Tag Archives: Blogging

I Can’t Afford A Lawsuit. (Not So Fast! Maybe You Can.)

Can't afford a lawyer? Maybe you can.
Can’t afford a lawyer? Maybe you can.

I can’t afford a lawyer!

Maybe you can – with a little help from your “Internet friends.”

Take Roy Ngerng Yi Ling, for example. A Singaporean blogger, Ling landed on Prime Minister Lee Hsien Loong’s naughty-list for accusing the big wig of “criminal misappropriation of public fundsand is now facing a defamation lawsuit.

So, where does a cash-strapped blogger turn when staring down the barrel of a very high profile online defamation lawsuit? Why, to the Internet, of course! Specifically, to the nearest crowdfunding platform.

And it worked! Over 100 people contributed tens of thousands of dollars to Ling’s legal campaignbecause who can resist lending a few bucks to a keyboard critic being bullied by the most powerful politician in his country!?

Activist Blogger Sued For Defamation By Big Wig

blogger sued for defamation
Blogger sued for defamation by big-time businessman. What will probably happen in this case?

Blogger Sued For Defamation Over Huffington Post Article

Mike Stark, a progressive blogger and activist, doesn’t think much of Robert Murray, of the Murray Energy Corporation. This past September, Stark wrote a Huffington Post article about Murray. Let’s just say it wasn’t what you’d call flattering.

After publication, the usual partisan battle ensued between the two would-be pundits: Greedy Billionaire Fascist! Intolerable Hypocritical Socialist! Yada, yada, yada…then, a libel lawsuit. Murray decided to sue Stark.

Paraphrase: “Call Me An Extremist, And I’ll Sue Your Blogging Butt For Defamation”

In the claim, Murray outlined his gripes with Mike Stark’s article. The outspoken businessman took particular umbrage with the use of the word “extremist,” insisting that Huffington Post readers would interpret the label as an “assertion of fact, not opinion.”

Enter The ACLU, Sometimes Defender Of Sued Bloggers

Upon hearing of the case, The American Civil Liberties Union and David Halperin, Esq. decided to represent Stark. On their client’s behalf, the attorneys filed a dismissal motion on November 1.

Their argument was straightforward: Stark didn’t defame; he was exercising his free speech rights as a journalist. The motion also argues that since Stark’s piece concerned “public policy issues relating to Virginia gubernatorial candidate Ken Cuccinelli” it shouldn’t be deemed defamatory, but instead fair comment on political activity.

The defense team punctuated their argument with a reminder: “The U.S. Supreme Court has repeatedly protected speech that a reasonable reader would recognize as spirited argument or opinion, rather than assertions of fact.”

Do You Want To Speak To A Lawyer Who Deals With Blogger Libel? We Can Help You Sue A Blogger Or Defend A Blogger Sued For Defamation.

We don’t see this case going the distance. It seems more of a public relations litigation move than a viable defamation lawsuit — but hey, you never know.

Are you curious if you have a solid defamation case or not? Get in touch with defamation attorney Aaron Kelly for a consultation.

The Question Of Defamation Negligence

Blogger Crystal Cox has been battling a serious online defamation lawsuit for over a year. In short, her case involves derogatory statements about Obsidian Finance and one of the company’s executives, Kevin Padrick, whom she called “a theif and a thug” on her blog. After losing at trial, Cox was ordered to pay millions. She is now appealing the case and some heavy weight legal minds are helping. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of Cox, and Eugene Volokh, a UCLA professor, is now serving as Cox’s attorney and appealing her case to the 9th Circuit Court. Her appeal, it appears, centers around the concept of defamation negligence.

In the original case, Judge Marco Hernandez dismissed several of the charges argued in the claim. The legal definition of defamation is very specific, and as such statements of opinion are often dismissed immediately. In the Crystal Cox defamation lawsuit, by the time the trial rolled around, only a couple of counts of libel still stood.

Before the jury went into deliberations, Judge Hernandez gave his instructions. According to accounts, he failed to instruct the jury to consider the element of negligence. In United States defamation law, negligence plays an important role. If the plaintiff is a public figure, they must prove that the defendant acted with malicious intent; if the plaintiff is a private citizen, then the claimant only has to prove that a reasonable person would not have posted the material in question. In other words, people in the public must meet a higher standard of proof when filing a defamation lawsuit. This was done to ensure that those in power did not hinder free speech via the use of strategic lawsuits.

In their friend-of-the-court brief, the Reporters Committee for Freedom of the Press explained:

“The determination of whether a particular person qualifies for…protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform.”

Basically, the committee is saying that Cox was performing as a journalist, had sufficiently checked her sources, and then and only then published the story. As such, she should not be held liable for defamation. In Volokh’s appeal, he argues that since the jury was not given explicit instructions on “defamation negligence” the ruling should be overturned. Both parties are essentially arguing that since Cox reasonably believed the statement to be true, they were not defamatory. Inaccurate? Sure. Defamatory? Not unless Cox had substantial reason to believe the statements were false and published them anyway.

Defamation negligence is just one nuance of U.S. slander and libel law. If you’re interested in learning more about defamation law in the United States, check out our one-stop-shop legal resource center.


Blog Poster Says Her Comment Was A Question, Not A Statement Of Fact In Online Defamation Lawsuit

A few days ago, we blogged about a defamation lawsuit going down in Idaho. To recap: Linda Cook, a citizen commentator on The Spokesman-Review’s website, was sued for defamation by Linda Jacobson, the former chairwoman of the local GOP chapter. Jacobson was upset over Cook’s insinuation of theft. Specifically, according to Oregon Live, Cook typed, “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse???”

But now Cook, who is representing herself pro se in court, says that she was not making an accusation in her post, but instead simply asking a question about the group’s accounting procedures. And she may have a point, since Cook, technically, did ask a question.

Will a judge agree with the plaintiff and rule that Cook “offended and embarrassed” Jacobson to the point of harm? Well, it very much depends on the judge.

In addition to asserting that her blog comment was a question, not a statement of fact, Cook also averred she has proof that:

  1. Jacobson didn’t provide a budget and other financial statements to the GOP Central Committee; and
  2. Jacobson failed to properly record various expenditures, as outlined by the group’s rules.

To further her argument, Cook also argued during the hearing that the onus of proving her statements were false falls on the plaintiff, since Jacobson is a “public figure” and therefore must adhere to “actual malice” standards.

Click Here To Read More About ‘Actual Malice’ Standards For Public Figures In Defamation Lawsuits

The former committee chair is suing for at least $10,000 in defamation damages, even though the comments in question were only up for about 2.5 hours.

Defamation lawsuits very much depend on the individual circumstances of a given case. If you want to consult with an attorney that is well-versed in the nuances of slander and libel law, feel free to contact Kelly/Warner law today. We’ve successfully helped many with their defamation lawsuits, and we’re here to help you, too.

Mother Pens Cyberbullying Memoir

Cyberbullying is most often associated with children. But many adults also suffer online harassment. Lesli Catsouras, 46, is one such adult, and she’s sharing her harrowing story in a new memoir entitled, “Forever Exposed.” A deeply personal tale, Catsouras’ book is about the cyberbullying she and her family experienced after her 18 year old daughter was killed in a car crash.

It all started on Halloween afternoon of 2006. After having lunch with her parents, Nikki grabbed the keys to her father’s porche, the one she was not supposed to drive, and escaped out the garage. Panicked, Nikki’s mother immediately called her father, who tried to warn the police, but it was too late.

Nikki lost her life after crashing into an unmanned toll booth. As you can imagine, it was an incredibly difficult time for the Catsouras family. All they wanted to do is grieve in peace and try to piece their life back together. But the opposite ended up happening.

Due to a leak by the California Highway Patrol, the pictures of Nikki’s death leaked onto the Internet. Within days, the Catsouras family was inundated with taunting emails. Many even included pictures of Nikki’s crash. When word got out that there were traces of cocaine in Nikki’s system at the time of the crash, things got even worse. She was labeled a spoiled brat who deserved what she got, and the family had to endure the nightmare – both online and off.

The cyberbullying was relentless. The disparaging messages came in day after day, week after week, month after month. And yes, those months turned into years. Can you imagine years of persistent cyberbullying? It got so bad that the youngest Catsouras, who is now 13, is still not allowed on the Internet.

The Catsouras’ bid to rid the Web of the gruesome photos has been long and challenging. According to Lesli, her family has spent several millions trying to remove the photos from the Internet…and years later, some images still linger in the ether.

If you or someone close to you is being cyberbullied, there are legal avenues available to fight back. You can file a defamation lawsuit or get a temporary restraining order, for example. Also, tons of online reputation services help those who are in need of “cleaning up” any unwanted information that has managed to find its way onto the Internet.

Cyberbullying is a terrible thing to suffer through. But don’t give up. There is help out there, the first step to rectifying the situation is picking up the phone or sending that initial email to someone who is experienced with the legalities of cyberbullying.

A Freelance Writers Guide To Content Scraping: What To Do If You Get Hit

Anyone in the online marketing biz has heard the phrase a million times: content is king! And it’s true. Internet advertisers are constantly looking for ways to increase the amount of quality content on their websites. That’s where “content scraping” comes in. It’s a common practice that marketers just accept as part of doing business – but for freelance writers, the practice is a little more damaging to the bottom line.

The main legal question: Is content scraping legal or illegal?

What Is Content Scraping?

And as we all know, when there is a demand, innovative individuals figure out ways to fill it. In the case of Web content, many have turned to software that scours the Net and collects relevant content, thus allowing the individual who is using the software to post others’ content on their Web properties. This practice is commonly known as “content scraping.” What usually happens is that an agent of one site – either an electronic bot or a human – steals the content of another site and posts it on their own. Sophisticated scrapers may also inject backlinks to their own sites, to make it look like the original author was the one who “stole” the content from the scraper.

Now, some marketers depend on scraping software. And to be perfectly frank, it’s a fairly common practice in the industry; folks often turn the other cheek. But if you’re the person who writes the original content, you may find scraping a bit more insidious; after all, you’re the one who spent hours crafting that content; they’re your hard-fought words and ideas.

How Does Content Scraping Hurt Content Creators?

Why does posting nearly identical content on different websites present a problem? The answer has to do with search spiders and bots who are not fond of duplicate content across the Web; and now they’re advanced enough to sniff out and penalize sites that engage in the activity. Google, for example, significantly devalues the rankings of websites with significant duplicate content. Now imagine you were the original author, but the non-sentient bot categorized you as the plagiarizer. It’s happened to thousands of other freelancers, and could happen to you too.

How Can Freelance Writers & Blogger Fight Content Scrapers?

So the question becomes: can you, as a content writer, with very little technical knowledge, beat the super-smart scraping software? Yes you can. But it does take patience and a tiny fee. So how do you fight back? Use the provisions in the Digital Millennium Copyright Act (DMCA).

Many bloggers and website owners have turned to the DMCA to protect their work. Since scraping is seen as modern-day plagiarism on steroids, they use takedown provisions provided for in the DMCA, and send requests to websites infringing on their content. If a request to the website goes unanswered, then they send one to the hosting company. If that still fails, there are also ways to get a court order to have the scraped results removed from search engine indexes.

If You Relinquish Rights You Have No Rights

If you write for a content provider, like Textbroker or Constant Content, and agree to hand over all copyrights to the buyer, than you relinquish rights to the content once the buyer accepts and pays for the work. If, however, the buyer never ended up buying the work, and you come across it online, then you have every right to snatch that copy back from them using the DMCA takedown provisions.

If you are a freelance writer who is interested in a copyright protection package for your portfolio and future work, contact us today. We work with many freelancers and offer flat-fee pricing for legal packages specially developed for your industry in mind. Contact us today to begin the conversation.

The Legalities Of Teacher Blogging: Munroe v. Central Bucks School District

teacher blogging
What happens when a public school teacher has a blog that talks about their students? Is it illegal? Will the teacher lose their job?

Teacher blogging is becoming more popular, but is it legally dangerous for educators to indulge in the act?

Part of our societal contract is to provide a public education system. And in said system, we tend to favor affable teachers who understand — and enjoy working with — young people. As such, where does our allegiance land when a public educator maintains a semi-anonymous blog, wherein they disparage students, parents and school administrators? Does free speech win out over the arguable well-being of the targeted students?

Natalie Munroe, an eleventh grade English teacher in Pennsylvania, found out her community’s answer to that conundrum last month. She was fired.

But Munroe is fighting back in the form of a $5,000,000 federal lawsuit which essentially asks:

  1. Is free speech more important than a student’s right to a positive, unbiased and encouraging teacher?
  2. Are teachers legally obligated to refrain from blogging about students?
  3. Do educators have a moral obligation not to disparage students online?

Teacher Natalie Munroe’s Blog: Catalyst for the First Amendment Lawsuit

The fracas started over Munroe’s blog entitled “Where are we going, and why are we in this Handbasket?” Munroe’s lawsuit maintains the blog was “anonymous” even though it included pictures of the teacher. She also blogged under the name, Natalie M. – a pen-name that doesn’t do much to obfuscate her real name, Natalie Munroe. Nevertheless, Munroe insists it was meant to be a private blog, which only her friends and family were invited to follow. It was, however, publicly indexed; as such, even if  people weren’t invited to follow, it could be found via a search engine.

Like many blogs, Munroe’s was often used as an outlet to vent her daily frustrations. Being a high school teacher, those frustrations included her students, parents and superiors. At times she stuck to fairly innocuous quips about her students and called them “out  of control;” at other times, she arguably went for the jugular and opted for phrases like “dunderheads,” “frightfully dim” and “utterly loathsome.”  Munroe once declared that one of her students was “a complete and utter jerk in all ways.” Natalie M. also lamented about “canned report card responses” and wished that she could put “dresses like a streetwalker” on a few of her students’ quarterly grade analyses.

Teacher Blogging: Munroe v. Central Bucks School District

Word got out that “Handbasket” was the work of Natalie Munroe and within a few months she got her walking papers. The tenured teacher believes her blog is to blame for the firing, while school officials insist it has more to do with “poor performance.”

Munroe filed a “First Amendment Retaliation case” on June 21, 2012 in federal court  alleging her firing violated her first amendment rights. Named defendants include the Central Bucks School District, the superintendent and the principal of her school. Munroe is asking for reinstatement, back pay and front pay, in addition to punitive damages related to civil rights violations, emotional distress and reputation damage – a package totaling $5 million dollars.

Public Education v. The Internet: Striking the Right Jurisdictional Balance When It Comes To Teacher Blogging

Munroe’s case is intriguing because of the questions it raises about the intersection of public education, digital technology and the law. As the world we live in becomes more digitized, what legislative and societal rules should be adapted to ensure both personal freedoms and a healthy learning environment for the “next generation”?

Should teachers be censured for lambasting their students online? If a teacher is going to maintain a blog about their students, should statutes exist to ensure it’s not publicly searchable — for student privacy right reasons? Do parents have the right to demand that a demeaning teacher be removed? If so, where is the law-line drawn?

Blogging teachers aren’t the only issue involving Internet law and the public school system. In fact, many states are in the process of examining cyber bullying legislation and deciding whether or not schools can enact punishments for cyber harassment that occurs off campus.

The more we integrate the Internet into our lives, the more gray-area Internet law implications will arise. Moreover, it’s likely these issues will involve ethical questions that may force a robust public discourse about online free speech and how it relates to students’ rights versus teacher bloggers.

Carreon v. Inman Showdown: A Cautionary Tale of 21st Century Lawyering and Marketing

Above: Matthew Inman’s Bear Love Good. Cancer Bad Cartoon.
Matthew Inman of “The Oatmeal” was embroiled in an epic legal battle with lawyer Charles Carreon and Carreon’s client, FunnyJunk.com. Thanks to a little “WTF!? Litigation,” Carreon v. Inman engaged netizens across the globe. For Internet law enthusiasts, the case was front-row-seat material. So much more than just an online copyright tussle, the FunnyJunk v. Oatmeal legal battle served as a cautionary tale about lawyering and marketing in the Internet age; it highlights the philosophical gap between old-fashioned lawyering and the fluid nature of today’s online marketplace; and perhaps most intriguingly, Carreon v. Inman is a lawsuit that makes tests whether or not the old marketing adage of “any publicity is good publicity” still holds true today.

“I’m not one to combat piracy,” Matthew Inman explained in a statement to Comic Riffs, “if you want to post my comics on your site, just don’t post 500 [of them] and just give me a link back.”

Inman’s statement succinctly encapsulates today’s “pro-piracy” zeitgeist. It’s also become a rallying cry for small- to mid-sized copyright holders who are willing to share their work in exchange for a little SEO link-love, but are fed up with “re-hosting” sites that blatantly profit off stolen material.


First: A Little About Carreon v. Inman

Before we get to the pulp of the drama, let’s first meet the players.

Matthew Inman, 27, is the creator of “The Oatmeal” – an original, popular, irreverent online cartoon and blog. Charles Carreon, a 1986 graduate of UCLA Law School, is legal counsel for Funnyjunk.com. Back in the day, Carreon litigated one of the first high-profile domain disputes; today, according to Comic Riffs, he’s angling to become the “go-to attorney for people who feel they’ve been cyber-vandalized or similarly wronged on the Internet.”

TheOatmeal.com is essentially Inman’s portfolio site. It’s filled with his original work, a blog, a quiz section and a marketplace where fans can purchase Oatmeal paraphernalia. According to reports, The Oatmeal attracts over 4 million page views a month. All in all, it’s a great-looking, user-friendly website that highlights Inman’s considerable talent – and no, it’s not littered with advertising and scraped content.

FunnyJunk.com, on the other hand, is a forum-like website that relies on user-generated content. Administrators claim infringement immunity under the Communications Decency Act and provide a questionable “copyright removal request form” on the site; questionable because it doesn’t provide the contact information for FunnyJunk’s DMCA agent – a requirement for DMCA compliance. Like other social-voting sites, posts on FunnyJunk.com are up- and down-voted by other users; “reputation points” are based on positive feedback. Unlike The Oatmeal, FunnyJunk is littered with advertisements – a point, thanks to contributory infringement statutes, that may come back to bite them in the butt.

The Oatmeal v. FunnyJunk: In the Beginning

The Oatmeal v. FunnyJunk saga started in 2010. Back then, Inman contacted FunnyJunk.com and asked the administrators to remove some copyrighted content from their site. As previously stated, FunnyJunk.com’s copyright removal page didn’t include a DMCA agent, but they ostensibly agreed to Inman’s request.

Ostensibly being the operative word.

Turns out that FunnyJunk.com simply removed all the content that WAS properly attributed to Inman, and left all the material that was not. Then, FunnyJunk pulled the ultimate in school-yard whining by changing all instances of the phrase “The Oatmeal” to “The Fag” on their website.

As Inman explained, filing a DMCA takedown notice for every single infringement would have taken an inordinate amount of time. Besides, Matt had more important things to do, like continue building one of the most successful online, graphics-based businesses in the U.S. So instead of going the DMCA route, Inman decided to make a post on his blog about FunnyJunk.com’s blatant infringement.  That was that – or so he thought.

At around the same time, FunnyJunk.com was in the process of retaining Charles Carreon as counsel. A self-styled crusader against “cyber vandalism,” Carreon got down to the business of lawyering on behalf of his client, FunnyJunk.com. As part of his efforts, instead of first making sure that FunnyJunk.com had rock-solid website disclosures, complete with a DMCA agent listed on the “copyright removal” page, he fired off a strongly worded letter to Inman after coming across The Oatmeal blog post that discussed FunnyJunk’s copyright infringement.

WTF!? You’re Actually Going to Sue for Defamation, Carreon!?

In Carreon’s letter to Inman, he demanded that Inman pay $20,000 for making a “false accusation of willful copyright infringement” against The Oatmeal’s “competitors,” FunnyJunk.com. The defamation, Carreon argued, centered on the fact that Inman defamed his clients by saying they were infringing on copyrights, when in fact, Carreon argued, they were protected by Section 230 of the CDA.

Carreon further argued that an alpha-numeric pterodactyl graphic, which appeared in the source code of Inman’s post about FunnyJunk.com, was “evidence” of actual malice. Additionally, Carreon averred that Inman’s statements constituted false advertising under the Lanham Act.

Here’s why Carreon’s claims are ridiculous:

1) The pterodactyl graphic was developed long before the fracas with FunnyJunk.com started and appears on nearly every page of The Oatmeal’s source code. It has absolutely nothing to do with taunting Carreon’s clients.

2) The defamation claims are ridiculous. Without even evoking legalese, common sense dictates that defamation is not pointing out that another website is posting copyright protected work without proper credit. Now, Carreon says that all the links that Inman said were infringing were removed soon after Inman made his complaints, thereby putting them on the right side of DMCA law; However, a quick look at one of the page’s cache proves that it was still intact on May 28, 2012. Carreon’s letter was dated June 2, 2012. It’s not a far stretch to infer from those facts that the links were taken down with the express purpose of sending the “extortion” letter to Inman.

3) The Lanham act specifies “commercial advertising and promotion.” As such, a lawyer could easily argue that Inman’s actions did not constitute “false advertising”

Crowdsourcing Success 101: The “Bear Love, Good. Cancer Bad” Campaign

Understanding the actual parameters of the Digital Millennium Copyright Act and United States’ defamation statutes, Inman made the following promise to both Carreon and Oatmeal fans:

Instead of mailing the owner of FunnyJunk the money, I’m going to send the above drawing of his mother.  I’m going to try and raise $20,000 and instead send it to the National Wildlife Federation and the American Cancer Society.

True to his word, Inman posted the campaign, “Operation Bear Love Good, Cancer Bad,” on Indiegogo.com, with the proceeds going to the American Cancer Society and National Wildlife Foundation. In true Oatmeal form, the campaign included a cartoon drawing of a “mother” having sexual relations with a Kodiak bear. In just over an hour, Inman had raised the $20,000. Inspired by the generosity of his readers, The Oatmeal creator kept the giving campaign open. Within three days, the amount had climbed to over $170,000 – all of it would go to charity.

Within minutes of Inman’s charitable campaign launch, thousands of copies of Inman’s mother-kodiak drawing landed in Carreon’s inbox; crank calls were made to his office; under siege, the beleaguered lawyer attempted to stop the onslaught by removing his contact information from his website.

WTF!? You’re Actually Going to Sue the American Cancer Society & National Wildlife Foundation Over This, Carreon!?

Carreon was ticked about the drawing. He told reporters that “accusing [his] mother of beastiality is revolting, and [he would] not forgive it!”

And with that, instead of cutting his losses and letting the incident die a slow death, Carreon opted to serve Inman with yet another lawsuit – this time over Inman’s failure to file a charitable disclosure or annual report, thus making him an unfit entity to receive charitable gifts.

To add some cache to the suit (and possibly to assure greater media coverage?), Carreon included not only Indiegogo, but the American Cancer Society and the National Wildlife Foundation, for illegally participating in a charitable giving campaign that was not in compliance with non-profit technicalities. In his claim, Carreon also asserted that Inman’s campaign violated Indeigogo’s terms of service – an argument which Indiegogo has since refuted.

The Electronic Frontier Foundation has now stepped in on Inman’s behalf, and will most likely make mincemeat of Carreon’s claim – further embarrassing the once lauded Internet lawyer. It just goes to show, as an Internet lawyer, you have to keep up – otherwise you may end up unintentionally knocking yourself out of the market – within a matter of hours.

The Oatmeal v. FunnyJunk: A Metaphor For The Current State Of Internet Law?

FunnyJunk.com v. The Oatmeal (which has now turned into Carreon v. Inman), is a fascinating case. Not only, as Comic Riffs pointed out, does the case involve two smaller-sized websites instead of a mega-corp like Google or Facebook, which makes it that much more accessible to the average user, but it also serves as an ideal case study for how vintage lawyering can sometimes prove disastrous in today’s digital marketplace.

In a matter of a few days, Carreon became Internet public enemy #1. The hive mind was incredulous that a lawyer could make such ridiculous demands of one of the more popular Web cartoonists around. Part of what was so infuriating was Carreon’s ostensible ignorance of current Internet culture. Not only did he seemingly fail to handle the most basic and foundational aspect of online business litigation by making sure FunnyJunk.com had a proper DMCA disclosure, but instead of cutting his losses after the first threat, he doubled down – thereby making himself a 21st century target and highlighting his arguable ignorance of the market in which he claims expertise.

Beyond Carreon, though, FunnyJunk.com v. The Oatmeal is noteworthy because it illuminates the cavernous gap between the mores of average Internet users and entrepreneurs versus the philosophical beliefs on which many of our Internet laws are based.

To illustrate, consider the fact that Inman did not originally file a DMCA takedown request. The truth is that most small-to-mid sized copyright holders don’t bother with the DMCA process. Why? Because the new generation of online business people aren’t diametrically opposed to “sharing;” heck, most don’t even remember life before the share-fueled Internet arrived. As such, these netizens rely on the exchange of free goods/info/data/links to build their brands and businesses. To this new wave of users and entrepreneurs, the time it takes to fill out DMCA takedown requests often proves too costly and time consuming.

Large corporations and lobbying associations, however, make considerable use of the DMCA process. Which begs the question: Are current Internet laws really drafted with the intention of protecting the average copyright holder and consumer, or are they written with the sole purpose of placating “fat cats” like the RIAA? I hate to say it, but in most cases the desires of the mega-corps and Godzilla-like lobbyists take precedence in the legislation writing process; resulting in:

1) A dearth of U.S. online copyright legislation that adequately impedes copyright trolls;

2) Improper rights protection for small to mid-sized intellectual property holders; and

3) Outrageous statutory damages based on agitprop compiled by biased entities.

Over the next few months, Carreon v. Inman is poised to be an oft-talked about Internet law case —not because of the legal prowess of Carreon’s lawyering, but because the Inman v. FunnyJunk.com drama has definitely brought a little LULZ to kick off summer 2012.

Kelly / Warner specializes in Internet law.  Our practice represents all types of startups, online marketing businesses, hosting companies, app developers and even hackers. Not only do we have a deep understanding of online intellectual property, defamation and advertising law, but we’re tech-heads ourselves (we even made our own legal app). Contact us today.

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Jan Brewer’s Veto Pen: Which Way Will It Wag On Arizona House Bill 2549?

Arizona House Bill 2549 - CyberbullyingToday, Arizona Governor, Jan Brewer, vetoed Arizona House Bill 2729 — a piece of legislation concerning firearm freedoms. Being an Internet law firm, though, we’re more curious to see if Gov. Brewer will use the same veto power on Arizona House Bill 2549.

A few weeks ago, the Arizona Legislature angered First Amendment advocates and freedom-loving netizens. Copper State officials poked the “hive mind” by passing Arizona House Bill 2549 – an Act intended to thwart cyberbullying and stalking, has instead caused consternation in free speech circles.

Arizona House Bill 2549 Basics

When you divorce Arizona’s new Internet law from legal analysis, its administrative purpose is to update section 13-2916 of the Arizona Revised Statutes – the state’s long-standing telephone harassment law.

A one-and-a-half-paged piece of legislation, all 2549 does is redact the words “telephone” from the statute and replaces it with “any Electronic or digital device.”

Sounds simple enough, right? After all, everyone agrees that laws need to catch up to our new-fangled communication tools, correct?

Well, not everything is as simple as it seems.

The Language of Arizona House Bill 2549: Harmless or A First Amendment Threat?

Though the ostensible intent of 2549 is noble, the problem with the bill is its lack of definitions. While the updates address the outdated “telephone language,” the surrounding verbiage remains unchanged, and the result is causing a few raised eye-brows amongst legal eagles.

The excerpt attracting attention:
“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”

The Internet is the last bastion of free speech…and if there’s one universal online mantra, it’s “what’s crude and lewd for you, may not be crude and lewd for me.” Hence, the concern over Arizona’s new Internet Conduct Law.

Arizona House Bill 2549 also says that “disturbing the peace, quiet or right of privacy of any person at the place where the…Communications were received” is a class 1 misdemeanor; it makes threatening online stalking a class 5 felony and online death threats a class 8 felony.

Arizona’s new Internet Protection Law also defines “immediate family members” as any person who regularly resides with the person in the household within the past six months. A measure undoubtedly included to allow parents to bring charges, on behalf of their children, against cyberbullies.

Proponents Say Speech Is Protected In Arizona Bill 2549

But are the free speech advocates screaming fire when there’s little cause for concern? Advocates of the bill point out that 2549 explicitly states: “’constitutionally protected activity or other activity authorized by the law’ cannot be prosecuted under this statute.”

That said, when it comes to drafting laws, little wiggle room exists. When you change “telephone” to “electronic communications” without definition, the scope of the act widens and falls dangerously close to infringing on personal freedoms. Before, if you were using the telephone to harass someone your target was a specific person. With the Internet, there’s a greater chance that bystanders could view it and be offended. As such, the statute should focus more on the intent, as opposed to the action. The language of the bill should be tweaked to include language surrounding the concept of “harassment.”

For those interested in law redundancies, take note that Arizona already has a computer harassment statute on the books – A.R.S. 13-2921 – which makes illegal “a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.” Makes one wonder: Do we really need two online harassment laws?

The Future Of Cyberbullying Legislation

When asked, state representative and co-sponsor of 2549, Steve Farley, said the intention of the bill was to protect stalking and cyber bully victims. Justin Patchin, co-director of the Cyberbullying Research Center, elaborated by explaining he was a “defender of the Constitution like anyone else, but the First Amendment doesn’t give you the right to harass and terrorize someone.”

The clamor surrounding Arizona Bill 2549 has prompted officials to pull-back and tweak the language. When the updated version is released, we’ll see if they listened to objections and incorporated the necessary changes.

And most importantly, we’ll see if Gov. Brewer’s veto pen will get some more exercise.

Crystal Cox Defamation Lawsuit: Blogger Denied Journalistic Protection And Rights

A judge presiding over the well-publicized Oregon defamation lawsuit involving Crystal Cox recently ruled against the self-styled, self-published investigative blogger. Cox was ordered to pay $2.5 million in damages and the decision has stirred online First Amendment crusaders.

The Crystal Cox Defamation Lawsuit Background

A self-described investigative blogger and whistle blower, Crystal Cox is a real estate agent by day and Internet vigilante by night. Among her cadre of websites was obsidianfinancialsucks.com, an outlet Ms. Cox used to accuse Kevin Padrick — one of Obsidian’s founding executives — of fraud, misappropriation of funds, lie telling, and a litany of other unscrupulous actions. Cox even insinuated Padrick may have hired an assassin to silence her.

As a result of her online accusations, Mr. Padrick decided to sue for defamation. He maintained his company lost considerable business thanks to Ms. Cox’s allegedly misleading statements. Padrick explained that the Internet was awash with Cox’s disparaging claims — a digital reality which damaged him financially.

Defamation Pro Se Trial

In court, representing herself “pro se,” Cox argued her blog posts were journalistic, of “pubic concern,” and that the Oregon retraction laws should apply to her situation (retraction laws allow journalists to correct or retract defamatory statements in lieu of compensatory damages.). Cox also characterized herself as a “whistle blower” exposing the unscrupulous practices in the finance world.

The Definition of Journalist When It Comes To Online Defamation Lawsuits

Judge, Marco A. Hernandez, however, rejected the assertion that Cox was a journalist.
By applying Oregon law, Hernandez ruled Cox could not be treated as a journalist since:

  • She did not have a formal education in journalism
  • She did not hold proof of affiliation with a recognized news entity
  • She arguably didn’t adhere to journalistic standards such as editing and fact checking
  • She did not keep notes of conversations and interviews conducted
  • She could not produce evidence that she had a mutual understanding or an agreement between the defendant and his or her sources
  • She did not contact the grieved party, before publishing, to get both sides of the story

Offering SEO Services Sunk Cox

In addition to the legal Oregon defamation elements noted above, perhaps the most damning piece of evidence against Cox was an email, presented as evidence by the defense, wherein Cox offered Padrick online reputation management services for $2,500 a month.

In the eyes of the court, the email helped in disqualifying Cox for journalistic immunity. After all, the offending email framed Cox as someone who was actively looking to profit off her statements, and thanks to the presence of the email, the defense could argue that Cox was essentially holding Padrick’s business reputation hostage.

The Right Defamation Decision…But At What Cost

Based on the above defamation definition elements — and the fact that Cox couldn’t prove wrongdoing on the part of Mr. Padrick — it’s no surprise that Obsidian and it’s executive emerged victorious.

That being said, many are concerned about the unintended First Amendment ramifications this decision may have on Internet bloggers in the future. Many wonder how well bloggers, who work for online magazines or news organizations, fit into the qualifying factors listed by Hernandez. For instance, not every blogger working for a news organization has a a journalism degree.

The defamation lawsuit of Crystal Cox is sure to play a role in future blogger defamation lawsuits; it’s established legal precedence that is certain to be tested and challenged in the coming years.

The International Online Defamation Lawsuit of Han Han

Chinese Blogger Han Han
Popular Chinese Blogger, Han Han, Filed An Online Defamation Lawsuit one day, and took it back the next. What Happened? Image Source: http://tinyurl.com/7gw86da

Last week, international media outlets were abuzz over an online defamation lawsuit involving China’s Mario Andretti/Dave Eggers, Han Han and the Asian James Randi, Fang Zhouzi.

Millions of Millennial-gen Chinese are invested in the details of this cyberlibel lawsuit — and it’s sure to captivate anyone with even a passing interest in mega-celebrity, conspiracies or vanity lawsuits.

Tabloid Worthy Online Defamation Lawsuit: Who are Han Han and Fang Zhouzi, You Ask?

Meet Han Han

Han Han is a blogger/author/race-car driver who recently filed a few online defamation lawsuits against his Internet adversary, Fang Zhouzi, a self-styled Internet “science cop” who’s out to right the oh so scientific wrongs plaguing the planet.

Han Han is a big deal in China, a mega, dare we say, meta-celebrity. He’s not just any blogger, he’s the most prolific, most popular blogger in a nation of 1.4 billion people, possibly making him the most popular blogger in the world.

But, wait, he’s much more than even just that.  Hollywood triple threats — model/actress/singers and writer/producer/actors — have nothing on Han Han.  In addition to his blogging and rally-car driving, the impresario also dons the monikers best-selling author, literary magazine publisher, and singer…for now (surely, actor is soon to follow).

Suffice it to say, for more than 10 years, Han has “smashed his name” into Chinese literary history with five published novels, numerous essays, and a blog that receives some 300 million hits a month. He’s a super-star among the Post-80’s (children born in the first decade of the one-child policy from 1980-1989) “netizens” of China.

In September 2010, the British magazine, New Stateseman, declared Han the 48th “Most Influential Figure” in the world.

But Han Han has has some public relations problems, too. Sure, he’s got throngs of fans, articles of adulation, and a considerable amount of fame — a very resourceful high school dropout indeed. But alas, as is the case with many a celebrity, the attention has also brought criticisms and accusations of fraud.

Which brings us to Fang Zhouzi.

Meet Fang Zhouzi

A biochemist/popular scientific writer/founder of New Threads, Fang Zhouzi — not to be outdone in the triple threat category game — is also a muckraking science-cop who is sleuthing the academic world for alleged academic corruption.

Fang is his name and finding fraud is his game.

Tabloid Worthy Online Defamation Lawsuit: Fang’s Internet Hate-On For Han Han

By virtue of his many successful pursuits, Han Han has drawn criticism and speculation on his prolific oeuvre.  People wondered, “How can someone create such an abundant amount of writing with his many interests?”

Fang tried to answer this question with ghostwriting accusations, proposing that Han’s father, Han Renjun, a novelist and magazine writer, was the actual author of his son’s body of prose.

Inquisitive? Perhaps. But it’s not a far-fetched idea for China’s very own James Randi.  After all, let’s be honest, ghostwriting is done on a fairly regular basis among the celebrity elite — (I mean, have you noticed that Biden never gaffes in his emails?).

Tabloid Worthy Online Defamation Lawsuit: Han Initiates A Legal Fight With Fang

Best known for his writing and not to be taken lightly, Han Han has declared that critiquing him is one thing, but if you call him on ghostwriting, you’ve got a libel lawsuit coming your way.  True to his word, Han filed a defamation claim, against Fang and a second defendant, Liu Zeming, for the comments he made on the Fang’s website, in the Putuo District People’s Court. Not one to “go-small,” Han actually filed two defamation lawsuits against his opponents.

It was big news in Shanghai when the court accepted the suit. The online defamation duel between Han and Fang was on, but then Han pulled the claim one day later. Huh, Han?

Tao Xinliang, an attorney for Han, explained in a statement the reason for reversal: Han “didn’t want any ordinary netizens to be involved in the case because they just commented or forwarded microblogs.”

However, now, the status of the second lawsuit is in question.  According to court officials at Jinshan court, where the new claims were to be filed, all the court materials have been withdrawn.  The defamation lawsuit against Fang seems to have materialized and disappeared, like an illusion.

I’m sure this is not the end of this online defamation showdown. To keep up with all the juicy tid-bits, slap your email address on our Internet law-newsletter sign-up form and get the latest Han Han updates delivered directly.

(Oh, and of course, if you’re in need of an online defamation lawyer, give me a shout.We’ve helped many with their various Internet defamation issues.)


DMCA Definition: The Digital Millennium Copyright Act Explained

The Digital Millennium Copyright Act or DMCA is currently one of the laws of the land when it comes to online intellectual property issues.

Lately, the Digital Millennium Copyright Act (DMCA) has stepped into the spotlight as a result of the ongoing SOPA and PIPA debates. Passed unanimously on October 12, 1998, the DMCA is the current law of the land when it comes to various online copyright legalities.

The Digital Millennium Copyright Act amended Title 17 of the United States Code, extended copyright reach, established new anti-circumvention laws, limited the liability of online service providers (OSPs), and made boat hull designs a protected class. The bill was broken out into five sections — below is a summary of each.

DMCA Title I: WIPO Phonograms Treaties Implementation Act

The first section of the DMCA changed the law so U.S. Code complied with the WIPO Treaty. It’s the portion of the act that addresses various anti-circumvention statues. Anti-circumvention laws dictate what one can and cannot do with a piece of technology.

Title I of the DMCA also disallows for reverse engineering in certain instances; and, perhaps unintentionally, the Act effectively created a monopoly for Macrovision in the video recording copyright prevention arena.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

Perhaps the most talked about part of the DMCA falls under Title II of the bill. It’s the part that absolves ISPs, OSPs and certain website operators of liability when users of their site commit acts of intellectual property infringement.

Title II also outlines the notification steps one must take if they feel a website has infringed on their intellectual property rights – a document that has come to be known as a “DMCA Takedown notice.” This section also details what one can do if they’ve been sent a DMCA Takedown notice and want to fight the claim.

Title II also outlines provisions that allow for subpoenas to service providers for users’ identities.

DMCA Title III: The Computer Maintenance and Competition Assurance Act

Essentially, Title III of the DMCA makes way for computer repair professionals to create temporary back-up copies of certain digital information when working on a project, without fear of prosecution.

Title IV: Miscellaneous Regulations

DMCA Title IV of the DMCA is a potpourri of various statues. The section spells out the role of the Copy Right Office of the United States; sets transient statues for broadcasters; establishes rules to allow for long distance education; outlines phonorecord provisions for libraries with recording collections; and lastly, section IV outlines a collective bargaining agreement that has to do with movie rights.

DMCA Title V: The Vessel Hull Design Protection Act

The last section – Title V – of the Digital Millennium Copyright Act has very little to do with the digital millennium. Instead, Title V deals with boat hull designs. Previously, boat hull designs were treated as utilitarian and therefore didn’t qualify for copyright protection. The DMCA, however, reversed this stance, thus making it possible for boat hull designers to register their designs for intellectual property protections.

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