage privilege covers unverified accusations

made by one public figure about another on a matter of legitimate public interest, such as when a politician who opposes a health care bill says that the bill's sponsor is taking money from the pharmaceutical industry.

• Wire Service Defense: If an online publisher republishes information from a reputable

news source (such as the Associated Press) it may be entitled to the wire service defense if it turns out that the information was false.

• Statute of Limitations: If the plaintiff has waited too long to file a lawsuit, the defamation

claim might be barred by the statute of limitations, which sets the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred.

SUBSTANTIAL TRUTH

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"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation. The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct. The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case. Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971). Some examples of statements that courts have found to be "substantially true":

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• A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc., 24 Media L. Rep. 585 (M.D. Tenn 1995).

• A statement that an animal trainer beat his animals with steel rods, when actually he had

beaten them with wooden rods. See People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995).

• A statement that a father sexually assaulted his stepdaughter 30‐50 times, when the

stepdaughter testified he had done so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577 (1993).

• A statement that a man was sentenced to death for six murders, when in fact he was only

sentenced to death for one. See Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998).

• A statement that Terry Nichols was arrested after the Oklahoma City Bombing, when

actually he had only been held as a material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).

• A statement that a man was charged with sexual assault, when actually he had only been

arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

OPINION AND FAIR COMMENT PRIVILEGE The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, an online publisher can safely state its opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim. This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect online publishers either. Nor will trying to cover by saying that a politician “allegedly” is a drug dealer, or that someone

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else said the politician “is a drug dealer,” or that in writer’s opinion, the politician is a drug dealer. A reader may well assume that the publisher has unstated facts to base the conclusion on, and it would be a defamatory statement if the implied facts turn out to be false. All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If the online publisher states the facts on which it is basing its opinion, and the opinion stated could be reasonably drawn from those truthful facts, the online publisher will be protected even if the conclusion turns out to be incorrect. For example, if an online publisher were to say "In my opinion, Danielle is failing out of school" it would likely lead its readers to assume that there are some unstated facts it relied on to draw its conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if an online publisher states "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information it is basing the opinion on, and allows the reader to come to his own conclusion. Keep in mind that even if the online publisher states the facts relied upon for the opinion, but those facts turn out to be false, the privilege will not apply. For example, if the online publisher says that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology. To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case‐by‐case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.

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Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common‐sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion. Some examples of protected opinions include the following: • Statements in the "Asshole of the Month" column in Hustler magazine that described a

feminist leader as a "pus bloated walking sphincter," "wacko," and someone who suffers from "bizarre paranoia" were protected opinion because the context of the magazine and column made it clear that the statements were "understood as ridicule or vituperation" and "telegraph to a reader that the article presents opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

• Statement in the New York Post that referred to the plaintiff as a "fat, failed, former

sheriff's deputy" was protected opinion because it was hyperbole and had an "alliterative quality" with a "rhetorical effect indicative of a statement of opinion." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

• Statements on a radio talk show that described the plaintiff as a "chicken butt," "local

loser" and "big skank" were not defamatory because they were "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

• A cartoon of a noted evangelist leader fornicating drunk in an outhouse with his mother

because the parody was so outrageous it could not "reasonably be understood as describing actual facts" about Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that an online publisher can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude that the publisher had evidence that Alex had indeed stolen the money, and that the publisher intended the

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statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.

Context and the Totality of the Circumstances In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy‐era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion. The Internet presents particular issues for the courts, as it is a medium where the lack of face‐to‐face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context. But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat‐room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat‐room. They were part of an on‐going, free‐wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short‐hand phrases and language not generally found in fact‐based documents, such as corporate press releases or SEC filings.

Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

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In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege. To summarize, the factors courts often use to determine whether a statement is a protected opinion are: • What is the common usage and specific meaning of the language used? • Is the statement verifiable? Can it be proven false? • What is the full context of the statement? • What are the social conventions surrounding the medium the statement occurred in?

FAIR REPORT PRIVILEGE The fair report privilege may protect online publishersfrom liability ‐‐ even if something is defamatory ‐‐ if it relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was the source, and fairly and accurately used the source. This privilege enables online publishers to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records. The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows online publishers to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings. Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that the publisher is covered. In those states that do recognize the privilege, it will generally apply where: 1. the source is an official public document or statement by a public official on a matter of public concern; 2. there is proper attribution of the information to that source; and 3. the publisher fairly and accurately portrays the information from the document or statement.

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Sources Covered By the Fair Report Privilege While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered. Examples where the fair report privilege would probably apply include: • Statements made by a judge in a trial • A speech made by a city council member during a council meeting • Testimony during a trial • Facts recorded in a final police report • Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to: • Statements made by an arresting officer about the facts of the case, where those facts are

not recorded in the police report • Gossip overheard on the courthouse steps • Offhand remarks made by a government official in a private setting • Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public. Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.

Ensuring That The Use of Sources is "Fair and Accurate" Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony relied on is later convicted of perjury, the privilege still applies if the online publisher accurately reported and attributed the testimony he provided in the first place. It would apply even if the online publisher had knowledge that the witness was

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lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity. But what is critical is that the online publisher accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when the online publisher is "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege. In general, courts will look at whether the online publisher acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one‐sided. NEUTRAL REPORT PRIVILEGE Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if online publishers publish what another person has said or written and that statement turns out to be defamatory, they may be liable for defamation even if they stated that they believed the allegation was untrue. Keep in mind that not all states recognize the neutral reportage privilege or apply it to non‐traditional publishers, so check your state's defamation section to confirm that the online publisher is covered. In those states that do recognize the privilege, it will generally apply where: 1. A responsible, prominent organization or individual; 2. Makes a serious charge on a matter of public interest; 3. Against another public figure or organization; and 4. The charge is accurately and disinterestedly reported. Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

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The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

Edwards, 556 F.2d at 120. The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege Examples of instances where courts have applied the neutral reportage privilege include: • Newspaper report that a state auditor accused a town trustee of faking a snow

emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).

• A newspaper report that a political campaign brochure accused the county's Italian‐American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).

• A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

Differing State Approaches to the Neutral Reportage Privilege

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Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state‐wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways: • Private figure plaintiffs: Edwards v. National Audubon involved an instance where the

person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.

• Trustworthy and prominent sources: Few sources are more trustworthy and prominent

than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.

• Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT

was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.

WIRE SERVICE DEFENSE If an online publisher republishes a news item from a "reputable news service,” it may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also apply to republished content from a third‐party. Generally speaking, in states that recognize the wire service defense, it will apply if:

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1. the online publisher republished a news item from a reputable news agency; 2. the online publisher did not know the information was false; 3. The news item on its face does not indicate any reason to doubt its veracity; and 4. the online publisher does not substantially alter the news items when republishing it. In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire‐service defense in light of RSS feeds and similar distribution tools. Keep in mind that rewriting news items in a blog format will limit an online publisher’s ability to invoke the wire service defense. STATUTE OF LIMITATIONS "Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Generally speaking, the limitations period for intrusion claims begins to run on the date when the intrusion occurred. Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech‐challenging lawsuits. Each state has its own statute of limitations for defamation claims, which vary between one and three years.

Determining When the Statute of Limitations Period Begins Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff). This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, the statute of limitations could begin anew at the time of each publication. For example, the statute of limitations could begin every time someone reads a blog post or finds

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an archive copy of a newspaper in a library, even if the original material was published years ago.

Single Publication Rule Most states have adopted the so‐called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later. However, the single publication rule is not absolute. If the purported defamatory content is re‐published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published. Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re‐publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if the online publisher is thinking of substantially editing or rewriting old material. While an online publisher can't always eliminate its legal risks when publishing private information about individuals or using peoples' names and likenesses, there are a number of ways it can minimize the risk of being on the receiving end of a publication of private facts, misappropriation, or right of publicity lawsuit. Some suggestions include: • Report on subjects and facts that are newsworthy: Reporting on topics and facts that are

legitimately newsworthy typically will not invade the privacy of individuals portrayed in the work or unlawfully exploit their names or likenesses. It is not always easy to determine whether a particular topic or fact is newsworthy, but common sense can go a long way. Avoid obscure and salacious details that don't have direct bearing on the topic, and don't use someone's photograph to illustrate the work unless they have some reasonable connection to the issue at hand. Following this latter advice can also help avoid claims for defamation and false light.

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• Gather information from publicly available sources whenever possible: If a publisher relies on publicly available information, such as property records and public financial information, it is unlikely that publication of that information will invade someone's privacy. Getting information from publicly available court records is an especially good idea because the First Amendment protects publishers when publishing truthful information obtained from court records and doing so may also protect it from defamation liability under the neutral report privilege, even if the information turns out to be false. Reporters for online publishers should avoid using advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that could not have been gotten otherwise. Gathering information in this way result in liability for intrusion, and publishing material obtained through these methods is more likely to violate someone's privacy.

• Be upfront about the intended use of information and photographs: When reporters

interview or take photographs of someone, they should be clear with that person about how the information gathered or photograph taken will be used. It is better to know about these concerns ahead of time, so that the online publisher can make an informed decision about whether to go ahead as planned. In addition, being upfront provides context to ask for consent, discussed immediately below.

• Where possible, get consent from the people covered: Consent is typically one of the

strongest defenses to publication of private facts, misappropriation, and right of publicity claims. When interviewing someone or taking photographs for later publication, it is good practice to seek consent to use the information gathered and/or photographs taken on the website or blog. Get consent in writing whenever possible. There are two consent forms or "releases" that may be helpful ‐‐ a model release and an interview release. Remember that minors cannot give consent on their own behalf, and that a consenting party generally may revoke consent any time prior to publication.

RECENT DEVELOPMENTS: DEFAMATION AND INVASION OF PRIVACY


This year’s crop of defamation and invasion of privacy cases have been a mixed bag, running the gamut from the sublime to the absurd. On the one hand, we have judges rejecting attempts to find libel in 140 character snippets (Horizon Group Management LLC v. Bonnen) and finding that reporters can still be reporters even if they publish their work – gasp! – on the Internet (Kaufman v. Islamic Society of Arlington). On the other, we have a three judge panel of the First Circuit holding that a defendant can be guilty of libel even when the statements are true (Noonan v. Staples).

Fustolo v. Hollander, 455 Mass. 861, 920 N.E.2d 837 (Mass. 2010).

Steven Fustolo, a Boston‐area developer, sued Fredda Hollander for defamation based on five articles written by Hollander for a community newspaper reporting on Fustolo’s plans for development of three North End properties. Hollander filed a motion to dismiss the case under the Massachusetts anti‐SLAPP statute, Mass.Gen. Laws ch. 231, § 59H, which the trial court denied. The Massachusetts Supreme Judicial Court affirmed on appeal.

Hollander was a co‐founder of the North End Waterfront Residents' Association (NEWRA) and originally submitted articles to the Regional Review newspaper as a means of advocating the organization's positions. In 1997, the newspaper began paying Hollander for her stories, after instructing her to cover neighborhood meetings, including NEWRA meetings, objectively and factually. In May and June 2006, the Regional Review published five articles written by Hollander on the proposed development of three North End properties by Fustolo. Two of these articles reported on NEWRA meetings: one to discuss the issue; and a second meeting at which NEWRA voted to oppose redevelopment of one of the properties. A third article covered the meeting of another community group, North End/Waterfront Neighborhood Council, which voted in favor of the project opposed by NEWRA.

In denying Hollander’s motion, the trial court judge concluded "that Hollander did not engage in petitioning activities 'on her own behalf as a citizen' because she wrote the articles in her capacity as a reporter, and also because she received compensation for doing so." Id. On appeal, the Massachusetts Supreme Judicial court agreed that her involvement in NEWRA did not make her articles an exercise of her "right to petition" on the development issue because the articles were objective journalistic accounts that did not advocate a particular position or disclose the writer's involvement. The court acknowledged that Hollander had "a personal interest in the development issues that she wrote about," and that she "sought to bring issues that she considered important to the attention of residents, politicians, and government officials," but ultimately concluded that her subjective and sincere personal interest was not legally relevant. What the SJC cared about was that "Hollander's articles did not contain

statements seeking to redress a grievance or to petition for relief of her own." Id. at 842. On this point, the court gave weight to an affidavit submitted by Hollander:

Indeed, she expressly stated in her affidavit that in writing all her articles, she was "always careful to present an objective description of the subject matter, including the positions of both sides where applicable," and that while she had personal views on the issues she covered, "they were not reflected in the articles I wrote."

Id.

The SJC took pains to emphasize that the denial of anti‐SLAPP protection would not deprive journalists of the constitutional protections they (and others) enjoy against defamation liability:

To the extent that Hollander fears a chilling effect on reporters and the press if they are not entitled to claim the protection of the anti‐SLAPP statute in cases where they write about contentious issues of public concern, we note that the common law of defamation, with its constitutional overlay, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides reporters with protection for both opinions and, of probable greater relevance to this case, for fair reports of public meetings of both government bodies and organizations such as NEWRA. . . . While "the Legislature intended to enact very broad protection for petitioning activities," "the scope of the statute has its limits." There is no reason to stretch the anti‐SLAPP statute beyond its appropriate boundaries in order to create a level of protection for reporters beyond that to which they are currently entitled under the existing defamation law.

Id. at 844 (citations omitted).

Horizon Group Management LLC v. Bonnen, Civ. No. 2009 L 8675 (Circ. Ct. Cook County, Ill. Jan. 27, 2010).

Horizon Realty Group, an apartment leasing and management company in Chicago, filed a defamation lawsuit against a former tenant, Amanda Bonnen, over a tweet she posted about the company on Twitter. According to the complaint, filed in Cook County Circuit Court, Bonnen posted the following tweet on May 12, 2009:

@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's ok.

Upon Defendant’s motion to strike, the Court dismissed Horizon’s lawsuit, finding “the tweet nonactionable as a matter of law.” In a ruling issued from the bench, Cook County Circuit Court Judge Diane J. Larsen held that Bonnen's tweet wasn't capable of supporting Horizon's claim because it was "too vague to meet the legal standards of libel" and that the tweet could be construed innocently or as a statement of opinion.

Hobbs v. Pasdar, Civ. No. 4:09‐cv‐00008‐BSM, 2009 WL 5462584 (E.D. Ark. Dec. 1, 2009).

Terry Hobbs sued Dixie Chicks singer Natalie Maines and her band mates in Arkansas state court for defamation, false light, and intentional infliction of emotional distress after Maines published a open letter on the band's website and MySpace blog that allegedly "accused [Hobbs] of committing the murder of Steve Branch, Christopher Byers and Michael Moore." Compl. ¶ 15. In the letter, Maines (who was sued under her married name, Natalie Pasdar) encouraged readers to support the movement to free the so‐called "West Memphis Three" – Damien Echols, Jesse Misskelley, and Jason Baldwin – three teenagers who were convicted of murdering three eight‐year‐old boys in 1994. (The underlying story is chronicled in the HBO documentaries, Paradise Lost: The Child Murders at Robin Hood Hills and Paradise Lost 2: Revelations, which cast doubt on the guilt of the three teenagers.) Maines and her co‐defendants removed the case to Arkansas federal court in January 2009.

In the letter, a copy of which is attached as an exhibit to the complaint, Maines claimed that DNA evidence from the crime scene and other evidence linked Hobbs to the murders rather than Echols, Misskelley, and Baldwin. This information appears to be based on Echols's petition for a writ of habeus corpus challenging his conviction. The complaint also alleges that Maines made defamatory statements at a "Free the West Memphis Three" rally.

In its decision granting summary judgment, the court found that Hobbs was a limited purpose public figure because he voluntarily injected himself into the public controversy surrounding the guilt or innocence of the three teenagers by appearing in the HBO documentaries and giving numerous of interviews to the print media about the DNA evidence in question, appeared on talk shows including Anderson Cooper 360, and even selling the movie rights to his life story and to the life story of his deceased stepson Stevie Branch, one of the murdered children.

Having found that Hobbs was a limited public figure, the court found that under New York Times v. Sullivan, 376 U.S. 254 (1964), Hobbs would have to demonstrate actual malice in order to prevail on his claims. The court determined that no reasonable jury could find that Maines and her co‐defendants acted with actual malice—that is, that they "made the statements at issue with knowledge that the statements were false or with reckless disregard for whether they were false or not." Hobbs, at *22. Although Maines admitted that she didn't read Echols' 188‐page brief, which originally outlined the evidence in question, the court focused on Maines' word‐for‐word use of the press release that was approved by Echols' defense attorneys, implicitly finding that this reliance on the legal experts was justifiable.

Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130 (Tx. App. 2009).

The Islamic Society of Arlington, Texas, and several other Islamic organizations sued Joe Kaufman in Texas state court for libel and intentional infliction of emotional distress based on an article Kaufman wrote for a website called FrontPage Magazine.

Kaufman is the chairman of Americans Against Hate, an organization that describes itself as a "civil rights organization and terrorism watchdog group." In his article published on the FrontPage Magazine website, Kaufman called for a protest of "Muslim Family Day" at Six Flags Over Texas, an amusement park in Arlington. In the course of the article, Kaufman claimed that two organizations sponsoring the event (who were not parties to the lawsuit) had ties to radical Islamic groups abroad, including Al‐Qaeda. Plaintiffs, a group of Islamic organizations that co‐sponsored the event, filed suit asserting a claim of defamation against Kaufman.

Kaufman filed a motion for summary judgment, which was denied by the district court. Kaufman subsequently sought an interlocutory appeal from the order denying summary judgment pursuant to Tex. Civ. Prac. & Rem. Code § 51.014(a)(6), which allows "a member of the electronic or print media" to appeal from the denial of a motion for summary judgment when the action is one “arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution.” Plaintiffs opposed Kaufman’s motion on the grounds that he is not a media defendant for the purposes the statute because “he ‘merely posts to the internet,’ because Front Page Magazine is simply Kaufman's own internet blog. . . and because Kaufman has not demonstrated that he has the training associated with traditional journalism.” 291 S.W.3d at 138.

The appeals court rejected the plaintiffs’ contentions and found that Kaufman was entitled to seek an interlocutory appeal pursuant to § 51.014(a)(6), noting that “Kaufman is a full time investigative journalist,” and that “Front Page Magazine. . . is a ‘national publication which focuses mainly on the issues of politics and terrorism and has a monthly readership of approximately 500,000.’” Id. at 139. The court held that “[w]e cannot agree with appellees that Front Page Magazine's internet status alone costs Kaufman his benefit to file an interlocutory appeal as a member of the electronic media,” finding that “articles communicated through the internet equate in legal effect in some circumstances to words published by more traditional electronic or print media.” Id. at 140. The court further noted that “various courts outside of our jurisdiction have recognized the internet (either implicitly or explicitly) as a type of nontraditional electronic media.” Id. at 141.

While the court was careful to note that “[w]e do not hold, therefore, that everyone who communicates on the internet would qualify as a member of the electronic media under section 51.014(a)(6),” the court soundly rejected the contention that the medium of communication should determine whether a person qualifies as a journalist. Id. at 142.

Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858 (Cal. Ct. App.2009).

Cynthia Moreno, a UC Berkeley student who grew up in Coalinga, CA, posted negative statements about Coalinga and its inhabitants on her MySpace page, in a posting entitled "An ode to Coalinga." Although Moreno removed the posting six days later, Roger Campbell, the principal of the local high school, discovered her post and gave a copy to a friend who worked for the Coalinga Record, a local newspaper. The newspaper published the "ode" in its Letters to the Editor section, attributing it to Cynthia and giving her full name. Townspeople subsequently harassed Cynthia's family, forcing the family to move away and Moreno's father to abandon his 20‐year‐old family business.

Cynthia and her family filed suit against the principal and the publishers of the newspaper, seeking to recover for invasion of privacy through publication of private facts and intentional infliction of emotional distress. The trial court granted the newspaper's motion to strike the complaint under the California anti‐SLAPP statute (Cal. Code Civ. Proc. § 425.16), as well as the principal's demurrer on both counts. The Morenos originally appealed both rulings, but later abandoned their appeal against the newspaper, leaving only the principal.

The Court of Appeals, Fifth Appellate District, held that the Morenos could not recover for invasion of privacy because the facts published were not private:

Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia's affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.

91 Cal. Rptr. 3d at 862. The court also found that publishing Cynthia's full name along with the article was not actionable, even though she had not included her last name on her MySpace page. Because that page included her photograph, the court determined that Cynthia's identity as the author of the "ode" was public.

In denying Moreno's request for permission to amend the complaint, the court also determined that her publication on MySpace precluded any claim for misappropriation of her name or likeness. The court noted that misappropriation, as a species of invasion of privacy, also requires the plaintiff to have a reasonable expectation of privacy. The court did, however, reinstate the Morenos' emotional distress claim, ruling in the non‐published portion of the decision that a jury could reasonably find that the principal's conduct in turning over a copy of the "ode" to the newspaper was "extreme and outrageous."

Noonan v. Staples, 561 F.3d 4 (1st Cir. 2009).

Alan Noonan, a former Staples employee, was fired for alleged violations of the firm’s travel and expense policy. The following day, Staples Executive Vice‐President Jay Baitler sent a memorandum to about 1,500 employees which included the following:

It is with sincere regret that I must inform you of the termination of Alan Noonan’s employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone’s part. It is incumbent on all managers to understand Staples['s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver’s responsibility to monitor and question is a critical factor in effective management of this and all policies.

Noonan v. Staples I, 556 F.3d 20, 23‐24. Noonan subsequently filed suit in state court against Staples, alleging three causes of action: “(1) libel based on the Baitler e‐mail; (2) breach of the two stock‐option agreements; and (3) breach of the severance agreement.” Id. at 23. After the case was removed to federal court, the parties filed cross motions for summary judgment on Noonan’s claims, and the district court entered judgment for Staples on all three claims.

On appeal, the First Circuit affirmed the district court’s dismissal of the breach of contract claims, but remanded Noonan’s libel claim for trial. The court based its decision on a 1902 Massachusetts statute, Mass. Gen. Laws ch. 231, § 92, which states that truth is a defense to libel unless "actual malice is proved." The court interpreted “actual malice” to mean common law malice of “ill will,” rather than Sullivan’s knowing or reckless disregard for the truth. The court therefore ruled that Noonan could prevail on his libel claim if Baitler’s email was sent with malevolent intent or ill will, despite the fact that Noonan admitted to pre‐populating his reports in violation of company policy.

Staples filed a motion for a rehearing en banc, asserting that the statute ran afoul of the First Amendment by holding parties liable for making truthful statements. The First Circuit denied Staples' petition, holding that Staples had waived the constitutional issue:

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to matters of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver.

561 F.3d 4, at 6. The court also indicated that the constitutional issue was not "so clear that the panel should have acted sua sponte to strike down a state statute." Id. at 6. The First Circuit further pointed out that Staples "still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern." Id. The court appeared to discount this possibility, relying on language from two Supreme Court cases ‐‐ Philadelphia Newspapers v. Hepps1 and Dun & Bradstreet v. Greenmoss Builders2 ‐‐ to suggest that speech on matters of private concern does not enjoy full First Amendment protection.

After remand, the case proceeded to a jury trial in Boston. After trial, the jury found in favor of Staples on Noonan's defamation claim.

Global Wildlife Foundation v. Brilleaux, No. 2010‐0000866 (La. Dist. Ct. Mar. 15, 2010).

Global Wildlife Center, a wildlife preserve in Folsom, Louisiana, sued Nicholas Brilleaux, publisher of the Hammond Action News blog, after he published a satirical article about a fake giraffe attack at the preserve. Hammond Action News publishes Onion‐style fake news stories about regional happenings in the Hammond area northwest of New Orleans.

On March 2, 2010, Judge Brenda Bedsole Ricks of the 21st Judicial District Court in Amite, Louisiana granted Global Wildlife Center a temporary restraining order requiring Brilleaux to remove the story from his blog. After a subsequent hearing on Global Wildlife Center’s motion for a preliminary injunction, for which the ACLU filed an amicus curiae brief in support of Brilleaux, arguing that the First Amendment protects his satirical work, District Judge Beth Wolfe dissolved the temporary restraining order and denied the request for a preliminary injunction. The court also ordered Global Wildlife to pay Brilleaux $500 in attorneys' fees and court costs.

Twelve Inches Around Corp. v. Cisco Sys., Inc., No. 08 Civ. 6896, 2009 WL 928077 (S.D.N.Y. Mar. 12, 2009).

Plaintiff is the operator of a website that seeks to temporarily match (or “rent”) information technology specialists with companies in need of their expertise. Defendant Cisco Systems operates a program to grant individuals certification (such as “Cisco Certified Network Professional”) if they pass a Cisco‐administered test. As part of its marketing policy, Cisco offers certain incentives to customers that employ staff holding Cisco certifications, generally offering greater incentives for customers that employ larger numbers of Cisco‐certified technicians.

Cisco’s attorneys sent a cease‐and‐desist letter to plaintiff, asserting that the website infringed Cisco's trademarks, and that the program of “renting” Cisco‐certified technicians in

1 472 U.S. 749 (1985). 2 475 U.S. 767 (1986).

order for companies to attain Cisco discounts was fraudulent. Cisco’s attorney also sent a letter to plaintiff’s internet service provider, alleging that plaintiff was “committing fraud by brokering individuals who [have Cisco certifications] to third‐party companies, so the companies can attain higher partnership levels and corresponding product discounts, in contravention of Cisco certification and partnership agreements” and including eight paragraphs “under penalty of perjury” purporting to identify the specific trademark registrations allegedly infringed, repeating the trademark infringement and fraud allegations stated earlier in the letter, and affirming that “[t]o the best of my knowledge, all of the statements made above are true and correct.” 2009 WL 928077, at *1‐2. Plaintiff’s ISP subsequently took down the website.

Plaintiff sued Cisco and its attorneys, asserting claims for misrepresentation under 17 U.S.C. § 512 (the Digital Millennium Copyright Act or DMCA), libel, fraud, unfair business practices, and tortious interference. The defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The court dismissed plaintiff’s DMCA, fraud, unfair business practices, and tortious interference claims. The court refused to dismiss plaintiff’s claim for libel, however. While defendants had sought dismissal of the libel claims on the grounds that the lawyer’s letter was a non‐actionable opinion, the court held that while “[a] letter from a lawyer can be a non‐actionable statement of opinion,” a “lawyer's statements are not immune from the libel laws” and that “a reasonable reader encountering the full context of the letter, in particular the affirmation made ‘under penalty of perjury’ and the format of the letter resembling an affidavit could reasonably believe that the statements are fact not opinion.” Id. at *4.

Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A., No. 3‐06‐CV‐0271B (N.D. Tex. Feb. 12, 2009).

As part of an ongoing lawsuit, Orix Capital Markets, LLC filed a counterclaim against the plaintiffs alleging that they set up a website ‐‐ www.predatorix.com ‐‐ that published false and defamatory statements about Orix. According to the counterclaim, the website included allegations that the company committed tax fraud and was under federal investigation for violating racketeering laws. Orix subsequently amended its counterclaim to add a claim for copyright infringement arising from the re‐posting of a page from the Orix website.

The underlying facts of the case are a bit convoluted. Orix, which operates a real estate, finance, and asset management business, foreclosed on a Louisiana apartment building owned by the Rafizadeh family of Houston. This foreclosure triggered a series of legal disputes between the Rafizadehs and Orix, and the Texas case began in 2006, when the Rafizadehs' company, Super Future Equities, Inc., brought a class action complaint against Orix and other defendants alleging breach of contract, negligence, breach of fiduciary duties, and violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). The federal court in Texas ultimately dismissed these claims, but allowed Orix’s counterclaim to proceed.

The counterclaim‐defendants filed a motion for summary judgment, which the court granted in part and denied in part. The court dismissed Orix's claims for business disparagement, tortious interference, and copyright infringement (notably, the court found that the use of the Orix’s page was fair use), but found that the defamation claim was sufficient to go to the jury.

In February 2009, after a two‐week trial, the jury awarded Orix $2.5 million in compensatory damages and $10 million in punitive damages. After the verdict, the parties settled the case on undisclosed terms and the counterclaim‐defendants published an apology on the website, acknowledging that the previous postings were incorrect.


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LEGAL TOPICS IN ADVERTISING LAW FOR ONLINE PUBLISHERS CITIZEN MEDIA LAW PROJECT

RECENT DEVELOPMENTS IN FTC‐REQUIRED DISCLOSURES OF ENDORSEMENTS AND

TESTIMONIALS IN ADVERTISING

In October 2009, the Federal Trade Commission issued "Guides Concerning the Use of Endorsements and Testimonials in Advertising" (the "Guidelines") that may impose a disclosure requirement on bloggers and social media users who review or otherwise write about products and services. The Guidelines, which officially went into effect on December 1, 2009, call for online publishers to disclose "material connections" they have with a company whose products or services they "endorse." This means that bloggers and social media users must disclose their relationship with a company when they are being paid or otherwise compensated by the company to comment favorably on its products or services. The Guidelines also say that bloggers may be held liable for making misleading or unsubstantiated claims about a product or service. The Guidelines impact a relatively narrow category of online publishing activities that can be construed as "endorsements," like writing reviews or otherwise commenting favorably on products or services. And, putting aside a few gray areas, the Guidelines require disclosure of only relatively established relationships with companies—like getting paid, participating in a network marketing program, or receiving a steady stream of freebies. On top of that, the Guidelines are easy to comply with, and they require nothing more than upholding good journalistic standards and prinicples, namely independence and transparency. Finally, the FTC staff have made numerous public statements indicating that they are more interested in educating than suing bloggers. Bloggers and users of social media only need to disclose their relationship with a company when they "endorse" a product of service. Accordingly, for the vast majority of online publishers, the Guidelines probably won't come into play much. But if you publish reviews or otherwise regularly discuss products and services, the Guidelines could impact your work, and you should have a sense of what constitutes an "endorsement." An "endorsement" is "any advertising message . . . that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser." Guides, § 255.0(b). Not all online discussion of product attributes or consumer experiences will qualify as an "endorsement." The FTC explains in its commentary on the Guidelines: "the fundamental question is whether, viewed objectively, the relationship between the advertiser and the speaker is such that the speaker's statement can be considered 'sponsored' by the advertiser and therefore an 'advertising message.'" Federal Register Notice, at 8.


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The FTC will look at the following factors to determine whether a message conveying positive statements about a product or service is an "endorsement": • whether the speaker is compensated by the advertiser or its agent; • whether the product or service in question was provided by free by the advertiser; • the terms of any agreement; • the length of the relationship; • the previous receipt of products or services from the same or similar advertisers, or the

likelihood of future receipt of such products or services; and • the value of the items or services received.

Federal Register Notice, at 9. That's a lot of factors, but most of the FTC's examples in the Guidelines and its public statements suggest that it is primarily concerned with those getting paid in cash, those participating in network marketing programs, and those receiving a steady stream of products from a company or group of companies. FTC Investigation of Ann Taylor LOFT Event for Bloggers On April 20, 2010, the Federal Trade Commission notified Ann Taylor that it had completed its first investigation under the ... In the end, the FTC decided not to take any action against An Taylor, whose LOFT division offered gifts to bloggers who attended a January 26 “exclusive blogger preview” of the chain’s summer 2010 line. Invitations to the event promised a “special gift” to bloggers who attend and “those who post coverage from the event will be entered in a mystery gift card drawing where you can win up to $500 at LOFT!” The FTC guidelines require bloggers (and those who post on other social media, such as Twitter and Facebook) who receive free or discounted product or service in exchange for writing a review to disclose the freebie or face the possibility of an FTC enforcement action. Under these guidelines, the bloggers who received the gift cards and wrote about the event were obliged to disclose the freebies. Some of the bloggers disclosed the gifts while others didn’t comment on the issue or stated that they did not receive the gifts. In a letter to LOFT’s attorney announcing that it was taking no action in the matter, the FTC stated that

Upon careful review of this matter, we have determined not to recommend enforcement action at this time. We considered a number of factors in reaching this decision. First, according to LOFT, the January 26, 2010 preview was the first (and, to date, only) such preview event. Second, only a very small number of bloggers posted content about the preview, and several of those bloggers disclosed that LOFT had provided them gifts at the preview. Third, LOFT adopted a written policy in February 2010 stating that LOFT will not issue any gift to any blogger without first telling the blogger that the blogger must


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disclose the gift in his or her blog. The FTC staff expects that LOFT will both honor that written policy and take reasonable steps to monitor bloggers' compliance with the obligation to disclose gifts they receive from LOFT.

The FTC letter also noted that LOFT posted a sign at the preview telling bloggers that they should disclose the gifts, but noted that "[i]t is not clear, however, how many bloggers actually saw that sign." While the FTC took no action against LOFT or the bloggers who covered the event, it is clear that the Commission is keeping an eye out for blatant offers to bloggers and other social media posters in return for coverage. For those who post on blogs and other social media, this means that it is important to be familiar with the rules and to be careful to disclose any product or service, including discounts, they receive in return for writing about that product or service.

INTERSECTION OF ADVERTISING AND PRIVACY LAW

Introduction to Behavioral Advertising As a source of revenue, websites including those operated by news organizations have placed advertisements on their sites. Since advertisers are willing to pay a premium for greater assurance that ad placements will be seen by users that are most likely to be interested in the product or service offered, technology enables advertisers to target directly individual users based on their web surfing activity. This practice is known as “behavioral” advertising. This individual behavioral advertising has raised a number of privacy concerns: whether personally identifiable information is being collected, how the information collected is being protected, and whether current laws are being violated if data are being collected without the consent of the parties involved. It is often unclear whether current laws, such as the Electronic Communications Privacy Act apply to online advertising providers that collect information through monitoring clicks, search terms or other methods. It is likely that in many cases these laws could be held to apply to such activities and that consent is required from one of the parties to the communication. There are no current federal regulations specific to online behavioral advertising and the Federal Trade Commission maintains that industry self‐regulation is preferable to agency regulations because the state of the industry is fluid and complex. Industry groups have developed more detailed guidance and in 2009, the FTC released a set of self‐regulatory principles regarding the information that may be collected online and how companies should notify their customers about the collection. In online advertising’s simplest form, a commercial website rents out “space” on its site to another website which places a hot link banner advertisement in that space. When clicked, the banner ad sends the user directly to the advertiser’s website. In this simplest scenario, all users


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will see the same advertisement, regardless of whether the user may be interested in that product or service. Since advertisers will pay a premium for the increased likelihood that users viewing their advertisement would be interested in the product or service, offered, advertisers use technology to more accurately target online ads to the desired audience. These techniques to target ads to individual Internet users is known as “behaviorally targeted advertising” by tracking web activity of each user and inferring each user’s interests based on that activity. In most cases, online advertising providers such as DoubleClick and NebuAd monitor Internet use by placing a “persistent cookie” on the user’s computer. These cookies are small text files that reside on a hard drive indefinitely and once the cookie is in place, it gathers certain information related to that user’s online activity on a continuous basis and relays that information to the online advertising provider who can use assemble that data into an individual profile used to target advertising. Electronic Communications Privacy Act Concerns have been raised that online advertising providers, websites, and Internet service providers (ISPs) that agree to collect certain data generated by Internet traffic to behaviorally target advertising may be violating the Electronic Communications Privacy Act (ECPA) 100 Stat. 1848, 18 U.S.C. 2510‐2521. The ECPA prohibits electronic communications service providers from intentionally divulging information while in transit to third parties, unless an exception applies. Online advertising providers are acquiring information such as the fact that a user clicked on a particular link (an action which is the equivalent of asking the site providing the link to send the user information), and they are acquiring that information while the communication is in transit. Advertisers may also acquire information, such as words entered into a search engine or answers to online forms, while it is in transit. Under ECPA, it is illegal, with certain enumerated exceptions, for any person to “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral or electronic communication,” where “intercept” can mean the acquisition of the contents of any electronic communication through the use of any electronic, mechanical, or other device, “contents” includes any information concerning the substance, purport, or meaning of that communication, and “electronic communication” includes any transfer of signs, signals, writing, images, sounds, data or other intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo optical system that affects interstate or foreign commerce. Because the advertisers record that a particular user requested information a website by clicking on a particular link or sent information to a website, advertisers appear to be “intercepting” the “contents” of those “electronic communications” and such interceptions are likely covered by ECPA. The interception of electronic communications is not prohibited by ECPA if one of the parties to the communications has consented to the interception. Consent is not defined by ECPA, nor do precise instructions of how and when consent may be obtained under ECPA appear in


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regulation. There have been few cases dealing with ECPA’s application to online advertising providers and non examining ECPA’s application to agreements between ISP providers and online advertising providers. Agreements for online advertising providers to monitor certain web traffic may be between the online advertising provider and the website operators seeking to have ads placed on their sites. The advertising providers receive information about user activity on participating websites and aggregate that data to better target ads. In litigation against the online advertising provider DoubleClick for violations of ECPA, the court examined whether websites were “users” of electronic communications services under ECPA. The court reasoned that websites are “users” (and, therefore, “parties to the communications” at issue) because they actively respond to requests they receive over electronic communications services by deciding whether to send the requested document, breaking the document down into TCP/IP protocol, and sending the packets over the Internet. Because websites are “users” of electronic communications, the court found that websites are also “parties to the communications” in dispute; therefore, website owners have the ability to consent to a communication’s interception. The court also held that the website operators had consented, by virtue of their contract with DoubleClick, to allow the company to intercept certain traffic on their websites in order to target advertising to website visitors. Consent for private interceptions of electronic communications cannot be granted if the purpose of the interception is the commission of criminal or tortious conduct. The court noted that the focus of the determination of criminal or tortious purpose under ECPA is “not upon whether the interception itself violated another law; it is upon whether the purpose for the interception—its intended use—was criminal or tortious.” Applying that standard, the court found that the plaintiffs had not alleged that DoubleClick’s primary motivation for intercepting communications was to injure plaintiffs tortiously. In a similar suit against online advertising provider Pharmatrak, the court outlined limitations to the consent exception regarding these types of agreements. In that case, Pharmatrak had contracted with certain drug companies to provide advertising on their websites. Included in the agreement was permission for the advertising provider to record certain web traffic that did not include personally identifiable information. Perhaps inadvertently, the online advertising provider did collect a small amount of personally identifiable information though it had pledged not to do so. The advertiser argued that consent had been granted for such interception. The court disagreed. According to the court, it is for the party granting consent to define its scope, and the parties in this case had not consented to the collection of personally identifiable information. In collecting personally identifiable information by intercepting data without the consent of one of the parties, the online advertiser potentially had violated ECPA, but may have lacked the requisite intent to be found liable under the statute. The appeals court directed the trial court to conduct further investigation into the matter.


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Given the conclusions in the above cases, it appears that online advertising providers, like DoubleClick, that partner to collect data from individual websites generally are not violating ECPA, because the websites are “parties to the communication” with the ability to consent to interception. Based on these cases, the advertising providers will not be seen as running afoul of ECPA so long as the data the advertising providers collect do not fall outside the scope of the data the advertising providers’ clients have agreed to disclose. On the other hand, when the partnership is between the ISP and the online advertising provider, neither of the parties to the agreement to intercept web traffic is a party to the communications that are being intercepted. Therefore, it would appear that consent for the interceptions must be obtained from individual customers of the ISPs. The questions, in these circumstances, are whether consent must be “affirmative,” or if it can be “implied,” and if consent must be “affirmative” what process must be used to obtain such consent from individual users. Consent to interceptions has been implied by the surrounding circumstances of communications. While consent may be implied, it may not be “casually inferred.” It seems unlikely, as a result, that merely by using an ISP’s service, a customer of that service has implied her consent to the interception of her electronic communications by online advertising providers. If consent likely may not be implied simply from use of an ISP’s service, then a form of affirmative consent from the ISP’s customer would be necessary. In other statutes requiring consent for certain types of disclosure, regulatory regimes have developed to define when and how affirmative consent should be obtained. A similar debate is occurring now involving how ISPs should obtain consent from their customers to share data about their online activities with online advertising providers. The debate centers around whether ISPs and advertisers must obtain “opt‐in” consent or if they may continue to obtain “opt‐out” consent for these interceptions. “Opt‐in” consent is obtained when a party to the communication is notified that his or her ISP has agreed to allow an online advertiser to track that person’s online activity in order to better target advertising to that person. The advertiser, however, may not begin to track that individual’s web activity until the individual responds to the notification granting permission for such activity. If the individual never responds, interception can never begin. “Opt‐out” consent, by contrast, is obtained when a party to the communication is notified that his or her ISP has agreed to allow an online advertiser to track that person’s online activity and the advertising provider will begin such tracking unless the individual notifies the ISP or the advertiser that he or she does not grant permission for such activity. If the individual never responds, interception will begin. Currently, it appears that companies such as NebuAd are obtaining or planning to obtain “opt‐out” consent for the information gathering they engage in with ISPs. The present question is whether “opt out” consent is sufficient to satisfy the ECPA consent requirement. This question has yet to be addressed by a federal court or clarified by legislation or regulation. Federal Trade Commission Online Advertising Self‐Regulatory Principles


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In February of 2009, the FTC released a new set of Self Regulatory Principles for Online Behavioral Advertising. These principles represent the most recent step in the FTC’s ongoing examination of behavioral advertising practices, which began with the release of proposed self regulatory principles for public comment in December of 2007. Among other things, the finalized principles clarified the types of advertising to which they should be applied and discussed what notification is sufficient for what types of data the site or advertiser is collecting about a consumer. A brief sketch of the principles follows.

• The FTC’s principles cover only online behavioral advertising. Online behavioral

advertising means “the tracking of a consumer’s online activities over time.” The principles make clear that so‐called “first party” advertising (where no information is shared with a third party) and contextual advertising (where the ad is based on a single page visit or search) are not covered by the principles.

• According to the principles, websites engaged in online behavioral advertising should provide clear notification to consumers regarding the types of data being collected on the site and why, as well as the opportunity for consumers to choose whether their data may be collected for such purposes.

• Companies collecting the data should provide reasonable security for the data. The security measures should be concomitant with the sensitivity of the data (the more sensitive the data, the more protected it should be). The data should be retained only so long as necessary to fulfill a legitimate business purpose or as required by law.

• Companies must keep the promises they make to their customers. If the company decides to use previously collected data for purposes that differ materially from the uses the company described to the customer at the time data collection began, the company should obtain the affirmative express consent of affected customers.

• Companies should collect sensitive data (e.g., social security number, medical information, financial account information, etc.) for behavioral advertising only after obtaining affirmative express consent from the consumer.

COMPLYING WITH MARKETING RESTRICTIONS AND CAN‐SPAM In 2003, Congress enacted the Controlling the Assault of Non‐Solicited Pornography and Marketing (CAN‐SPAM) Act to curb spam and sets forth rules for commercial email, commercial messages and gives recipients the right to have you stop emailing them along with penalties for violations. CAN‐SPAM doesn’t apply just to bulk email; it covers all commercial messages which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business‐to‐business email. Each separate email in violation of CAN‐SPAM is subject to penalties of up to $16,000, so non‐compliance can be costly. The main requirements for compliance are:

(1) Don’t use false or misleading header information (2) Don’t use deceptive subject lines


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(3) Identify the message as an ad (4) Tell recipients where you are located (5) Tell recipients how to opt out of receiving future email from you (6) Honor opt‐out requests promptly (7) Monitor what others are doing on your behalf.

CAN‐SPAM covers email where the primary purpose of the message is commercial. Content is considered commercial if it advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose. In contrast, content is transactional if it facilitates an already agreed‐upon transaction or updates a customer about an ongoing transaction. On May 12, 2008, the Federal Trade Commission issued final rules for complying with CAN‐SPAM’s requirements. The final rule established a presumption that marketers are allowed ten business days to process an opt‐out request and within that period may continue to send commercial electronic mail to someone who has opted out. The final rule also narrowed the meaning of the term “sender.” The statutory definition of “sender” in 15 U.S.C. § 7702(16)(A) is “a person who initiates [a commercial electronic] mail message and whose product, service or Internet website is advertised or promoted by the message.” Where a single email message contains advertisements for multiple entities, the rule clarifies that there can be a “single sender” for compliance purposes if:

(1) the “single sender” falls within the statutory definition of “sender” set forth above; (2) the “single sender” is identified in the “from” line of the email as the sole sender of the

message; (3) if sexually oriented material appears in the message, then the term “sexually explicit” is

placed in a clear and conspicuous manner in the message; and (4) the “single sender” complies with the CAN‐SPAM’s prohibitions against deceptive

transmission information and deceptive subject lines, required return path and required elements to include in a commercial email messages.

This rule makes it easier for one party to be responsible for complying with CAN‐SPAM’s opt‐out requirements where multiple parties advertise in a single e‐mail message.


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ADVERTISING LAW FOR ONLINE PUBLISHERS

FTC ISSUES FINAL GUIDES ON THE USE OF ENDORSEMENTS AND TESTIMONIALS IN ADVERTISING

SCOTT DAILARD DOW LOHNES

The Federal Trade Commission’s revised Guides Concerning the Use of Endorsements

and Testimonials in Advertising (the “Endorsement Guides”) went into effect on December 1, 2009. Like all FTC Guides, the revised Endorsement Guides are advisory in nature and do not operate with the force of law. Nonetheless, they articulate standards that the FTC Staff will use to evaluate whether advertising practices are deceptive in violation of Section 5 of the FTC Act. To varying degrees, the Endorsement Guides also influence courts and state attorneys general when they interpret parallel state consumer protection statutes. Accordingly, counselors for advertisers and endorsers should take note of several important changes to the Endorsement Guides, most of which involve testimonials that publicize extraordinary results achieved by using an advertiser’s product, endorsers who use blogs, social networking sites or other “consumer‐generated media” to publish reviews, and celebrities who endorse products on talk shows or other “unconventional” advertising formats. The following summarizes the key provisions of the revised Endorsement Guides.

Elimination of “Results Not Typical” Safe Harbor

The revised Endorsement Guides eliminated a “safe harbor” that previously permitted testimonials promoting extraordinary results obtained from using an advertiser’s product as long as they were accompanied by a conspicuous “results not typical” disclaimer. Under the new Endorsement Guides, a testimonial describing results that a consumer obtained using an advertised product generally will be deemed to convey an “implied typicality” claim. In other words, the FTC will interpret the testimonial as a claim that the endorser’s experience represents the results that consumers can generally expect to achieve when using the advertised product in the depicted circumstances. According to the revised Endorsement Guides, a disclaimer stating that the endorser’s “results are not typical” is no longer sufficient to avoid deception. Instead, if the endorser’s experience with the advertiser’s product or service is non‐typical, the testimonial advertisement must also disclose the results that consumers can generally expect to achieve. For example, if an ad features “before” and “after” pictures of a woman who claims to have lost 50 pounds in 6 months using the advertiser’s diet plan, the ad must also disclose how much weight most women can expect to lose in the depicted circumstances – e.g., “most women who follow our plan for 6 months lost at least 15 pounds.” The “generally expected results” disclosure must be substantiated by data obtained from valid, well‐controlled clinical studies or other objectively reasonable evidence. Disclosure of “Material Connections” Between Advertisers and Endorsers in Consumer‐Generated Media


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The FTC has long required testimonial advertisements to disclose any “material connections” between an advertiser and an endorser – typically the provision of free products or monetary compensation in exchange for a product review – if consumers would not otherwise expect the connection. The revised Endorsement Guides expressly extend this principle to relationships that arise when advertisers use “consumer‐generated media” to promote their products, and they discuss various circumstances in which messages conveyed by bloggers and users of social media platforms such as Facebook and Twitter will be regulated as commercial endorsements.

If an advertiser pays someone to blog about a product or service or tout its attributes on a message board or a social media site, the review clearly will be considered an endorsement, and the reviewer will be required to disclose his or her relationship with the advertiser. (The same is true if the blogger is paid by a third party – such as the operator of a word‐of‐mouth marketing network – acting on behalf of an advertiser). The reviewer’s obligations are more difficult to determine if the only incentive he or she receives is the value of a free product sample that accompanies a marketer’s request for a review. In these situations, the FTC will evaluate the need for a disclosure on a case‐by‐case basis using a test that focuses on whether the receipt of the merchandise could affect the weight or credibility of the reviewer’s statements, and whether the connection between the marketer and the reviewer would be reasonably expected by consumers.

According to the FTC, the fundamental question is whether, viewed objectively, the

relationship between the advertiser and the speaker is such that the speaker’s statement can be considered “sponsored” by the advertiser and therefore an “advertising message.” In this context, the FTC distinguishes between critics who work for traditional media outlets and consumer endorsers who receive free products as incentives to publish favorable reviews. The revised Endorsement Guides generally do not require disclosures from reviewers working for traditional media companies because the FTC reasons that consumers generally expect that professional critics may have received, for example, the books they review, or saw the movies they critique, for free. The FTC also stated that in “usual circumstances,” it would not consider reviews published by traditional media outlets “with independent editorial responsibility” to be sponsored advertisements because the weight that consumers give to statements that appear in such reviews would not be affected by knowing whether the media publisher paid for the product in question.

By contrast, when reviews appear in social media, the FTC reasons that it is much more difficult for consumers to distinguish independent editorial opinion from endorsements that have been procured (directly or indirectly) by an advertiser. Accordingly, under the revised Endorsement Guides, reviewers who receive free products from an advertiser and then blog about their opinions on a social media site should disclose their relationship to the advertiser if: (i) the product or service has substantial value, or (ii) the product or service is provided to the consumer as part of a network marketing program, or (iii) the reviewer frequently receives free products and services from the advertiser (or similar advertisers) because he or she has an established blog readership within a particular field or demographic.


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If a material connection exists, both the advertiser and the endorser (e.g., the blogger or word‐of‐mouth marketer) can be subject to liability for false or deceptive statements made in the testimonial. The fact that an advertiser may have no knowledge of, or control over, the endorser’s statements before they are published will not protect the advertiser from liability. The FTC stated, however, that in deciding whether to bring an enforcement action, it will consider an advertiser’s efforts to advise endorsers of their responsibilities and to monitor their reviews for inaccurate statements. Accordingly, advertisers that provide free products to consumer endorsers should establish procedures to advise endorsers of their disclosure obligations, provide them with accurate product information, monitor their reviews and document the advertiser’s efforts to promptly identify and correct any exaggerated or unsubstantiated representations.

The FTC’s approach to endorsements in consumer‐generated media provoked heated commentary in both the blogosphere and the traditional press. Critics of the revised Endorsement Guides accused the FTC of holding new media to a different standard than old media, or of holding individuals to a stricter standard than large corporations. Mary Engle, Director of the FTC’s Division of Advertising Practices, responded to these charges by noting that more robust disclosure requirements are necessary to avoid deception in contexts that blur the line between advertising and editorial content. Engle also emphasized that the Endorsement Guides hold social media marketers to the same standards as marketers who use other media: “Social media marketing is here to stay,” she said, “and we have enough respect for advertising on the Internet and the important role of the blogosphere as a marketplace for public opinion to hold it to the same standard we apply to advertising in any other medium.” Engle also made it clear that the FTC does not plan to make individual bloggers an enforcement priority. Instead, she stated that the FTC’s principal “concern is with advertisers who pay consumers to talk up their products and make it look like independent consumer opinion.” Celebrity Endorsements

The revised Endorsement Guides clarify that celebrities who are paid to endorse an advertiser’s products have a duty to disclose their relationship with the advertiser if the endorsement is made outside of a conventional advertising context. As a general rule, a celebrity endorser who appears in a “traditional” advertisement, such as a television commercial, need not disclose that he is being paid by the advertiser, because consumers typically assume that celebrities are compensated for their appearances in ads. The same is not true, however, of talk show appearances, statements made by celebrities in social media, or during news interviews. In such non‐traditional advertising contexts, the celebrity must disclose his or her connection to an advertiser, because consumers might not otherwise realize that the celebrity is a paid endorser, rather than just a satisfied customer.

The FTC will assign liability in the celebrity endorsement context in the same way it does in the consumer‐generated media context. Both the celebrity endorser and the advertiser can be liable for the endorser’s false or unsubstantiated statements about the endorsed product. Although the advertiser cannot control what a celebrity endorser actually says on a talk show,


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or how the show is edited, it may nonetheless be held liable if the endorser fails to make the required disclosure or makes false statements about the advertiser’s product. In deciding whether to bring an action, however, the FTC says it will give significant weight to whether an advertiser advised the celebrity in advance about what he or she can and cannot truthfully say about a product, and about the need to disclose the celebrity’s relationship with the advertiser.

PD.4144902.1

Some Online Advertising Law Lingo

By Luther T. Munford Phelps Dunbar LLP Jackson, Mississippi

Sept. 25, 2010

References:

Ian Ballon, E-Commerce and Internet Law (2010) (“E-Commerce”)

George B. Delta and Jeffrey H. Matsura, Law of the Internet (2010) (“Internet”)

John Hart, Internet Law: A Field Guide (6th ed. 2008) (“Field Guide”)

Jan R. Winn and Benjamin Wright, Law of Electronic Commerce (2010) (“Commerce”)

Lingo:

CAN-SPAM Act, Commerce §2.06[A][2], E-Commerce §§ 29.03 - 29.06, Internet §14.10[A], Field Guide Ch. 8.

Site traffic metrics, Commerce § 2.05[E]

Click fraud, E-Commerce §28.11, Internet § 14.05

Push distribution, adware, spyware, clickwrap agreements, cookies, Internet §§9.03, 14.05, E-Commerce § 2.07

Behavioral advertising, E-Commerce §28.06, Internet § 14.05

Viral or “Buzz” Marketing, E-Commerce §28.05

Linking or framing, E-Commerce §§ 9.04, 20.04, 28.12, Internet §14.05, Field Guide Ch. 2

Keyword advertising, metatags, E-Commerce §§ 9.10, 9.11, 28.09, Internet §14.05, Field Guide Ch. 2

Content co-branding, E-Commerce §20.03, Internet §14.05

Affiliate marketing, E-Commerce §28.13

Contests, sweepstakes and promotions, E-Commerce §28.16

Lanham Act and State law false advertising, E-Commerce §28.08

Sales taxation of electronic marketing, Internet §15.06, Field Guide Ch. 11.

- 2 - PD.4144902.1

Online commercial communities, Internet §§14.05, 14.06

Best Practices Guidelines for Legal Information Web Site Providers, Commerce §4.02

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NEWSGATHERING LAW: HOW TO STAY OUT OF TROUBLE WHEN YOU’RE GATHERING INFORMATION FOR A STORY

CHARLES COBLE

Brooks, Pierce, McLendon, Humphrey & Leonard LLP 1600 Wachovia Capitol Center

150 Fayetteville Street Raleigh, North Carolina 27601

T: (919) 839‐0300 F: (919) 839‐0304

E: [email protected] When Does an Interview Constitute Intrusion?

Although not all States recognize each of the four claims for invasion of privacy (false light, intrusion, public disclosure of private facts, and misappropriation), the great majority of States have adopted the claim of invasion of privacy by intrusion. Unlawful intrusion is: An intentional physical or sensory interference with, or prying into, a person’s solitude or seclusion or his private affairs, where the intrusion is highly offensive or objectionable to a reasonable person.

Examples of conduct that courts have found constituted unlawful intrusion include physically invading a person’s home or private place, eavesdropping by wiretapping or microphone, peering through windows or doors and persistent telephoning. Potential liability for intrusion may therefore place some limits how far journalists go in reporting a story or attempting to interview a source.

A person may not maintain an intrusion claim if he or she consents, at the time of the alleged intrusion, to being photographed, recorded or videotaped. Thus, the failure to obtain consent, when combined with surreptitious recording at a private location, may expose reporters to liability.

For example, consider a reporter who arrives at the subject’s house with no prior notice, and, when an adult answers the front door, the reporter begins asking him questions. During the interview, the reporter wears a hidden microphone in his necktie, while a cameraman and sound technician hide in a van across the street. The subject had not agreed to be interviewed in advance and at no time during the interview did he consent to being recorded. On these

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facts, a federal appeals court in California concluded that the subject could maintain an intrusion claim.

Some States do not expressly require parental consent to interview a minor in a public forum or to publish or air a minor’s image in connection with a news story. However, even if a minor consents to being interviewed at their home, a reporter is not necessarily protected from liability for intrusion. For example, in a case out of California a television film crew appeared unannounced at the front door of a private residence. Two young children, ages five and seven, answered the door and purportedly consented to being interviewed after the news crew informed them that their friends had just been murdered by their friends’ mother. The court ruled that the children, because of their young age, lacked the capacity to consent to the news crew’s presence on the private property, and, therefore, did not consent to the subsequent interview. As a result, summary judgment on an intentional infliction of emotional distress claim was denied.

In addition to being mindful of potential intrusion claims and issues of consent, journalists and editors should also be aware that courts generally consider public school property to be a “non‐public forum.” This designation means that the U.S. Constitution will permit reasonable local or state regulations that restrict media access to school property or that otherwise restrict newsgathering activities on school property, so long are those regulations are designed to lessen interference with normal school activities. These permissible restrictions may even extend beyond school grounds, so long as they apply to a school‐sponsored activity such as a sporting event, a field trip or a graduation ceremony. The Difficulty of Protecting Confidential Sources in a Federal Proceeding: The David Ashenfelter Saga

A reporter’s best bet to quash an otherwise valid subpoena to appear in a state‐court proceeding is a state shield statute. If, however, the subpoena was issued under federal law, such as from a United States Attorney or a federal grand jury or in a civil case pending in federal court, or if the reporter works in a state that lacks a shield statute, the only option is to rely on the muddled outcome of a 38‐year‐old United Supreme Court precedent. Despite its age, the value of this case to reporters remains uncertain.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court held 5‐4 that reporters served with a grand jury subpoena in a criminal matter do not have a First Amendment privilege against testifying. Branzburg actually decided three different cases, each of which involved a similar set of facts. In one of the cases, a reporter in Kentucky had published an investigative piece on the local drug trade in which he had personally observed people producing and using

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illegal drugs. The other two cases involved reporters who had been covering the activities of the Black Panther Party. In all three cases, local law enforcement officials who were pursuing criminal investigations sought to compel the reporters to reveal their confidential sources to a grand jury.

Justice Byron White, writing for the majority, accepted the reporters’ argument that if journalists are regularly forced to disclose the identity of their confidential sources, those sources will soon dry up and the reporters will be unable to do their job. The question, Justice White said, is whether this potential burden on the rights of the press outweighs the legitimate needs of law enforcement officials to investigate and prosecute crimes. In the end, White said: [W]e perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.

Thus, according to Justice White, reporters remain regular citizens and must comply with a legitimate subpoena just as any other citizen.

Justice Powell wrote a concurring opinion that reporters have used in both state and federal courts to argue that the Constitution in fact gives qualified protection, even though Justice White perhaps did not intend recognize such protection. Justice Powell made clear in his opinion that despite the majority holding, law enforcement officials do not have a carte blanche “to annex the news media as an investigative arm of government.” The critical passage of his opinion reads as follows:

If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case‐by‐case basis accords with the tried and traditional way of adjudicating such questions.

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Branzburg is therefore often described as a “4‐1‐4” case, meaning that there were four votes on either side of the issue, with one vote straddling both sides. Justice Powell’s concurrence is the “1” here, and it is his call for a careful balancing by courts that would open the door in later years to some courts finding a qualified privilege in Branzburg.

The form of that privilege—adopted by many state legislatures in shield laws—was outlined in Justice Stewart’s dissent. He wrote that, contrary to the majority opinion, the First Amendment demanded greater scrutiny of government attempts to compel reporters’ testimony. Justice Stewart outlined a three‐part analysis: Governmental officials must, therefore, (1) demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. (2) They must demonstrate that it is reasonable to think the witness in question has that information. (3) And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties.

In one form or another, this three‐part showing forms the basis of many shield statutes that provide a qualified privilege to reporters, thereby giving them some protection from compelled disclosure of confidential (and in some cases non‐confidential) sources and source material. In addition, it is the foundation of the long‐standing effort to have a federal shield statute passed by Congress, an effort that has yet to achieve success.

In recent years, several federal courts have refused to find a federal constitutional privilege in Branzburg, which calls into question just how much protection that case offers. In two high‐profile cases in the District of Columbia, federal district court judges ordered reporters to disclose confidential sources relating to the Valerie Plame leak investigation and a civil lawsuit brought by Wen Ho Lee. These decisions were upheld on appeal. In addition, a federal district court in San Francisco ordered reporters to disclose their source in connection with the BALCO investigation. The Reporters Committee has cataloged recent federal subpoenas that gave rise to court challenges. The lesson of these cases is that a reporter cannot count on protection—even qualified protection—from a federal subpoena that seeks the identity of a confidential source or other source materials. This makes the passage of a federal shield law all the more critical.

This exposure reporters and their news organizations face in federal proceedings has

been highlighted by a saga involving Detroit Free Press reporter David Ashenfelter. That dispute arose in the context of a civil lawsuit brought by former federal prosecutor Richard Convertino in federal court in the District of Columbia. Convertino led the prosecution of the so‐called “Detroit Sleeper Cell” defendants shortly after September 11, 2001; however, the

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Justice Department subsequently removed Convertino from his post and asked that the convictions he obtained in that matter be dismissed.

In the complaint he filed in the pending civil action, Convertino—who was himself acquitted of charges that he conspired to conceal exculpatory evidence and lied to a federal judge in connection with the prosecution—contends that the Department of Justice disclosed information about him to the news media in violation of the federal Privacy Act. In connection with the civil lawsuit, Convertino sought to depose Detroit Free Press reporter David Ashenfelter. In particular, he sought from Ashenfelter the identity of a confidential source who told the newspaper that Convertino was being investigated for misconduct in connection with a terrorism prosecution. Information from that source appeared in a January 2004 article that Ashenfelter authored.

Ashenfelter and the Detroit Free Press fought the subpoena in federal court in Michigan, moving to quash the subpoena and opposing Convertino’s motion to compel Ashenfelter to comply with the subpoena. In these papers Ashenfelter relied on traditional First Amendment arguments, discussed above. The federal district court judge rejected these arguments, and ordered the deposition to move forward in this written decision, which was subsequently reaffirmed on the newspaper’s request for reconsideration.

However, rather than answer the questions he was asked, Ashenfelter invoked the Fifth Amendment privilege against self‐incrimination. He argued he feared prosecution because Convertino’s attorney had made statements suggesting that Ashenfelter himself was criminally culpable by withholding the identity of the person Convertino claimed had violated the federal Privacy Act by revealing information to Ashenfelter about Convertino. The former prosecutor then moved to hold Ashenfelter in contempt for refusing to answer questions about his confidential source.

After some legal maneuvering, the issue finally culminated in another hearing. The presiding judge heard testimony from Ashenfelter ex parte and concluded that Ashenfelter’s invocation of the Fifth Amendment privilege was warranted. As a result, he held that Ashenfelter did not have to testify, and his source’s identity remained secret and Ashenfelter was relieved of his obligation to sit for a deposition. The judge’s decision was hailed by free speech advocacy groups, who used the episode to help build momentum for passage of a federal shield law. If Congress were to pass a federal law akin to most state shield statutes, a reporter subpoenaed in a federal matter would not have to prevail on a Fifth Amendment (or First Amendment) argument in order to protect his or her source.

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Know Your State’s Shield Law

Thirty‐nine States have what have become known as “shield laws” or “reporter's shield statutes,” which offer varying degrees of protection to reporters from attempts by government officials and others to compel reporters’ testimony. For example, North Carolina has a shield law that follows the majority approach around the country by offering journalists a qualified privilege from disclosure of sources and source materials, a privilege that can be overcome if the opposing party makes a sufficient showing.

The key portion of the North Carolina statute reads: A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.

For an invaluable compilation of shield laws around the country, go to the Reporters Committee for Freedom of the Press web site. A formulation such as North Carolina’s can raise a host of questions, of course.

What is a journalist? North Carolina’s shield law defines a journalist as: Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.

This is a rather broad definition, and courts have tended to read it that way. We do not, however, know the limits of this definition. Is a blogger who posts in his free time—the modern version of the lonely pamphleteer—a journalist under the North Carolina law? North Carolina’s appellate courts have not yet given guidance on this question, although a trial court recently refused to apply the shield law to a subpoena directed to a blog.

However, the answer in California, at least, may be otherwise. In O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006), the well‐publicized case involving allegations by Apple Computer that a group of bloggers had misappropriated trade secrets, the court

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declined to wade into the question of what a journalist is, and held simply that California’s shield statute applied.

What is a news medium?

Under North Carolina’s shield law, a “news medium” is: Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public. It is important to note that the law references “any entity,” not “any business.” This would seem at least to open the door to a non‐commercial blogger or some other non‐mainstream form of journalism.

When does it apply?

The privilege applies in “any legal proceeding”—both civil and criminal—and covers

“any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.” The phrase “as a journalist” is critical, however, because the law also makes clear that there is no privilege against disclosure when the journalist obtained the sought‐after information because of his or her own eyewitness observation. A trial court has held that the qualified privilege extended to a copy of a radio broadcast of a news program, as aired.

What does “qualified” mean?

Because the privilege afforded by North Carolina’s statute is qualified rather than

absolute, the privilege can be overcome by the party seeking the information. The journalist may be forced to testify or produce evidence if the party seeking disclosure can show that the evidence or testimony sought:

• Is relevant and material to the proper administration of the legal proceeding for which

the testimony or production is sought; • Cannot be obtained from alternate sources; and • Is essential to the maintenance of a claim or defense of the person on whose behalf the

testimony or production is sought.

In North Carolina, when a journalist asserts the reporter’s privilege, this three‐part test tends to be the legal battleground. And, as one state court said, it is a “rare instance” in which

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a party seeking disclosure can meet the requirements. See, e.g., State v. Petersen, 2003 WL 22965551 (N.C. Super. June 30, 2003). Another North Carolina state court elaborated: Both the statutory privilege and the common law privilege are intended to protect the free flow of information and avoid the impediment that occurs when reporters are subjected to in‐court examination of their newsgathering activities. This intrusion is especially offensive when the same information could be derived from other sources. Higgins v. Young, 2001 WL 1692379 (N.C. Super. Aug. 08, 2001).

A state shield statute is therefore a critical line of defense journalists can interpose in response to a civil, criminal, or grand jury subpoena in a state‐court proceeding. As soon as a newsroom receives a subpoena, it is imperative that it pass the subpoena along to its counsel so that he or she can determine whether there is a shield statute and, if so, whether it applies. There may be time limits under the state rules of civil procedure for interposing objections to the subpoena and/or for filing a motion to quash.

As the court in Higgins v. Young indicated, however, state shield statutes do not represent the only form of protection reporters have—the reporter may argue for protection by a constitutional privilege as well. In state‐court proceedings in states with shield laws, those laws will likely provide the most robust protection from disclosure, but in states lacking shield laws and in federal proceedings the constitutional privilege may well be the only basis for opposing the subpoena.

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TOPICS IN NEWSGATHERING LAW CITIZEN MEDIA LAW PROJECT

ENTERING THE PROPERTY OF OTHERS TO REPORT ON A STORY

While the First Amendment protects an online publisher’s right to engage in speech, it does not grant it unfettered access to the property of others. Online publishers (and their counsel) should always keep in mind that the right of access is no greater than the public's right of access. In general:

• There is a right to access property that is open to the general public. • Not all property owned by the government is accessible by the public. • There is no right to enter private property without the owner's permission.

Even when with the right to access property, however, a reporter may be asked to leave by law enforcement or the owner of the property. In these situations, it is important that a reporter and the online publisher understand her rights ahead of time. The U.S. Constitution protects the right to speak and, in some instances, grants the right to access public places to gather information. The right to access public property is not absolute, however. Generally speaking, reporters have the same right of access to public property as the general public. Generally speaking, government officials and persons in possession of private property are the only figures who can restrict access to property. If one of these figures asks a reporter to leave when she believes she has a right to access, she should explain why she has the right to stay. They may say that the current circumstances are an exception, or she may be able to convince them to allow her to stay. In any case, she must take care – she can be charged with trespass for remaining if she does not have a right to remain there. This section covers access to public (i.e. government‐owned) property. (Refer to the section on Access to Private Property for more information on entering privately owned property.) Not all government‐owned property is open to the general public. Depending on the type of property reporters wish to enter, their right to access public places may be constrained by reasonable time, place, or manner restrictions, or by the government's interest in managing its property. Here is an overview of the three types of public property most commonly encountered:

Property That Historically Has Been Open to the Public

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The right to access public property is strongest when the area has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. Reporters may freely enter and gather information while in these public spaces, but they should do so without disturbing the peace or interfering with those around them. Their right of access does not confer immunity from all liability if their conduct is disruptive or harassing.

Property That Is Open to the Public for a Limited Purpose The right to access government‐owned property that is only partially open to the public is a bit more limited. If the general public is permitted to access only certain areas or for certain limited purposes, the right to access the property for newsgathering purposes is similarly limited. For example, some parts of a courthouse are open to the general public, but portions of the courtrooms themselves are accessible only by the parties in the litigation and judges' chambers are completely off limits to the public. However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non‐school meetings that are open to the public, those rooms, during those times, will be treated as public forums. Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or the reporter may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These "school loitering laws" are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.

Property That Is Not Open To the Public

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A reporter cannot access or gather information on government‐owned property that is not open to the general public. This type of property is known as a nonpublic forum in which the government can charge the reporter with trespass for entrance without authorization. The following are examples of nonpublic forums: An airport terminal is a nonpublic forum. See International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). The Supreme Court has noted that airports are "among those publicly owned facilities that could be closed to all except those who have legitimate business there." United States v. Grace, 461 U.S. 171, 178 (1983). Government‐owned civic centers, stadiums, or theaters used for private commercial purposes are not public forums. When the government leases a convention center, the private lessee may legally exclude individuals who want to report on newsworthy events. The event coordinators may even grant exclusive media coverage rights to a particular media outlet and deny access to others who want to cover the event (or at least deny them access in their capacities as journalists). A reporter may wish to access another's private property in order to gather information to publish online. However, while there are (rare) circumstances in which the law will condone A reporter’s entry onto private property without permission, in general the reporter does not have any right to enter the private property of others without their consent. Types of Private Property

Residences: The term "private property" encompasses a wide variety of places, from homes to businesses open to the public. Courts are highly unsympathetic to those who try to gather news in private homes without consent, and if the reporter enters a private home without permission, she may be liable for invasion of privacy, trespass and, in certain cases, intentional infliction of emotional distress. In the 1940s, the Supreme Court took on the issue of "company towns" with regard to the First Amendment. Although the company town was private property owned by the company, the fact that it had been opened up to use by the public generally made it subject to the constitutional requirements of the First Amendment. Marsh v. Alabama, 326 U.S. 501 (1946). Today, there are fewer company towns; however, private, gated residential communities may occupy a similar niche. Visitors seeking access to a private residential community must usually announce themselves at the gate or receive permission from the development's security guards

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in order to enter. It's often a wise idea to seek permission before entering such a community. But even if the reporter does not have express permission, the right to access will be strongest if the private residential community opens its gates to the public at large.

Businesses: If the reporter tries to access businesses that do not open themselves up to the public, a reporter may be liable for trespass. However, as a member of the public the reporter will be able to access businesses open to the public without fear of liability. The reporter’s right of access does not necessarily translate into a right to gather information while she is there. The business has given her consent to use the premises as a patron, and her actions need to be within the scope of that use. For example, a restaurant consents to a person’s presence for her to enjoy eating a lovely meal in the company of good friends. In this scenario, taking notes about the food, ambiance, and service may be fine, whereas approaching other diners for interviews or for photographs likely oversteps the scope of the restaurant's consent, and she could be liable for trespass. Note that she may only access the areas of the business that are open to the public. Continuing our example, while she can enter a restaurant, she cannot go to the kitchen without additional permission. Shopping malls have come to occupy a place in modern communities akin to the town square or main street and thus are arguably public, rather than private, in nature. But unlike the traditional public forum of a town square, these establishments are privately owned places of business. Since the Supreme Court's decision in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), stating that there is no constitutional right to free speech in a private shopping mall, the law of access to shopping malls has largely been left to the states. State courts vary on the question of whether to allow access to shopping malls. Those that do find them to be public or quasi‐public forums still note that owners may impose reasonable time, place and manner restrictions on expression, provided the regulations are content‐neutral, narrowly tailored, and leave open sufficient alternative channels of communication. If a reporter wants to go to a shopping mall and gather information, try to avoid disrupting business activities. For example, it would be better to approach people walking in the corridors of the mall, or in the food court, than to attempt to talk to everyone entering or exiting. Entering Private Property While Accompanying Government Officials A reporter may be invited by law enforcement or other government officials to accompany them while they perform their duties. These types of situations are called "media ride‐alongs"

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and can be a great way to gather information about how public officials handle their work. However, ride‐alongs may take the reporter to events occurring on private property. The Supreme Court has held that accompanying police in their execution of an arrest warrant in a private home may make the reporter liable for trespass. See Wilson v. Layne, 526 U.S. 603 (1999). The Reporters Committee for Freedom of the Press has a terrific overview on how courts have treated trespass issues in media ride‐alongs. The issue is complex. As a rule of thumb: if the reporter is invited on a media ride‐along and enter private property, the reporter should get consent for her presence from the person in possession of the property. Additionally, she should note that depending upon the circumstances, her presence may jeopardize an investigation. Do not be surprised if the local law enforcement agency prohibits media ride‐alongs altogether. Some suggestions to minimize the legal risks when entering the property of others include:

• When in doubt, get consent from the person in possession of the property before entering.

• Make sure the use of the property is consistent with the right to be there. • Do not make misrepresentations to gain access to public or private property. • Obtain a press pass or media credentials when possible. Depending on the forum or

event, the owner of the property, local police, or other government agency may have a procedure for obtaining these passes. Government agencies sometimes require proof that a requester is a professional journalist, but in some cases the reporter may be able to qualify if she publishes a blog or website or by simply asserting that there is a public interest in publishing information from the forum or event.

• Do not disturb the peace or harass people in order to get information when entering a business open to the public.

• It's generally a good idea to refrain from interfering with subjects or disturbing the peace. Even if on public property, a reporter may face charges of harassment, assault, and the like.

• Let the school know ahead of time for access to the campus or to interview students. • Don't loiter around a schoolyard. Get permission from school officials to be on the

premises; most schools will not allow strangers to wander around without credentials. • When covering a breaking event, cooperate with authorities, police, and emergency

personnel to be sure that the reporter is not interfering with rescue or other emergency efforts.

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RECORDING CONVERSATIONS

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet. Federal and state wiretapping laws may limit the ability to record telephone calls or in‐person conversations (including by recording video that captures sound). These laws not only expose the person making the recording to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against the person making the recording. From a legal standpoint, the most important question in the recording context is whether a person making the recording must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including the person making the recording) to the phone call or conversation consents. Other states require that all parties to the communication consent. Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if the parties are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, a good rule of thumb is to get the consent of all parties. However, when all parties in the recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this means that only one party to the communication must consent. In others, all parties will need to consent.

Who must give permission to record a telephone or in‐person conversation? Federal law permits recording telephone calls and in‐person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one‐party consent" law. Under a one‐party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one‐party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.

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In addition to federal law, thirty‐eight states and the District of Columbia have adopted "one‐party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.

When must you get permission from everyone involved before recording? Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two‐party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Although they are referred to as "two‐party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people.

Can you record a phone call or conversation when YOU do not have consent from one of the parties?

Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented. Federal law and most state statutes also make disclosing the contents of an illegally intercepted telephone call illegal.

Practical Tips for Recording Phone Calls and Conversations

• Check the law of your state before recording a phone call or conversation. Recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. Pay attention to your state’s consent requirement – i.e., whether one party’s consent is sufficient to make recording lawful, or whether all parties need to consent.

• Play it safe and get consent to record from all the parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to get consent from all parties to this kind of multi‐state

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conversation before recording. Even when all parties to a conversation are in the same place, it cannot hurt (and it may help) to get consent from everyone.

• Get consent on tape. This is the best way to document that consent was obtained. As a practical matter, this will require: (1) notifying the person of the intent to record; (2) getting consent off‐the‐record; (3) starting the recording and then (4) asking the person to confirm on‐the‐record that she consents to the recording.

• Don't be secretive. In some states, secret recording is a violation of the law even in a public place. Whenever possible, make it clear to those around that a recording is being made. Being upfront puts people on notice that they are being recorded, affords them the opportunity to object.

RECORDING PUBLIC MEETINGS AND COURT HEARINGS Generally speaking, attendees are free to record a meeting of a government body required to be open to the public by law through note‐taking, sound and video recording devices, and photography, so long as the method of recording used is reasonable and not disruptive. The ability to do so, however, is based largely on state open meetings laws, and the details of these laws vary significantly. At least one court has held that there is no federal constitutional right to make a video recording of an open meeting, at least not when other methods are available for compiling a record of the proceeding, such as written and stenographic notes or audio taping. Whiteland Woods, LLP v. Township of W. Whiteland, 193 F.3d 177 (3rd Cir. 1999). Government bodies may therefore place reasonable restrictions on the use recording devices, including a ban on certain devices, in order to preserve the orderly conduct of its meetings. Even when no state open meetings law affirmatively gives the the right to record, many state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. If a reporter is attending a meeting that is open to the public, it is likely that the people running a meeting or giving a speech should reasonably assume that they might be recorded. However, it is well‐advised to always take reasonable steps to make clear that the reporter is recording. Concealing a camera or recording equipment is not a good idea. The law regarding the use of audio and video recording devices in court hearings varies a great deal based on the state. In Chandler v. Florida, 449 U.S. 560 (1981), the U.S. Supreme Court held that the federal Constitution does not prohibit states from allowing cameras in the courtroom and that states may adopt their own rules permitting such recording equipment. Note that this ruling does not require states to allow recording in the courtroom, it only says that states may choose to do so. Since this ruling, all fifty states have adopted rules on the

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topic, but the rules vary widely. In some states, cameras and recording equipment are permitted in trial and appellate court proceedings, while in others recording is only allowed in appellate court proceedings. Most states give the court discretion to impose reasonable restrictions on the use of cameras and recording equipment in order to maintain the integrity of its proceedings and to otherwise serve the interests of justice. The federal appellate courts may adopt their own rules regarding cameras and recording equipment in the courtroom. At the time of writing, only the Second Circuit and the Ninth Circuit Courts of Appeals allow recording equipment. Practical Tips for Recording Public Meetings and Court Hearings Using a recording device, such as a microphone, video recorder, or camera, is a helpful way to capture and preserve information about conversations, interviews, and phone calls. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet. Here are some practical tips to minimize legal risks when recording conversations, phone calls, meetings, and hearings.

• Check the law before showing up. State law varies greatly, especially when it comes to recording in the courtroom. Looking into the law ahead of time can help the reporter understand what's possible and the requirements to meet ahead of time.

• Notify the clerk of the court or the governmental body holding the meeting well ahead of time. Many state laws require that permission be granted in advance in order to record in a courtroom. This requirement is less common with respect to public meetings, but it may still be useful to advise the governmental body in question of a plan to record.

• Don't be secretive. In some states, recording secretly is a violation of the law, even in a public place like a meeting or courtroom.

THE INTERNET AND SOCIAL MEDIA IN THE COURTROOM Courts are addressing the extent to which Internet and new media resources should be available to courtroom observers and jurors. In two separate cases, state judges in Colorado and Ohio recently took action against courtroom observers who used social media technology in court.

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On February 16, Dwayne Davenport went on trial for the fatal shooting of Michael Grissett in East Cleveland on January 16, 2009. (Two other defendants in the case pleaded guilty, and are awaiting sentencing.) As reported by the Cleveland Plain Dealer, on the second day of trial jurors noticed that Andre Block (the defendant's friend) and Dwight Davenport (the defendant's cousin), who were seated in the back row of the courtroom observing the trial, were pointing the above‐mentioned devices at the jury. After jurors complained to Common Pleas Judge Nancy Margaret Russo, she ordered Block and Dwight Davenport arrested for contempt of court and declared a mistrial in the case.

At a hearing on the contempt citation held on February 25, Judge Russo told Block and Dwight Davenport that they were guilty of "intimidating and frightening my jury," and that their actions had made the jurors fearful of jury service, forcing the mistrial. Block, who used a Flip phone to record about eight minutes of the proceedings, claimed that he was taking video of the defendant, his friend Dwayne Davenport, to remember him in case Davenport was sent to prison. Judge Russo sentenced Block to 60 days in prison. And Dwight Davenport claimed that he used his cell phone to send a text message to his girlfriend; no video or photographs of jurors were found on his phone. But Judge Russo rejected this claim. "You were seen by more than one person pointing it at the jury," she said in sentencing Davenport to 30 days in jail. "You knew full well what you were doing." After the incident, several signs were posted in the Cuyahoga County courthouse forbidding the use of recording devices and requiring cell phones to be shut off. Ohio's court rules, which were written before the advent of social media technology, allow for broadcasting of court proceedings with the permission of the presiding judge. Victims and witnesses have the right to object to being filmed, videotaped, recorded or photographed, Rule 12(C)(2), but there is no such provision for jurors (although Rule 12(C)(4) provides that "Media representatives shall not be permitted to transmit or record anything other than the court proceedings from the courtroom while the court is in session," which arguably could prohibit text messaging, tweeting, and other social media dispatches from courtrooms). Another Ohio court has banned most cell phones and similar devices from the courthouse. This is not the first case in which pointing a cell phone has been held to constitute intimidation. In Commonwealth v. Casiano, 876 N.E.2d 475 (Mass. Ct. App. 2007), a Massachusetts appeals court upheld a witness intimidation conviction against a defendant who pointed a cell phone at an undercover officer in a courtroom hallway while the officer was waiting to testify against the defendant. "It is irrelevant whether any photographs were taken," Associate Justice R. Marc Kantrowitz wrote for the court, "as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate." Casiano, at 479.

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Another recent incident arose during the Colorado murder case against Willie Clark, accused of killing Denver Broncos cornerback Darrent Williams. Judge Christina Habas has imposed strict restrictions on trial observers, including a prohibition on all communications from the courtroom, whether by blogging, text messaging, or other means, and a ban on cameras and cell phones from an entire section of the courthouse. Despite these restrictions, numerous signs in the courthouse summarizing the rules, security checkpoints at both the courthouse and courtroom doors, and an announcement of the cell phone ban at the start of proceedings, Robert Forto—who was covering the case for his blog—had his iPhone with him in the courtroom. His daughter called him, then his wife sent him a text message, and then his daughter left a voicemail. Forto texted his daughter, saying "I can't talk right now." A sheriff's deputy saw Forto send the text message and removed Forto from the courtroom and took his cell phone. After about an hour, during a recess in the trial, Forto was called before Judge Habas, who according to KMGH‐TV explained: "What you did was a contempt (of court). It was a direct violation of my order, even if it was well intentioned." Under the terms of the order, Habas banned Forto from the courtroom, but permitted him to watch the trial in the overflow room. But it’s not just observers’ use of technology that is coming under scrutiny. In January, a Florida trial court judge banned a Florida Times‐Union reporter from live‐blogging during a high‐profile murder trial in the Fourth Judicial Circuit Court of Duval County, Florida. Although an appeals court reversed the trial judge's initial ruling, the judge ultimately retained the restrictions on the use of media in the courtroom. The case in question, dubbed the Dubose Murder Trial, involved three brothers being tried for the murder of a 9‐year‐old girl. It had attracted significant public interest in the Jacksonville area. During the first day and a half of trial, reporter Bridget Murphy was sending periodic updates from her laptop in the courtroom to a dedicated blog page on the Times‐Union's Jacksonville.com website. According to documents filed with the court, after the first day of live online coverage the blog had received over 1,000 hits and was laden with commentary from interested readers. Even the State Attorney for the Fourth Judicial Circuit, Angela Corey, who had stopped by the trial in a supervisory capacity on the first day, said she was a fan of the live coverage and called the blog "awesome," according to the newspaper's petition appealing the judge’s initial ruling prohibiting live blogging.

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On the second day of trial, Circuit Judge L. Page Haddock expelled Murphy and her laptop from the courtroom. The ban was raised sua sponte, with Judge Haddock telling a Times‐Union attorney, "They’re distracting the jurors; they’re distracting me." He also stated that blogging live from the courtroom violated a Florida Supreme Court order about how many transmitting devices are allowed in the courtroom. Pursuant to regular court practice in the jurisdiction, one television camera and one still photographer were also covering the proceedings, and Judge Haddock ruled that only two devices total were permitted. Later, it became clear that Judge Haddock was relying on Judicial Administration Rule 2.450, which says that electronic media and still photography coverage of public judicial proceedings "shall be allowed" subject to the court's discretion, and provides that "at least 1 portable television camera," "[n]ot more than 1 still photographer," and "[n]ot more than 1 audio system for radio broadcast" shall be permitted in any trial or appellate court proceeding. The next day, Judge Haddock amended his order, stating that he would allow laptops, but that Rule 2.450 imposed a limitation of two total devices in the courtroom at any one time. Therefore, if Murphy wanted to continue her coverage, she could only do so if either the still camera or the video camera were not being used. The Times‐Union attorneys filed an emergency motion before the District Court of Appeal for the First District of Florida, requesting that laptop use be permitted at the trial. The appeals court granted the motion in‐part, holding that Rule 2.450 does not apply to laptops, even when used to live‐blog:

The rule does not apply to the use of laptop computers, regardless of whether the device is used to transmit information outside the courtroom. The trial court retains the authority, however, to prohibit the use of any device which as a factual matter, the court finds causes a disruption of proceedings. Morris Pub. Co. v. Florida, No. 1D10‐226 (Fla. Dist. Ct. App. Jan. 20, 2010. While the

appeals court disagreed with Judge Haddock's legal reasoning, its ruling recognized his continuing authority to prohibit the use of laptops if it caused a disruption. The appeals court decision thus left open to Judge Haddock the possibility of going back to his very first justification for prohibiting live blogging of the trial. After reading the appellate court's order in open court, Judge Haddock stated: "For now, my ruling about devices is going to stay the way it is."

Just as the Internet and digital devices have made it easier for bloggers and other media to disseminate information on a trial, these technologies also have made it easier for jurors to

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conduct independent research related to the trial. This, in turn, prompted the U.S. Judicial Conference—which sets policies for all federal courts except the Supreme Court— to disseminate this past January new suggested jury instructions on "juror use of electronic communication technologies" during trial. The suggested instruction to be used before trial states:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

The pre‐trial instruction also admonishes jurors that they must not discuss the case with anyone, including fellow jurors. The suggested instruction also includes a laundry list of technologies that jurors should not use:

You may not communicate with anyone about the case on your cell phone, through e‐mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

The suggested post‐trial instruction, to be given before the jury begins to deliberate, includes a more extensive list:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

The Judicial Conference's Committee on Court Administration and Case Management, which approved the suggested instructions in December, notes in a preface to the instructions that the committee thought it was important to specifically identify the technologies and services that jurors should not use:

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The Committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.

The new guidelines follow a spate of cases where appeals courts have overturned jury verdicts because of social media use by jurors during trial. One of the earliest cases to do so was a 2003 Colorado case in which the state's Court of Appeals overturned a defentant’s conviction based on a juror’s Internet research. In People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd, 97 P.3d 932 (Colo. 2004), a juror in a criminal trial had done research online about the drug Paxil, which the defendant accused of murdering her step‐grandson had taken, and shared that research with other jurors. The trial court denied a motion for a new trial, but the appeals court reversed, holding that

Although the Internet has made information more accessible for the average person, the information obtained thereby may be misleading, taken out of context, outdated, or simply inaccurate. . . In view of the problems and dangers associated with the unsupervised use of the Internet, trial courts should emphasize that jurors should not consult the Internet, or any other extraneous materials, at any time during the trial, including during deliberations.

77 P.3d at 771. More recently, the Maryland Court of Special Appeals had declared mistrials in two cases based on juror’s Internet research. In Wardlaw v. State, No. 1478/07, 185 Md. App. 440 (Md. Ct. Special App. May 8, 2009), the trial court had instructed the jurors not to investigate the case in any way beyond the evidence presented in court. Yet, despite this admonition, a juror in the trial of Zarzine Wardlaw used the Internet to independently research the definition of "oppositional defiant disorder," and whether lying is a part of the illness. During the trial, a therapist testified that she had diagnosed a key witness as having the disorder. The trial judge learned of the research in a note from the jury, and Wardlaw's attorney moved for a mistrial. Instead, the judge instructed the jury that it could base its verdict only on the evidence presented in court. But 30 minutes after the jury resumed deliberations, both the prosecutor and defense counsel moved for a mistrial based on the juror's Internet research. The trial court denied this motion. The appellate court, in a unanimous, three‐judge decision, concluded that the trial court's failure to question the jurors about the influence of the Internet research required a reversal:

[T]he juror’s internet research of ODD, and her subsequent reporting of her finding, rightly or wrongly, that lying is associated with the disorder, constituted egregious

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misconduct. . . . Given the fact that his misconduct came to light while the jury was still deliberating, and was presumptively prejudicial to either the State or appellant, it was incumbent upon the trial court to voir dire the jurors to determine whether they could still render an impartial verdict based solely on the evidence presented at trial. . . . In this case, the trial court did not voir dire the jury, but instead gave a curative instruction admonishing the jury not to conduct outside research and reminding them that they were to render a verdict based only on the evidence presented at trial. It was error for the court to do so, because a specific inquiry into the thought processes of the jury was the only method of ascertaining whether the information about ODD, acquired through the juror’s internet research, improperly and irreparably influenced the jury’s deliberative process to the prejudice of appellant or the State.

Wardlaw v. State, slip op. at 10‐11. A different three‐judge panel of the same court reached the same conclusion in Allan Jake Clark v. State of Maryland, No. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009). In Clark, a bailiff discovered printouts from Wikipedia articles in the jury room. The printouts, which were entries on "livor mortis" and "algor mortis," touched on an issue in the murder case—namely, how the time and place of death may be determined by looking at how blood settles in a body. The court questioned the jurors and determined that only one juror had done outside research and seen the articles. The jury convicted Clark of first‐degree murder, and the trial judge denied a defense motion for a mistrial. The appeals court reversed in another unanimous decision, holding that an "adverse influence on a single juror compromises the impartiality of the entire jury panel" (quoted in The Baltimore Sun). A New Jersey appeals court panel reached a similar conclusion in July 2009. In State of New Jersey v. Scott, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. App. Div. July 20, 2009), cert denied, 2009 N.J. LEXIS 1370 (N.J., Nov. 9, 2009), the Superior Court of New Jersey, Appellate Division, reversed the convictions of three cousins on aggravated manslaughter charges. During the trial, one of the jurors was very emotional, leaning forward and apparently crying. Queried in chambers, the juror said that she could continue. But after the jury began deliberations, another juror left a phone message for the trial judge over a weekend break, claiming that the emotional juror was acting improperly. Questioned the following Monday, the complaining juror said that the emotional juror had announced to her fellow jurors that she had researched the defendants, the victims, and the possible sentence for conviction on the Internet, but had not revealed the results of her research. The complaining juror added that the emotional juror had also read—and tried to

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hide—a newspaper in the jury room, and had announced at the start of deliberations that she had already made her decision, and held up a piece of paper with her decision. When questioned, the emotional juror denied doing research on the Internet and said that she had seen only a headline about the case in the newspaper. And, according to the appellate court, "[s]he also admitted to holding up a piece of paper with 'something written on it' but claimed that she was 'told to' do that 'specific thing.'" New Jersey v. Scott, slip op., para. 34. The trial judge then questioned the other ten jurors. Four jurors confirmed that the emotional juror said either that she had done research online or knew where such research could be done online. But only one of these jurors recalled the emotional juror mentioning anything she found in that research; the juror said that she had mentioned the possible sentence for the original murder charges in the case. One juror remembered that someone had mentioned that information about the case was available online, but did not recall who had made this statement. And the remaining three jurors did not recall hearing anything about Internet research. Based on the emotional juror's failure to admit her apparent violation of the court's instructions, the trial court replaced that juror with an alternate. But he denied a mistrial, holding that the remaining jurors were not tainted. The appeals court disagreed with this assessment, concluding that "juror 14's misconduct tainted the jury as a whole." New Jersey v. Scott, slip op., para. 52. Citing New Jersey precedent holding that "[a] deliberating juror may not be discharged and replaced with an alternate unless the record 'adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members,'" State v. Jenkins, 182 N.J. 112, 124‐25 (2004), the appeals court held that in this case "a mistrial should have been declared. Failure to do so constitutes reversible error. The error requires a new trial." New Jersey v. Scott, slip op., para. 52 In another case, a federal district court judge declared a mistrial in a complex drug prosecution after discovering that 10 of the 12 jurors had done independent Internet research on the case. U.S. v. Frank Hernandez, Crim. No. 07‐60027 (S.D. Fla. mistrial declared March 10, 2009). As in the other cases, the jurors' research came to light through questioning by the judge, after one juror sent a note saying that another juror had done research.


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UPDATE ON THE FREE FLOW OF INFORMATION ACT


The United State Congress is currently considering two versions of a federal reporters’ shield bill, both dubbed the “Free Flow of Information Act.” The House passed H.R. 985 in March 2009 by a voice vote. In December 2009, the Senate Judiciary Committee voted fourteen to five to send S. 448 to the floor of the Senate for a vote. That bill was subsequently placed on the Senate calendar, where it awaits a final vote. Assuming it passes, the Senate and House bills will need to be reconciled—likely through the conference committee process—to arrive at a final piece of legislation.

While both the House and Senate versions provide a qualified privilege to reporters in federal proceedings, they differ substantially regarding what type of information is covered and who can invoke the privilege. The salient provisions of both bills are summarized below.

Senate Version

The Senate bill—S. 448—only protects the identity of confidential sources and newsgathering material obtained upon a promise of confidentiality. It defines “protected information” as “(A) information identifying a source who provided information under a promise . . . of confidentiality . . . as part of engaging in journalism; or (B) any records, contents of a communication, documents, or information that a covered person obtained or created—(i) as part of engaging in journalism; and (ii) upon a [confidentiality] promise or agreement.” S. 448, §11(6). The bill leaves intact any common law protections available for sources or newsgathering information obtained in the absence of a confidentiality agreement. Id. §6(c).

S. 448 originally limited protection to "salaried employee[s]" and independent contractors for established news media organizations, but amendments in late October expanded coverage to reach anyone carrying out a reporter’s function. The bill now defines “covered person” as anyone who

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters . . . [; who] (ii) has such intent at the inception of the process of gathering the news or information sought; and (iii) obtains the news or information sought in order to disseminate the news or information by means of print . . . , broadcasting . . . , mechanical, photographic, electronic, or other means . . . .


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Id. §11(2)(A). The omission of language restricting the bill to salaried employees or independent contractors strongly suggests that the term “covered entity” reaches bloggers and non‐traditional and amateur journalists who gather news for dissemination to the public.

In a civil matter, the qualified privilege may be overcome if the federal court finds: (1) the party seeking disclosure has exhausted all reasonable alternative sources for acquiring the protected information; (2) the testimony or document sought is essential to resolution of the matter; and (3) the party seeking disclosure has established that the interest in compelling disclosure clearly outweighs the public interest in disseminating the news and the free flow of information. Id. § 2(a)(2)(B).

In a criminal matter, the qualified privilege may be overcome if the federal court finds: (1) the party seeking disclosure has exhausted all reasonable alternative sources for acquiring the protected information; (2) if the party seeking to compel disclosure is the Federal Government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that a crime has occurred; (3) based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution; (4) the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with section 50.10 of title 28, Code of Federal Regulations, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by section 50.10 of title 28, Code of Federal Regulations; and (5) the covered person has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure (including the extent of any harm to national security). Id. § 2(a)(2)(A).

S. 448 also contains several exceptions. For instance, the shield does not protect any information, record, document, or item obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the reporter. Id. § 3(a). This exception does not apply when the alleged criminal conduct is the act of communicating the documents or information at issue. Id. § 3(b). The shield also does not apply when the information sought is reasonably necessary to prevent or mitigate death, kidnapping, substantial bodily harm, or destruction of critical infrastructure. Id. § 4. Further still, there is an exception for cases where information is sought to prevent terrorist activity or harm to national security. Id. §5.

House Version


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The House bill—H.R. 985—is similar to the Senate’s version, but there are some important differences. Significantly, H.R. 985 extends the shield’s qualified privilege to any documents or information obtained during the newsgathering process, not just sources or material obtained in return for a promise of confidentiality. The bill states that a federal entity may not compel a covered person to “provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism.” H.R. 985, § 2(a).

H.R. 985 is less expansive than the Senate bill in terms of who enjoys the shield’s protection. It limits protection to those who gather news "for a substantial portion of the person's livelihood or for substantial financial gain." Id. § 4(2).1 This language would probably exclude many bloggers and student journalists, and even some freelancers who don't get paid well. The definition of “covered person” also excludes persons and organizations identified as foreign powers, agents of foreign powers, terrorists, and terrorist organizations. Id. § 4(2)(A)‐(E).

In a civil matter, the qualified privilege may be overcome if the federal court finds: (1) the party seeking disclosure has exhausted all reasonable alternative sources for acquiring the protected information; (2) the testimony or document sought is critical to the successful completion of the matter; and (3) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Id. § 2(a)(1), ‐(a)(2)(B), ‐(a)(4). With respect to the third element, H.R. 985 gives the court authority to consider the extent of any harm to national security in conducting the balancing test. Id. §2(b).

If the testimony or document sought could reveal the identity of a source, the privilege is only overcome if a court finds that disclosure is necessary to one of the following ends: (1) prevention (or identification of a perpetrator) of terrorism; (2) prevention of “significant and specified” national security harms; (3) prevention of substantial bodily harm or imminent death; (4) identification of someone who has disclosed a trade secret; or (5) identification of someone who “without authorization disclosed properly classified information and who at the time of such disclosure had authorized access to such information . . .” Id. §2(a)(3).

In a criminal matter, the qualified privilege may be overcome by the same showing as above, with the additional requirement that, based on information obtained from a person other than the covered person, (1) there are reasonable grounds to believe that a crime has

1 The House bill defines "covered person" as “a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person.” H.R. 985, §4(2).


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occurred; and (2) the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution. Id. § 2(a)(2)(A).

The House bill excludes from protection any information, record, document, or item obtained by the reporter as a result of eyewitness observation of alleged criminal conduct, or as a result of the commission of alleged criminal or tortious conduct by the reporter. The exception does not apply when the alleged criminal or tortious conduct is the act of transmitting or communicating the information, record, or document in question. Id. §2(e).

H.R. 985 contains a provision stating that the proposed federal shield will not apply to “civil defamation, slander, or libel claims or defenses under State law, regardless of whether or not such claims or defenses, respectively, are raised in a State or Federal court.” Id. § 2(d).


1

STATE SHIELD LAWS: AN OVERVIEW


The United States Supreme Court last addressed the constitutionality of a reporter’s privilege in Branzburg v. Hayes, 408 U.S. 665 (1972). The journalists in the consolidated Branzburg cases argued that the free flow of information would be chilled if they could not ensure the anonymity of sources.1 If a reporter’s privilege does not exist to protect journalists from disclosing unpublished information, they argued, sources will be less likely to speak and the First Amendment will be greatly harmed.2 Though sympathetic to their case, the court clearly held that (1) there is no privilege to refuse to appear before a grand jury until the government demonstrates a compelling need for the testimony; and (2) there is no privilege to refuse to answer questions that directly relate to criminal conduct that a journalist has observed and written about.3

Despite the 5‐4 ruling against a reporter’s privilege, the court did say that there is “merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards.”4 Nearly 40 years after Branzburg and as of November of last year, 37 states and the District of Columbia have some form of a shield law. Thirteen states do not and of those only 8 recognize a qualified reporter’s privilege based on their state constitutions, common law or the First Amendment. Of those states that do have a shield law or recognize a qualified privilege, the protection granted to journalists varies. The most contentious issues concern the scope of protection:

• Who is protected? Full‐time employees of larger, traditional media organizations, for example, or part‐time online journalists as well?

• What is protected? The identities of sources or notes and materials too? Are confidential and non‐confidential materials protected equally? Is an eye‐witness account of a journalist protected?

• How strong is the protection? What balancing tests do courts use when determining if a reporter’s privilege applies?

As states continue to enact and refine their shield laws, the answers to these questions become more clear. But the inconsistency among shield laws remains. Efforts to pass federal shield law legislation, though recently amplified, continue to stall and in the words of one court, Branzburg will not be overturned. Said the D.C. Circuit after rejecting a reporter’s privilege argument in 2006: “Unquestionably, the Supreme Court decided in Branzburg that there is no

1 Branzburg v. Hayes, 408 U.S. 665, 679‐81 (1972). 2 Id. 3 Id. at 708. 4 Id. at 706.


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First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court has spoken and never revisited the question. Without a doubt, that is the end of the matter.”5 When it comes to forcing journalists to testify, state law may be the last line of defense.

Who is Protected?

Maryland enacted the first state shield law in 1896, responding to the imprisonment of a Baltimore Sun reporter for refusing to reveal a confidential source to a grand jury. Technology changed considerably since then, providing new media through which journalists can report. While most shield laws protect print and broadcast journalists, states have been slow to include new media and bloggers.

Current shield laws largely focus on “traditional” forms of journalism. Alabama’s shield law, for example, protects only journalists at “any newspaper, radio broadcasting station or television station.”6 The same for Kentucky7 and Ohio.8 Florida’s shield law covers only those journalists who work as a salaried employee or independent contractor of “a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine.”9 The statute explicitly excludes book authors and those who are not professional journalists, meaning those who do not gather news for “gain or livelihood.”10 Georgia also excludes any journalist whose work is not published in a “newspaper, book, magazine, or [on] radio or television broadcast.”11 New York provides absolute protection for a journalist’s confidential information and sources;12 but a “journalist,” according to the state’s shield law, is only one who is paid for his or her reporting.13 In Texas, a journalist is one who gathers news “for a substantial portion of the person’s livelihood or for a substantial financial gain.”14

Legislation that defines a journalist by income or a particular type of media is nonsensical, wrote John Eden of the Partnership for a Secure America, a bipartisan foreign policy think tank.15 “In an era of instantaneous dissemination of information over the Internet

5 In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1147 (D.C. Cir. 2006). 6 Ala. Code § 12‐21‐142 (1986). 7 Ky. Rev. Stat. Ann. 421.100 (Baldwin 1990). 8 Ohio Rev. Code Ann. §§ 2739.04, §§ 2739.12 (Baldwin 1981 & 1990 Supp). 9 Fla. Stat. § 90.5015(1)(a) (1998). 10 Id. 11 Ga. Code Ann. § 24‐9‐30 (1993). 12 N.Y. Civ. Rights Law § 79‐h(b). 13 Id. at § 79‐h(a)(6). 14 H.B. 670, 81st Leg., Reg. Sess. (Tex. 2009). 15 John Eden, The Partnership for a Secure America, Fixing the Federal Shield Law, Sept. 24, 2009 http://blog.psaonline.org/2009/09/24/fixing‐the‐federal‐shield‐law/ (last visited April 6, 2010).


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by bloggers and other part‐time pundits, it’s hard to see why the privilege should be limited to journalists who are getting paid to collect news,” Eden said.16 “If what we care about is getting the most up‐to‐date, accurate information, why should it matter whether a blogger or a CNN reporter has delivered the news to us?”17

Whether or not an individual should be considered a journalist under shield laws “has to do more with the function that person is performing,” said Gregg Leslie, legal director for the Reporters Committee for Freedom of the Press.18 “If the blogger’s involvement is to report information to the public and to gather information for that purpose openly then they should be treated like a journalist.”19

There are several bills sitting in state legislatures that would extend shield law protection to bloggers. Massachusetts, one of the states without a shield law, is currently debating a bill that defines a journalist by his or her actions — engagement in “bona fide news gathering” — rather than for whom the journalist is employed.20 It also describes the “news media” not as a traditional print or broadcast entity, but as any organization that “is in the regular business of news gathering and disseminating news or information to the public by any means, including but not limited to, print broadcast, photographic, mechanical, internet, or electronic distribution (emphasis added).”21 New York considered an extension of its current shield law to “journalist bloggers.”22 Its law now covers only print, broadcast and wire services.23 Kansas is on the verge of passing perhaps the most progressive shield law, one that explicitly provides coverage to “online journal[s]” that are engaged in “the regular business of newsgathering and disseminating news or information to the public.”24 The bill offers protection based primarily on whether an individual engages in journalism, not whether he or she is a professional journalist.25 That means student journalists could be covered as well.

In Hawaii, it doesn’t matter. That state protects those whom disseminate information to the public “by means of tangible or electronic media.”26 Though the wording of California’s

16 Id. 17 Id. 18 The First Amendment Center, Blogging Overview, http://www.firstamendmentcenter.org/press/ topic.aspx?topic=blogging, (last visited April 6, 2010). 19 Id. 20 Massachusetts House Bill 1650 §2 (2009) 21 Id. 22 Sewell Chan, The New York Times, Bill Would Extend Shield Law to Cover Bloggers, May 20, 2009 http://cityroom.blogs.nytimes.com/2009/05/20/bill‐would‐extend‐shield‐law‐to‐cover‐bloggers/ (last visited April 7, 2010). 23 New York Civil Rights Law Article 7 § 79‐h. 24 Kansas Senate Substitute for House Bill No. 2585 (2010). 25 Id. 26 Hi. ALS 210 (2008).


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shield law implies coverage for traditional media only, a 2006 ruling extended that coverage to online news sites as well.27 Nebraska’s Free Flow of Information Act is one of the more liberal. Its shield law doesn’t use the word “journalist” at all but instead protects any “person engaged in procuring, gathering, writing, editing, or disseminating news or other information.”28 The types of media covered by the statute include, but are not limited to, “any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”29

This type of statute begs the question: Why define “news media” at all? A broad definition of “professional journalist” may be the only thing that’s needed, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.30 Critiquing New York’s recent effort to expand its shield law last year, Dalglish noted that “blogging is a technology and a method of delivery.”31

“Some people are doing valuable journalism when they blog. Others do not,” she said.32 “What you are trying to protect is the journalism function, not the technology or the platform.”33

What is Protected?

The most narrow shield laws and interpretations of a reporter’s privilege protect journalists only against the disclosure of anonymous sources. The most broad also protect them from disclosing confidential and non‐confidential materials, published and unpublished information, eye witness accounts and details about their news organization’s editorial process.

“The sources are not the only things sought in these forays into reporting practices and newsroom procedures,” wrote the First Amendment Center’s Paul McMasters in 2004.34 “Federal officials also have gone after telephone records and reporters’ notes and reportedly

27 See O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (holding that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online.) 28 Neb. Rev. Stat. §§ 20‐146 (1992). 29 Id. at §§ 20‐145(2). 30 Sewell Chan, The New York Times, Bill Would Extend Shield Law to Cover Bloggers, May 20, 2009 http://cityroom.blogs.nytimes.com/2009/05/20/bill‐would‐extend‐shield‐law‐to‐cover‐bloggers/ (last visited April 7, 2010). 31 Id. 32 Id. 33 Id. 34 Paul K. McMasters and Geoffrey R. Stone, The First Amendment Center, Do Journalists Need a Better Shield?, Dec. 14, 2004, http://www.firstamendmentcenter.org/commentary.aspx?id=14547 (last visited April 7, 2010).


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have tried to enlist journalists as informants, get certain information from being reported and forced reporters off of stories they have covered for months or years.”35

Kentucky’s shield law is one of the more narrow, only protecting journalists from disclosing the “source of any information procured or obtained.”36 There is no protection from disclosing notes or eyewitness accounts unless doing so would identify a confidential source.37 Louisiana,38 Ohio39 and Pennsylvania40 have similar statutes. Though Colorado’s shield law protects journalists from disclosing “any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson,” there are several exceptions.41 The privilege of non‐disclosure doesn’t apply to information received at a press conference, previously published or broadcast or based on the journalist’s personal observation of a crime.42

Many states, however, protect not just materials related to confidential sources, but all materials produced while gathering news. Under Montana’s shield law, for example, no journalist is required “to disclose any information obtained, or prepared or the source of that information.”43 New Mexico,44 Tennessee,45 Rhode Island46 and Washington47 offer similar protection. While some state courts distinguished confidential information (more coverage) from non‐confidential information (less or no coverage),48 journalists in North Carolina can claim protection for both under its shield law.49 North Dakota offers just as broad protection, preventing the disclosure of any information or source, unless a district court determines that “the failure of disclosure of such evidence will cause a miscarriage of justice.”50 Several states believe such a miscarriage of justice would occur if their respective shield laws applied in defamation cases. Illinois,51 Oregon,52 Rhode Island53 and Tennessee54 all prevent a journalist from using any type of reporter’s privilege as a defense .

35 Id. 36 Ky. Rev. Stat. Ann. 421.100 (Baldwin 1990). 37 See Maddox v. Williams, 23 Med. L. Rptr. 2118 (Ky. Cir. Ct. 1995). 38 La. Rev. Stat. Ann. §§ 45:1451‐1459 (West 1992). 39 Ohio Rev. Code Ann. §§ 2739.04, §§ 2739.12 (Baldwin 1981 & 1990 Supp.). 40 42 Pa. C.S.A. § 5942 (1993). 41 Colo. Rev. Stat. Ann. § 13‐90‐119(2). 42 Id. 43 Mont. Code Ann. §§ 26‐1‐902. 44 N.M. Stat. Ann. § 38‐6‐7 (Michie 1987). 45 Tenn. Code Ann., Title 24, Ch. 1, Part 2, § 24‐1‐208 (1996). 46 R.I. Gen. Laws, Title 9, §§ 9‐19.1‐3(b)(1). 47 Wash. Rev. Code § 5.68.010. 48 See State v. Turner, 550 N.W.2d 622 (Minn. 1996); CBS Inc. v. Jackson, 578 So.2d 698, 700 (Fla. 1991); Marketos v. American Employers Ins. Co., 185 Mich. App. 179 (1990). 49 N.C. Gen. Stat. Ch. 8, Art. 7 § 8‐53.9 (1999). 50 N.D. Cent. Code § 31‐01‐06.2 (1991). 51 735 ILCS 5/8‐901‐909.


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Federal courts generally hold that the First Amendment does not excuse reporters from testifying about eyewitness observations. This finding of law is often reflected in state shield laws. North Carolina, for example, doesn’t offer journalists a privilege against “disclosure of any information, document, or item obtained as the result of the journalist’s eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.”55 New Jersey’s otherwise broad shield law expressly prohibits protection to journalists testifying about eyewitness observations of “any act of physical violence or property damage.”56 The limitation, however, is narrowly construed and doesn’t apply to observations of the aftermath of such crimes.57

How Strong is the Protection?

Very few shield laws are absolute. New York, for example, provides absolute protection for confidential information and “related material” gathered by the journalist under an express agreement of confidentiality.58 A balancing test is used, however, when determining if non‐confidential information should be disclosed.

The dissent in Branzburg endorsed such a balancing test, or qualifications to a reporter’s privilege: When a grand jury asks a reporter to reveal confidences, the government should have to: (1) demonstrate probable cause to believe that the reporter has information clearly relevant to a specific probable violation of law; (2) demonstrate that the information cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.59 This opinion reflected an influential decision by the Second Circuit 14 years earlier in Garland v. Torre, 259 F.2d 545 (1958), in which the court laid out its own test: To overcome privilege and obtain compelled disclosure, a litigant must make a clear and specific showing that the information sought is: (1) highly material and relevant to the underlying claim; (2) necessary or critical to maintenance of the claim; and (3) unavailable from alternative sources.

States have considered these tests — most often the Garland factors — when balancing their own shield laws with governmental interests. When dealing with non‐confidential information, New York uses a test nearly identical to that in Garland.60 Texas, which passed its shield law last year, uses a six‐part test that includes showing that the subpoena is not

52 Or. Rev. Stat., Title 4, Ch. 44, §§ 44.530(3). 53 R.I. Gen. Laws, Title 9, §§ 9‐19.1‐3(b)(1). 54 Tenn. Code Ann., Title 24, Ch. 1, Part 2, § 24‐1‐208 (1996). 55 N.C. Gen. Stat. Ch. 8, Art. 7 § 8‐53.9 (1999). 56 N.J.S.A. 2A:84A‐21a(h). 57 See Matter of Woodhaven Lumber & Mill Work, 123 N.J. 481 (1991). 58 N.Y. Civ. Rights Law § 79‐h(b). 59 Branzburg v. Hayes, 408 U.S. at 743 (Stewart, J., dissenting). 60 N.Y. Civ. Rights Law § 79‐h(c).


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overbroad, that timely notice was given to the journalist and that “the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of journalists.”61

Generally, if the party seeking information fails to fulfill any of the Garland factors, the privilege is upheld. Other courts find that if so many as one factor isn’t satisfied, none are. There are certain circumstances that tend to favor disclosure: if upholding the privilege would infringe the constitutional rights of the defendant, if the information request has already been published or if the information is not confidential. The tests are fact‐intensive and can lead to unpredictability across jurisdictions. In absence of a federal shield law, this is what makes discrepancies among state statutes so concerning.

Following Branzburg, “a host of different approaches were adopted at the state and federal levels,” wrote First Amendment scholars James Thomas Tucker and Stephen Wermiel in their defense of a federal shield law.62 “What has resulted is a lack of uniformity and uncertainty that can lead to different results for the same set of facts.”63

61 H.B. 670, 81st Leg., Reg. Sess. (Tex. 2009). 62 James Thomas Tucker and Stephen Wermiel, Enacting a Reasonable Shield Law: A Reply to Professors Clymer and Eliason, 57 AM. U.L. REV. 1291, 1298 (2008). 63 Id.

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The Georgia Open Records ActCaselaw Summary

Lesli N. GaitherDow Lohnes, [email protected]

Coupled with the Open and Public Meetings Act (O.C.G.A. § 50-14-1 through § 50-14-60), the Georgia Open Records Act (O.C.G.A. § 50-18-70 through § 50-18-76) is an invaluable tool for journalists and citizens seeking to inspect government records in Georgia. In fact, the Open Records Act starts with the presumption that records are “open for a personal inspection by any citizen of this state, and those in charge of such records shall not refuse this privilege to any citizen.” O.C.G.A. § 50-18-70(b).

As summarized below, since its passage in 1959, the Open Records Act has been subject to numerous opinions addressing its scope and application.

1959 General. Bradford v. Bolton, 215 Ga. 188, 192 (1959) (Head, J.):* Notes that the Open Records Act had not yet been enacted at the time the

action was filed.

1971 Attorney-client privilege. Crow v. Brown, 332 F. Supp. 382, 389 n.5 (N.D. Ga. 1971) (Edenfield, J.), aff’d, 457 F.2d 788 (5th Cir. 1972):* Rejects county’s contention in housing discrimination suit that memoranda

written by the county attorney are inadmissible as protected by the attorney-client privilege; the court stated that only confidential attorney-client communications are so protected whereas these memoranda are Fulton County records and open to public inspection pursuant to the Open Records Act.

1974 Election petitions. Rentz v. City of Moultrie, 231 Ga. 579 (1974) (Jordan, J.):* Citizens have a right pursuant to the Open Records Act to view election

petitions.* Ingram, J., dissented as to other aspects of the decision.

1976 Law enforcement records. Houston v. Rutledge, 237 Ga. 764 (1976) (Gunter, J.):* Suit for access to files maintained by the Columbus, Georgia Sheriff

relating to the deaths of inmates in the jail under his supervision.* The Court rejected the Sheriff’s argument and the decision of the trial

court (Land, J.) that the Open Records Act make public only papers and records required to be prepared and maintained by statute. Rather, all documents, papers, and records prepared and maintained in the course of the operation of a public office are “public records.”

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* The Court held that records made and maintained in the course of a pending investigation should not in most instances be available for inspection by the public. However, “once an investigation is concluded and the file closed, either with or without prosecution by the state, such public records in most instances should be available for public inspection.” If a public official nevertheless refuses to do so, “the judiciary must balance the interest of the public in favor of inspection against the interest of the public in favor of non-inspection....”

* The Court noted that “in our construction of this [the Open Records Act] statute we have attempted to apply First Amendment principles which favor open, unfettered communication and disclosure except where some limitation thereon is required in the public interest.”

* Justice Ingram concurred, stating “I would make it clear that, since the files here involved have been determined to be public files, there is a strong presumption that they should be made available for public inspection immediately. ... [U]nless the sheriff on remand can show some persuasive reason why the files should not now be made available for public inspection, I believe we have a duty under the First Amendment to the United States Constitution and Code Ann. § 40-2701 to require the files to be made available for public inspection without further delay.”

* Justice Jordan dissented without opinion.

1978 Civil investigative records. Northside Realty Associates v. Community Relations Commission, 240 Ga. 432 (1978) (Marshall, J.):* Suit for access to records compiled by the Community Relations

Commission in the course of conducting a racial discrimination “testing” campaign.

* The Court made clear, as Justice Ingram had indicated in a concurring opinion in Houston v. Rutledge, that once a request for identifiable public records is made, “the burden is cast on the [records’ custodian] to explain why the records should not be furnished.” The case was remanded to the trial court (Wofford, J.) to allow it to balance the public interest in disclosure v. nondisclosure.

1978 Ambulance service records. Griffin-Spalding County Hospital Authority v. Radio Station WKEU, 240 Ga. 444 (1978) (Nichols, J.):* Suit by a radio station for access to records relating to a public hospital’s

ambulance service.* Court affirmed the order of the trial court (Whalen, J.) that the

information, with the exception of patient medical records, be produced; and ordered that the hospital separate the confidential from the non-confidential information

1979 Board of medical examiners records. Morton v. Skrine, 242 Ga. 844 (1979) (Hall, J.):* Suit by a doctor pursuant to the Open Records Act against the state board

of medical examiners for access to the board’s investigatory file on him.

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* The Court affirmed the trial court (Weltner, J.), holding that access was prohibited by another law making such medical investigation reports confidential.

1979 Law enforcement records. Brown v. Minter, 243 Ga. 397 (1979) (Undercofler, J.):* Suit by newspaper editor for access pursuant to the Open Records Act to

certain records representing completed investigations by the Internal Investigation Unit of the Atlanta Police Department.

* The Court held that the trial court (Fryer, J.) had properly afforded access to most of the documents, withholding only limited records on the ground that they would disclose information regarding on-going investigations, etc.

* The Court reaffirmed that the burden of justifying non-disclosure is on the government.

1980 Privacy interests. Athens Observer, Inc. v. Anderson, 245 Ga. 63 (1980) (Undercofler, J.):* Suit by an Athens newspaper for access pursuant to the Open Records Act

to a report commissioned by the vice-president of research and the Dean of the College of Arts and Sciences of the University of Georgia.

* The Court affirmed that portion of the decision of the trial court (Gaines, J.) holding that the report was a public record and reversed that portion approving only the release of only an edited version. The Court held that the entire report was a public record and had to be produced.

* The Court rejected contentions by the State that the report constituted personnel information and that its disclosure would constitute an invasion of privacy. It stated that the right of privacy does not protect “legitimate inquiry into the operation of a government institution and those employed by it. On the contrary, the public policy of this state has been clearly expressed by the legislature in adopting the Open Records Act. The purpose is not only to encourage public access to such information in order that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions, but also to foster confidence in government through openness to the public. That the information may comment upon certain public officials’ performance of their official duties does not warrant suppression by the courts.”

* Finally, the Court held that the state’s assertion that “such reports must be protected in order to assure candid assessments by evaluators does not overcome the need for the public to obtain the reported information.”

* Justice Jordan, joined by Justices Bowles and Marshall, dissented, arguing that “[t]he documents here sought are merely written evaluations or opinions of an outside group of experts. Until acted on officially by university officials such material does not assume the status of a public ‘record’ or writing.”

1980 Housing Authority records. Doe v. Sears, 245 Ga. 83 (1980) (Nichols, J.):

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* Suit by newspaper editor for access pursuant to the Open Records Act to “certain computer printouts kept by the Atlanta Housing Authority as part of its business records,” containing the names, addresses, sources of income and rents owed by tenants.

* The Court held that the Act clearly applied to the Housing Authority. It further held that the “underlying implication” of the Act is that all records are open to inspection unless closed by a “specific exception.” The Court thus held that the printouts were public records.

* The Court rejected the decision of the trial court (Eldridge, J.) to not reveal, on grounds of privacy, names and addresses of tenants whose rents were delinquent by less than 6 months. The Court stated: “This court holds today that the general public properly is concerned with whether or not public housing tenants are paying their rentals when due. Accordingly, we hold that each of the tenants impliedly waived whatever constitutional, statutory or common law rights of privacy he may have had in the status of his rental account and the amounts and sources of his income when he allowed his rental account to become unpaid when due.”

1980 Citizenship requirement. Atchison v. Hospital Authority of the City of St. Mary’s, 245 Ga. 494 (1980) (Clarke, J.):* Suit by an employee of a Florida newspaper for access pursuant to the

Open Records Act to business telephone records of a public hospital.* The Court reversed the refusal of the trial court (Scoggin, J.) to afford

access.

1984 Public hospital records. Richmond County Hospital Authority d/b/a University Hospital v. Southeastern Newspapers Corporation, 252 Ga. 19 (1984) (Smith, J.):* Suit by two newspapers for access pursuant to the Open Records Act to

information identifying the names, salaries, and job titles of public hospital employees earning more than $28,000 annually.

* In affirming the order of the trial court (Fleming, J.) compelling access, the Court stated that “[t]he public has a legitimate interest in the operation of this institution and the salaries paid to those employed there.” The Court found speculative the hospital’s predictions that highly qualified staff would go elsewhere and morale would plummet if salaries were disclosed. The Court found such speculation clearly insufficient to overcome “the strong public policy of this state in favor of open government.”

1984 Tax records. Pensyl v. Peach County, 252 Ga. 450 (1984) (Hill, J.):* Suit by a taxpayer for access pursuant to the Open Records Act to certain

tax information on residences adjoining his.* The Court affirmed the order of the trial court (Wilcox, J.) that the records

be disclosed, noting: “The General Assembly has seen fit to exempt intangible personal property and other tax records from the open records law but has not seen fit to exempt ad valorem property tax records. We

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are unwilling to extend the exemption to tax records which the General Assembly has not seen fit to exclude.”

* Justice Smith dissented without explanation.

1984 Law enforcement records. Irvin v. Macon Telegraph Publishing Company, 253 Ga. 43 (1984) (Gregory, J.):* Suit by the Macon Telegraph against the Commissioner of Agriculture and

the Director of GBI for access pursuant to the Open Records Act to records of GBI investigations concerning the conduct of several employees of the State Farmers’ Market in Macon.

* The Court affirmed the order of the trial court (Vaughn, J.) that the records be disclosed. The Court rejected claims that the records were personnel records and that the public interest in non-disclosure outweighed the public interest in disclosure. In doing so, the Court agreed with the trial court’s conclusion that “the public has an overriding interest in learning the results of the GBI investigation and the administrative law judge’s review of certain of these results. Specifically, the trial court found the public has an interest in learning ‘about the operation and functioning of a public agency, namely the State Farmer’s Market at Macon, and the work-related conduct of public employees; [in gaining] information [to] evaluate the expenditure of public funds and the functioning of a public institution or agency; [in having] information openly available to them so that they can be confident in the operation of their government; and [in insuring] that both the activity of public employees suspected of wrongdoing and the conduct of those public employees who investigate the suspects is open to public scrutiny.”

* Justice Marshall, joined by Justice Smith, dissented, “for the reasons set forth in Justice Jordan’s dissent in Athens Observer.”

1986 Law enforcement records — State patrol ticket-fixing. Harris v. Cox Enterprises, Inc., 256 Ga. 299 (1986) (per curiam):* Suit by The Atlanta Journal-Constitution for access to the GBI’s report on

its investigation of the Georgia State Patrol.* The Court affirmed the decision of the trial court (Daniel, J.) that the

records be produced, reiterating the state’s “strong policy of open government” and the Court’s prior holdings that “information reflecting upon an individual’s performance of official duties would not be exempt from open records.”

1986 Athletic association records. Macon Telegraph Publishing Company v. Board of Regents of the University System of Georgia, 256 Ga. 443 (1986) (Bell, J.):* Suit by the Macon Telegraph for access pursuant to the Open Records Act

of records showing the assets, liabilities, income and expenses of the University of Georgia Athletic Association.

* The Court reversed the order of the trial court (Pierce, J.) denying access, concluding that “regardless of whether the documents are prepared by employees of a private Athletic Association or by Dr. Barber as Treasurer

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of that Association, it is clear that they are ‘documents, papers and records prepared and maintained in the course of the operation of a public office,’ and are therefore ‘public records’ under the Open Records Act.”

1987 Law enforcement records — Wayne Williams files. Napper v. Georgia Television Company, 257 Ga. 156 (1987) (Marshall, J.):* Suit by The Atlanta Journal-Constitution, WSB and ABC News for access

to the City of Atlanta’s investigative files on the Atlanta child murders.* The Court affirmed the decision of the trial court (Alverson, J.) that the

files were public records and should be produced, but held that “the trial court should have deleted from the files information identifying individuals who were investigated but not charged with or prosecuted for a crime, as well as information which would prove personally embarrassing to individuals who were not the targets of the investigation, unless the trial court determines that ‘exceptional interests militate in favor of disclosure.’

* Judge Alverson found such exceptional interests on remand and ordered production, with few deletions.

* On remand, Judge Alverson also awarded attorney’s fees to The Atlanta Journal-Constitution, WSB and ABC News.

* F.B.I. records in local police custody. An order entered in a separate, federal action preventing disclosure of such records in the City’s files that originated from the FBI was affirmed by the United States Court of Appeals for the Eleventh Circuit in United States v. Napper, 887 F.2d 1528 (11th Cir. 1989).

1989 Attorney-client privilege. Atlanta Legal Aid v. City of Atlanta, No. D14722 (Fulton County Superior Court, Apr. 14, 1989) (Sears-Collins, J.):* Suit by Atlanta Legal Aid for access pursuant to the Open Records Act to

the City’s records of its investigation of corruption in the City’s housing rehabilitation program. The Atlanta Journal-Constitution filed an amicus brief on Atlanta Legal Aid’s behalf on April 12, 1989.

* On April 14, 1989, Judge Sears-Collins ordered the City to produce the records, rejecting the City’s claim that since the records were compiled by the City Attorney they were exempt from disclosure as attorney-client privileged.

1989 Public university presidential search records. Board of Regents v. The Atlanta Journal & The Atlanta Constitution & Glenn McCutchen, 259 Ga. 214 (1989) (Weltner, J.):* Suit by The Atlanta Journal-Constitution for access to records as to

candidates being considered by the Regents for the presidency of Georgia State University.

* On March 24, 1989, Judge Langham ordered that the records be produced, with the exception of confidential evaluations prepared by the Regents and letters of recommendation prepared by third parties.

* On April 25, 1989, the Court affirmed Judge Langham’s order, rejecting the Regents’ contentions (1) that the Board is not subject to the Act, (2)

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that all presidential search records are exempt from disclosure as “confidential evaluations,” and (3) that the public interest in nondisclosure of such records outweighs the public interest in disclosure. The Court noted that “it would make for a strange rule, indeed, to hold that a person who applies for a public position — to serve the public and to be paid by the public — has the right to keep secret from the public the very existence of such an application.”

* Justice Clarke concurred, emphasizing the statutory mandate that exceptions to the Open Records Act must be construed narrowly.

* Justice Gregory concurred, noting that the Open Records Act exception for confidential evaluations of candidates for public employment and the Open Meetings Act exception for meetings to consider candidates for public employment are in harmony: “What both protect from disclosure is the give and take among decision makers so that they may make candid and difficult comparisons of the qualifications of candidates for public office and employment, and their performance once selected. ... This does not mean however that the identity and other information about candidates, officials, and employees is exempted.”

* Justice Marshall, joined by Justice Smith, dissented, arguing (1) that the Open Meetings Act exception for meetings to consider candidates for public employment should be read to exclude disclosure under the Open Records Act of any records maintained in connection with a presidential search and (2) that the public interest favored nondisclosure.

* Justice Bell dissented without opinion.

1989 Law enforcement records. Parker v. Lee, 259 Ga. 195 (1989) (Bell, J.):* Open Records Act exemption for law enforcement records compiled in a

pending investigation applies only when there is an “imminent adjudicatory proceeding[] of finite duration.” Fact that death row inmate could be tried for alleged rape, for which an indictment against him is outstanding, does not justify non-release of records.

* The fact that the person requesting the records is a death row inmate is irrelevant. There is “no reason to distinguish [a death row inmate’s] (or any other individual citizen’s) right of access from news organizations’ right of access.”

* Justice Marshall, joined by Justice Smith, dissented.

1989 Records of quasi-public entities — The Atlanta Convention and Visitors Bureau. The Atlanta Journal & The Atlanta Constitution & Glenn McCutchen. v. The Atlanta Convention and Visitors Bureau, Inc., No. D63684 (Fulton County Superior Court, Mar. 14, 1989) (Eldridge, J.):* Suit for access pursuant to the Open Records Act to records of The Atlanta

Convention and Visitors Bureau, Inc.* On March 14, 1989, the trial court held that the Bureau is subject to the

Open Records Act because of its public function (promoting tourism and convention business for the City) and because it receives over half of its funds from hotel/motel taxes and ordered the Bureau to disclose records as

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to its expenditure of these funds. The trial court also held that the Bureau is not required to disclose records as to its expenditure of funds received from other sources.

* The Bureau appealed and The Atlanta Journal-Constitution cross-appealed and the order was stayed pending their outcome. In the fall of 1989, the Georgia Supreme Court affirmed without opinion. 259 Ga., XXX.

1989 Coroner’s inquest. Kilgore v. R. W. Page Corp., 259 Ga. 556 (1989) (Weltner, J.):* Access to coroner’s records is governed by the Open Records Act.

1989 Insurance information. Evans v. Belth, 193 Ga. App. 757 (1989) (Birdsong, J.):* O.C.G.A. § 33-2-8.1(c) requires withholding from public inspection of any

and all information acquired by the Insurance Commissioner from the National Association of Insurance Commissioners, provided the same was obtained under expectation of privacy by the Association at the time of information release to the Commissioner.

* The section overrides the Open Records Act and applies retroactively to documents obtained prior to the section’s effective date, April 10, 1989.

1990 Incident reports. Cook Publishing Company, Inc. v. Charles W. Bryant, individually and in his capacity as Sheriff of Cook County, Georgia, No. CV89-162 (Cook County Superior Court, Mar. 19, 1990) (Knight, J.):* Suit against sheriff for access to incident reports.* Based upon sheriff’s testimony “that he and his deputies are ready and

willing to provide all future incident reports requested,” newspaper’s motion for injunctive relief denied.

1990 Child abuse records. The Atlanta Journal and Constitution and Glenn McCutchen v. Georgia Department of Human Resources, No. D-73733 (Fulton County Superior Court, Apr. 20, 1990) (Hicks, J.):* Suit for access to records of reports of child abuse and deprivation

concerning children who died while under the protection of the State in 1988 and 1989.

* On April 20, 1990, the trial court ordered the records produced to The Journal-Constitution but ordered the newspaper not to disclose certain identifying information in the records.

1990 Hospital accreditation records. Georgia Hospital Association v. Ledbetter, 260 Ga. 477 (1990) (Clarke, J.) (Fletcher, J., with Smith, J., dissenting):* Declaratory judgment action brought by the Georgia Department of

Human Resources for an adjudication of the open records status of DHR records on the accreditation of hospitals, public and private, throughout the state.

* The Atlanta Journal-Constitution and The Gwinnett Daily News intervened to seek access and the trial court (Langham, J.) ordered the records opened to the public.

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* The Supreme Court affirmed, holding that “[t]he public has a legitimate interest in the records which make up the DHR’s hospital licensing decisions.”

1990-91 Public university coaches income records. Dooley v. Davidson and The Atlanta Journal and The Atlanta Constitution, 260 Ga. 577 (1990) (Weltner, J.); Cremins v. The Atlanta Journal and The Atlanta Constitution, 261 Ga. 496 (1991) (Fletcher, J.):* Suits involving requests by The Atlanta Journal-Constitution for access

pursuant to the Open Records Act to records of athletically-related income (shoe contracts, radio and television shows, etc.) of athletic coaches at the University of Georgia and Georgia Tech.

* In Dooley, the Court concluded that certain records reflecting the athletically-related “outside” income of University of Georgia athletic coaches were “public records” although they were neither on file with the University nor were they ever seen by the University President. The Court found that the records were prepared and maintained or received in the course of the operation of the University and Athletic Association because Board of Regents policies and NCAA rules required the coaches to report such income to the President and in some cases required the President’s prior approval of the activity.

* The Court established that the following categories of records are required to be disclosed under the Act:(1) Records in the hands of employees that pertain to the receipt of

athletic equipment and apparel;(2) Records of outside income received in connection with the

operation of the university and the [athletic] association; and(3) Records in the hands of employees that have been prepared for the

purpose of complying with reporting requirements relating to specified income.

* The Court also held that records relating to money received for speaking appearances “unconnected with and not in conflict with the performance of an official duty” are not public records.

* Chief Justice Clarke and Presiding Justice Smith dissented. Each would limit the definition of “public record” to those required to be maintained by law or those actually on file at the public office or agency.

* After Dooley, Fulton Superior Court Judge Frank Hull granted the Newspapers’ motion for summary judgment in an identical case involving athletic coaches at Georgia Tech.

* On July 3, 1991, the Georgia Supreme Court affirmed.

1991 Police investigatory files. McBride v. Wetherington, 199 Ga. App. 7 (1991) (Cooper, J.):* Appeal from trial court order denying appellant’s claims that police

department had improperly refused to grant him access to investigatory records and seeking copies of those records free of charge based on appellant’s indigence.

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* The appellate court affirmed. The court held that O.C.G.A. § 50-18-72(a)(4) does not require a police department to turn over investigatory records when there is an ongoing investigation and, in any event, the records were later made available.

* The court held that a copying fee of 25 cents per page was allowed by O.C.G.A. § 50-18-71(c) and that the statute contained no provision for excusal of payment upon filing of a pauper’s affidavit.

1991 Car telephone records. Dortch v. The Atlanta Journal and The Atlanta Constitution, 261 Ga. 350 (1991) (Fletcher, J.) (Smith and Benham, JJ., dissenting):* Suit for access to unredacted copies of City of Atlanta car telephone

records.* On September 19, 1990, the trial court (Sears-Collins, J.) ordered the

records produced.* Notwithstanding that some of the calls made were personal calls for which

the public official reimbursed the City, the Court held that personal information that is intermingled or co-mingled with official public documents or information that is being maintained by a city agency is subject to disclosure under the Open Records Act.

* In response to the City’s claim that some of the telephone numbers of persons on city cellular phones might be unlisted, the Court held that “[e]ven if we were to hold that publication of unlisted telephone numbers involved disclosure of secret or private facts, we cannot say, in the circumstances presented here, that such disclosure would be so offensive or objectionable to a reasonable man as to constitute the tort of invasion of privacy.”

* The Court further held that records reflecting the numbers of the City-owned cellular telephones must be disclosed notwithstanding the fact that “this could result in increased telephone bills” by virtue of calls made to the cellular phone. “While we understand the potential financial problems that disclosure of the cellular telephone numbers could create, there is presently no exemption for such records under the Act. Any such remedy must come from the General Assembly.”

1991 Psychiatric records. Southeastern Legal Foundation v. Ledbetter, 260 Ga. 803 (1991) (Fletcher, J.):* Suit by news organizations and the Southeastern Legal Foundation for

access to records prepared and maintained or received by the State regarding the commitment, diagnosis, treatment and release of James Calvin Brady. On April 24, 1990, less than 24 hours after Brady’s release from a State mental facility where he had been diagnosed as having homicidal tendencies, Brady gunned down five persons at random in a major Atlanta metropolitan shopping mall.

* On May 1, 1990, the trial court (per Coursey, P.J.) denied motions for access to the records without prejudice, concluding that “[b]ased on the limited facts which have been presented, this court finds that Mr. Brady’s

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privacy interest in his records outweighs the interest of the public at this time.”

* On June 13, 1990, the trial court (Castellani, J.) denied renewed motions for access despite public disclosure by Brady’s attorney of portions of the records sought and despite public statements by Brady’s attorney that “Mr. Brady is not interested in privacy. He wants the world to know.”

* On appeal, the Supreme Court, per Justice Fletcher, affirmed. The Court held that the records sought were “clinical records” which are specifically made confidential by the Mental Health Code, O.C.G.A. § 37-3-1(2). As a result, the records are exempt under the Act as “records ... which by law are prohibited or specifically exempted from being open to inspection by the general public.”

* The records at issue were subsequently disclosed in the course of the criminal proceedings against Mr. Brady.

1991 Attorney’s fees. GMS Air Conditioning, Inc. v. Georgia Dep’t of Human Resources, 201 Ga. App. 136 (1991) (Pope, J.):* Where a case presented factual issues as whether the defendant agency,

though it produced documents plaintiff requested after a lawsuit was filed, violated the Open Records Act by not producing them before the suit was filed and whether the violation, if any, was “completely without merit as to law or fact,” the trial court (Cummings, J.) erred in granting summary judgment for the agency on plaintiff’s attorney’s fees claim.

1991 Executive search records. The Atlanta Journal and The Atlanta Constitution v. Atlanta Convention and Visitors Bureau, Inc. and Spencer Stuart and Associates, Inc., No. S91A1200 (Ga. 1991):* Suit for access to records reflecting the names, resumes and vitae of

candidates for President of the Atlanta Convention and Visitor’s Bureau, a private non-profit corporation which receives over 60% (nearly $6 million) of its annual budget from tax revenues. To conduct the search, the Bureau retained an executive search firm, Spencer Stuart, at a cost of $30,000.

* On June 3, 1991, the trial court (Johnson, J.) issued an order holding that records sent directly to the Bureau were public records, but records which were prepared and retained by Spencer Stuart, although disclosed to and utilized by the Bureau members, were not public records.

* Appeal dismissed as premature. The Newspapers subsequently dismissed the action after enactment of certain revisions to the Act.

1991 Tax appraisals. Douglas v. Pope, No. D-86301 (Fulton County Superior Court, Apr. 12, 1991) (Alverson, J.):* Held that O.C.G.A. § 48-5-314 is not a blanket prohibition against the

production pursuant to the Open Records Act of materials held by boards of tax assessors but rather was intended only to protect from disclosure materials, except the return, provided by taxpayers to the tax assessors office, such as taxpayer accounting records, profit and loss statements,

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income and expense statements, balance sheets, depreciation schedules, and like materials.

* “The purpose of the confidentiality provisions of O.C.G.A. § was to protect the privacy of individual taxpayers, not to protect the board of tax assessors and its agents from public scrutiny as to their procedures, their activities, and methods of assessing property.”

* Attorney’s fees awarded to plaintiff.

1991 Charges for agency attorney time spent reviewing Open Records Act requests. Trammell v. Martin, 200 Ga. App. 435 (1991) (Pope, J.):* Suit for access to bills for legal services performed for and paid by

Clayton County. Defendant county finance director attempted to charge plaintiff for the cost of attorney time spent reviewing the bills for exempt information. The trial court held that such a charge was not permitted under the Act.

* The Court affirmed on appeal holding that the evidence showed “that defendant wrongly planned to charge plaintiff for attorney time required to review the requested documents for information exempt from disclosure. The trial court corrected this violation by ruling plaintiff could not be charged for that service since it is not a charge authorized under OCGA § 50-18-71.”

* The Court also held that agencies must use the most “economical means available for providing copies of public records” and remanded the case for a determination of whether the county had done so.

1991 Complaints concerning agency employees. The City of St. Mary’s v. Camden Newspapers, No. 91V0420 (Superior Court of Camden County, July 25, 1991; Aug. 20, 1991), sum. aff’d, (Ga.):* Suit for access to complaint filed by City employee complaining of

harassment by City council member. The request was made more than 10 days after the complaint had been filed with the City.

* The trial court (Taylor, J.) held that the complaint was not exempt from disclosure since the complaint had been presented more than 10 days previously and the City’s investigation had terminated. Nor was the complaint protected from disclosure by virtue of privacy interests asserted either by the council member or the complaining employee.

1992 Criminal enforcement. Jersawitz v. Eldridge, 262 Ga. 19 (1992) (Bell, J.):* District Administrative Judge of the Fifth Judicial District and Chief Judge

of the Atlanta Judicial Circuit (Eldridge, J.) lacked authority to issue an order interpreting the Open Records Act as not permitting a private citizen to swear out an arrest warrant against a public official for violation of the Act and ordering all judicial officers and judges in the District and Circuit to refrain from issuing any such arrest warrant to any individual other than the Attorney General, District Attorney or Solicitor General acting in their official capacities.

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1992 Property appraisals. Black v. Georgia Dep’t of Transportation, 262 Ga. 342 (1992) (Hunt, J.):* Appeal from trial court’s denial of Open Records Act request by plaintiff

to inspect appraisals of his property in connection with DOT’s efforts to condemn.

* The Court held that O.C.G.A. § 50-18-72(a)(6) does not require such records to be disclosed until after the condemnation proceedings conclude and DOT has acquired the property. The Court also held that O.C.G.A. § 32-3-7 should not be read to require DOT to disclose matters in condemnation proceedings that it would not ordinarily have to disclose in discovery.

* Justice Weltner, joined by Justice Sears-Collins, dissented, arguing that the clear wording of O.C.G.A. § 32-3-7(a) provides that DOT “acquires” property as soon as it files a declaration of taking.

1992 Fees. McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369 (1992) (Clarke, J.):* Open Records Act plaintiff, which sought to inspect city council minutes,

city zoning maps and ordinances, challenged city manager’s imposition of a fee to cover the cost of a temporary employee to supervise the inspection. Denial of relief by the trial court reversed.

* Emphasizing the importance of public access to government information, the Court held that “any fee imposed pursuant to O.C.G.A. § 50-18-71 constitutes a burden on the public’s right of access to public records. Therefore, the statute must be narrowly construed. As we construe the statute, the imposition of a fee is allowed only when the citizen seeking access requests copies of documents or requests action by the custodian that involves an unusual administrative cost or burden. Thus, a fee may not be imposed under O.C.G.A. § 50-18-71 when a citizen seeks only to inspect records that are routinely subject to public inspection, such as deeds, city ordinances or zoning maps. Further the custodian of the records must bear the burden of demonstrating the reasonableness of any fee imposed.”

1992 “Secrets of State” exemption. Hardaway Co. v. Rives, 262 Ga. 631 (1992) (Bell, J.):* Appeal from ruling of trial court (Langham, J.) that “Engineer’s Cost

Estimate” documents generated by the Department of Transportation as part of the process of evaluating bids for work on Savannah’s Talmadge Memorial Bridge were exempt from disclosure under the Open Records Act as “secrets of state,” O.C.G.A. § 24-9-21(4), or “state matters of which the policy of the state and the interest of the community require concealment,” O.C.G.A. § 24-9-27(d). Reversed.

* The Court emphasized that “any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed.” The Court agreed that “the public interest in exempting engineering cost estimates from disclosure until projects are completed or abandoned

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outweighs the public interest in favor of disclosure,” but concluded, consistent with past precedent, that the Court does not “have the discretion to judicially craft such an exemption. The balancing test which the special concurrence urges us to apply was expressly limited by Board of Regentsto instances where individual privacy rights were involved.”

* Justice Fletcher, joined by Justice Hunt, concurred specially, concluding that a balancing was appropriate but weighed in favor of disclosure as construction had been completed.

1993 Public university student disciplinary court records. Red & Black Publishing Company v. Board of Regents, 262 Ga. 848 (1993) (Hunt, J.):* Appeal from ruling of trial court (Hull, J.) that records of the University of

Georgia Student Organization Court must be disclosed to the public pursuant to the Open Records Act but that the Court’s disciplinary hearings are not subject to the Open Meetings Act. Affirmed in part, reversed in part.

* The Court concluded that both the records and the disciplinary hearings of the Student Organization Court must be open to the public: “We are mindful that openness in sensitive proceedings is sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy of this state is that the public’s business must be open, not only to protect against potential abuses, but also to maintain the public’s confidence in its officials.” 262 Ga. at 854.

1993 Records of private entities acting under agency direction and control. Clayton County Hospital Authority v. Webb, 206 Ga. App. 693 (1993) (Andrews, J.):* Appeal from ruling of trial court (Ison, J.) ordering Clayton County

Hospital Authority (CCHA) and five affiliated corporations to produce records under the Open Records Act.

* The Court of Appeals held that the Act applies to records of private entities when such entities function “under the direction and control of [a hospital authority] to implement the [authority’s] duty to provide for the public health.”

* The Court held that the disputed records — relating primarily to transfers of funds from the CCHA to five private affiliated corporations and to transfers of funds between any of those corporations — are public records. Citing the fact that assets of the CCHA had been transferred to some of the corporations and the fact that all of the records were in the possession or control of the CCHA, the Court found that the “private status” alone of the corporations did not insulate them from the strictures of the Open Records Act.

1993 Alleged trade secrets submitted to agency. BellSouth Telecommunications, Inc., d/b/a Southern Bell v. Georgia Public Service Commission, No. E-7376 (Fulton County Superior Court, Apr. 16, 1993) (Eldridge, J.), aff’d without opinion (Ga.):

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* Appeal from administrative determination by Georgia Public Service Commission that Southern Bell must provide certain documents pursuant to a PSC order and that PSC would not agree to maintain documents confidential.

* Trial court concluded that Southern Bell had demonstrated that documents constituted “trade secrets” and that PSC was obligated to maintain their confidentiality. The court determined that the Georgia Trade Secrets Act and the Georgia Open Records Act together required that the PSC not disclose the documents to the public. The court also found that Southern Bell had a property interest in the “trade secrets” and that the PSC was further prohibited under the requirements of the United States Constitution from publicly disclosing the documents.

1993 District attorney work product. Hall v. Madison, 263 Ga. 73 (1993) (Hunstein, J.):* Appeal from denial of death row inmate’s request for writ of mandamus.

After murder conviction was upheld by Georgia Supreme Court, appellantsought district attorney’s files relating to his prosecution pursuant to the Open Records Act. Trial court (McWhorter, J.) denied writ of mandamus without findings or conclusions. Supreme Court affirmed.

* The Court concluded that petition for writ of mandamus was premature since appellant still had alternative legal remedy available to him in a habeas proceeding. The Court expressly distinguished Napper v. Ga. Television on grounds that party seeking production of files in Napper was not defendant and so did not have habeas proceeding available.

1993 Mootness. Conklin v. Zant, 263 Ga. 165 (1993) (Carley, J.):* Appellant brought suit seeking order compelling appellees to allow him to

inspect and copy certain records pursuant to the Open Records Act. Trial court (Smith, J.) dismissed action as moot based on defendant’s having turned over requested records.

* Supreme Court reversed because evidence showed only that appellees had turned over some, but not all, of the records requested by appellant.

1994 Police investigatory notes. Lebis v. State, 212 Ga. App. 481 (1994) (Birdsong, J.):* Appeal from denial by trial court (Pannell, J.) of criminal defendant’s

request for the production of investigative notes pertaining to his case. The court of appeals affirmed the trial court’s decision, stating without analysis that investigative notes are “`notes’ not `reports’“ and cannot be classified as “police arrest reports, accident reports, or incident reports” subject to the Open Records Act.

1994 Privately held records. Hackworth v. Board of Education for the City of Atlanta, 214 Ga. App. 17 (1994) (Smith, J., with Pope, C.J. and McMurray, P.J.):* Suit for access to personnel records of certain City of Atlanta school bus

drivers. Trial court (Daniel, J.) held that personnel records held by a

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privately-owned transit company that contracts with the city to provide drivers were not public records.

* The court of appeals reversed the trial court’s decision, concluding that, because the city’s contract with the transit company allowed the city to review the records and because the operation of buses is a “legitimate function of the school board and within the operation of a public agency,” the records were public records despite the fact that they were not physically in the possession of the city.

* The court remanded the decision to the trial court to determine whether any of the records are exempt from disclosure based on concerns of “personal privacy.” Citing Dortch v. Atlanta Journal, 261 Ga. 350 (1991), the court instructed the trial court to order disclosure of all records unless disclosure would constitute the tort of invasion of privacy.

1994 Commercial solicitation. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994) (Hall, J.):* Suit for permanent injunction by criminal defense attorney preventing

enforcement of O.C.G.A. § 35-1-9, which prohibits the inspection or copying of law enforcement agency records for the purpose of commercial solicitation. Prior to passage of § 35-1-9, the plaintiff had used the records to solicit clients for his legal practice, and he claimed that refusing to allow him to continue to peruse those records violated his First Amendment rights. The trial court had initially denied plaintiff’s challenge, but the Eleventh Circuit reversed, ruling that “a mere reading of this statute indicates that it probably impinges upon Speer’s commercial speech.” Speer v. Miller, 15 F.3d 1007, 1010 (11th Cir. 1994).

* On remand from the Eleventh Circuit, the district court held that O.C.G.A. § 35-1-9 violates the First Amendment and is unconstitutional because it does not directly advance a substantial state interest. The court specifically rejected the state’s argument that the statute advanced the substantial interest of “protecting people’s privacy.” According to the court, that effect is “so riddled with exceptions that the statute’s ability to advance the asserted purpose is anemic and betrays a true alternative purpose” (preventing solicitation).

1994 Online computer access. Jersawitz v. Hicks, 264 Ga. 553 (1994) (Hunstein, J.):* The Supreme Court unanimously affirmed the denial by the trial court

(Langham, J.) of plaintiff’s request for on-line computer access to the Fulton County real estate deed records: “While we are mindful that the prevalence of computers in homes, offices and schools may make on-line access to computerized public records desirable, requiring that means of access must be addressed by the General Assembly.”

1994 Rape incident reports. Doe v. Board of Regents, 215 Ga. App. 684 (1994) (en banc) (Beasley, J.):* Trial court refused to issue injunction sought by university employee

enjoining disclosure of a university police incident report, sought by The

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Red & Black, regarding the employee’s claim that she had been abductedand raped on the university campus by an unknown assailant.

* Court of Appeals held that pursuant to the Open Records Act the newspaper is entitled to the requested report but, pursuant to O.C.G.A. § 16-6-23(a), with the university employee’s name and identifying information redacted.

* Birdsong, J., Andrews, J., Blackburn, J., and Ruffin, J., dissent from the Court’s decision to authorize redaction of any part of the report. Andrews, J., writes that O.C.G.A. § 16-6-23(a) “does not cover an admittedly false allegation of rape. It is undisputed that the incident investigated by the campus police did not occur.” Blackburn, J., writes that “I join Judge Andrews in concluding that appellant has lost any right she would otherwise have had to keep her identity from being disclosed because of her admitted fabrications and the superior right of the public to know of the falsity of her original complaint, and the right to know who falsely complained.”

1995 Tax information. Bowers v. Shelton, 265 Ga. 247 (1995) (Thompson, J.):* Affirming order of trial court (Jenrette, J.) entering permanent injunction

pursuant to Open Records Act preventing Attorney General from disclosing confidential tax information contained in closed criminal investigation file.

1995 Police incident reports. City of Brunswick v. The Atlanta Journal-Constitution and The Florida Times-Union, 265 Ga. 413 (1995) (Carley, J.):* Appeal from order of trial court (Williams, J.) requiring City to disclose

serial rape incident reports despite City’s professed concern that doing so would hamper investigation and pose risk to victims’ safety. For these reasons, and based upon an ex parte presentation by the City, the trial court had initially refused to order production. However, the trial court reversed itself and ordered production after the Times-Union published an article disclosing certain facts relating to the incidents.

* Cross-appeal by The Journal-Constitution and The Times-Union challenging the trial court’s conclusion that incident reports can ever be protected and that it was proper to hear City’s witnesses ex parte.

* Supreme Court affirmed in all respects, concluding that portions of incident reports may be exempted from disclosure to the extent they contain confidential information otherwise exempted from disclosure under the Act.

1995 Hospital authorities. Northwest Georgia Health System, Inc. v. Times-Journal, Inc., 218 Ga. App. 336 (1995) (McMurray, J.):* Appeal from order of trial court (Hines, J.) holding that combinations of

private hospitals and public hospital authorities are subject to the provisions of the Open Meetings and Open Records Acts.

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* Court of Appeals affirmed, stating that “[w]ithout question, these private, nonprofit corporations became the vehicle through which the public hospital authorities carried out their official responsibilities.”

1996 Fees. Powell v. Von Canon, 219 Ga. App. 840 (1996) (Johnson, J.):* Appeal from order of trial court (Wood, J.) holding that defendant

government officials are limited to charging only the actual cost of computer disk or tape onto which requested information is transferred and, after the first quarter hour of work, only the hourly wage of the lowest paid full-time employee capable of overseeing or performing transfer.

* Court of Appeals affirmed as to all defendants except clerk of superior court on ground that superior court clerks are authorized by O.C.G.A. § 15-6-96 to sell computer generated records for a profit.

1996 911 incident cards. The Bainbridge Post Searchlight, Inc. v. Decatur County, No. 96-V-302 (Decatur County Superior Court, Sept. 10, 1996) (Cato, J.):* Action to require county to make available for public inspection 911

incident cards completed by 911 dispatchers for the purpose of registering, dispatching and preserving information from callers that is necessary or important for an appropriate emergency agency to effectively respond to the emergency.

* Held that 911 incident cards are equivalent to initial police incident reports and must be made open for inspection by the public at reasonable times at the 911 facility where the cards are kept.

1996 Settlement agreements. City of Helen v. White County News, No. 96-CV-409-DB (White County Superior Court, Oct. 7, 1996) (Barrett, J.):* Action for access to documents relating to settlement of former police

chief’s civil rights action against city.* Held that “[c]onsistent with the public policy of the Open Records Act, the

public has a right to know the terms of a settlement agreement in which a public entity has settled a lawsuit” and that “the nondisclosure provisions of the Settlement Agreement ... are void as against the public policy of the State of Georgia.” The court rejected the city’s contention that disclosure would be improper because “a right of privacy may exist on behalf of those individuals in the underlying lawsuit.”

1996 District Attorney records. Felker v. Lukemire, 267 Ga. 296 (1996) (Thompson, J.):* Action by death row inmate for access to district attorney’s records on

prosecution. After hearing and production of additional records, trial court found that the district attorney had complied with inmate’s request and denied relief.

* The Supreme Court affirmed, finding that “the district attorney fully complied with his obligations under the Act. And he had no reason to suspect that he did not comply.”

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1997 Inmate appeals. Hall v. Linahan, 225 Ga. App. 439 (1997) (McMurray, J.):* Appeal by state prison inmate of trial court order concerning inmate’s

Open Records Act requests.* Because inmate was currently in the custody of Department of

Corrections, held that appeal was controlled by Prison Litigation Reform Act of 1996, O.C.G.A. § 42-12-1 et seq., and, because no application for discretionary review had been filed, had to be dismissed.

1997 Child abuse records. In re Hansen, No. 165958 (Fulton County Juvenile Court, Nov. 14, 1997) (Hatchett, J.):* Granting access pursuant to O.C.G.A. § 49-5-41(B) to records of Georgia

Department of Human Resources, Division of Family and Children Services, of all Georgia children who died between January 1, 1993 and August 31, 1997 and had been reported previously to state protective service workers.

1997 Privacy of public employees. Chatham County v. Adventure Radio Group, et al., Case No. CV97-1406-FR (Eastern Judicial Circuit Superior Court, Dec. 22, 1997) (Freesemann, J.):* Denying request of county and certain county employees to redact the

names of certain county employees who were the subject of tape-recorded derogatory remarks by senior police officials. “The Court sympathizes with the female employees who desire to keep their names secreted. Unfortunately, however, these women have, albeit unwillingly, become figures in a public drama. Therefore, dissemination of information pertaining to this drama is no violation of their right to privacy.”

* Granting request of Savannah Morning News and WSAV-TV for injunction requiring access.

1998 Motor vehicle accident reports. Statewide Detective Agency v. Zell Miller, 115 F. 3d 904 (11th Cir. 1997) (Barkett, J.): * A private detective agency filed suit against the Governor and the

Attorney General of Georgia, seeking to enjoin enforcement of statute criminalizing request for motor vehicle accident reports for commercial solicitation purposes.

* Affirming the District Court preliminary injunction order, the 11th Circuit Court held that the statute represented an unconstitutional restraint of commercial speech.

1998 Investigatory report concerning sexual harassment. Fincher v. State, 231 Ga. App. 49 (1998) (Ruffin, J.): * Pursuant to the Open Records Act, the State Board of Pardons and Paroles

of Georgia released to a local television station an investigatory report concerning claims that one of its employees had sexually harassed a co-worker. The employee sued claiming invasion of privacy.

* Affirming the dismissal, the Court of Appeals found that the report was a public record not subject to any exemptions under the Georgia Open

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Records Act. The Court further found that the public interest in obtainingthe report outweighs any private interest.

1999 Settlement records. Savannah College of Art and Design v. School of Visual Arts Inc., 270 Ga. 791 (1999) (Hunstein, J): * Appeal concerning public access to court records in a civil case. The trial

court ordered that confidential settlement documents filed with a discovery motion should be open because the plaintiff failed to meet its burden in limiting access. The Supreme Court reversed, concluding that the plaintiff’s privacy interest in the documents clearly outweighed the public’s interest in access.

1999 Discovery procedures considered adequate legal remedy. Millar v. Fayette County Sheriff's Dept., 241 Ga. App. 659 (1999) (Blackburn, J.):* Attorney's action against county and county sheriff under Georgia's Open

Records Act, seeking injunction requiring them to turn over certain public records relating to his client's federal action against them, was premature; when request for injunction was made, attorney retained adequate legal remedy, namely right to seek defendants' records through discovery procedures in his federal action. Eldridge and Barnes, J.J. concurring.

2000 Verbal requests for records. Howard v. Sumter Free Press, Inc., 272 Ga. 521 (2000) (Hines, J.):* Sheriff’s contention that he was not required to comply with verbal

requests by the press for access to public records, but only to “bona fide” written requests, was unavailing. Verbal requests do not diminish their efficacy under the Open Records Act.

2000 Records versus information. Schulten v. Fulton-DeKalb Hospital Authority,272 Ga. 725 (2000) (Carley, J.):* Law firm filed writ of mandamus to compel hospital to permit inspection

and copying of records since 1995. Court denied relief, because request would violate Open Records Act by requiring hospital to compile and prepare reports that were not yet in existence.

* Failure by hospital to furnish non-existent records does not constitute a denial of a request for access to public records.

2001 Trade secrets. Georgia Dep’t of Natural Resources et al. v. Theragenics Corp., 273 Ga. 724 (2001) (Carley, J.):* Trade secrets exception to disclosure under the Act not expressly limited

to documents specifically identified as confidential at time of submission to agency.

* Because Act places ultimate responsibility for non-disclosure on agency, agency cannot construe submitter’s failure to identify all trade secrets at time of original filing as waiver of confidentiality.

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2001 Internet access. J.K. Champion, M.D. v. State, Civil Action File No. 2000CV26375 (Fulton Superior, Apr. 9, 2001) (Goger, J.):* Trial court dismissed complaint for injunction to prevent continued public

Internet access to the fact that plaintiff doctor had entered into a disciplinary consent order with the State Board of Medical Examiners, holding, inter alia, that Act mandated access.

2001 Motor vehicle records. Spottsville v. Barnes, 135 F. Supp. 2d 1316 (N.D. Ga. 2001) (Thrash, Jr., J.):* Challenge to 1999 amendment to the Open Records Act that restricts

disclosure of motor vehicle accident reports to certain designated groups of persons including the media. The amendment was upheld and found not to be an unconstitutional prior restraint on commercial speech.

2001 Police reports concerning rape. Dye v. Wallace, 274 Ga. 257 (2001)* Trial court held that Georgia’s Rape Confidentiality Statute, which made it

unlawful for the media to identify rape victims, was unconstitutional.* Supreme Court affirmed, holding that the media can publish information

from police reports that are lawfully obtained.

2002 Court records filed under seal. Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353 (N.D. Ga. 2002) (O’Kelley, J.):* Holding that records filed under seal in support of the parties’

respective summary judgment motions must be unsealed. There was no third party request to unseal the records. Rather, the decision was in response to the Court’s order directed to the parties to show cause why the records should remain under seal.

* The Court held that documents filed under seal in connection with a dispositive motion in a civil case may remain sealed only if the party seeking closure can show good cause that outweighs the public’s interest in dissemination.

* The Court did allow two depositions to remain under seal finding that the plaintiff showed that good cause exists because the documents contained trade secrets.

2004 Income tax records of individual who received government contract. City of Atlanta v. Corey Entertainment , Inc., 278 Ga. 474 (2004) (Fletcher, J.):* Holding that Georgia’s Open Records Act requires the disclosure of the

tax returns of an individual who won a government contract for her business based on that fact that she successfully applied for status as a “Disadvantaged Business Enterprise.”

* The Court rejected the individual’s claim that her privacy interestsoutweighed the public interest in disclosure, finding that there is “a strong need for open government to prevent the appearance of impropriety and corruption in the certification process” for “disadvantaged” businesses.

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* The Court also found that the income tax return was not a “personal net worth statement” or “documentation supporting it,” which would have been exempt from disclosure under federal regulations.

2004 Housing Authority records. Strange v. Housing Auth. of City of Summerville, 268 Ga. App. 403 (2004) (Barnes, J.):* The Housing Authority filed suit seeking, inter alia, to enjoin Appellants

from making future open records requests on the Authority. Appellants had made several open records requests in the past.

* Appellants filed a counterclaim alleging that the Authority violated the Open Records Act. The trial court granted summary judgment for the Authority on the counterclaim, holding that it was rendered moot when the Authority amended its complaint to withdraw its injunction request.

* The Court of Appeals reversed, holding that the counterclaim was not moot because the Authority also had failed to provide documents in response to Appellants’ open records requests and, therefore, could still be liable under the Open Records Act.

2004 State insurance commissioner records. Hoffman v. Oxendine, 268 Ga. App. 316 (2004) (Phipps, J.):* The Court held that it was an abuse of discretion by the state Insurance

Commissioner to withhold reports regarding the investigation of an insurer.

* The Court found that the Insurance Commissioner could not rely on authority and/or reasons to deny disclosure that were not stated in his response to the Open Records request.

* Here, the Insurance Commissioner failed to cite the “pending investigation” exception to the Open Records Act in his response to the request; therefore, the Court held that the trial court erred in permitting the Commissioner to use this argument in denying disclosure.

2005 Police records — Private university police force. The Corporation of Mercer University v. Barrett & Farahany, LLP, 271 Ga. App. 501 (2005) (Johnson, J.) (Ruffin, C.J. and Barnes, J., concurring), cert. denied, 2005 Ga. LEXIS 392 (Ga. May 23, 2005):* Suit by law firm against Mercer University for access to records

maintained and generated by the Mercer University Police Department. * The Court reversed the decision of the trial court (McConnell, J.) that the

records be produced, holding that a police force hired by a private university is not a public office or agency just because it performs certain functions authorized by the State by statute.

* The Court also held that the police force did not receive or maintain documents in the performance or service of a function on behalf of a public office or agency, because evidence showed that the police force worked solely for Mercer University. The fact that the police force was required to report gang activity to local law enforcement was irrelevant.

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* Simply performing some task or function with an indirect public benefit, or with benefit to the public as a whole, does not transform a private entity’s records into public records.

* Purpose of Open Records Act would not be furthered by compelling disclosure of records in this case.

2005 Attorney’s fees and procedure — Petitioner should follow up after receiving response to ORA request before rushing to sue for attorney’s fees. Everett v. Rast, 272 Ga. App. 636 (2005) (Miller, J.):* The Court affirmed the decision of the trial court denying Everett’s motion

for attorney’s fees and expenses, holding that the city had not failed to produce records without substantial justification. Rather, the city indicated that it would comply and that documents in addition to those in its possession “may or may not” be in the possession of various city departments.

* Everett improperly rushed to litigation instead of contacting the city after it responded that it would provide documents.

2005 Attorney’s fees and procedure — Custodian of records must affirmatively respond to ORA request within 3 business days. Wallace v. Greene County, 274 Ga. App. 776 (2005) (Bernes, J.):* The Court reversed and remanded the decision of the trial court denying

Wallace’s motion for summary judgment on attorney’s fees, holding that the county violated the Open Records Act by not affirmatively responding to Wallace’s request within 3 business days. Thus, Wallace met first prong of test for attorney’s fees.

* Court remanded on unresolved issue of whether Wallace had shown that county lacked substantial justification for the violation, the second prong of test for attorney’s fees.

2005 Private entities as vehicles for public agencies due to involvement of public officials. Baker v. Metropolitan Atlanta Chamber of Commerce et al., 2005-cv-105088, Nov. 17, 2005 Order (Johnson, J.), currently on appeal:* Suit by Attorney General and newspaper for access to NASCAR Hall of

Fame and Super Bowl bids submitted and maintained by private entities.* The Court held that records maintained by private entities related to the

bids were subject to Open Records Act because public officials and their pledges of political and financial support were “absolutely necessary” to the possible success of the bids.

* The bids were received in the course of the operation of a public office because the private entities needed the public officials and acted with their full knowledge and acquiescence.

* Certain exceptions under the statute protecting bids from disclosure did not apply here.

2006 Records of bids for Atlanta to host NASCAR Hall of Fame and Super Bowl. Central Atlanta Progress, Inc. v. Baker, 278 Ga. App. 733 (2006) (Johnson, J.):

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∗ Two private corporations, composed of Atlanta-area businesses, submitted bids for Atlanta to host the NASCAR Hall of Fame and the 2009 Super Bowl, and newspaper requested copies of the bids under the Georgia Open Records Act, but corporations refused, arguing that the bids were not subject to the Act because they were not prepared by or on behalf of public agencies.

∗ The Attorney General issued an opinion that “in light of the significant involvement of public officials, public employees, public resources and public funds in the matters, the bids were subject to the [Act] and should be disclosed,” but the corporations still refused. The superior court agreed and ruled for the newspaper.

∗ Court affirms trial court’s decision, explaining that the bids involved the use of public funds; they called for the future use of substantial public resources; and, public officials and employees participated in preparing them. The Act “must be broadly construed to effect its purposes.”

2006 Attorney’s fees and procedure — Summary Judgment improper when evidence shows that records custodian failed to respond to ORA request within 3 business days, and no substantial justification exists for not doing so. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825 (2006) (Blackburn, J.):

∗ County failed to respond to a records request within three days of receiving it, and requester sued for attorney’s fees for failing to comply with the Georgia Open Records Act. Trial court denied the county’s request for summary judgment on this claim, finding that both prongs of the test set forth in Wallace were satisfied: the county missed the three-day deadline, and it did not have a substantial justification for its omission.

∗ Court affirms trial court’s denial of summary judgment, explaining that because the county did not produce the documents until after the civil litigation commenced, “and because the county has further failed to explain this dilatory conduct in any evidence submitted with its summary judgment motion, some evidence shows that the county’s violation lacked substantial justification.”

2006 Trade-secrets exception to ORA. Douglas Asphalt Company v. E.R. Snell Contractor, Inc., 282 Ga. App. 546 (2006) (Barnes, J.):

∗ Trial court enjoined DOT from giving unredacted copies of certain records to asphalt company because the records contained contractors’ trade secrets, which could give asphalt company a competitive advantage.

∗ Court affirms trial court, finding that the exception to the Act for trade secrets, O.C.G.A. § 50-18-72(b)(1), applies, and explaining that the “trial court did not err in concluding that the contractors presented evidence that the information derived economic value from not being generally known or readily ascertainable to others.” Court also holds that although the product was sold in public places, this did not transform the confidential, technical specifications of the product’s design into public property.

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∗ Court rejects asphalt company’s contention that trade-secret exception was not satisfied because the contractors were not required by law to submit the information to the DOT. “While it is true that the contractors were not required by law to enter into contracts with the state, several witnesses testified that once they entered those contracts, they were required by law to submit the information to the DOT before starting or continuing work.” Court explains that information that must be submitted in conjunction with government contracts is “required by law” as that phrase is used in O.C.G.A. § 50-18-72(b)(1).

2007 Access to Election Materials. Smith v. DeKalb County, 288 Ga. App. 574 (2007) (Ellington, J.):* Injunction proper to Georgia Secretary of State to prevent public from

obtaining election data. * Individual submitted Georgia Open Records Act request to director of

elections seeking CD containing “all ballot images and ballot styles as well as vote totals and a copy of the consolidated returns from the election management system.” Director notified Secretary of State of request and that she intended to release the records. Secretary of State sought TRO to prevent this.

* Lower court granted TRO and permanent injunction preventing unauthorized individuals from accessing election CDs because it found Georgia law required CD’s to remain under seal for at least 24 months following election unless otherwise directed by superior court, but superior court had not ordered the seal be lifted. Because the CD is statutorily designated to be kept under seal, it is exempt from records open to public inspection.

* Injunction is also proper because CD contains security information that could compromise election security, so it falls within exemption for “material which if made public could compromise security against sabotage, criminal, or terroristic acts.” Though copy of CD could be provided without this security information, government need not create this since it was not in existence at the time of the request.

2007 Notice where State (or its agency) is a party. Georgia Department of Agriculture v. Griffin Industries, 284 Ga. App. 259 (2007) (Adams, J.):* Department did not receive adequate notice in accordance with O.C.G.A.

§ 9-10-2(1) that merits of Open Records Act request were going to be considered by court, thus court’s decision granting full requested relief was improper.

* Only notice in record was of case management conference, and only pending motion was for temporary relief, thus Department did not have adequate notice of hearing on merits of ultimate issue.

2007 Open Records Act requests regarding government wrongdoing. Moore v. Gabriel, No. 3:05-CV-31(CDL), 2007 WL 917291 (M.D. Ga. Mar. 22, 2007):* Open Records Act requests relating to potential abuse and

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mismanagement by government are protected First Amendment speech because this is of core public interest.

2008 Open Records Act does not excuse improper service. Melton v. Wiley, 262 Fed. Appx. 921 (11th Cir. 2008) (per curiam): * Plaintiff claimed Open Records Act, which protects from disclosing

records revealing home address of law enforcement officers, validated substitute service crafted by process server who served someone other than defendant at defendant’s place of business.

* Court rejects this argument explaining that Open Records Act does not excuse failure to perfect service in accordance with Georgia law.

2008 Pending investigations and three-day response requirement. Unified Gov’t of Athens-Clarke County v. Athens Newspapers, LLC, 284 Ga. 192 (2008) (Carley, J.):* Newspaper filed suit against county claiming it violated Open Records Act

by refusing access to police records of unsolved rape and murder case from 1992. Although investigation was inactive, the investigatory file had not been closed.

* Trial court granted summary judgment for county finding the records exempt because they fell within exemption for “pending investigations,” set forth in O.C.G.A. § 50-18-72(a)(4).

* Appellate court reversed, finding the exception unsatisfied because evidence showed there had been no progress in solving the case for several years and because there was no ongoing, active investigation. Court of Appeals noted that statutory exemptions to the Open Records Act must be narrowly construed.

* Georgia Supreme Court reversed the Court of Appeals holding and held that the investigation remained “pending” and thus subject to the Open Records Act exemption.

* Georgia Supreme Court held that for purposes of the Open Records Act exemption, a seemingly inactive investigation, which has not yet resulted in a prosecution, remains undecided and therefore remains “pending” until it is concluded and the file is closed. Similarly, a prosecution is pending until a conviction has been reviewed on direct appeal and no further direct litigation of an imminent nature and finite duration remains.

* Georgia Supreme Court approved of Court of Appeals’ interpretation of three-day response requirement in O.C.G.A. § 50-18-70(f) as requiring response within three business days of agency receiving request irrespective of when specific person at agency in charge of records receives request.

* Hunstein, J. (concurring in part and dissenting in part) disagreed with majority’s analysis of “pending investigation” exemption and stated that exemption should only apply to those investigations and prosecutions being “actively, definitely and imminently pursued.”

2008 Open Records Act Does Not Permit Recovery of Damages. Chisolm v.

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Tippens, 289 Ga. App. 757, 762 (2008) (Mikell, J.):* Noting in dicta that Open Records Act does not permit recovery of

compensatory or punitive damages.

2008 Records Generated During Internal Investigation of Sexual Misconduct Were Subject to Disclosure and Were Not Work Product. Fulton DeKalb Hospital Auth. v. Miller & Billips, 293 Ga. App. 601 (2008) (Johnson, J.):* Law firm filed suit against Fulton DeKalb Hospital Authority pursuant to

Open Records Act seeking disclosure of records generated during internal investigation into allegations of sexual misconduct. Authority had refused to produce certain records, including tape-recorded interviews, interview notes, and investigator’s final report to the General Counsel on the basis of the work product doctrine.

* Following in camera review, trial court rejected work product claim and ordered disclosure of records despite involvement of legal department in investigation, finding that investigation was a routine inquiry in response to complaints and was not conducted in anticipation of litigation.

* Appellate court affirmed, finding that Authority had commenced investigation not in response to any claim or threat of litigation, but only because it received anonymous complaints.

2008 Public Agency Must Raise Specific Exemption in Initial Response to Requesting Party. Jaraysi v. City of Marietta, 294 Ga. App. 6 (2008) (Mikell, J.):* Property owners filed suit against City for refusing to disclose records

regarding unfinished construction on their property for which building permit had been revoked and which was subject to Municipal Court demolition action.

* Court rejected City’s attempt to rely on “pending investigation or prosecution of criminal or unlawful activity” exemption under O.C.G.A. § 50-18-72(a)(4) because City failed to specify this reason in its initial response to Open Records Act request, and instead did not reference specific Act provision until summary judgment. Court also noted that City’s citation to O.C.G.A. § 50-18-72, without more, was insufficient in that City did not cite subsection and paragraph relied upon.

* Appellate court vacated trial court’s grant of summary judgment for City where record showed that City violated Open Records Act by failing to respond to request within three business days and rejected argument that property owners’ action was moot because City had eventually provided requested records. Court remanded case to trial court to determine whether attorney’s fees were warranted under O.C.G.A. § 50-18-73(b).

2008 Documents Held By Private Entity Performing Public Function; Trade Secrets Exemption. United Healthcare of Georgia, Inc. v. Georgia Dep’t of Cmty. Health, 293 Ga. App. 84 (2008) (Bernes, J.):* Private party contracted with Georgia Department of Community Health

(“DCH”) to serve as third-party administrator for administration of State

28

Health Benefit Plan. Following Open Records Act request to DCH, private party filed suit seeking to enjoin disclosure of certain documents relating to its contract with DCH.

* Court held that documents were “public records” because, even though in possession of private party, Open Records Act requires disclosure of documents possessed by a private entity performing a service or function for or on behalf of a public agency. O.C.G.A. § 50-18-70(a).

* Court held that documents were “required by law to be submitted to a government agency” in satisfaction of trade secrets exemption to the Open Records Act, O.C.G.A. § 50-18-72(b)(1) (rejecting the trial court’s holding on this point) because private entity had submitted documents to DCH pursuant to contractual obligation.

* Rejecting public policy argument in favor of disclosure and finding that plain language of O.C.G.A. § 50-18-72(b)(1) constitutes General Assembly’s determination that trade secret protection outweighs any greater public benefit in disclosure.

* Remanding to trial court for determination of whether certain documents meet two-part test for trade secrets under O.C.G.A. § 10-1-761(4)(A).

2008 Lack of Federal Jurisdiction. Flemming v. Morris, No. 4:08-CV-51 -CDL, 2008 WL 2442184, at *5 (M.D. Ga. Apr. 30, 2008) (Faircloth, M.J.):* Prisoner filed suit bringing 42 U.S.C. § 1983 and Open Records Act claim.* After determining that § 1983 claim should be dismissed, Magistrate

Judge recommended dismissal of Open Records Act claim as outside the subject matter jurisdiction of federal court.

* Although documents at issue may have been relevant to plaintiff’s federal claims, the determinations which must be made regarding the documents’ status and accessibility under Georgia law are not related to the issues underlying plaintiff’s federal claims and are therefore not part of the same case or controversy.

2009 Personnel Records of Municipal Employee. Goddard v. City of Albany, 285 Ga. 882, 684 S.E.2d 635 (2009) (Benham, J.):* Court held that appellant’s right to privacy was not violated when her

personnel documents were released by her manager pursuant to the Open Records Act.

* Personnel records of municipal employees are not entitled to any blanket exemption from the Open Records Act. Appellant’s privacy claim, therefore failed.

2009 Lack of Federal Jurisdiction. GeorgiaCarry.Org, Inc., v. MARTA, No. 1:09-CV-594-TWT, 2009 WL 5033444 (N.D.Ga. Dec. 14, 2009) (Thrash, Jr., J.):* Court declined jurisdiction over plaintiffs’ Open Records Act claims. * Court did not have federal question jurisdiction because the plaintiffs’

claims were based on state law. Court did not have supplemental jurisdiction because the plaintiffs’ Open Records Act claims did not arise

29

out of a common nucleus of operative fact with any federal claim in the case.

* Plaintiffs’ claims were narrow in that they only involved questions as to whether the records requested were subject to the Open Records Act, whether the defendants responded to the requests, and if the defendants responded, when they responded.

2009 Recoverable Damages. Shabazz v. Marchand, No. 1:09-CV-1741-WSD, 2009 WL 3148676 (N.D.Ga. Sept. 29, 2009) (Duffey, Jr., J.):* Court dismissed plaintiff’s claim for compensatory and punitive damages

based on defendant’s failure to respond to plaintiff’s Open Records Act request. Court held that the Open Records Act does not authorize compensatory or punitive damages, only an award of attorney fees and litigation expenses in actions brought to enforce the statute.

* Court also dismissed plaintiff’s claim for compensatory and punitive damages based on claim that defendant disseminated to an “unauthorized recipient” information that included plaintiff’s social security number, in violation of O.C.G.A. § 50-18-72. Court held that defendant was not an “authorized recipient” whose conduct is governed by § 50-18-72(a) (11.3) (C). Defendant was a custodian of records and, therefore, did not obtain records pursuant to the Open Records Act. Court again noted in relation to this claim that the Open Records Act does not authorize compensatory or punitive damages.

* Court noted that plaintiff could file action against county requesting equitable relief in the form of access to the requested records if he believed that he was improperly denied access to a public record. His claim should not have been against defendant in her individual capacity.

2009 Access to Personnel File. Soloski v. Adams, 600 F. Supp. 2d 1276 (N.D.Ga. 2009) (Shoob, S.J.):* Court noted that personnel file of a dean of a university is available to the

public under the Open Records Act.* Court held that reprimand letter placed in plaintiff’s personnel file, which

stated that former dean of college at state university violated university’s nondiscrimination and anti-harassment policy, was not an adverse employment action, even though file was accessible to public under Georgia Open Records Act.


1

RECENT DEVELOPMENTS: SECTION 230, COMMUNICATIONS DECENCY ACT

For online publishers and the attorneys advising them, Section 230 of the

Communications Decency Act (47 U.S.C. § 230 (2006)) is perhaps the most important piece of

legislation to come out of Congress in the last 15 years. It provides broad protection against

liability for many types of legal claims arising from the actions of users and commenters. While

some recent cases have carved out narrow exceptions to Section 230 immunity, it continues to

serve as a powerful tool for minimizing the risks inherent in allowing third parties to publish

online.

Background on Publisher and Distributor Liability

Under standard common‐law principles, a person who publishes a defamatory

statement by another bears the same liability for the statement as if he or she had initially

created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that

appears within its pages. The theory behind this "publisher" liability is that a publisher has the

knowledge, opportunity, and ability to exercise editorial control over the content of its

publications.1

Distributor liability is much more limited. Newsstands, bookstores, and libraries are

generally not held liable for the content of the material that they distribute unless they have

knowledge that the material is tortious or illegal in nature.2 The concern is that it would be

impossible for distributors to read every publication before they sell or distribute it, and that as

a result, distributors would engage in excessive self‐censorship. In addition, it would be very

hard for distributors to know whether something is actionable defamation; after all, speech

must be false to be defamatory.

Not surprisingly, the first websites to be sued for defamation based on the statements

of others argued that they were merely distributors, and not publishers, of the content on their

sites. One of the first such cases was Cubby v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.

1991). CompuServe provided subscribers with access to over 150 specialty electronic "forums"

that were run by third parties. When CompuServe was sued over allegedly defamatory

statements that appeared in the "Rumorville" forum, it argued that it should be treated like a

distributor because it did not review the contents of the bulletin board before it appeared on

CompuServe’s site. The court agreed and dismissed the case against CompuServe.

Four years later, a New York state court came to the opposite conclusion when faced

with a website that held itself out as a "family friendly" computer network. In Stratton Oakmont

v. Prodigy, 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), the court held that because Prodigy was

1 See RESTATEMENT (SECOND) OF TORTS § 578 (1977); Harris v. Minvielle, 19 So. 925, 928 (La. 1896). 2 See Tacket v. General Motors Corp., 836 F.2d 1042, 1046‐47 (7th Cir. 1987); RESTATEMENT (SECOND) OF

TORTS § 581(1) (1977).


2

exercising editorial control over the messages that appeared on its bulletin boards through its

content guidelines and software screening program, Prodigy was more like a "publisher" than a

"distributor" and therefore fully liable for all of the content on its site.

The perverse upshot of the CompuServe and Stratton decisions was that any effort by an

online information provider to restrict or edit user‐submitted content on its site would result in

the provider facing a much higher risk of liability if it failed to eliminate all defamatory material

than if it simply didn’t try to control or edit the content of third parties at all.

The Communications Decency Act

This prompted Congress to pass the Communications Decency Act in 1996. The Act

contains deceptively simple language under the heading "Protection for Good Samaritan

blocking and screening of offensive material":

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. § 230(c)(1). Section 230 further provides that "[n]o cause of action may be brought

and no liability may be imposed under any State or local law that is inconsistent with this

section." 47 U.S.C. § 230(e)(3).

Courts have generally relied upon a three‐pronged test to determine whether a party is

entitled to protection under Section 230. The three conditions that must be satisfied in order to

successfully invoke Section 230 protections are:

1. The defendant is “a provider or user of an interactive computer service..”

2. The defendant is being “treated as the publisher or speaker” of information for the

purposes of liability.

3. The challenged information is “information provided by another information content

provider.”

Websites Covered by Section 230

Is an "interactive computer service" some special type of website? No. For purposes of

Section 230, an

"interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.

47 U.S.C. § 230(f)(2). Most courts have held that through these provisions, Congress granted

interactive services of all types, including blogs, forums, and listservs, immunity from tort


3

liability so long as the information is provided by a third party.3 As a result of Section 230,

Internet publishers are treated differently from publishers in print, television, and radio.

Claims Covered by Section 230

Section 230 has most frequently been applied to bar defamation‐based claims.4 In the

typical case, a plaintiff who believes she has been defamed sues both the author of the

statement and the website that provided a forum or otherwise hosted the material. Courts

have held with virtual unanimity that such claims against a website are barred by Section 230.

But immunity under Section 230 is not limited to defamation or speech‐based torts.

Courts have applied Section 230 immunity to bar claims such as invasion of privacy,5

misappropriation,6 and in a case brought against MySpace, a claim asserting that MySpace was

negligent for failing to implement age verification procedures and to protect a fourteen‐year

old from sexual predators.7

However, Section 230 explicitly exempts from its coverage criminal law,

communications privacy law, and "intellectual property claims." 47 U.S.C. § 230(f). In

interpreting these exclusions, courts agree that Congress meant to exclude federal intellectual

property claims, such as copyright and trademark, but they disagree whether state‐law

intellectual property claims (or claims that arguably could be classified as intellectual property

claims, such as the right of publicity) are also exempted from the broad immunity protection

Section 230 provides.8

Finally, Section 230 does not immunize the actual creator of content.9 The author of a

defamatory statement, whether he is a blogger, commenter, or anything else, remains just as

responsible for his online statements as he would be for his offline statements.

Online Activities Covered by Section 230

Courts have consistently held that exercising traditional editorial functions over user‐

submitted content, such as deciding whether to publish, remove, or edit material, is immunized

3 See, e.g., Batzel v. Smith, 333 F.3d 1018, 1030 n.15 (9th Cir. 2003) (noting that the term “includes a wide

range of cyberspace services, not only internet service providers”). 4 See, e.g., Whitney Info. Network, Inc. v. Verio, Inc., No. 04‐cv‐462, 2006 U.S. Dist. LEXIS 1424, at *7 (M.D.

Fla. Jan. 11, 2006); Patentwizard, Inc. v. Kinko’s Inc., 163 F. Supp.2d 1069, 1071 (D.S.D. 2001). 5 Parker v. Google, Inc., 242 Fed. Appx. 833, 833 (3d Cir. 2007). 6 Gregerson v. Vilana Fin., Inc., No. 06‐1164 AMD/AJB, 2008 U.S. Dist. LEXIS 11727, at *28‐29 (D. Minn.

Feb. 15, 2008). 7 Doe v. MySpace, 474 F. Supp.2d 843 (W.D. Tex. 2007). 8 Compare Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (finding plaintiff’s right of

publicity/misappropriation claim preempted under Section 230) and Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp.2d 690, 703‐04 (S.D.N.Y. 2009).

9 See, e.g., FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).


4

under Section 230.10 As one moves farther away from these basic functions, immunity may still

exist, but the analysis becomes more fact‐specific.

Exceptions to Section 230 Immunity: Roommates.com and Barnes v. Yahoo!

In an en banc decision, the Ninth Circuit found that defendant Roommates.com, an

apartment matching service, was not entitled to protection under Section 230 against claims

under the Fair Housing Act (FHA) and related laws.11 The decision, written by Judge Kozinski,

exploded forever the longstanding assumption (among Internet lawyers, at least) that website

operators would always be immune under Section 230 for publishing and organizing content

provided by their users, so long as the underlying claim didn't involve intellectual property,

federal criminal law, or the Electronic Communications Privacy Act.

Roommates.com is a website that helps match people looking for a place to live with

people who've got space to rent. Before users can search or post listings, they must create a

profile by answering a number of questions. Users must specify, using drop‐down menus,

information about their gender, sexual orientation, and whether they will bring children to a

household. They also must provide information about their preferences in roommates with

regard to the same three criteria. In addition, the registration interface encourages users to

provide "Additional Comments" about themselves and their desired roommate in an open‐

ended fill‐in‐the‐blank form. The website then publishes all this information on the user's

profile page and uses it to channel subscribers toward listings with compatible preferences,

including through a search function. Two advocacy groups sued Roommates.com, arguing that

these practices violate the Fair Housing Act and California housing discrimination law.

Roommates.com invoked Section 230 as a defense.

The decision has three holdings: (1) Section 230 does not bar the claim that

Roommates.com violated the FHA by asking questions about gender, sexual orientation, and

children during the registration process; (2) Section 230 does not bar the claim that

Roommates.com violated the FHA by publishing answers created using its pull‐down menus and

by providing search functionality and email notices based on this information; and (3) Section

230 bars a FHA claim based on the "Additional Comments" provided by users. As to the first

holding, if we assume for the sake of argument that asking certain questions violates the law, it

follows that asking them is the website's own act, not the user's. The third holding is consistent

with the Seventh Circuit's decision in Chicago Lawyers' Committee for Civil Rights v. Craigslist,

Inc., 2008 WL 681168 (7th Cir. Mar. 14, 2008), which held that Section 230 barred FHA claims

against Craigslist for posting the discriminatory notices of its users. A Craigslist user, much like a

10 See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (“[T]he exclusion of ‘publisher’ liability

necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.”)

11 Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).


5

Roommates.com user filling out the "Additional Comments" section, has complete discretion

about what to place in his or her notice; there are no pull down menus or specific questions

prompting or encouraging the user to indicate a discriminatory preference.

The importance of the Roommates.com decision rests with the second holding. The

court found that Roommates.com was responsible for user‐created content that violated the

FHA because it (a) required subscribers to provide allegedly unlawful information as a condition

of accessing its service; and (b) provided a limited set of pre‐populated answers.

Roommates.com, 521 F.3d at 1165‐66. With respect to its search and email functions, the court

held that Roommates lost Section 230 immunity by designing its system to use allegedly

unlawful criteria to channel information to particular users and forcing users to participate in

the discriminatory process. Id. at 1167.

On the one hand, Roommates.com is one of the first cases to hold a website operator

liable for content chosen by a user from a pull‐down menu, and this result is at least facially

inconsistent with the Ninth's Circuit's own Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir.

2003), which Judge Kozinski re‐interpreted, and some district court cases, like Whitney

Information Network, Inc. v. Xcentric Ventures, LLC, 2008 WL 450095, at *9‐12 (M.D. Fla. Feb.

15, 2008). But, if you narrow this case to its facts, it is relatively unremarkable and easy to

distinguish from other cases. Here, the court found that Roommates.com forced its users to

answer allegedly illegal questions, provided only allegedly unlawful answer choices, and then

imposed the allegedly unlawful criteria on its users through searches and email notifications.

The Court tried to limit the impact of its ruling, noting that “[t]he message to website

operators is clear: If you don’t encourage illegal content, or design your website to require

users to input illegal content, you will be immune.” The opinion emphasized that this wasn’t a

seismic shift away from Section 230 immunity, stating:

Websites are complicated enterprises, and there will always be close cases where a

clever lawyer could argue that something the website operator did encouraged the

illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut

the heart out of section 230 by forcing websites to face death by ten thousand duck‐

bites, fighting off claims that they promoted or encouraged—or at least tacitly assented

to—the illegality of third parties.

521 F.3d at 1175. Despite this limiting language, more recent cases have shown that plaintiffs’

lawyers have grabbed on to Roommates.com and another recent Ninth Circuit decision, Barnes

v. Yahoo!, Inc. to chip away at the broad protections afforded by Section 230.

Barnes v. Yahoo!, Inc., 570 F.3d (9th Cir. 2009) clarifies one of the many possible lines

between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat


6

an interactive computer services as a "publisher or speaker" within the meaning of the statute

and what kinds do not.

At issue in Barnes was the fact that plaintiff’s ex‐boyfriend created a fake personals ad

for her on Yahoo! and impersonated her on various online forums:

Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex‐boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

570 F.3d at 1098. Barnes demanded that Yahoo! take the information down, but Yahoo! was

not very responsive ‐‐ even though it had a policy providing for the removal of fake profiles if

the complaining party provided a copy of her drivers' license. The opinion notes what happened

next:

During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo! broke its silence; its Director of Communications, Ms. Osako, told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo!, at which point Barnes filed suit against Yahoo! in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo!’s website, apparently never to return.

Id. at 1099.

Barnes attempted to plead around Section 230 in a number of creative ways. She

claimed that since Section 230 only relieved online service providers of being held to be the

publisher of defamatory material, that did not relieve Yahoo! of the obligation to take down

allegedly defamatory material once it had notice of its tortious nature. Barnes then tried to

argue that Section 230 only applies to websites that try and remove some objectionable

material. Barnes argued that the statutory purpose of the Amendment was to encourage

websites affirmatively to police themselves, not to provide an excuse for doing nothing, noting

that section 230(c) is captioned “Protection for ‘good samaritan’ blocking and screening of

offensive material.” Cf. Roommates, 521 F.3d at 1163‐64.

While the court rejected these attempts to plead around Section 230, it nevertheless

found one of Barnes’ claims not preempted: promissory estoppel. As noted above, Yahoo!


7

engaged in discussions with Barnes and promised to remove the material. However, Yahoo!

failed to do so.

Subsection 230(c)(1) creates a baseline rule: no liability for publishing the content of

other information service providers. However, the court concluded, insofar as Barnes alleged a

breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the

Act would not preclude her cause of action. 570 F.3d at 1109.

RECENT CASES

Dart v. Craigslist, Inc., 665 F. Supp.2d 961 (N.D. Ill. Oct. 20, 2009).

Thomas Dart, the Sheriff of Cook County, Illinois, sued personal ad site Craigslist in

March 2009, alleging that the site is a "public nuisance" under Chicago Municipal Code §8‐8‐

020, because its users have posted ads in the "erotic services" category that facilitate

prostitution. The civil complaint, filed by the Sheriff in his official capacity, sought an injunction,

compensatory and punitive damages, and attorneys' fees. The complaint alleged that Craigslist

creates a "public nuisance" because its "conduct in creating erotic services, developing twenty‐

one categories, and providing a word search function causes a significant interference with the

public's health, safety, peace, and welfare." Compl. ¶ 92.

Ruling on Craigslists’ motion to dismiss, Judge John Grady found Dart’s claims to be

preempted by Section 230, noting that the objectionable content was created by Craigslist

users, not Craigslist itself. Dart attempted to argue that Craigslist, like Roommates.com, should

be viewed as co‐authoring or inducing the objectionable content through its creation of an

"erotic" or "adult" services category and the inclusion of subcategories like "w4m." Judge

Grady rejected this argument, noting that the elements cited by the Sheriff could also be used

to facilitate the placement of lawful ads:

While we accept as true for purposes of this motion plaintiff's allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only "in the sense that no one could post [unlawful content] if craigslist did not provide a forum." . . . Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content in this fashion.

665 F. Supp.2d at 969.

Finkel v. Facebook, No. 102578/09, 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Sep 15, 2009).

Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of

her former high school classmates and their parents after the students created a private

Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and

defamatory statements about her. Finkel also sued Facebook, claiming that the social

networking should be held liable for publishing the defamatory statements because it "should


8

have known that such statements were false and/or have taken steps to verify the

genuineness" of the statements. Complaint ¶ 28.

In response to Facebook's motion to dismiss the Complaint under Section 230, Finkel

argued that because Facebook's Terms of Service granted it an "ownership" interest in the

content on its site, it was not entitled to protection under Section 230. In a 5‐page decision,

New York Supreme Court Justice Debra James rejected Fikel’s ownership theory, holding:

"Ownership" of content plays no role in the Act's statutory scheme. The only issue is whether the party sought to be held liable is an "interactive computer service" and if that hurdle is surmounted the immunity granted by 42 USC 230(c)(1) is triggered if the content was provided by another party.

2009 N.Y. Slip Op. 32248, at 3‐4.

Goddard v. Google, Inc., 640 F. Supp.2d 1193 (N.D. Cal. 2009).

Goddard sued Google after clicking on an allegedly fraudulent AdWords advertisement

for “free” mobile subscription service providers (“MSSP”), which resulted in unauthorized

charges to her cell phone bill. Goddard asserted claims against Google for state unfair

competition and money laundering, breach of contract, and negligence, alleging that Google

was complicit in the alleged fraud because its AdWords program helped generate the keywords

used in the offending advertisements.

On Google’s first motion to dismiss, the court found Goddard’s claims preempted by

Section 230. The court rejected Goddard’s assertion that Section 230 was inapplicable claim

because her unfair competition claims were anchored in the federal anti‐money laundering

criminal statute and excluded under §230(e)(1). The court likewise rejected Goddard’s breach

of contract claims, finding that Google never made affirmative representations regarding the

services advertised through AdWords, finding that the behavioral restrictions on advertisers

contained in the AdWords contract didn’t create affirmative marketing representations

enforceable by third parties. While dismissing Goddard’s complaint, the court granted her leave

to amend her complaint to take into account the intervening decision in Roommates.com,

explaining that:

[T]here may be instances in which an internet content provider will be considered "'responsible' at least 'in part' for [posted third‐party content] because every [posting] is a collaborative effort" between the internet provider and the third‐party content provider. Fair Housing Council, 521 F.3d at 1167. If Plaintiff could establish Google's involvement in "creating or developing" the AdWords, either "in whole or in part," she might avoid the statutory immunity created by § 230.

2008 WL 5245490 (N.D. Cal. Dec. 17, 2008).


9

In an amended complaint, Goddard alleged "that Google's mathematical algorithm

'suggests' the use of the word 'free' in relation to 'ringtone' as a means of attracting more

visitors to [the MSSPs'] sites, and that MSSPs whose offerings are not actually free are literally

powerless to resist," and as a result Google “contribute[ed] materially” to the alleged unlawful

activities. 640 F. Supp.2d at 1199.

The court subsequently granted Google's second motion to dismiss, holding that

Google's AdWords program was merely a "framework that could be utilized for proper or

improper purposes" and that Google did not "elicit[] the allegedly illegal content and make[]

aggressive use of it in conducting its business." Id. at 1198. In denying Goddard a chance to

amend her complaint once more, the court found that "Google must be extricated from this

lawsuit now lest [Section 230's] 'robust' protections be eroded by further litigation."

Doe II v. MySpace, Inc., 175 Cal. App. 4th 561 (2009).

The appeal included four consolidated cases filed by the families of teenaged girls that

were sexually assaulted by men they met on the social networking site MySpace. The

complaints asserted claims against MySpace for negligence and strict product liability based on

MySpace’s alleged failure to implement age verification software and more stringent privacy

settings. In finding plaintiffs’ claims barred by Section 230, the Court found that Congress did

not intend to limit the protections of Section 230 to defamation claims. The court rejected

plaintiffs’ allegations that their claims arose out of MySpace’s own tortious conduct and thus

fell outside of Section 230. In so holding, the court found that the claims were predicated on

holding MySpace liable as a publisher for third party content because they sought to hold the

website responsible for the communications between users.

NPS LLC v. StubHub Inc., No. 06‐4874‐BLSI, 2009 WL 995483 (Mass. Super. Jan. 26, 2009).

The New England Patriots filed a lawsuit against StubHub Inc., one of the largest online

ticket resellers, claiming that the company encourages fans to violate Massachusetts' anti‐

scalping laws and the team's prohibition against reselling tickets. The lawsuit, filed in Suffolk

Superior Court, also named as defendants two local residents and 50 "John Does," who

allegedly resold their season tickets on StubHub.com.

Through its website, StubHub allows people to buy and sell tickets to sporting, concert,

theater, and other events. Sellers can choose whether to sell their tickets at a fixed price, via a

minimum price auction, or via a declining price auction, in which the seller sets a price that

decreases each day. Under its user agreement, StubHub receives a 25% commission for each

sale: 15% of the selling price from the seller, and 10% added to the total sales price due from

the buyer. StubHub also provides reduced fees and special privileges to certain "Large Sellers,"

who "take a large interest in tickets spanning over multiple events and genres."


10

After discovery, StubHub moved for partial summary judgment on the Patriot’s claim of

intentional interference with advantageous relations, arguing, among other things, that Section

230 exempted it from liability for the actions of its users. The Patriots claimed that StubHub

tortiously interfered with the team's relationship with its fans by intentionally inducing or

encouraging ticket holders to transfer their tickets in violation of their season ticket licenses

and Massachusetts' anti‐scalping laws, which prohibit, inter alia, selling tickets for more than $2

over the face value plus service charges. In response, StubHub argued in its motion that it isn't

responsible for what its users do because it does not sell tickets itself, but simply provides an

online forum for others to sell tickets.

StubHub also argued that it should be treated no differently from the newspaper "want‐

ads," an analogy that the court was quick to reject:

There are, however, at least two fundamental differences between StubHub's website and the "want‐ads" in the classified pages of a newspaper or comparable website. First, the newspaper generally charges a fixed price for the advertisement; its price is not dependent on the amount of the sale. See Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, 519 F.3d 666, 671‐672 (7th Cir. 2008). Second, newspapers do not affirmatively seek to increase the price charged in the classified ad, especially when doing so may constitute a violation of law. In Craigslist, the Seventh Circuit, rejecting a claim that craigslist helped to violate the anti‐discrimination laws in the Fair Housing Act, noted that nothing in the service provided by craigslist encouraged those posting listings for rental or sale properties to add discriminatory preferences in violation of the Act. Id. at 671.

NPS, at *12.

Justice Gants concluded that "StubHub is an interactive computer service, that sellers

who post their tickets on StubHub are information content providers within the meaning of §

230, and that StubHub does not lose the immunity provided by the CDA if it simply knew that

its sellers were potentially in violation of G.L. c. 140, § 185A or § 185D." NPS, at *12. Citing the

Ninth Circuit's decision in Roommates.com, however, Justice Gants found that Section 230

immunity does not apply to interactive computer service providers who are found to have

"contribute[d] materially to the alleged illegality of the conduct." NPS, at *13 (quoting

Roommates, 521 F.3d at 1167‐68). The court held that the Patriots sufficiently alleged that

StubHub “contribute[d] materially” to the alleged illegal conduct, noting:

[A]s discussed earlier, there is evidence in the record that StubHub materially contributed to the illegal “ticket scalping” of its sellers. In effect, the same evidence of knowing participation in illegal “ticket scalping” that is sufficient, if proven, to establish improper means is also sufficient to place StubHub outside the immunity provided by the CDA.

NPS, at *13. This finding was based on the following allegations:


11

StubHub's pricing structure "meant that it profited from any violation of the anti‐scalping laws, since its revenue increased in direct proportion to the price of the ticket sold."

StubHub did "not require the seller (or even ask the seller) the face value of the ticket . . . . The absence of such information permits illegal ticket scalping to occur through the StubHub website and prevents any policing of the website to prohibit such scalping."

StubHub "affirmatively encouraged LargeSellers in the LargeSeller's Handbook to 'check the website from time to time for underpriced tickets or exclusive listings that may not be seen elsewhere,' and still encourages LargeSellers to buy these underpriced tickets by waiving for them the fee due from all other ticket buyers‐10 percent of the sales price." "[B]y encouraging LargeSellers to buy these tickets, is essentially encouraging LargeSellers to resell these tickets at higher prices, from which StubHub will enjoy a higher commission."

Accordingly, the court denied StubHub’s partial motion to dismiss.

GW Equity LLC v. Xcentric Ventures LLC, 2009 WL 62173 (N.D. Tex. Jan. 9, 2009).

GW Equity, LLC, a mergers and acquisition firm that acts as a consultant to middle‐

market business owners who seek to sell or merge their businesses, sued Xcentric Ventures, LLC

and Edward Magedson in Texas federal court for defamation and other torts over reports

published on the Ripoff Report website, which provides a forum in which consumers may

accuse companies and individuals of various "rip‐off" and "bad business" practices.

In its complaint, GW Equity alleged that Ripoff Report published false and defamatory

reports submitted by users without verifying their accuracy. In an effort to circumvent the

immunity for website operators provided by Section 230, GW Equity further alleged that

Xcentric and Magedson created, developed, and published defamatory titles, headings, and

metatags for these reports concerning GW Equity. It also claimed that Ripoff Report generated

defamatory content by providing users with drop‐down boxes containing defamatory tags, such

as "corrupt companies," which were applied by users to reports about GW Equity.

After completing discovery, Xcentric and Magedson moved for summary judgment. In

October 2008, a federal magistrate judge issued his report on the motion, which was later

adopted by the court, recommending that the district court grant Xcentric and Magedson's

motion for summary judgment. The magistrate judge found that Xcentric and Magedson were

entitled to the protection of Section 230 because GW Equity had failed to raise a genuine issue

of fact concerning Xcentric’s development or creation of defamatory content. The court

indicated that providing drop‐down boxes with "a broad choice of categories from which a user

must make a selection in order to submit a report [was] not sufficient" to deprive the

defendants of immunity, especially because they "did not solely provide users with a selection

of categories that were negative and/or defamatory in nature." GW Equity, at *6, *18.


12

The court also found that there was no competent evidence that any Ripoff Report

employee ever wrote or significantly edited report titles and headings, or changed the category

tag on a user report. See id. at *17‐18. The court relied in part on a report produced by Xcentric

showing IP addresses and locations connected with the reports and rebuttals about GW Equity.

This report showed the IP addresses of Ripoff Report servers and machines used by Ripoff

Report staff, and none of those IP addresses matched up with the IPs of a report or a rebuttal

about GW Equity. See id. at *17.

Finally, the court rejected GW Equity's argument that Ripoff Report's "Corporate

Advocacy Business Remediation & Satisfaction Program" took the website outside of the

protections of Section 230. According to GW Equity, under this program Ripoff Report will, for a

fee, investigate "rip‐off" reports targeting member companies and post prominent rebuttals to

those reports. The court indicated that "it is not a bar to immunity for an Internet provider to

refuse to remove defamatory material created by a third party, or to otherwise use it to their

advantage, even though the Internet provider’s conduct may be considered reprehensible and

offensive." Id. at *19.


1

RECENT DEVELOPMENTS: ONLINE ANONYMITY

Several cases in 2009 and 2010 have addressed the legal process for uncovering the

identities of anonymous or pseudonymous Internet speakers. State high courts in the District of

Columbia, Maryland and New Hampshire decided cases in which parties sought to compel

website operators to disclose the identity of anonymous posters, and lower courts in Illinois,

New Hampshire, New Jersey, New York, North Carolina and Tennessee also addressed the

issue. Federal district courts also weighed in, with decisions in the District of Columbia,

Pennsylvania, Missouri, and New York.

Nearly all of the decisions this past year recognized a qualified First Amendment right to

speak anonymously that must be balanced against a would‐be plaintiff’s right to seek proper

redress for legally actionable harm. In effectuating this balance, most courts required a party

seeking identifying information to provide notice and make a substantial legal and factual

showing of the merits of the underlying claim before unmasking an anonymous or

pseudonymous speaker intended to be named as a defendant.1 Most2 of these courts adopted

either the Dendrite3 or the Cahill4 standard, or some variation, with a few courts recognizing

that the distinction is largely semantic.5

Anonymous speech also broke into the popular press with model Liskula Cohen’s

successful effort to uncover the identity of the “Skanks in NYC” blogger.6 While a slight oddball

in terms of its legal analysis, the Cohen case does not represent a significant departure from the

other anonymous speech cases discussed in this section.

In other developments, two decisions elaborated on the standard for unmasking of an

anonymous poster who would serve as a witness, rather than as a defendant.7 These courts

adopted a four‐part test, previously applied in Doe v. 2TheMart.com8 and Enterline v. Pocono

Medical Center,9 which looks a good deal like the test applied in qualified reporter’s privilege

1 See Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128 (D.D.C 2009); Zherka v. Bogdanos, 08 Civ. 2062

(S.D.N.Y. Feb. 24, 2009); Solers v. Doe, 977 A.2d 941 (D.C. 2009); Brodie v. Independent Newspapers, 966 A.2d 432 (Md. 2009); The Mortgage Specialists, Inc. v. Implode‐Explode Heavy Indus., Inc., ‐‐‐ A.2d ‐‐‐‐, 2010 WL 1791274 (N.H. 2010); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010); Swartz v. Doe, No. 08C‐431 (Tenn. Cir. Ct. Oct. 8, 2009).

2 The two exceptions were the court in Hester v. Doe, No. 10‐CVS‐361 (N.C. Super. Ct. June 28, 2010) and Maxon v. Ottawa Publ’g Co., 3‐08‐0805 (Ill. App. Ct. June 1, 2010).

3 Dendrite Int’l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). 4 Doe v. Cahill, 884 A.2d 451 (Del. 2005). 5 See, e.g., Sinclair v. TubesocktedD, 596 F. Supp. 2d 128, 132 (D.D.C. 2009); Swartz v. Doe, No. 08C‐431,

slip op. at 8 (Tenn. Cir. Ct. Oct. 8, 2009). 6 Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009). 7 McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010); Sedersten v. Taylor, 2009 WL 4802567 (W.D.

Mo. Dec. 9, 2009). 8 140 F. Supp. 2d 1088 (W.D. Wash. 2001). 9 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).


2

cases. Additionally, in comparison to 2008,10 courts in 2009 and 2010 were less receptive to

claims that state shield laws protect the identities of anonymous commenters.

Finally, two incidents involving newspapers voluntarily outing website commenters

received considerable attention, a good deal of it negative. One involved a St. Louis Post‐

Dispatch reporter who turned over the IP address of a vulgar commenter to a local school that

traced the comment back to an employee, who resigned.11 The second involved the Cleveland

Plain Dealer’s decision to disclose publicly that several comments posted on its site were linked

to the email account of a local judge.12 The public relations backlash from these incidents

suggests that a website privacy policy should spell out clearly when a website operator may

disclose identifying information other than in response to legal process, and that employees

should be trained to comply with that policy.

THE CASES

Hester v. Doe, No. 10‐CVS‐361 (N.C. Super. Ct. June 28, 2010).

Former Vance County commissioner Thomas S. Hester, Jr. sought the identities of six

pseudonymous commenters who allegedly posted defamatory comments to a local community

blog. The court, while citing the standard set forth in Dendrite Int’l v. Doe, 775 A.2d 756 (N.J.

App. Div. 2001), adopted only "some" of the Dendrite test. In testing the sufficiency of the

plaintiff’s claims, the court applied the motion to dismiss standard set forth in Fed. R. Civ. P.

12(b)(6), finding that the higher standard under Fed. R. Civ. P. 56 adopted by many courts was

"way too stringent and premature." Slip op. at 3. After conducting the motion to dismiss

analysis, the court ultimately quashed the subpoena as applied to certain of the blog posts the

court found to be non‐defamatory, but allowed the subpoena as to other commenters.

Maxon v. Ottawa Publishing Co., 3‐08‐0805 (Ill. App. Ct. June 1, 2010).

Plaintiffs had sought the identities of a pseudonymous commenter that had posted

allegedly defamatory statements in comments on articles posted on the website of a local

newspaper. The lower court applied a modified version of the Dendrite and Cahill test and

dismissed plaintiffs’ petition for discovery of the commenter’s identity. The appeals court

rejected the proposition that “anonymous speech, in and of itself, warrants constitutional

protection,” and accordingly found that there was “no need for the additional procedural

10 In 2008, courts in Montana and Oregon ruled that their state shield laws protected the identities of

anonymous commenters, viewing such information as material obtained during the newsgathering process. See Doe v. TS, CV08030693 (Or. Cir. Ct. Sept. 30, 2008); Doty v. Molnar, No. DV 07‐022 (Mont. Cir. Ct. Sept. 3, 2008).

11 See Ars Technica, Paper outs “anonymous” commenter, job loss ensues (Nov. 18, 2009), at http://arstechnica.com/web/news/2009/11/paper‐outs‐anonymous‐commenter‐job‐loss‐ensues.ars.

12 First Amendment Coalition, Cleveland newspaper causes stir by unmasking anonymous poster—a judge (March 29, 2010), at http://www.firstamendmentcoalition.org/2010/03/cleveland‐newspaper‐causes‐stir‐by‐unmasking‐anonymous‐poster‐%E2%80%93‐a‐judge/.


3

requirements articulated in the Dendrite‐Cahill test.” Slip op. at 11‐12. Instead, the court

determined that the only test a lower court should apply to a petition seeking the identity of an

anonymous commenter was that set forth in Supreme Court Rule 224, which requires the

plaintiff to establish all elements of a claim for defamation. Id. at 13‐14. The court specifically

rejected any additional requirement to balance the commenter’s First Amendment rights, and

further rejected the application of a summary judgment standard, rather than a motion to

dismiss standard, to test the sufficiency of the plaintiff’s claims. Id.

The Mortgage Specialists, Inc. v. Implode‐Explode Heavy Indus., Inc., ‐‐‐ A.2d ‐‐‐‐, 2010 WL

1791274 (N.H. 2010).

In Mortgage Specialists, the New Hampshire Supreme Court vacated the trial court’s

order that the publishers of the mortgage industry watchdog site, The Mortgage Lender

Implode‐O‐Meter ("ML‐Implode"), turn over the identity of an anonymous source who provided

ML‐Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for

submission to the New Hampshire Banking Department, finding that the website qualified as a

“reporter” and was thus entitled to invoke the qualified newsgathering privilege under Part I,

Article 22 of the New Hampshire Constitution. The court also vacated the trial court’s order that

ML‐Implode reveal the identity of a pseudonymous commenter who allegedly posted

defamatory statements about the company, adopting the Dendrite balancing test.

In ruling that ML‐Implode was entitled to invoke the qualified newsgathering privilege

under the New Hampshire Constitution, the court flatly rejected The Mortgage Specialists'

argument that "the newsgathering privilege is inapplicable here because Implode is neither an

established media entity nor engaged in investigative reporting." 2010 WL 1791274, at *2‐3. It

explained that "[t]he fact that Implode operates a website makes it no less a member of the

press," and that "Implode's website serves an informative function and contributes to the flow

of information to the public." Id. Therefore, the court concluded, "Implode is a reporter for

purposes of the newsgathering privilege." Id. The court remanded the issue to the trial court

with instructions to apply the balancing test set forth by the First Circuit in Bruno & Stillman,

Inc. v. Globe Newspaper Co., 633 F.2d 583, 595‐98 (1st Cir. 1980), which requires the court to

“balance the potential harm to the free flow of information that might result against the

asserted need for the requested information.” Id. at 596. The test sets our several factors for

trial courts to consider, including whether the claim is merely “a pretense for using discovery

powers in a fishing expedition,” whether there is a need for confidentiality between the

journalist and the source, the exhaustion of other non‐confidential sources, and the importance

of confidentiality to preserve the journalist's continued newsgathering effectiveness. Id. at 597‐

98.

In vacating the trial court’s order to reveal the identity of the pseudonymous

commenter, the court recognized a First Amendment right to speak anonymously. 2010 WL


4

1791274, at *5. To guide the lower court in weighing the speaker’s First Amendment rights

against Mortgage Specialist’s interest in uncovering the author of the allegedly defamatory

statements, the court adopted the balancing test first set forth in Dendrite Int’l, Inc. v. Doe

Number 3, 342 N.J. Super. 134, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). 2010 WL

1791274, at *6. Under the Dendrite test, the plaintiff must notify the commenter of the

subpoena and give him or her a chance to respond. The court must then review the plaintiff’s

complaint and the proffered evidence in order to determine whether the plaintiff has made a

prima facie case on each element of its causes of action. If the plaintiff meets this burden, the

court must then “balance the defendant’s First Amendment right of anonymous free 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.” 775 A.2d at

760‐61.

In re Lerner, No. HUD‐L‐0672‐10 (N.J. Super. Ct. Law Div. Mar. 19, 2010).

In In re Lerner, A New Jersey trial court ruled that the president of the Galaxy Towers

Condominium Association was not entitled to pre‐suit discovery of the identities of anonymous

critics who posted comments on “Galaxy Facts,” a website forum used by Galaxy Towers condo

owners to discuss a variety of issues, including the Association’s governance and leadership. In

an oral ruling, the court held that Rule 4:11‐1, the New Jersey rule of civil procedure governing

pre‐suit discovery, does not authorize pre‐suit discovery in order to learn the identities of

potential defendants. Citing Dendrite, the court explained that “[New Jersey] courts have set

forth a procedure whereby a party seeking to file a complaint for defamation can sue

anonymous speakers even before he or she knows who they are,” adding that “in those

circumstances, pre‐complaint discovery would not be appropriate.” Tr. at 22. Because the

condominium association president had not filed a John Doe complaint before seeking

discovery, the court denied the requested discovery.

A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010).

In A.Z. v. Doe, a mid‐level appeals court in New Jersey affirmed an order quashing a

subpoena seeking subscriber information for a Gmail account. The plaintiff was a member of

her high school’s “Cool Kids & Heroes” program, comprised of students of high academic

achievement who pledged to maintain standards of “exemplary personal conduct.” An

anonymous individual set up a Gmail account and sent an email to the faculty advisor for the

Cool Kids & Heroes program stating that seven students, including the plaintiff, were “breaking

their contracts, and breaking the law.” The email attached several photographs taken off

Facebook showing students drinking and smoking pot. Only one of the photographs included

the plaintiff, and it showed her standing at a ping pong table about to throw a ping pong ball,

but it did not show her drinking or smoking.


5

The plaintiff filed a John Doe lawsuit against the sender of the email and subpoenaed

Google, and the Doe defendant filed a motion to quash. The trial court granted the motion,

reasoning that the plaintiff failed to show that the strength of her prima facie case and the

necessity for disclosure outweighed Doe’s First Amendment right to anonymous speech.

On appeal, the court adhered to the Dendrite standard and affirmed the trial court,

though on different grounds. The appeals court ruled that the plaintiff was not entitled to

unmask the defendant because she could not make out a prima facie case of defamation.

Specifically, the court found that the plaintiff presented no evidence that the statement she

was “breaking [her] contract[], and breaking the law” was false. The court noted that the

plaintiff “never provided a sworn statement that she was not consuming alcohol while

underage, that the photograph was a forgery, that the photograph had been altered, or that

she was not the person who was depicted in the photograph.” 2010 WL 816647, at *5. The

court also found compelling additional photographs taken off Facebook that Doe submitted in

support of the motion to quash. These photographs showed plaintiff holding and drinking

alcoholic beverages along with the other students. Id. at *6. The court concluded: “We are

satisfied that regardless of whether the balancing test embodied in Dendrite’s fourth prong is

applied or not, no plaintiff is entitled to an order unmasking an anonymous author when the

statements in question cannot support a cause of action for defamation.” Id. at *7.

McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010).

In McVicker, a federal district court in the Western District of Pennsylvania denied

William McVicker’s motion to compel Trib Total Media, the publisher of the South Hills Record

and YourSouthHills.com, to disclose identifying information for seven identified screen names.

McVicker, the plaintiff in an employment discrimination case, sought the posters’ identities in

order to impeach the testimony of city council members who made the decision to fire him.

In ruling on the motion to compel, the district court reviewed the various standards

applied by other courts in anonymous speech cases and determined that “a party seeking

disclosure must clear a higher hurdle where the anonymous poster is a non‐party.” McVicker,

2010 WL 786275, at *3 (citing Doe v. 2TheMart.com, 140 F. Supp. 2d 1088, 1095 (W.D. Wash.

2001)). The court adopted the four‐part test applied in 2TheMart.com and Enterline v. Pocono

Medical Center, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), which requires the court to

consider whether (1) the subpoena was issued in good faith; (2) the information sought relates

to a core claim or defense; (3) the identifying information is directly and materially relevant to

that claim or defense; and (4) information sufficient to establish or to disprove the claim or

defense is unavailable from any other source. McVicker, 2010 WL 786275, at *5.

The court determined that McVicker failed to show that the identifying information was

directly and materially relevant to his employment claim because it was primarily useful for


6

impeachment purposes. Id. The court also found that the identities of the commenters and

information in their possession were not strictly necessary for McVicker to impeach the city

council members effectively, and that the same or similar information might be obtained

through "normal, anticipated forms of discovery." Id. at *6.

In the course of its analysis, the court also “summarily rejected” McVicker’s argument

that the YourSouthHills.com's privacy policy created no expectation of privacy, finding that the

policy “clearly reflects that [the website publisher] will disclose its users’ personally identifiable

information only in very limited situations.” Id. at *5.

The district court also ruled that Trib Total Media had standing to assert the First

Amendment rights of individuals posting to its website. See id. at *4.

Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009).

In Sedersten, a federal district court in the Western District of Missouri denied John

Sedersten’s motion to compel The Springfield News‐Leader to divulge the identity of

"bornandraisedhere," a pseudonymous commenter who commented on an article on the

News‐Leader's website. The subpoena issued in conjunction with Sedersten's civil lawsuit

against the City of Springfield, Missouri, Springfield's police chief, and a former Springfield

police officer. The News‐Leader article discussed county prosecutors' decision to drop charges

against the police officer, a decision that "bornandraisedhere" sharply criticized. Gannett

Missouri Publishing, the publisher of the News‐Leader, objected to the subpoena, and

Sedersten moved to compel the newspaper to turn over information.

As in McVicker, the district court briefly reviewed the various standards applied by other

courts in anonymous speech cases and determined that “a party seeking disclosure must clear a

higher hurdle where the anonymous poster is a non‐party.” 2009 Wl 4802567, at *2 (citing Doe

v. 2TheMart.com, 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001)). The court adopted the four‐

part test applied in 2TheMart.com, which requires the court to consider whether (1) the

subpoena was issued in good faith; (2) the information sought relates to a core claim or

defense; (3) the identifying information is directly and materially relevant to that claim or

defense; and (4) information sufficient to establish or to disprove the claim or defense is

unavailable from any other source. Id. The court also explained that it would “keep in mind

other First Amendment principles, such as the strict scrutiny applied to restrictions on political

speech.” Id.

Applying this test, the court determined that “this is not the exceptional case that

warrants disclosure of an anonymous speaker’s identity.” Id. The court found that the evidence

Sedersten sought to elicit from bornandraisedhere was cumulative, and that Sedersten could

rely on the comments in making out his negligent hiring/retention case against the City without

knowing the identity of the speaker. In addition, the court commented that, if


7

bornandraisedhere was in fact the chief of police (a named defendant), then Sedersten could

simply question the chief on the comments during a deposition. Id. at *2 n.5.

The court also rejected Sedersten’s argument that bornandraisedhere had waived First

Amendment protection by agreeing to the News‐Leader’s privacy policy, which reserved to the

newspaper "the right to use, and to disclose to third parties, all of the information collected

from and about [users] while [using] the Site in any way and for any purpose." Id. at *1, 3. The

court was unconvinced by Sedersten’s reliance on “two sentences in a two‐page document in

which the overarching theme is that information provided by a user of the site may be used for

various commercial purposes.” The court further explained that “[n]othing on the face of the

privacy policy even hints a user may be waiving his or her constitutional right to anonymous

free speech by posting comments or materials on the News‐Leader’s website.” Id. at *3.

Swartz v. Doe, No. 08C‐431 (Tenn. Cir. Ct. Oct. 8, 2009).

In Swartz, a Tennessee trial court ruled that plaintiffs Donald and Terry Keller Swartz

were entitled to discover the identity of the anonymous blogger behind the “Stop Swartz” blog

who published critical statements about them and encouraged readers to post information on

their whereabouts and activities. In ruling on the defendant’s motion to quash, the court

adopted the Dendrite standard, which requires the following five‐part test: (1) the plaintiff must

notify the poster that he or she is the subject of a subpoena or discovery request; (2) the

plaintiff must give the poster reasonable time to file opposition to the application; (3) the

plaintiff must identify the exact statements purportedly made by each anonymous poster that

give rise to each claim; (4) the plaintiff must make a prima facie or substantial showing of proof

for each element of each cause of action; and (5) the court must balance the First Amendment

interests of the anonymous poster against the strength of the plaintiff’s prima facie case and

the need for disclosure to allow the claims to proceed. Slip op. at 7. With respect to prong four

of this test, the court indicated that the factual showing “must be made by affidavit, deposition,

or sworn statement, and that mere allegations of fact are insufficient.” Id. at 8.

In characterizing the test, the court cut through the semantic differences between the

various standards available to courts in anonymous speech cases:

As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing. By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity.

Id. The court determined that the Swartzes succeeded in making this substantial legal and

factual showing, pointing out that they submitted copies of the offending blog posts and

testified regarding the falsity of the statements and damages. Id. at 9‐10.


8

Solers v. Doe, 977 A.2d 941 (D.C. 2009).

In Solers, a software developer sued a John Doe defendant for defamation and tortious

interference over an anonymous tip submitted to an industry watchdog group claiming that the

software developer had engaged in software privacy. Solers subpoenaed the watchdog group,

seeking information about the anonymous defendant’s identity. On appeal, the D.C. Court of

Appeals adopted a protective standard for its lower courts to follow and emphasized that a

plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed

to have violated the law. 977 A.2d at 958.

The D.C. Court of Appeals’ test most closely resembles those set out in Doe v. Cahill, 884

A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008). It

requires a court to follow five steps before ordering the disclosure of an anonymous or

pseudonymous speaker's identity: (1) ensure that the plaintiff has adequately pleaded the

elements of a defamation (or other) claim; (2) require reasonable efforts to notify the

anonymous defendant that the complaint has been filed and the subpoena has been served; (3)

delay further action for a reasonable time to allow the defendant an opportunity to file a

motion to quash; (4) require the plaintiff to proffer evidence creating a genuine issue of

material fact on each element of the claim that is within its control; and (5) determine that the

information sought is important to enable the plaintiff to proceed with his/her lawsuit. Id. at

954‐56. With respect to the fifth prong, the court indicated that it would not require a showing

that the plaintiff had exhausted alternative sources for the information, so long as the other

elements of the test had been satisfied. The D.C. Court of Appeals remanded the case to the

trial court for application of this test.

Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009).

In Cohen, a New York trial court granted model Liskula Cohen pre‐suit discovery from

Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen

alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting

photographs of her in provocative positions with sexually suggestive captions, all creating the

false impression that she is sexually promiscuous.

The court analyzed the discovery request under New York CPLR § 3102(c), which

provides for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c),

a party seeking pre‐action discovery must make a prima facie showing of a meritorious cause of

action before obtaining the identity of an anonymous defendant. See 887 N.Y.S.2d at 426‐27 &

n.5. While acknowledging the First Amendment issues at stake and citing Dendrite, the court

opined that New York law’s requirement of a prima facie showing “appear[s] to address the

constitutional concerns raised in this context.” Id. at 427 n.5.


9

The court held that Cohen adequately made this prima facie showing of defamation,

finding that the “skank” and “ho” statements, along with the sexually suggestive photographs

and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than

an expression of protected opinion. Id. at 428‐29. Somewhat confusingly, in rejecting the

blogger’s argument that her statements should be viewed as opinion because “as a matter of

law . . . Internet blogs serve as a modern day forum for conveying personal opinions, including

invective and ranting,” the court cited an old case from Virginia, In re Subpoena Duces Tecum to

America Online, Inc., 2000 WL 1210372 (Va. Cir. Ct.), rev’d on other grounds, 542 S.E.2d 377 (Va.

2001), which applied a lenient “good faith” standard to a discovery request seeking the identity

of an anonymous commenter. This reference is best understood as dicta, however, because the

court invoked the case in dealing with a peripheral point. Furthermore, the AOL test is

inconsistent with CPLR § 3102’s requirement of a “prima facie showing of a meritorious cause

of action,” which the court invoked to sidestep First Amendment analysis. Id. at 427 n.5.

Alton Telegraph v. Illinois, 08‐MR‐548 (Ill. Cir. Ct. May 15, 2009).

In Alton Telegraph v. Illinois, an Illinois trial court denied in part the Alton Telegraph’s

motion to quash a subpoena issued by state prosecutors seeking the identity of five

pseudonymous posters who commented on a Telegraph story about an ongoing murder

investigation. The court rejected the Alton Telegraph’s argument that the pseudonymous

commenters were “sources” protected by the Illinois shield law.

While acknowledging in the abstract that commenters could serve as sources, the court

ruled that these commenters were not sources because the Telegraph reporter did not use any

information supplied by them “in researching, investigating, or writing the article,” and “none

of the comments were written until after the article was published.” Slip op. at 5. In the

alternative, the court ruled that, even if the shield law did apply to the case, the state had

“satisfied its burden to divest the Telegraph of its privilege” because it had exhausted all other

sources of information and the sources were relevant. Id. at 6. Nevertheless, the court granted

the motion to quash with respect to three of the commenters because their comments did not

contain the same highly relevant information and “appear[ed] to be nothing more than

conversation/discussion.” Id. at 7. Neither the court nor the parties raised the issue of the

commenters’ First Amendment rights to speak anonymously.

Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009).

In Zherka, a federal district court in the Southern District of New York granted The

Journal News’ motion to quash subpoenas seeking the identities of three pseudonymous

posters to a forum on the LoHud.com website. In ruling on the motion to quash, the court

applied a multi‐part test derived from Dendrite, Sony Music Entertainment v. Does, 326

F.Supp.2d 556 (S.D.N.Y. 2004), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008),


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which has the following elements: (1) the plaintiff must make a reasonable attempt to provide

notice to the anonymous poster; (2) the plaintiff has to provide the court with the full

statements which are at issue; (3) the plaintiff must make a concrete showing of a prima facie

case; (4) the court should consider whether the information is available through alternate

means; and (5) if all the other elements are satisfied, the court must balance the First

Amendment interests of the anonymous posters against the need for disclosure in order to

allow the plaintiff to proceed.13 See Zherka, Tr. at 28‐31.

In applying this standard, the court gave considerable weight to prong four, finding that

the plaintiff had failed to pursue alternative means of identifying the posters and suggesting

that the named defendants likely knew the posters’ identities. Id. at 30‐31. The court gave the

plaintiff permission to re‐serve the subpoena after discovery between the named parties and

stated that “it should be done with appropriate notice as outlined above, and with concurrent

filing to me showing the full statements, laying out the prima facie case, and describing why

there are no effective alternative means to get the information.” Id. at 32.

Brodie v. Independent Newspapers, 966 A.2d 432 (Md. 2009).

In Brodie, the Court of Appeals of Maryland reversed the trial court’s order denying

Independent Newspapers’ motion to quash a subpoena seeking the identity of five

pseudonymous commenters. The plaintiff, Zebulon Brodie, sought the identities of the

commenters to pursue a defamation action against them over statements on a website forum

criticizing Brodie for selling his historic home to another developer who allegedly burned it

down and accusing Brodie of maintaining a dirty Dunkin' Donuts franchise. The Court of Appeals

ruled that Brodie’s subpoena should have been quashed. In the process, it clarified the

appropriate standard for the lower courts, indicating that “a test requiring notice and

opportunity to be heard, coupled with a showing of a prima facie case and the application of a

balancing test,” such as the Dendrite standard, “most appropriately balances a speaker's

constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress

from defamatory remarks.” 966 A.2d at 456.

The Court of Appeals spelled out a five‐part test, under which a court should take the

following steps before ordering disclosure of the identity of an anonymous or pseudonymous

speaker: (1) require the plaintiff to undertake efforts to notify the anonymous posters that they

are the subject of a subpoena or application for an order of disclosure, including posting a

message of notification of the discovery request on the message board; (2) withhold action to

afford the anonymous posters a reasonable opportunity to file and serve opposition to the

13 Interestingly, the court indicated that the First Amendment interests of the posters under prong five

would be diminished if the website privacy policy warned that identifying information would be disclosed in response to court order or other legal process. Zherka, Tr. at 28. The court did not provide detailed reasoning on this point.


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application; (3) require the plaintiff to identify and set forth the exact statements purportedly

made by each anonymous poster, alleged to constitute actionable speech; (4) determine

whether the complaint has set forth a prima facie defamation per se or per quod action against

the anonymous posters; and (5) if all else is satisfied, balance the anonymous poster’s First

Amendment right of free speech against the strength of the prima facie case of defamation

presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s

identity. Id. at 457.

The Court of Appeals ruled that Brodie did not have a valid cause of action against the

posters because statements made by certain posters were not actionable and the statute of

limitations had run against other posters not named in Brodie’s complaint. See id. at 449.

Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128 (D.D.C. 2009).

In Sinclair, a federal district court in the District of Columbia quashed a subpoena

seeking the identities of three pseudonymous Internet users. In early 2008, plaintiff Lawrence

Sinclair published a YouTube video and blog claiming that he had engaged in sexual activities

and done drugs with then‐presidential candidate Barack Obama. In response, “TubeSockTedD”

uploaded a video to YouTube stating that Sinclair was “spreading lies about Obama.” Another

Internet user, “mzmolly,” posted a comment on Democratic Underground.com stating that

Sinclair was a mental patient who was institutionalized on the date in 1999 when he claimed to

have encountered Obama. A third, “OWNINGLIARS,” posted a comment on Digg.com stating

that Sinclair was a liar and was in a mental hospital when he claimed he met Obama. Sinclair

filed a John Doe lawsuit for defamation against all three and sought identifying information

from the relevant Internet service providers, and the pseudonymous posters moved to quash.

The court granted the motion to quash and dismissed the complaint in its entirety. It

surveyed the case law on the First Amendment right to speak anonymously and held that,

under either the Cahill or the Dendrite standard, Sinclair was not entitled to the requested

discovery because his complaint was facially invalid. Specifically, the court determined that

Sinclair's complaint did not plead facts necessary to establish the court's subject‐matter

jurisdiction over the case or personal jurisdiction over the pseudonymous defendants. In

addition, the court ruled that Sinclair's defamation claims failed as a matter of law because he

did not plead either actual malice or special damages, and because section 230 of the

Communications Decency Act protected mzmolly and OWNINGLIARS for "simply summarizing

and reporting information obtained from" a third party. In conclusion, the court stated: “Where

the viability of a plaintiff’s case is so seriously deficient, there is simply no basis to overcome

the considerable First Amendment interest in anonymous speech on the Internet. Sinclair has

provided no ground to do so here.” 596 F. Supp. 2d at 134.


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Although the court quashed the subpoena and dismissed the complaint, it refused to

award mzmolly and Democratic Underground sanctions against Sinclair because of the novel

areas of law involved. Id. at 134 n.4.


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RECENT DEVELOPMENTS: SECTION 512, DIGITAL MILLENNIUM COPYRIGHT ACT


The Digital Millennium Copyright Act

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA). Although the DMCA as a whole extended the reach of copyright law and is generally regarded as favoring the interests of copyright owners, it also created provisions limiting the liability of certain online actors. Section 512 of the DMCA, 17 U.S.C. § 512, contains the DMCA's "safe‐harbor" provisions for online service providers. These provisions shield online service providers, like website operators, ISPs, hosting providers, and search engines, from copyright infringement claims made against them based on the conduct of their customers or users. To take advantage of the safe‐harbor provisions, online service providers need to implement "notice‐and‐takedown" procedures that call for expeditious removal of content upon receipt of a valid takedown notice from a copyright owner. Safe‐harbor for Internet Service Providers Under DMCA Section 512

Online publishers that publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner may be exposing themselves to legal liability for violations of intellectual property law. Fortunately, online publishers that allow their users to post this type of content can protect themselves from copyright infringement claims under the DMCA by establishing effective “notice‐and‐takedown” procedures, promptly removing content when a copyright owner sends notification that material is infringing in cases where the online publisher did not have knowledge that the material in question is infringing.

The DMCA gives online service providers, like the hosting service and other website

operators, an incentive to take down infringing material when someone sends a notice complaining about it, but also enables the user to send a “counter‐notice” to get the material put back up. Such situations may arise when a user of an internet service provider finds its content to be the target of a DMCA takedown notice sent to, for example, a hosting provider complaining that the user is posting copyright infringing material and asking the hosting provider to remove or disable access to it. Less commonly, a user might post something in user comments on another blog or website that elicits a takedown notice.


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Online publishers should consider implementing these procedures and taking the administrative steps required to enjoy safe‐harbor protection. They are not legally required to do so, but it may help them avoid copyright infringement liability. The three main things an online publisher needs to do to take advantage of the safe‐harbor provisions are (1) designate a copyright agent to receive takedown notices; (2) adopt and communicate to users an effective "copyright infringement policy"; and (3) properly comply with takedown notices when received.

There are two safe‐harbor provisions that potentially apply to online publishing activities:

The first safe‐harbor provision, under section 512(c), relates to materials posted to a blog or website at the direction of a user. This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on the site or to a forum thread. Under this safe‐harbor, the administrator of a website or other service will not be held liable for money damages for infringing content posted "at the direction of a user," so long as the administrator:

(1) does not have actual knowledge that there is infringing content on the servers, or know any surrounding facts that would make the infringing use apparent;

(2) does not receive any financial benefit directly attributable to the infringing activity if it has the ability to control such activity; and

(3) acts expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement.

The second safe‐harbor provision, under section 512(d), relates to links to other online

material located elsewhere. This safe‐harbor provision states that an online service provider will not be held liability for money damages “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.” If a website links to material without knowing that it infringed copyright, the language of this section appears to relieve the online publisher of liability so long as the online publisher:

(1) does not have actual knowledge that the material is infringing, or know any surrounding facts that would make the infringement apparent

(2) does not receive any financial benefit directly attributable to the infringing activity if it has the ability to control such activity; and


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(3) acts expeditiously to remove or disable access to the infringing material (such as by taking away the link) upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement.

These safe‐harbor provisions could be valuable protections for online publishers, but in

order to take advantage of them, website operators and administrators must meet the administrative requirements. Note however, the existence of the safe‐harbor provisions does not imply that an online publisher will be held liable for copyright infringement if it opts not to use the safe‐harbors. Rather, liability will depend on the independent principles of direct and secondary infringement. Administrative Requirements for Section 512 Safe‐Harbor Protection There are a few additional administrative steps that an online publisher must take to enjoy the benefits of the safe‐harbor provisions. 1. Designate a Copyright Agent to Receive DMCA Takedown Notices

The U.S. Copyright Office maintains a list of designated agents to receive notices of claimed copyright infringement. This list enables copyright owners who believe that their work is being infringed to send complaints or "takedown notices" to internet service providers hosting or linking to the disputed material. An online publisher will need to designate an agent, which can be the website administrator or someone else who agrees to do it, in order to take advantage of the DMCA safe‐harbor provisions. To do this, the publisher files an Interim Designation with the United States Copyright Office, along with an $105 filing fee. 2. Adopt and Communicate to Users a Copyright Infringement Policy.

In order to qualify for the safe‐harbor protections, the online publisher must also publish a statement on the website giving notice to users of the DMCA agent's contact information and policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the website's terms of use or some other notice displayed prominently on the site. The statement should explain that the online publisher will respond expeditiously to notices of claimed copyright infringement and terminate users or account holders who are "repeat infringers."

Websites may also want to include a statement detailing the proper form for a notice of

claimed infringement, which must include:


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(1) a physical or electronic signature of a person authorized to act on behalf of the owner of

the infringed copyright; (2) identification of the copyrighted work or works claimed to have been infringed; (3) identification of the material that is claimed to be infringing or to be the subject of

infringing activity and that is to be removed; (4) information reasonably sufficient to permit the service provider to contact the

complaining party (e.g., the address, telephone number, or email address); (5) a statement that the complaining party has a good faith belief that use of the material is

not authorized by the copyright owner; and (6) a statement that information in the complaint is accurate and that the complaining

party is authorized to act on behalf of the copyright owner. 17 U.S.C. § 512(c)(3)(B) states that if a complaining party does not substantially comply with these requirements, its notice will not serve as "actual notice" for the purpose of Section 512. The website’s policy statement should also include a statement explaining the procedure for users of the site to make a counter‐notification. 3. Properly Comply with A Notice of Claimed Infringement When Received

Online publishers may from time to time receive a notice of claimed infringement from a copyright owner, alleging that content on the site infringes the holder's copyright. Such a notice must comply with the form outlined above. If the copyright notification substantially meets these formal requirements, in order to qualify for the safe‐harbor, the online publisher is required to:

(1) expeditiously remove or disable access to the material that is claimed to be infringing (there is little guidance on what counts as "expeditious");

(2) notify its user or subscriber that the material has been removed so that they may file a counter‐notice should they wish (the online publisher is not required to notify the user before removing the material);

(3) if proper counter‐notice is provided, notify the copyright holder and provide a copy of that counter‐notice; and

(4) if proper counter‐notice is provided and if the copyright holder does not file suit within 10 business days, restore the removed material.

Additional Legal Considerations


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The DMCA gets a great deal of attention in discussions of online speech, especially in technical circles. But it is important to remember that other legal issues may also affect online publishing activities. The DMCA safe‐harbor provisions apply only to claims of copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims alleging misappropriation of trade secrets, to name just a few of the possibilities. This means that an online publisher cannot insulate itself from liability on one of these other claims simply by "expeditiously removing" the disputed content. In many situations, online publishers may be protected by section 230 of the Communications Decency Act for publishing the statements of its users. Not Every Threatening Letter is a DMCA Takedown Notice

Website and blog operators get cease‐and‐desist letters based on non‐copyright claims with some frequency. Not every threatening letter is a DMCA takedown notice. A website administrator should look at the precise allegations and legal claims made in the letter and evaluate what next steps need to be taken. It is not sufficient, for example, to conclude that a cease‐and‐desist letter relating to defamation or trade secrets law is somehow "defective" and should be ignored because it has not met the formal requirements for a notice of claimed copyright infringement under section 512. This could potentially exacerbate a delicate situation.

The confusion may also work in reverse. There may be times when an online publisher

receives a DMCA takedown notice for material that is technically not eligible for safe‐harbor treatment, such as material posted by the online publisher itself. If it satisfies the complaining person that the material is taken down, and there is no serious objection, the online publisher should consider doing so. Procedure For Filing a Counter‐Notice

The DMCA notice‐and‐takedown procedures also provide protection from a wrongful claim of copyright infringement. The DMCA requires a service provider to notify its user promptly when it removes any content because of a takedown notice, and the user has the right to submit a counter‐notice asking that the material be put back up. There is no specific time limit for submitting a counter‐notice, but the user should not delay unreasonably in doing so. If it receives a counter‐notice, the online service provider is required to replace the disputed content unless the complaining party sues the user within fourteen business days of the counter‐notice. (A service provider may replace the disputed material after ten business days if


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the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.)

Before the user sends a counter‐notice, she should consider carefully whether she is in fact infringing the complaining party's copyright. There are two reasons to consider this carefully. First, the counter‐notice requires that the user state, under penalty of perjury, that you have a good faith belief that her material was wrongly removed. Second, if the complaining party has a good infringement claim, sending a counter‐notice may trigger a lawsuit. If the user is not prepared to stand up in a lawsuit, she should think twice about firing back a counter‐notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter‐notice can make these empty threats go away for good.

Some common bases for sending a counter‐notice are that the complaining party does not own copyright in the work in question ‐‐ either because it is not covered by copyright or because someone else owns the copyright to it ‐‐ and that the use of the copyrighted work is a fair use. Users should be extra careful when relying on a claim of fair use to justify sending a counter‐notice. Determining whether something is a fair use often requires a complex, fact‐specific analysis, and even expensive copyright lawyers have difficulty predicting what a court will say about fair use ahead of time. If you believe fair use might protect your client, you should examine the four fair use factors carefully and consider contacting an intellectual property attorney.

To work effectively, a counter‐notice must contain the following items:

(1) the user’s physical or electronic signature; (2) the user’s name, address, and phone number; (3) identification of the material and its location before it was removed; (4) a statement under penalty of perjury that the material was removed by mistake or

misidentification; (5) the user’s consent to the jurisdiction of a federal court in the district where you live (if

you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the U.S.); and

(6) the user’s consent to accept service of process from the party who submitted the takedown notice.

17 U.S.C. § 512(g)(3).


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If the user is not a U.S. resident, she must consent to the jurisdiction of a U.S. court in her counter‐notice. If the user will never come to the United States and has no assets here, then this may not be a significant concession because a plaintiff would not be able to enforce a judgment against her in the U.S. Nevertheless, a plaintiff might be able to convince a court in the user’s country to enforce a foreign (U.S.) judgment. In any event, sending a counter‐notice makes non‐U.S. residents give up a powerful argument they would otherwise have ‐‐ namely, that a U.S. court does not have the authority to render a judgment against them. For these reasons, non‐U.S. residents may not want to send a counter‐notice unless they are willing to fight a copyright infringement claim in the U.S.

Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter‐notice. See 17 U.S.C. § 512(f). If the user claims in a counter‐notice that the content does not infringe the complaining party's copyrighted work while knowing this to be false, then the copyright owner can win damages from the user, including court costs and attorneys' fees stemming from the wrongful counter‐notice. Note, however, that this provision also works against a person or company sending a wrongful takedown notice. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit. Someone who has sent a baseless takedown notice may be more inclined to back off if they are reminded about section 512(f) of the DMCA, in addition to receiving a counter‐notice. Recent Cases

Viacom Int’l Inc. v. YouTube, Inc., No. 07 Civ. 2103, (S.D.N.Y. June 23, 2010).

This case affirmed the safe‐harbor provisions for online service providers who provide “storage at the direction of a user” under DMCA § 512(c), so long as the online service provider complies with the administrative requirements. The defendant YouTube operates a website that allows users to upload video files free of charge. These video files are copied and formatted by YouTube’s computer systems and made available for viewing on the website.


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Viacom claimed that thousands of videos on YouTube contained Viacom’s copyrighted works without authorization and that YouTube had knowledge of infringing activity. The court held that YouTube had designated an agent to receive copyright infringement notices. It was also “uncontroverted that when YouTube was given the notices, it removed the material. It is thus protected ‘from liability for all monetary relief for direct, vicarious and contributory infringement’ subject to the specific provisions of the DMCA.” Viacom at *23.

Perfect 10, Inc. v. Google, Inc., No. 09 Civ. 9484, (C.D. Cal. July 26, 2010). This recent case underscored the requirement that a copyright holder must submit an adequate takedown notice to constitute notice of copyright infringement. Google provides Blogger, a service that allows account holders to create their own blogs hosted on Google’s servers. Account holders may display images on their blogs either by using hyperlinks to content hosted on other servers, or by uploading images onto Google’s servers. Google has a DMCA notification policy for the service and requires complaints to be sent to Google’s designated agent. Blogger accounts are terminated if Google determines that three DMCA notices of infringement were valid

Among the takedown notices sent by Perfect 10 to Google were those that generally consisted of a cover letter, a spreadsheet, and a hard drive or DVD containing electronic files. The spreadsheets did not identify the infringing URLs, but merely the top‐level URL for the entire website, “evidently expecting Google to comb through hundreds of nested electronic folders containing over 70,000 distinct files, including raw image files . . . and screen shots of Google search results, in order to find which link was allegedly infringing.” Google at *15. The spreadsheets also did not identify the copyrighted work that was allegedly infringed, instead requiring Google to search through a separate electronic folder containing more than 15,000 images in order to identify the copyrighted work that was infringed.

The court ruled that these notices were defective because “they do not contain all of the required information in a single written communication.” Citing Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007), the court stressed that “[t]he DMCA notification procedures place the burden of policing copyright infringement –identifying the potentially infringing material and adequately documenting infringement—squarely on the owners of the copyright.” These notices that Perfect 10 submitted to Google would impermissibly “shift a substantial burden from the copyright owner to the provider.” Google at *17.

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STARTING AN INDEPENDENT NEWS ORGANIZATION BUSINESS LAW AND OTHER CONSIDERATIONS

PAUL KRITZER You’re starting a new media company. What comes first, strategy or structure? Logic would argue: first agree to the strategy – and then build the organization to enable delivery. Not so fast. What if the structure turns out to be incapable or feeble in supporting and accommodating the business plan? Then your strategy might fail and the business slips and fails to gain traction. Let me say a few introductory words about the different business structures available. You need to choose a form of business, and you need outside financing. Your choices are: (1) a Public‐Owned Corporation, (2) a Limited Liability Corporation of “LLC”, (3) a Low‐Profit Limited Liability Company or “L3C,” (4) a Non‐Profit Business, (5) a partnership or (6) a sole proprietorship. Publicly‐Owned Company At the outset let’s dismiss the idea of forming a publicly‐owned corporation. Under state and federal law, an entrepreneur will find a corporation to be a strait‐jacket. You are required to maximize profits for the shareholders, pay out profits in exact proportion to percentage of ownership, and subjugate the interests and needs of employees, communities and societal concerns. Corporate governance and taxation policies are rigid and inflexible. I was general counsel for 24 years with a media company that went public in 2003, and for the next 5 years I spent 2 hours on Sarbanes‐Oxley federal compliance issues for each 1 hour of newsroom legal work. For an industry that is fading and changing, I strongly doubt that you want to be saddled with a public‐owned corporation from start‐up. Corporations are already the source of many problems in the economy. Limited Liability Company Next we have a Limited Liability Company, or “LLC”? The idea of a LLC took hold 20 years ago and swept across the nation. An LLC is a hybrid. It combines the best features of a partnership with the best features of a corporation. It is a flexible business tool. Taxation is flexible, because you can choose between being taxed like a partnership (with flow‐through directly to the owners) or like a corporation. Operations can be flexible too: you can write an Operating Agreement that overrides many rules of corporate governance. For instance, your Operating Agreement can say that a 5% ownership would receive 50% of the profits. You can’t do that with a corporation. Low‐Profit Limited Liability Company

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Your next alternative is something new, and it’s called a “Low‐Profit Limited Liability Company,” or “L3C”. This is the next step of business hybrid. Vermont was the first state to adopt a law authorizing L3C, and it did so only 2 years ago. A handful states, including Michigan, Illinois, and Montana have followed. About a dozen other states are considering L3C legislation. And some states, including my home state of Wisconsin, have rejected the concept. The L3C combines best features of a Limited Liability Company and the best features of a Non‐Profit Business. To be a L3C, your business’ primary purpose must be a societal goal – and not a profit goal. With a L3C, you are allowed to make a profit, and you are allowed to pay dividends to your investors. Plus a L3C has a unique feature: your investors can include private foundations ‐ which make contributions through grants, loans or debt. Under the federal tax code, private foundations must give away 5% of their assets every year. Under normal circumstances, private foundations get no money back from their gifts. They invest for societal reasons. They are aiming for a different type of bottom line, a societal bottom line. But what if a private foundation can make an investment in a hybrid L3C and get some money back, through dividends or redemption? This pay‐back would stretch their charitable dollars, they would have more to give, and their influence on societal causes would be enhanced. So a L3C business is designed to receive funds from a new source ‐‐ grants or loans from private foundations. Keep in mind that a L3C’s primary mission is not to maximize profits; it is to pursue a societal interest, and the production of a profit is incidental and secondary. A private foundation can invest in a L3C, get some money back, enhance its societal mission and stay within the non‐profit rules of the IRS. When it invests in a L3C, a private foundation expects it may be an investment with high risk and lower‐than‐normal pay‐out. This benefits the L3C, which is also allowed to seek investments from the open market which would demand a lower risk and higher pay‐out. The Wall Street people call these “traunches.” A L3C can have several layers or traunches or investors. Each traunche can have a lesser degree of risk and higher pay‐out. So the L3C has the special feature that it can receive investments from private foundations, and it can re‐pay the foundation with dividends. But to accept the L3C model, the business owner must announce that the primary purpose of his company is a societal goal and profits are a secondary after‐thought. Because of the IRS rules concerning non‐profits, private foundation funds rarely seek to support corporations or LLCs. But they can be used to initiate and support L3Cs – to the mutual benefit of the private foundation and the L3C. Non‐Profit Business

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Our fourth option is a tax‐free, non‐profit entity. That would be like PBS, Window to the World (owner of public television and radio stations in Chicago) or stateline.org. Support for non‐profits – in the absence of significant advertising ‐ comes from grants (from corporations, private foundations, government agencies), membership dues, subscriptions and retail sales of merchandise. Your non‐profit business will be fine … so long as you keep the fund grantors happy and they decide to keep the funding tap open. But, as we know, funds from corporations, private foundations and government agencies get cut or deleted in tight times, upon administration changes or sometimes for no good reason at all. For example, the one of best newsgathering organizations on activities in state capitols in the past decade was stateline.org, which was incubated and generously supported by the Pew Charitable Trusts. But recently Pew said ten years of support was enough, its key managers were shuffled elsewhere and stateline.org’s umbilical cord to funding was cut. Membership dues and merchandise sales aren’t enough to float the boat. I’m not going to say much about partnerships and sole proprietorships except this: they leave you naked. Unless you are incorporated, you don’t have protection for your personal assets from legal liability. If you are in a business where you are throwing inflammatory words around and people are threatening to sue you for libel, invasion of privacy or copyright infringement on a frequent basis, you definitely need legal protection for your personal assets. Let me say just a few more words about the L3C structure. First, it’s just 2 years since Vermont authorized L3Cs, and only a few states have followed suit. But you can form a L3C company in Vermont for just $100 and then operate it in your home state. Second, the IRS and Treasury Department haven’t formally blessed the arrangement. That makes the private foundation people nervous. But the L3C legislation in each state was carefully drafted to comply with the IRS rules. So far I haven’t heard of a new media company being formed as a L3C. We are looking for a pioneer. There’s a lot of private foundation money just waiting for you. With that thought, let’s draw on the collective wisdom of our panel members.

4

MEDIA LIABILITY INSURANCE CITIZEN MEDIA LAW PROJECT

Even frivolous lawsuits dismissed at a relatively early stage of the litigation can be expensive to defend, and the cost skyrockets the longer the litigation continues, particularly if judgment is rendered against you. While most lawsuits never get to trial, if you lack the money to carry out a vigorous defense, the only option available to you may be to settle (perhaps even to take down the allegedly offending content or even your entire site) regardless of the merits of your defense. For these reasons, it is important to assess whether your online activities are covered by your existing homeowners or renters insurance. If your activities are not covered, it might be worth getting media liability insurance, even if such policies initially appear to be prohibitively expensive. Alternatively, if your online activities are part of an existing business, you may be able to add coverage to your business insurance policy through an add‐on rider. Consult your insurance agent for costs and details. Here are a list of steps to take when evaluating your insurance coverage needs: 1. Carefully review your existing insurance policies to see if claims related to your online activities are covered (e.g., claims for libel, invasion of privacy, copyright infringement). Review the section on Homeowners and Renters Insurance Coverage in this guide for help in making this determination. 2. If your current insurance policies don't cover you, consider switching to another carrier that will provide coverage. See the section on Evaluating Homeowners and Renters Insurance Policies for guidance. 3. Consider whether your state's law excludes coverage for your specific activities. This is especially important if you make any money from your online activities. See the section on Insurance Exclusions for Business Pursuits for information. 4. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, carefully weigh whether the income you receive is worth the loss in coverage. 5. Consider whether media liability insurance might be a better option (for many, it may be prohibitively expensive, but the coverage can be quite comprehensive). See the section on Media Liability Insurance for help.

5

LAUNCHING A WEBSITE FOR NEWS ORGANIZATIONS


There are two key documents or statements that all websites should post before (or at least soon after) going "live" on the Internet. First, your site's terms of use govern your relationship with users, allowing you to set boundaries of acceptable behavior by your users and potentially limiting your liability. Second, you should create a privacy policy, which informs your users of your practices relating to private information and helps you avoid liability under a complex array of federal and state privacy laws. The following sections address these two important documents in greater detail and provide examples that you can follow in creating your own terms of use and privacy policy. As a website or blog operator, there are some basic steps to consider that will reduce your legal risks. One is creating terms of use/service and a privacy policy for your site or blog, which will help you structure your relationship with your users and let them know what your practices are regarding personal information. The second is taking steps to bring your site within the "safe‐harbor" provisions of the Digital Millennium Copyright Act, which can help you avoid liability for linking to other sites containing copyright infringing material and for hosting copyright infringing material posted by your users. Terms of use (or "terms of service" or "terms and conditions") generally are a statement placed on an easily visible place on a website that governs the relationship between the site and its users or visitors. Users explicitly agree to the terms when they sign up for an account and, depending on how you write the terms, visitors may implicitly agree to them when they use the site. Why Is It a Good Idea to Have Terms of Use? Terms of use help you put your users on notice of what you consider to be an acceptable use of your site and what you do not. They enable you to reserve the right to deny access to users who engage in objectionable conduct and to remove content that you find offensive or that may subject you to liability from third parties. It also gives you an opportunity to put language up on your website that may help protect you in the event of a lawsuit. Terms of use are especially important if your website gives out accounts because they help specify the mechanics of how the account system will work. But keep in mind that terms of use can also apply to visitors merely browsing the website or posting comments (assuming you allow comments without an account, which many do not). Terms of use are also useful in dealing with user‐generated content. When a user creates a comment (or any other original expression) and posts it to your website, the user owns the copyright to that comment. Absent an agreement or license (see the Allowing Others to Use

6

Your Work section for details), you could be held liable for copyright infringement for editing or changing the comment. By posting terms of use on your website, however, you can specify (and make clear to users) that you will have a license to edit, change, and remove all content posted to the website. These provisions in the terms of use give you effective control of user‐generated content on your site, even if users own the copyright to that content. What Should You Include in Terms of Use? As discussed above, terms of use should set out the ground rules for your site. Here are some key items you should consider including in your terms: • terms about creating and accessing accounts;

• a disclaimer of affiliation and/or responsibility for material posted or linked to the

website; • guidelines for acceptable user‐generated content, such as:

Content may not be illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable.

• a reservation of your copyright and trademark rights or information about a Creative

Commons or other collaborative licensing arrangement under which the content on the site is licensed;

• a provision conditioning the posting of user‐generated content on the grant of a license to

the website to use and alter the content of the posting, such as: • By posting or contributing content using these Services, you are granting [name of your

website] a non‐exclusive, royalty‐free, perpetual, and worldwide license to use your content in connection with the operation of the Services, including, without limitation, the license rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your content, and/or to incorporate it into a collective work.

• a provision or provisions reserving your right to terminate or restrict access to a user's

account, and to delete any content posted through it; • a provision prohibiting the impersonation of another person (the point here is to stop a

user from misleading others about their identity, not necessarily to prohibit anonymous or pseudonymous speech);

• provisions relating to inter‐user relations, such as clauses prohibiting on‐site and offline

harassment; and

7

• a provision linking users and visitors to your copyright infringement policy ‐‐ for an example of this kind of policy, see the CMLP's Digital Millennium Copyright Act Policy, and for details see the Protecting Yourself Against Copyright Claims Based on User Content page.

A privacy policy is a statement placed in an easily visible place on a website informing users about how the website deals with users' personal information. Privacy policies generally explain whether and how users' information will be shared with third parties, including parent companies or subsidiaries. It frequently explains whether and how the website uses cookies. Why Is It a Good Idea to Have a Privacy Policy? Privacy policies let people know what you will do with information that they provide when registering with your website, as well as information that gets logged while they browse. A privacy policy allows users to find out what you do with their private information and enables them to adapt their conduct accordingly. Beyond that, a privacy policy will help you avoid liability under a complex array of state and federal laws dealing with users' private information. What Should You Include in a Privacy Policy? A well‐crafted privacy policy should include the following items (although the particular items included may depend upon the nature of your website): • a statement explaining what kind of information you collect about your users, how you

use it, and with whom (if anyone) you intend to share it; • a statement disclosing whether and how you use cookies and/or other tracking software;

• a statement reminding users that data is collected through a server access log when a

user browses, reads, or downloads information from the site; • a statement reminding users that the website operators may have to disclose user

information in response to warrants, subpoenas, or other valid legal process; • a description of the process through which users can request changes to any of the

personally identifying information collected and/or stored (you can provide an email address for notifying the website operator of changes);

• an opt‐out procedure for users to request that their information not be shared with third

parties, or that their contact information not be used to send unsolicited correspondence (again, this can be done with an email address);

• a description of the process through which the website operator will notify users of

changes to the privacy policy;

8

• a statement identifying the effective date of the policy. Another important aspect of a privacy policy is what it says about minors. If your site targets or knowingly collects information from children under age thirteen, it must comply with the Children’s Online Privacy Protection Act. For more information about how to comply with the Children's Online Privacy Protection Act, please see COPPA.org's compliance page. If you do not plan to collect information from minors, you should consider adding a statement to your privacy policy saying:

This website's content is intended for adults and we will not knowingly collect personal information from children under 13 years of age. If you are a parent or legal guardian of a child under age 13 who you believe has submitted personal information to this site, please contact us immediately.

There are also rules about collecting medical information and information about criminal records. Unless it is important to the purpose of your website, you should not gather this type of information. If you plan to gather this type of information, you should consult a lawyer about your data collection strategy. What Should You Avoid? It is common to see the following statement in website privacy policies: "[Name of website] will not collect any personal information about you except when you specifically and knowingly provide such information." While this kind of statement may sound reassuring for your users, it is not true in most cases. When a user visits a website, he or she provides personal information to the website operator simply by virtue of browsing, reading, and downloading material. This information includes IP address, user configuration settings, and what website referred the user to the site, among other things. It is better to tell users that this type of information is being collected automatically on standard web server access logs.

9

A START‐UP INDEPENDENT NEWS ORGANIZATION’S GUIDE TO CONTRIBUTION AGREEMENTS

F. RICHARD RIMER

Troutman Sanders LLP Atlanta

T: 404.885.3380 F: 404.962.6831


Contribution Agreements are a centuries‐old idea. From the time that the printing press made distribution of the written word viable, there has been a need to solidify the relationship between publisher and author‐‐ those that have the means to distribute materials and those that create the material to be distributed. Contributor Agreements rose to fill this need.

Contributor Agreements typically address issues such as what the publisher can do with a given work, how the author will be compensated, how the materials will be delivered, what quality of work is acceptable, what warranties the author will provide, and so forth. Publishers often have a standard form agreement containing the terms acceptable to it. The terms chosen should highlight the issues the publisher finds most important and represent the policies the publisher has chosen to adopt. Whether a publisher will consent to negotiating the standard terms depends upon the quality of the author and/or material submitted.

Of course technology did not stop at the printing press. Every new technology or medium creates a different set of issues for publishers and authors to consider. Perhaps no technology has altered the landscape more than the advent of the Internet. This technology has decreased the price of publishing while increasing the speed, breadth and depth of distribution. Further, this technology has allowed various types of media to be intertwined as never before. As a result, many jurisdictions have passed laws targeted specifically at materials distributed via the Internet. Just as the Internet has altered the distribution of works, the legal relationship between those who create and those who control the distribution of material has likewise been impacted. This is a reality that most independent news organizations experience on a daily basis. Additionally, the Internet’s reliance on speed and relaxed relationships has influenced the environment. This article examines Contribution Agreements as used by independent online news organizations, including a review of common provisions. Pre‐publication conduct

Just as important as any provision contained in a Contribution Agreement are the policies and procedures news organizations establish with respect to both submissions and potential claims. Regarding submissions, does the organization require a written agreement,

10

and if so, is it a lengthy, one‐sided document or something concise containing only necessary provisions? These issues are the focus of the remaining sections of this paper. Publishers need to also decide how they will handle any potential legal disputes. Policies concerning the timing of notice to insurance carriers, retaining counsel and communicating with the contributor could provide protection to the publisher. Further, policies regarding when and how submitted work is reviewed for any potential legal issues may provide additional protection. Grant of Rights/ Reserved Rights

Perhaps the most important legal provision to consider is what rights the author is

granting to the publisher versus those rights being reserved by the author. Historically these rights featured the language(s) covered, the territory of publication, the forms of publication allowed and subsidiary rights. While these provisions are still important to print publishers, online publications often have different objectives.

The rights granted to publishers in older technologies are often limited in terms of language and territory. This limitation was available to authors in these formats as distribution via paper allowed authors to more easily govern what territories and in what languages a publisher distributed an article or book. The same is not true with digital distributions. Accordingly, these terms are commonly removed or minimized. On the other hand, the forms of publication and subsidiary rights have taken on a greater importance. While agreements regarding paper‐based technology often stress the type of print media (e.g., newspaper or magazine, hardcover or paperback, etc.) and occasionally discussed various non‐print media (e.g., audio books), agreements covering digital media focus heavily on availability in different types of media. These provisions may cover distribution via Internet, CDs, interactive software, archival systems and multimedia projects. Similarly, the focus on subsidiary rights has expanded. While rights to create compilations have always been common, digital agreements need to be much more complete. First, the publisher would want rights granted in both paper and electronic compilations. The publisher would also want rights in not only the current technology, but also via technology “hereafter developed” (i.e., future technology). It is important to be careful when describing future technology as courts will typically read these rights narrowly. Accordingly, it is recommended that you carefully review the placement of this right in the contract and avoid terms used to describe specific technology now in existence (e.g., “World Wide Web”). While the need for speed and the preference for informal relationships has created an environment in which shorter agreements are preferred, these terms are critical. A news organization should carefully decide what media it plans to use to distribute information and tailor its Contributor Agreement to meet these needs. Author’s Representations and Warranties

11

Publishers can be found liable for copyright infringement even if they were not aware of the infringement and took corrective measures once notified. Accordingly, many publishers seek some comfort that materials submitted by an author do not infringe another’s work. This is especially true in an electronic environment in which copying requires only a few key strokes and the authors may be relatively unknown to the publisher. While a superior form of protection for a publisher is to seek indemnity from the author, this is often either worthless or unreasonable in these arrangements. One of the better remaining options is to seek a representation from authors that the works are not infringing, thus lowering the likely judgment if the publisher is found liable.

Publishers should not blindly accept these representations from authors. It is recommended that Publishers perform at least some due diligence to make sure the submission does not obviously infringe a work. In the context of a news organization, there should be a cross‐check against the publisher’s own memory of similar stories and possibly use of a search engine to see if the submission is substantially similar to any existing articles.

The Digital Millennium Copyright Act (DMCA) offers an advantage to online publishers that may not be available to publishers using other media. Title II of the DMCA creates a safe harbor for online service providers (OSP) against copyright liability. This Title, commonly referred to as the Online Copyright Infringement Liability Limitation Act, or OCILLA, requires that the OSP not have actual knowledge that it has published infringing material or be aware of facts or circumstances from which infringing activity is apparent and that it act expeditiously to remove the purported infringing material upon receiving notice from copyright owners or their agents. There are other requirements, such as the naming of a designated agent to receive complaints from copyright owners, but these additional obligations are likely well worth the liability protection afforded. Publishing decisions Speed obviously plays an important role in online news. It is common for submissions to contain errors, both grammatical and factual. Accordingly, it is important that publishers gain the right to edit the submission as necessary. This could include amending the title and moving the placement of the story on the web page as it becomes more or less relevant. Financial Terms News organizations vary widely as to whether authors are paid, and if so, how much. Typical methods of payment include a one‐time fee negotiated prior to submission, share of advertising revenues or a payment per use. While there is no specific right answer as to whether or how a publisher should compensate authors, these terms should be carefully set forth in the agreement. Future Works

12

Publishers should consider whether it wants rights with respect to future works by the author. These rights can either be in the form of options on future articles written or even in the form of a non‐compete agreement. This provision was much more common in older media. While these rights are not quite as valued in the online community, they may occasionally be important and should not be forgotten. Jurisdiction In most agreements the choice of law or choice of forum provisions primarily serve either as an assurance that a well‐regarded jurist will hear any issues or as an aid to one party in that any actions will be brought in a nearby venue. While these factors may be present in Contribution Agreements, the parties need to also be mindful of the differences in the basic elements of copyright law from jurisdiction to jurisdiction. For example, many foreign countries recognize an author’s “moral rights” in a work, and also do not recognize grants of rights which do not exist at the time that the agreement was entered into. It is recommended that the author consent to jurisdiction in the United States and consent to application of US law. Summary Independent news organizations that frequently use materials from outside providers need to prepare a standard form Contribution Agreement. This form should be concise, and only contain the provisions necessary to allow the organization to use the materials submitted as reasonably anticipated. While each organization will have different needs, a basic grant of rights to the publisher, a simple warranty from the author and a choice of law provision should be included.

13

PROTECTING YOUR INTELLECTUAL PROPERTY: TRADEMARK AND COPYRIGHT BASICS

DOUG KENYON

HUNTON & WILLIAMS LLP RALEIGH

T: (919) 899‐3076 F: (919) 833‐6352


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1

A START‐UP INDEPENDENT NEWS ORGANIZATION’S GUIDE TO CONTRIBUTION AGREEMENTS

F. RICHARD RIMER Troutman Sanders LLP

Atlanta T: 404.885.3380 F: 404.962.6831


Contribution Agreements are a centuries‐old idea. From the time that the printing press made distribution of the written word viable, there has been a need to solidify the relationship between publisher and author‐‐ those that have the means to distribute materials and those that create the material to be distributed. Contributor Agreements rose to fill this need.

Contributor Agreements typically address issues such as what the publisher can do with a given work, how the author will be compensated, how the materials will be delivered, what quality of work is acceptable, what warranties the author will provide, and so forth. Publishers often have a standard form agreement containing the terms acceptable to it. The terms chosen should highlight the issues the publisher finds most important and represent the policies the publisher has chosen to adopt. Whether a publisher will consent to negotiating the standard terms depends upon the quality of the author and/or material submitted.

Of course technology did not stop at the printing press. Every new technology or medium creates a different set of issues for publishers and authors to consider. Perhaps no technology has altered the landscape more than the advent of the Internet. This technology has decreased the price of publishing while increasing the speed, breadth and depth of distribution. Further, this technology has allowed various types of media to be intertwined as never before. As a result, many jurisdictions have passed laws targeted specifically at materials distributed via the Internet. Just as the Internet has altered the distribution of works, the legal relationship between those who create and those who control the distribution of material has likewise been impacted. This is a reality that most independent news organizations experience on a daily basis. Additionally, the Internet’s reliance on speed and relaxed relationships has influenced the environment. This article examines Contribution Agreements as used by independent online news organizations, including a review of common provisions. Pre‐publication conduct

Just as important as any provision contained in a Contribution Agreement are the policies and procedures news organizations establish with respect to both submissions and potential claims. Regarding submissions, does the organization require a written agreement, and if so, is it a lengthy, one‐sided document or something concise containing only necessary provisions? These issues are the focus of the remaining sections of this paper.

2

Publishers need to also decide how they will handle any potential legal disputes. Policies concerning the timing of notice to insurance carriers, retaining counsel and communicating with the contributor could provide protection to the publisher. Further, policies regarding when and how submitted work is reviewed for any potential legal issues may provide additional protection. Grant of Rights/ Reserved Rights

Perhaps the most important legal provision to consider is what rights the author is

granting to the publisher versus those rights being reserved by the author. Historically these rights featured the language(s) covered, the territory of publication, the forms of publication allowed and subsidiary rights. While these provisions are still important to print publishers, online publications often have different objectives.

The rights granted to publishers in older technologies are often limited in terms of language and territory. This limitation was available to authors in these formats as distribution via paper allowed authors to more easily govern what territories and in what languages a publisher distributed an article or book. The same is not true with digital distributions. Accordingly, these terms are commonly removed or minimized. On the other hand, the forms of publication and subsidiary rights have taken on a greater importance. While agreements regarding paper‐based technology often stress the type of print media (e.g., newspaper or magazine, hardcover or paperback, etc.) and occasionally discussed various non‐print media (e.g., audio books), agreements covering digital media focus heavily on availability in different types of media. These provisions may cover distribution via Internet, CDs, interactive software, archival systems and multimedia projects. Similarly, the focus on subsidiary rights has expanded. While rights to create compilations have always been common, digital agreements need to be much more complete. First, the publisher would want rights granted in both paper and electronic compilations. The publisher would also want rights in not only the current technology, but also via technology “hereafter developed” (i.e., future technology). It is important to be careful when describing future technology as courts will typically read these rights narrowly. Accordingly, it is recommended that you carefully review the placement of this right in the contract and avoid terms used to describe specific technology now in existence (e.g., “World Wide Web”). While the need for speed and the preference for informal relationships has created an environment in which shorter agreements are preferred, these terms are critical. A news organization should carefully decide what media it plans to use to distribute information and tailor its Contributor Agreement to meet these needs. Author’s Representations and Warranties Publishers can be found liable for copyright infringement even if they were not aware of the infringement and took corrective measures once notified. Accordingly, many publishers seek some comfort that materials submitted by an author do not infringe another’s work. This

3

is especially true in an electronic environment in which copying requires only a few key strokes and the authors may be relatively unknown to the publisher. While a superior form of protection for a publisher is to seek indemnity from the author, this is often either worthless or unreasonable in these arrangements. One of the better remaining options is to seek a representation from authors that the works are not infringing, thus lowering the likely judgment if the publisher is found liable.

Publishers should not blindly accept these representations from authors. It is recommended that Publishers perform at least some due diligence to make sure the submission does not obviously infringe a work. In the context of a news organization, there should be a cross‐check against the publisher’s own memory of similar stories and possibly use of a search engine to see if the submission is substantially similar to any existing articles.

The Digital Millennium Copyright Act (DMCA) offers an advantage to online publishers that may not be available to publishers using other media. Title II of the DMCA creates a safe harbor for online service providers (OSP) against copyright liability. This Title, commonly referred to as the Online Copyright Infringement Liability Limitation Act, or OCILLA, requires that the OSP not have actual knowledge that it has published infringing material or be aware of facts or circumstances from which infringing activity is apparent and that it act expeditiously to remove the purported infringing material upon receiving notice from copyright owners or their agents. There are other requirements, such as the naming of a designated agent to receive complaints from copyright owners, but these additional obligations are likely well worth the liability protection afforded. Publishing decisions Speed obviously plays an important role in online news. It is common for submissions to contain errors, both grammatical and factual. Accordingly, it is important that publishers gain the right to edit the submission as necessary. This could include amending the title and moving the placement of the story on the web page as it becomes more or less relevant. Financial Terms News organizations vary widely as to whether authors are paid, and if so, how much. Typical methods of payment include a one‐time fee negotiated prior to submission, share of advertising revenues or a payment per use. While there is no specific right answer as to whether or how a publisher should compensate authors, these terms should be carefully set forth in the agreement. Future Works Publishers should consider whether it wants rights with respect to future works by the author. These rights can either be in the form of options on future articles written or even in the form of a non‐compete agreement.

4

This provision was much more common in older media. While these rights are not quite as valued in the online community, they may occasionally be important and should not be forgotten. Jurisdiction In most agreements the choice of law or choice of forum provisions primarily serve either as an assurance that a well‐regarded jurist will hear any issues or as an aid to one party in that any actions will be brought in a nearby venue. While these factors may be present in Contribution Agreements, the parties need to also be mindful of the differences in the basic elements of copyright law from jurisdiction to jurisdiction. For example, many foreign countries recognize an author’s “moral rights” in a work, and also do not recognize grants of rights which do not exist at the time that the agreement was entered into. It is recommended that the author consent to jurisdiction in the United States and consent to application of US law. Summary Independent news organizations that frequently use materials from outside providers need to prepare a standard form Contribution Agreement. This form should be concise, and only contain the provisions necessary to allow the organization to use the materials submitted as reasonably anticipated. While each organization will have different needs, a basic grant of rights to the publisher, a simple warranty from the author and a choice of law provision should be included.

1

OTHER CONSIDERATIONS WHEN LAUNCHING AN ONLINE PUBLISHING VENTURE CITIZEN MEDIA LAW PROJECT

MEDIA LIABILITY INSURANCE

Even frivolous lawsuits dismissed at a relatively early stage of the litigation can be expensive to defend, and the cost skyrockets the longer the litigation continues, particularly if judgment is rendered against you. While most lawsuits never get to trial, if you lack the money to carry out a vigorous defense, the only option available to you may be to settle (perhaps even to take down the allegedly offending content or even your entire site) regardless of the merits of your defense. For these reasons, it is important to assess whether your online activities are covered by your existing homeowners or renters insurance. If your activities are not covered, it might be worth getting media liability insurance, even if such policies initially appear to be prohibitively expensive. Alternatively, if your online activities are part of an existing business, you may be able to add coverage to your business insurance policy through an add‐on rider. Consult your insurance agent for costs and details. Here are a list of steps to take when evaluating your insurance coverage needs: 1. Carefully review your existing insurance policies to see if claims related to your online activities are covered (e.g., claims for libel, invasion of privacy, copyright infringement). Review the section on Homeowners and Renters Insurance Coverage in this guide for help in making this determination. 2. If your current insurance policies don't cover you, consider switching to another carrier that will provide coverage. See the section on Evaluating Homeowners and Renters Insurance Policies for guidance. 3. Consider whether your state's law excludes coverage for your specific activities. This is especially important if you make any money from your online activities. See the section on Insurance Exclusions for Business Pursuits for information. 4. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, carefully weigh whether the income you receive is worth the loss in coverage. 5. Consider whether media liability insurance might be a better option (for many, it may be prohibitively expensive, but the coverage can be quite comprehensive). See the section on Media Liability Insurance for help.

2

TERMS OF USE AND PRIVACY POLICY

There are two key documents or statements that all websites should post before (or at least soon after) going "live" on the Internet. First, your site's terms of use govern your relationship with users, allowing you to set boundaries of acceptable behavior by your users and potentially limiting your liability. Second, you should create a privacy policy, which informs your users of your practices relating to private information and helps you avoid liability under a complex array of federal and state privacy laws. The following sections address these two important documents in greater detail and provide examples that you can follow in creating your own terms of use and privacy policy. As a website or blog operator, there are some basic steps to consider that will reduce your legal risks. One is creating terms of use/service and a privacy policy for your site or blog, which will help you structure your relationship with your users and let them know what your practices are regarding personal information. The second is taking steps to bring your site within the "safe‐harbor" provisions of the Digital Millennium Copyright Act, which can help you avoid liability for linking to other sites containing copyright infringing material and for hosting copyright infringing material posted by your users. Terms of use (or "terms of service" or "terms and conditions") generally are a statement placed on an easily visible place on a website that governs the relationship between the site and its users or visitors. Users explicitly agree to the terms when they sign up for an account and, depending on how you write the terms, visitors may implicitly agree to them when they use the site. Why Is It a Good Idea to Have Terms of Use? Terms of use help you put your users on notice of what you consider to be an acceptable use of your site and what you do not. They enable you to reserve the right to deny access to users who engage in objectionable conduct and to remove content that you find offensive or that may subject you to liability from third parties. It also gives you an opportunity to put language up on your website that may help protect you in the event of a lawsuit. Terms of use are especially important if your website gives out accounts because they help specify the mechanics of how the account system will work. But keep in mind that terms of use can also apply to visitors merely browsing the website or posting comments (assuming you allow comments without an account, which many do not). Terms of use are also useful in dealing with user‐generated content. When a user creates a comment (or any other original expression) and posts it to your website, the user owns the copyright to that comment. Absent an agreement or license (see the Allowing Others to Use Your Work section for details), you could be held liable for copyright infringement for editing or changing the comment. By posting terms of use on your website, however, you can specify (and

3

make clear to users) that you will have a license to edit, change, and remove all content posted to the website. These provisions in the terms of use give you effective control of user‐generated content on your site, even if users own the copyright to that content. What Should You Include in Terms of Use? As discussed above, terms of use should set out the ground rules for your site. Here are some key items you should consider including in your terms: • terms about creating and accessing accounts;

• a disclaimer of affiliation and/or responsibility for material posted or linked to the

website; • guidelines for acceptable user‐generated content, such as:

Content may not be illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable.

• a reservation of your copyright and trademark rights or information about a Creative

Commons or other collaborative licensing arrangement under which the content on the site is licensed;

• a provision conditioning the posting of user‐generated content on the grant of a license to

the website to use and alter the content of the posting, such as: • By posting or contributing content using these Services, you are granting [name of your

website] a non‐exclusive, royalty‐free, perpetual, and worldwide license to use your content in connection with the operation of the Services, including, without limitation, the license rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your content, and/or to incorporate it into a collective work.

• a provision or provisions reserving your right to terminate or restrict access to a user's

account, and to delete any content posted through it; • a provision prohibiting the impersonation of another person (the point here is to stop a

user from misleading others about their identity, not necessarily to prohibit anonymous or pseudonymous speech);

• provisions relating to inter‐user relations, such as clauses prohibiting on‐site and offline

harassment; and • a provision linking users and visitors to your copyright infringement policy ‐‐ for an

example of this kind of policy, see the CMLP's Digital Millennium Copyright Act Policy, and

4

for details see the Protecting Yourself Against Copyright Claims Based on User Content page.

A privacy policy is a statement placed in an easily visible place on a website informing users about how the website deals with users' personal information. Privacy policies generally explain whether and how users' information will be shared with third parties, including parent companies or subsidiaries. It frequently explains whether and how the website uses cookies. Why Is It a Good Idea to Have a Privacy Policy? Privacy policies let people know what you will do with information that they provide when registering with your website, as well as information that gets logged while they browse. A privacy policy allows users to find out what you do with their private information and enables them to adapt their conduct accordingly. Beyond that, a privacy policy will help you avoid liability under a complex array of state and federal laws dealing with users' private information. What Should You Include in a Privacy Policy? A well‐crafted privacy policy should include the following items (although the particular items included may depend upon the nature of your website): • a statement explaining what kind of information you collect about your users, how you

use it, and with whom (if anyone) you intend to share it; • a statement disclosing whether and how you use cookies and/or other tracking software;

• a statement reminding users that data is collected through a server access log when a

user browses, reads, or downloads information from the site; • a statement reminding users that the website operators may have to disclose user

information in response to warrants, subpoenas, or other valid legal process; • a description of the process through which users can request changes to any of the

personally identifying information collected and/or stored (you can provide an email address for notifying the website operator of changes);

• an opt‐out procedure for users to request that their information not be shared with third

parties, or that their contact information not be used to send unsolicited correspondence (again, this can be done with an email address);

• a description of the process through which the website operator will notify users of

changes to the privacy policy; • a statement identifying the effective date of the policy.

5

Another important aspect of a privacy policy is what it says about minors. If your site targets or knowingly collects information from children under age thirteen, it must comply with the Children’s Online Privacy Protection Act. For more information about how to comply with the Children's Online Privacy Protection Act, please see COPPA.org's compliance page. If you do not plan to collect information from minors, you should consider adding a statement to your privacy policy saying:

This website's content is intended for adults and we will not knowingly collect personal information from children under 13 years of age. If you are a parent or legal guardian of a child under age 13 who you believe has submitted personal information to this site, please contact us immediately.

There are also rules about collecting medical information and information about criminal records. Unless it is important to the purpose of your website, you should not gather this type of information. If you plan to gather this type of information, you should consult a lawyer about your data collection strategy. What Should You Avoid? It is common to see the following statement in website privacy policies: "[Name of website] will not collect any personal information about you except when you specifically and knowingly provide such information." While this kind of statement may sound reassuring for your users, it is not true in most cases. When a user visits a website, he or she provides personal information to the website operator simply by virtue of browsing, reading, and downloading material. This information includes IP address, user configuration settings, and what website referred the user to the site, among other things. It is better to tell users that this type of information is being collected automatically on standard web server access logs.

THE NEWSPAPER REVITALIZATION ACT

In March 2009, United States Senator Benjamin Cardin (D‐MD) introduced legislation that would allow newspapers to become nonprofit organizations in what he described as "an effort to help the faltering [newspaper] industry survive."

The proposed “Newspaper Revitalization Act of 2009,” S. 673, would allow "newspapers for general circulation" to operate as nonprofits under section 501(c)(3) of the U.S. Internal Revenue Code, similar to public broadcasting. Under the bill, newspaper nonprofits would not be allowed to make political endorsements, but would be allowed to report on all issues, including political campaigns. Advertising and subscription revenue would be tax exempt and contributions to support coverage or operations could be tax deductible.

According to Cardin's press release:

The measure is targeted to preserve local newspapers serving communities and not large newspaper conglomerates. Because newspaper profits have been falling in recent years, no substantial loss of federal revenue is expected.

"We are losing our newspaper industry," said Senator Cardin. "The economy has caused an immediate problem, but the business model for newspapers, based on circulation and advertising revenue, is broken, and that is a real tragedy for communities across the nation and for our democracy.

"While we have lots of news sources, we rely on newspapers for in‐depth reporting that follows important issues, records events and exposes misdeeds. In fact, most if not all sources of journalistic information ‐ from radio to television to the Internet ‐ gathers their news from newspaper reporters who cover the news on a daily basis and know their communities. It is in the interest of our nation and good governance that we ensure they survive."

The bill has been referred to the Senate Committee on Finance. A companion bill introduced by Rep. Carolyn Maloney (D‐NY), H.R. 3602, is pending in the House Committee on Ways and Means.

Doug

las W

. Ken

yon

John

Gar

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nard

, III

Prot

ectin

g Yo

ur In

telle

ctua

l Pro

perty

: Tr

adem

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nd C

opyr

ight

Bas

ics

Har

vard

Uni

vers

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Ber

kman

Cen

ter f

or In

tern

et &

Soc

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&

Ken

nesa

w S

tate

Uni

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Cen

ter f

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ourn

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tate

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Sept

embe

r 25,

201

0

2

Agen

da

 T

rade

mar

ks O

verv

iew

 

Wha

t is a

trade

mark?

 

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t doe

s a tr

adem

ark d

o?

 

Are t

rade

marks

diffe

rent

from

other

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lectua

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perty

?  

Wha

t are

the d

iffere

nt typ

es of

mar

ks?

 

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are T

rade

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estab

lishe

d in t

he U

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Whe

n can

one f

ile a

U.S.

Tra

dema

rk Ap

plica

tion?

 

Why

file w

ith th

e PTO

?  

Wha

t mak

es a

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ark?

 

Wha

t do w

e (yo

ur at

torne

ys) n

eed t

o file

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ith th

e PTO

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t doe

s the

PTO

do w

ith th

e app

licati

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I hav

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ark,

what

do I d

o to p

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t it?

 

How

do I m

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adem

ark r

egist

ratio

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3

Agen

da

 C

opyr

ight

s Ove

rview

 W

hat is

a Co

pyrig

ht?

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hat c

an qu

alify

for co

pyrig

ht pr

otecti

on?

 W

hat r

ights

does

a co

pyrig

ht ow

ner h

ave?

 A

re fa

cts pr

otecti

ble as

a co

pyrig

ht?

 W

ho ow

ns th

e cop

yrigh

t?  M

ust o

ne re

gister

a co

pyrig

ht?

4

Wha

t is a

Trad

emar

k?

Any w

ord,

phra

se, s

ymbo

l, des

ign or

comb

inatio

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reof

that

distin

guish

es go

ods a

nd/or

servi

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f one

sour

ce fr

om th

ose

of oth

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urce

s

Wha

t is a

Trad

emar

k?

5

Wha

t Doe

s a T

rade

mark

Do?

Lega

lly, a

trad

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k ser

ves t

wo pu

rpos

es:

(i) id

entifi

es go

ods o

r ser

vices

as co

ming

from

a sin

gle, a

lbeit

anon

ymou

s, so

urce

(ii) id

entifi

es go

ods o

r ser

vices

as ha

ving a

know

n qua

lity

Wha

t Doe

s a Tr

adem

ark D

o?

6

Trad

emar

ks ar

e diffe

rent

than o

ther

Intell

ectua

l Pro

perty

 

A pa

tent

confe

rs on

the o

wner

the r

ight to

exclu

de ot

hers

from

makin

g, us

ing, o

fferin

g for

sale

or se

lling t

he pa

tented

inve

ntion

for t

he lif

e of th

e pa

tent.

 

Copy

right

s pro

vide c

ertai

n exc

lusive

rights

(rep

rodu

ction

, dist

ributi

on,

etc.)

to the

autho

r or o

wner

of an

origi

nal w

ork o

f auth

orsh

ip tha

t has

be

en fix

ed in

a tan

gible

mediu

m of

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essio

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Trad

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rets

are a

ny fo

rmula

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devic

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ompil

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matio

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h is u

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n a bu

sines

s and

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ause

it is

unkn

own t

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gives

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comp

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antag

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t tha

n ot

her

Inte

llect

ual P

rope

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7

Type

s of M

arks

 

Trad

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mar

k use

d by a

selle

r to i

denti

fy its

good

s and

disti

nguis

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m fro

m oth

ers.

 

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ice M

ark -

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ller t

o ide

ntify

its se

rvice

s and

disti

nguis

h the

m fro

m oth

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Certi

ficat

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mark

used

in co

nnec

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ith go

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em, fo

r exa

mple

quali

ty or

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edien

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appr

oval

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izatio

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ctive

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mar

k use

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denti

fy a c

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p.  

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ss -

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acka

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labeli

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d ove

rall a

ppea

ranc

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prod

uct.

 

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me of

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sines

s, as

oppo

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name

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ific

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an o

r Tag

line -

A ph

rase

used

in co

nnec

tion w

ith a

prod

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Dom

ain N

ame -

The

Unif

orm

Reso

urce

Loca

tor (“

URL”

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a W

ebsit

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he

Inter

net th

at mu

st be

regis

tered

with

orga

nizati

ons a

uthor

ized t

o reg

ister

and

maint

ain do

main

name

s.

Type

s of M

arks

:

8

 

The U

.S. is

a “u

se ba

sed”

as op

pose

d to a

“file

base

d” co

untry

.  

Using

a ma

rk in

inter

state

comm

erce

to id

entify

good

s or

servi

ces w

ill cre

ate co

mmon

law

rights

.  

Regis

tratio

n pro

vides

grea

t ben

efits

to the

owne

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re

gister

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ark,

but r

egist

ratio

n is n

ot ma

ndato

ry.

 

Marks

may

be re

gister

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the U

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atent

and T

rade

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Offic

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SPTO

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with

a pa

rticula

r Stat

e.

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lishin

g Tra

dema

rk Ri

ghts

in the

U.S

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How

are T

rade

mar

k Rig

hts e

stab

lishe

d in

the U

nite

d St

ates

?

9

(i) U

se in

comm

erce

in th

e U.S

. or b

etwee

n the

U.S

. and

a for

eign c

ountr

y (“u

se” a

pplic

ation

). (ii)

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a-fid

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nt to

use t

he m

ark i

n the

futur

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tent-t

o-us

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“ITU

” app

licati

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Basis

for F

iling a

n App

licati

on to

Reg

ister

a Ma

rk

Whe

n ca

n on

e file

a U.

S. tr

adem

ark

appl

icatio

n?

10

 

May p

reve

nt oth

ers f

rom

regis

tering

or us

ing a

confu

singly

sim

ilar m

ark.

 

Natio

nwide

cons

tructi

ve no

tice o

f reg

istra

nt’s c

laim

to the

mar

k.

 

Lega

l pre

sump

tion t

hat th

e reg

ister

ed m

ark i

s vali

d.

 

Righ

t to us

e fed

eral

regis

tratio

n noti

ce ®

.

 

Righ

t to su

e for

infrin

geme

nt in

Fede

ral D

istric

t Cou

rt an

d ob

tain i

njunc

tive r

elief

(whic

h can

inclu

de de

struc

tion o

f inf

ringin

g artic

les an

d cor

recti

ve ad

vertis

ing) a

nd da

mage

s, as

we

ll as t

reble

dama

ges a

nd at

torne

ys’ fe

es in

exce

ption

al ca

ses.

 

For “

famou

s” ma

rks, th

e righ

t to su

e othe

rs for

dilut

ion of

the

distin

ctive

natur

e of th

e mar

k (“ta

rnish

ment”

or “b

lurrin

g”).

Bene

fits of

U.S

. Tra

dema

rk Re

gistra

tion

Why

file

with

the P

TO?

11

Gene

ric

Choo

sing a

Trad

emar

k

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

“The

Hie

rarc

hy O

f Mar

ks”

12

Trad

emar

k Sele

ction

- Di

stinc

tiven

ess o

f Mar

ks

 G

ener

ic: T

he ge

neric

name

of a

prod

uct o

r ser

vice h

as no

tra

dema

rk sig

nifica

nce a

nd ca

nnot

be pr

otecte

d or r

egist

ered

.

Exa

mpl

e: T

he m

ark P

OTAT

O CH

IPS

used

to id

entify

potat

o ch

ips.

Gene

ric

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

“The

Hie

rarc

hy O

f Mar

ks”

13

Trad

emar

k Sele

ction

- Di

stinc

tiven

ess o

f Mar

ks

 D

escr

iptiv

e: M

arks

desc

ribing

the p

urpo

se, fu

nctio

n, or

a ch

arac

terist

ic of

a pr

oduc

t or s

ervic

e can

not b

e pro

tected

with

out h

aving

acqu

ired a

n ass

ociat

ion

with

the ow

ner’s

good

s in t

he m

ind of

the p

ublic

(“se

cond

ary m

eanin

g”),

which

is

typica

lly es

tablis

hed b

y lon

g con

tinuo

us us

e of th

e mar

k and

/or si

gnific

ant

adve

rtising

. E

xam

ple:

The

mar

k YEL

LOW

PAG

ES us

ed to

iden

tify th

e yell

ow pa

ges.

Gene

ric

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

14

Trad

emar

k Sele

ction

- Di

stinc

tiven

ess o

f Mar

ks

 S

ugge

stive

: Ma

rks m

erely

sugg

estin

g som

e qua

lity or

char

acter

istic

of a p

rodu

ct or

servi

ce ar

e gen

erall

y inh

eren

tly di

stinc

tive a

nd th

erefo

re

regis

trable

(mos

t of th

e tim

e).

Exa

mpl

e: T

he m

ark C

OPPE

RTON

E us

ed to

iden

tify su

n tan

lotio

n.

Gene

ric

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

15

Trad

emar

k Sele

ction

- Di

stinc

tiven

ess o

f Mar

ks

 A

rbitr

ary:

Mar

ks th

at co

mpris

e wor

ds or

symb

ols us

ed in

co

mmon

lang

uage

but w

hen u

sed w

ith th

e pro

ducts

or

servi

ces a

t issu

e neit

her s

ugge

st no

r des

cribe

a qu

ality

or

char

acter

istic

of the

prod

uct o

r ser

vice a

re pr

otecta

ble an

d re

gistra

ble as

inhe

rentl

y dist

inctiv

e mar

ks.

Exa

mpl

e: T

he m

ark A

PPLE

used

to id

entify

comp

uters.

Gene

ric

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

16

Trad

emar

k Sele

ction

- Di

stinc

tiven

ess o

f Mar

ks

 F

ancif

ul:

Marks

that

cons

ist of

wor

ds th

at ha

ve be

en

inven

ted (“

coine

d”) o

r are

out o

f com

mon u

sage

are i

nher

ently

dis

tincti

ve an

d the

refor

e pro

tectab

le an

d reg

istra

ble.

Exa

mpl

e: T

he m

ark C

LORO

X us

ed to

iden

tify bl

each

.

Gene

ric

Desc

riptiv

e Su

gges

tive

Arbi

trary

/Fan

ciful

POTA

TO C

HIPS

YE

LLOW

PAG

ES

COPP

ERTO

NE

APPL

E / C

LORO

X

17

Trad

emar

k Sele

ction

- Re

comm

enda

tions

 

Make

ever

y effo

rt to

deve

lop fa

ncifu

l and

arbi

trary

mar

ks.

 

Sugg

estiv

e mar

ks ar

e bett

er th

an de

scrip

tive m

arks

.

 

Avoid

des

crip

tive o

r gen

eric

marks

.

 

Avoid

use o

f term

s in o

r as m

arks

that

have

spec

ific m

eanin

gs in

the r

eleva

nt ind

ustry

that

would

rend

er th

e mar

k des

cripti

ve or

sugg

estiv

e.

 

Avoid

mar

ks w

hich m

ay cr

eate

a neg

ative

impr

essio

n in t

he re

levan

t mar

ket

(NOV

A, us

ed by

Gen

eral

Motor

s as a

trad

emar

k for

autom

obile

s, me

ans “

won’t

go”

in Sp

anish

!)  

Avoid

using

term

s com

monly

used

in th

e rele

vant

marke

t (in

the U

.S., f

or ex

ample

, AM

ERIC

AN, N

ATIO

NAL,

GEN

ERAL

, ETC

.).

 

Term

s with

no co

nnec

tion t

o the

good

s or s

ervic

es to

be id

entifi

ed m

ake g

ood

marks

(for

exam

ple, S

AUSA

GE B

rand

Sha

mpoo

).  

Uniqu

e or “

coine

d” m

arks

cons

isting

of ne

w wo

rds a

nd/or

symb

ols ar

e bes

t.

Wha

t mak

es a

“goo

d” m

ark?

18

Trad

emar

k App

licati

on P

repa

ratio

n

 

Use-

Base

d App

licati

on

 

Identi

ficati

on of

the o

wner

 

Identi

ficati

on of

good

s or s

ervic

es

 

Date

of firs

t use

 

Draw

ing

 

Spec

imen

 

For g

oods

: tag

s, lab

els, p

acka

ges o

r con

taine

rs tha

t pro

mine

ntly

displa

y the

mar

k or d

igital

photo

grap

hs of

the m

ark o

n the

items

.  

For s

ervic

es: a

dver

tising

, mar

ketin

g mate

rials,

prom

otion

al ma

terial

s, or

broc

hure

s whic

h pro

mine

ntly d

isplay

the m

ark i

n co

nnec

tion w

ith th

e ser

vices

.  

Inten

t-to-

Use A

pplic

ation

 

Identi

ficati

on of

the o

wner

 

Identi

ficati

on of

good

s or s

ervic

es

 

Draw

ing

Wha

t do

we (y

our a

ttorn

eys)

nee

d to

file

a tra

dem

ark

appl

icatio

n wi

th th

e PTO

?

19

Trad

emar

k App

licati

on -

Pr

oces

sing b

y the

USP

TO

 

Upon

filing

, the a

pplic

ation

is re

viewe

d for

comp

leten

ess a

nd as

signe

d to

an E

xami

ning A

ttorn

ey.

 

With

in 3 t

o 6 m

onths

, the E

xami

ning A

ttorn

ey re

views

the a

pplic

ation

an

d if is

sues

or qu

estio

ns ar

ise, th

e Exa

minin

g Atto

rney

will

issue

an

Offic

e Acti

on.

 

Appli

cant

has 6

mon

ths to

resp

ond t

o an O

ffice A

ction

.  

Once

the E

xami

ning A

ttorn

ey is

satis

fied t

hat th

e mar

k in t

he

appli

catio

n may

func

tion a

s a tr

adem

ark,

and i

s ava

ilable

for

regis

tratio

n, the

mar

k is p

ublis

hed f

or op

posit

ion in

the U

SPTO

’s Of

ficial

Gaz

ette

.  

Upon

publi

catio

n, thi

rd pa

rties w

ith an

inter

est h

ave 3

0 day

s to o

ppos

e re

gistra

tion o

f the m

ark.

 

If the

re is

no op

posit

ion to

a us

e-ba

sed a

pplic

ation

, then

the U

SPTO

wi

ll iss

ue a

Certif

icate

of Re

gistra

tion f

or th

e mar

k.  

If the

re is

no op

posit

ion to

an IT

U ap

plica

tion,

then t

he U

SPTO

will

issue

a No

tice o

f Allo

wanc

e. Ap

plica

nt the

n has

6 mo

nths (

with

exten

sions

up to

3 ye

ars)

to us

e the

mar

k in c

omme

rce an

d file

a St

ateme

nt of

Use.

Pro

vided

the S

tatem

ent o

f Use

is ac

cepte

d by t

he

USPT

O, th

e mar

k is r

egist

ered

and a

Cer

tifica

te of

Regis

tratio

n iss

ues.

Wha

t doe

s the

PTO

do

with

the a

pplic

atio

n?

20

Rules

of T

rade

mark

Usag

e

 

Use a

nd en

cour

age o

thers

to us

e the

mar

k as a

n adje

ctive

, ne

ver a

s a no

un or

verb

.  

Alwa

ys us

e a ge

neric

noun

or th

e wor

d “br

and”

with

the m

ark.

 

Neve

r plur

alize

the m

ark.

 

Use w

ords

or sy

mbols

as m

arks

to id

entify

the s

ource

of a

prod

uct o

r ser

vice -

not w

hat a

prod

uct o

r ser

vice i

s or d

oes.

 

Use t

he m

ark i

n the

same

man

ner t

hrou

ghou

t you

r com

pany

: sa

me co

lor, s

ame t

ype s

tyle a

nd fo

nt, sa

me or

simi

lar lo

catio

n on

corp

orate

liter

ature

.  

Conti

nuall

y exa

mine

the q

uality

and n

ature

of an

y lice

nsee

s’ or

aff

iliates

’ pro

duct

or se

rvice

asso

ciated

with

the m

ark.

Once

I hav

e a m

ark,

what

do

I do

to p

rote

ct it

?

21

Rules

of T

rade

mark

Usag

e

 

Conti

nuall

y sea

rch co

mpeti

tor’s

marks

for s

imila

rity to

your

s.  

Educ

ate al

l com

pany

emplo

yees

, con

tracto

rs, co

nsult

ants

and

vend

ors t

o rep

ort a

ll inc

onsis

tencie

s of u

se or

susp

icion

s of

simila

r use

s by c

ompe

titors.

 

Educ

ate cu

stome

rs re

gard

ing th

e uniq

uene

ss of

the m

ark a

nd

its sy

mboli

c stat

us in

rega

rd to

your

comp

any’s

prod

ucts

or

servi

ces.

 

Fede

rally

regis

tered

mar

ks sh

ould

be id

entifi

ed by

the

regis

tratio

n sym

bol “®

”; un

regis

tered

trad

emar

ks an

d ser

vice

marks

shou

ld be

iden

tified

by “T

M” an

d “SM

”.  

Whe

n the

mar

k con

sists

of tex

t, use

bold,

all c

apita

l lette

rs or

a sp

ecial

type

face o

r any

comb

inatio

n to s

et the

mar

k apa

rt,

partic

ularly

whe

n use

d in h

eadin

gs or

titles

.

Once

I hav

e a m

ark,

what

do

I do

to p

rote

ct it

?

22

Prote

cting

You

r Tra

dema

rks

 

Maint

ain R

egist

ratio

ns

 

Affid

avit o

f Use

and I

ncon

testib

ility

 

Filed

betw

een t

he fif

th an

d sixt

h yea

r of r

egist

ratio

n  

Comb

ined D

eclar

ation

of U

se an

d App

licati

on fo

r Ren

ewal

 

10 ye

ars a

fter R

egist

ratio

n  

Ever

y 10 y

ears

there

after

 

Monit

or th

e tra

dema

rk for

infrin

geme

nt  

Whe

re ap

plica

ble, u

se w

atchin

g ser

vices

 

Emplo

y in-

hous

e pro

gram

s and

stan

dard

s to i

denti

fy po

tentia

l inf

ringe

ment

 

Avoid

gene

ricide

 

Use l

icens

es w

here

appr

opria

te

How

do I m

ainta

in a

trade

mar

k reg

istra

tion?

24

Copy

right

Law

A U.

S. co

pyrig

ht pr

otects

origi

nal w

orks

of au

thorsh

ip wh

ich ha

ve

been

fixed

in a

tangib

le me

dium

of ex

pres

sion.

Wha

t doe

s thi

s mea

n?

For e

xamp

le, a

song

has m

ultipl

e cop

yrigh

ts: (

i) the

lyric

s; (ii)

the

scor

e or s

heet

music

; (iii)

the s

ound

reco

rding

.

Wha

t is a

Cop

yrig

ht?

25

A Co

pyrig

ht Pr

otects

 

litera

ry wo

rks

 

music

al wo

rks

 

dram

atic w

orks

 

panto

mime

and

chor

eogr

aphic

wor

ks

 

pictor

ial an

d gra

phic

works

 

sculp

tural

works

 

comp

uter p

rogr

ams

 

motio

n pict

ures

 

soun

d rec

ordin

gs

 

arch

itectu

ral w

orks

Wha

t can

qua

lify f

or co

pyrig

ht p

rote

ctio

n?

26

Copy

right

Owne

r May

Con

trol

The e

xclus

ive rig

ht to

contr

ol:

 

repr

oduc

tion

 

distrib

ution

 

adap

tation

 

publi

c disp

lay

 

publi

c per

forma

nce

Wha

t rig

hts d

oes a

copy

right

own

er h

ave?

27

Idea v

. Exp

ress

ion D

ichoto

my

 

The f

orma

t for a

telev

ision

serie

s v. th

e ser

ies its

elf

 

Idea f

or a

Wor

ld W

ar II

nove

l v. th

e nov

el its

elf

 

Facts

v. ar

rang

emen

t of th

ose f

acts

Are f

acts

pro

tect

ible

as a

copy

right

? No

– fac

ts an

d ide

as ar

e not

prote

cted.

28

Copy

right

Owne

rship

 

Emplo

yee/s

cope

of em

ploym

ent

 

Indep

ende

nt co

ntrac

tor

 

Wor

ks fo

r hire

Who

own

s the

copy

right

? Th

e auth

or.

Who

is th

e Aut

hor?

The p

erso

n who

actua

lly cr

eated

the w

ork.

29

Copy

right

Point

s to R

emem

ber

 

Not m

anda

tory,

but fa

ilure

to do

so m

ay lim

it yo

ur rig

hts.

 

Affor

ds ce

rtain

bene

fits

 

Prer

equis

ite to

filing

suit

 

Statu

tory d

amag

es an

d atto

rney

’s fee

s

 

Simp

le an

d ine

xpen

sive

Must

one

regi

ster

a co

pyrig

ht?