Author Archives: Eric P. Robinson

European privacy notions wash ashore in U.S.

European countries have long had different notions of privacy than we do in the United States, where privacy has weaker protection than free speech.  But several recent developments are leading European privacy norms to have impact in the United States.

Article 8 of European Convention on Human Rights (ECHR) provides that “everyone has the right to respect for his private and family life, his home and his correspondence.”  Pursuant to this right, in 1995 the European Union adopted its Data Protection Directive, which generally gives individuals the right to control use of information about themselves.  In the United States, while a “right of privacy” has been recognized as an outgrowth of various constitutional provisions, it exists only because of several legislative acts and judicial decisions.

E.U. residents may now enforce privacy in U.S.

In late February, President Obama signed the Judicial Redress Act, Public Law No. 114-126, which allows E.U. residents to enforce their privacy rights in the United States.  The new law was required under the provisions of the “EU-U.S. Privacy Shield” negotiated after the European Court of Human Rights held last year that the prior “safe harbor” scheme for protecting personal data was inadequate under E.U. law.

The European court held that the prior scheme was not compatible with the ECHR, including its failure to provide any remedy when the American government accessed data of Europeans, using techniques such as those revealed by former defense contractor Edward Snowden.  That ruling threatened the European operations of American technology companies whose operations include transfer of data about European residents to servers in the United States. A coalition of technology companies and industry groups called enactment of the bill “a critical step in rebuilding the trust of citizens worldwide in both the U.S. government and our industry.”

The new law will allow the resumption of data exchanges between the United States and Europe.  It requires American companies to commit to “robust” protection of Europeans’ personal data, and requires the companies to respond to complaints of misuse of personal data. The new law also allows residents of E.U. countries and other nations designated by the U.S. Department of Justice to take complaints about private companies’ misuse and insecurity of their private data to the Federal Trade Commission.

Before passing the bill, Senate Republicans added conditions on the Justice Department’s designations of countries that will be covered by the new provisions, such as a requirement that the countries reach data exchange agreements with the United States that do not “materially impede the national security interests of the United States.”  The new law also requires that designated countries provide reciprocal privacy rights to American citizens.

The statute also establishes an ombudsman to field complaints over government access to personal data.  FTC and ombudsman decisions may be appealed to federal court.

Americans may already file such suits over misuse of personal data under the federal Privacy Act.  But most of the lawsuits filed over Snowden’s revelations on behalf of United States citizens have not been successful.

When signing the bill, President Obama said that the new law “makes sure that everybody’s data is protected in the strongest possible way with our privacy laws — not only American citizens, but also foreign citizens.”

Google gives in, somewhat, on the right to be forgotten

One way that Europe has expressed its notions of privacy is with the “right to be forgotten,” the idea that individuals should be able to control what historical information can be found about them online.  The European Court of Human Rights established the right in a decision involving a Spanish lawyer who sought to repress a legal notice about the tax foreclosure sale of an apartment he owned with his ex-wife.

The court held in 2014 that while the information could remain in the online archive of the newspaper that published the notice, Google could be forced to remove links from its search results.  The ruling led Google, Bing and other search web sites to establish methods for E.U. residents to request removal of links to personal information that is “inadequate, irrelevant or no longer relevant, or excessive.”

But search companies have insisted that the removal from search results should be limited to their European domains, such as google.es or bing.co.uk, with the links remaining in search results on non-European domains, including the main .com domains.

While these domains are directed at non-European nations, the sites can be accessed from within Europe.  This led France privacy regulators to demand that the links be removed from non-European sites as well.  The sites resisted this demand, but in early March Google announced that it would extend de-listings to its non-European domains when the sites are accessed from the individual European country of the individual who requested the listing, using geolocation techniques.  The links will remain in the results for users outside that country accessing the non-European domains.

In a blog post announcing the change, Google global privacy counsel Peter Fleischer wrote, “We believe that this additional layer of delisting enables us to provide the enhanced protections that European regulators ask us for, while also upholding the rights of people in other countries to access lawfully published information.”

Privacy regulators of France and other E.U. nations told Bloomberg BNA that they were evaluating Google’s new plan.  But some observers indicated that the regulators were likely to accept the geolocation method only as an interim step towards total removal of the material from all search sites, accessed from anywhere around the world.

This prediction was reinforced in late March when the French agency that oversees data privacy issued a €100,000 ($112,000) fine against Google for failing to apply the “right to be forgotten” link removal requests globally.  Google announced that it would appeal.

Court isn’t crazy about Prince challenge to dancing baby

The 9th U.S. Circuit Court of Appeals in California isn’t crazy over Universal Music’s attempts to take down a YouTube video featuring a toddler dancing to the song “Let’s Go Crazy” by Prince.

In a September ruling, it agreed with a district judge who had held copyright owners must consider fair use before issuing takedown notices under the Digital Millennium Copyright Act (DMCA).

Fair use is a provision of the copyright statute which allows for use of a copyrighted work under certain circumstances that have negligible impact on the market for the work. The statute lays out four factors for a determination of fair use: the purpose and character of the use; the nature of the work used; the account of the work used; and the effect on the work’s value.

On Feb. 7, 2007, Stephanie Lenz posted to YouTube a 29-second video of her children running and dancing in her kitchen as “Let’s Go Crazy” played in the background. Most of the video, which is available at https://youtu.be/N1KfJHFWlhQ, focuses on the younger child, leading it to be called the “dancing baby” video.

Universal Music, which was authorized by Prince to administer the rights to the song, discovered the video through its routine monitoring of YouTube for material infringing its copyrights, and sent a notice to YouTube under DMCA, seeking that the “dancing baby” video be removed.

Under DMCA, web sites such as YouTube that allow posts and contributions by users can avoid liability for infringement for user contributions if the site follows the DMCA process for copyright owners to request removal of infringing material. Under this process, the web site must “expeditiously” remove or disable access to the material and inform the poster, who can then challenge the removal. Upon receipt of such a challenge by the poster – known as a counter-notice – the website must restore the material unless the copyright holder files suit against the poster.

Universal’s takedown notice for the dancing baby video was one of 200 the company sent to YouTube for alleged infringements. YouTube removed the video on June 5, 2007, and informed Lenz of the removal. After Lenz objected, Universal reiterated its position that the video infringed on the song’s copyright. Lenz sent a second objection on June 27, which led YouTube to restore the video.

She also filed suit against Universal, claiming that its takedown notice to YouTube was improper because it did not account for fair use.

The district court denied Universal’s motion to dismiss the case in 2008. After discovery, both parties moved for summary judgment in the case, arguing that no trial was necessary in order to resolve the case. But the federal district court denied both motions, which would allow the case to proceed to trial. Both parties then appealed to the 9th Circuit.

The appeals court’s decision in September agreed that the case couldn’t be decided on summary judgment without a trial.  It also held that copyright rights holders must consider fair use before issuing DMCA takedown notices.

The court’s decision, written by Circuit Judge Richard C. Tallman for himself and Circuit Judge Mary H. Murguia, dwelled on a provision of the law which requires a DMCA takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court said that language included a requirement that the use of the copyrighted work be evaluated as fair use before the takedown notice is sent.  In other words, the copyright holder has to determine before the notice whether fair use is a use “authorized by … the law.”

The appeals court held that it was, affirming the district court and allowing the suit to proceed to trial. The court also held that Lenz need not show actual financial damages to proceed with her lawsuit.

In addition, the appeals court held that jury must determine whether Universal’s procedures before issuing the DMCA takedown notice were adequate to form a good faith belief that Lenz’s video infringed on the “Let’s Go Crazy” copyright.

If a jury finds that Universal had a good faith belief that the video infringed the copyright, the appellate court held, the company would not be liable for any misrepresentation in the takedown notice. The court added that “a copyright holder’s consideration of fair use need not be searching or intensive” in order to avoid this liability, noting that it may be possible to use computer algorithms, combined with human review, to conduct this evaluation.

Circuit Judge Milan D. Smith, Jr. dissented in part, disagreeing with the majority’s holding that the statute’s prohibition against misrepresentation in DMCA takedown notices required a prior fair use analysis by the copyright owner. But he otherwise concurred with the majority, and in the result.

After the decision of the three-judge panel of the 9th Circuit, the Electronic Frontier Foundation, which represents Lenz in the case, sought en banc reargument of the case before a larger panel of the Court of Appeals.  EEF argued that the appellate court should have granted summary judgment to Lenz – in other words, given Lenz the victory without a trial. Universal responded that the appeals court should not have heard the appeal in the first place.

If the 9th Circuit declines to rehear the case and its prior opinion holds, the case would go to trial before a jury. If a jury finds that Universal had a good faith belief that the video infringed the copyright, the company would not be liable for any misrepresentation in the takedown notice.

So the case of the dancing baby video may continue to trial, unless a settlement is reached. Copyright owners are put on notice that they must consider fair use before issuing takedown notices for alleged infringement online. Posters to the web are given more protection from removal of their posted material if it is protected by fair use. As babies can “go crazy” to a song in the background, and have the video posted online.

The ruling, Lenz v. Universal Music Corp., is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

 

Author’s note: Eric P. Robinson is co-director of the Press Law and Democracy Project at Louisiana State University and of counsel to the First Amendment law firm The Counts Law Group.

Copyright verdict’s lesson: Use online photos with care

Editor’s note: This article originally appeared in the winter 2014 print issue of Gateway Journalism Review.

In a case that offers a reminder that material found online cannot simply be reused without regard to copyright considerations, a federal jury in Manhattan awarded a photographer $1.2 million in November against a news agency that, without the photographer’s permission, distributed photos he had posted to Twitter.

American copyright law provides that a creative work is protected by copyright the moment it is created, and is owned by either its creator or, if the item created was a “work for hire,” the creator’s employer. This copyright protection persists even if the creator makes the work available on the Internet, and even if it can be easily downloaded and copied. Downloading, copying and reusing a work found on the Internet without the owner’s permission is infringement, unless the copying or reuse is covered by the “fair use” principle extended to uses such as news and education, as long as the use is not overly extensive and does not substantially harm the potential commercial market for the work.

The New York case, Agence France Presse v. Morel, involved pictures of the Jan. 12, 2010, Haitian earthquake taken by photographer Daniel Morel. Morel, a freelance photographer in Haiti, has a contract that gives the photo agency Corbis the exclusive right to distribute the pictures he sends to that agency.

The evening after the earthquake, Morel posted several photographs of the aftermath to Twitter through his account with a service called TwitPic. Shortly thereafter, another person, Lisandro Suero, posted Morel’s pictures to his own Twitter account, claiming that they were his exclusive photos.

A photo editor for the news and photo agency Agence France Presse (AFP), searching online for photos of the earthquake, found the photographs posted by Suero and passed eight of them on the agency’s photo “wire service,” crediting them to Suero. Through an arrangement that AFP has with Getty Images, another photo agency, the photos credited to Suero were distributed through that service as well.

By the next morning, editors at AFP began to suspect that the photos did not belong to Suero. A few hours later, AFP sent a “caption correction” to its subscribers and changed the photo credits on Morel’s photos in its online archive. AFP also sent the correction to Getty and resent the photos with credits to Morel, all of which automatically went to Getty subscribers. But Getty did not change the credits on the photos attributed to Suero in its Web archive.

Later that day, Corbis informed Getty – via an email to a Getty paralegal – that Corbis has exclusive rights to distribute Morel’s photos. Getty then removed the photos correctly credited to Morel from its customer website but did not remove the photos by Morel incorrectly credited to Suero. Getty also informed AFP, which on Jan. 14 issued a “kill notice” to subscribers regarding the photos credited to Morel, and removed those photos from its own archive. The AFP kill notice also was sent to Getty’s subscribers.

On Feb. 2, Corbis informed Getty that Morel’s photos – credited to Suero – were still appearing on Getty’s website. Getty responded by removing those photos.

By this time, several customers of AFP and Getty had published Morel’s photos, credited either to Morel or Suero. These included the Washington Post, NYTimes.com, CBS and ABC. Several of the media entities that published his photos without authorization settled with Morel.

AFP sued Morel in March 2010, seeking to prevent him from asserting copyright claims against the agency. He responded by asserting the copyright claims. AFP and Getty then responded to the copyright claims by citing Twitter’s and TwitPic’s terms of service, which state that while copyright owners retain their ownership, by posting to the sites users agree to reuse of the posted material by the sites and other users, which AFP argued included itself.

The court rejected this and other arguments, allowing the case to proceed. In January 2013, the court granted partial summary judgment to Morel on the infringement issue, leaving it to a jury to determine damages. Following a seven-day trial, the jury found that AFP and Getty had intentionally and wilfully infringed on Morel’s copyrights in the photos, and awarded $275,000 in actual damages – 100 times the customary daily rate for photographers – and $150,000 in damages – the statutory limit – for each of the eight photographs at issue in the case, amounting to $1.2 million. Under the law, Morel had to choose either the actual damages or the statutory damages, so he chose the latter.

One juror said that the willful infringement by AFP and Getty was clear.

“They wanted to scoop that (earthquake) story,” juror Janice Baker told Photo District News, “and after they had published the images crediting the wrong guy, they said to themselves, ‘We’ll just try to get permission from the real (photographer) later.’ ”

The jury also found that the defendants had falsified and altered copyright information, which are separate violations of the Digital Millennium Copyright Act, for each of the eight photos – 16 tortious actions in all. But the jury was unclear on the amount it intended to award for these violations, and the matter is now before the court. Morel is seeking the statutory minimum for each violation, $2,500, which would amount to $40,000.

Many photographers celebrated the verdict as a vindication of their right to control use of their works. Morel’s attorneys said the verdict was “the first time (that) these defendants or any other major digital licensor have been found liable for the willful violation of a photojournalist’s copyrights in his own works.”

While the circumstances of the Morel case may be unique, the case points out that journalists cannot simply use material found online without making sure they have permission to use it. Copyright protects material online, as it does everywhere else – and those who ignore this may face major consequences, such as a $1.2 million verdict for infringement.

Appeals Court likes “likes,” says they’re speech

The Fourth Circuit Court of Appeals has held that “liking” something on Facebook is speech protected by the First Amendment, reversing a lower court opinion dismissing a suit brought by former employees of a sheriff’s office who lost their jobs after they “liked” the Facebook page of their boss’s opponent in his re-election bid.

Last May, District Judge Raymond A. Jackson held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Bland v. Roberts, 857 F. Supp.2d 599 (E.D. Va. Apr. 24, 2012), slip op. at 6, and dismissed the fired employees’ claims.

But after reviewing the nature and consequences of “liking” something on Facebook, the appeals court held that “[o]nce one understands the nature of what [one plaintiff] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.” Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013), slip op. at 39.

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance. slip op. at 39-40.

This makes sense. The courts have held that First Amendment protection extends to gestures, signs, and even some actions (“symbolic speech”). A Facebook “like” is no different; depending on the context, it can be an expression of endorsement, approval, or gladness that something was posted. And I’m sure that it can have other meanings that I’m not thinking of. But the point is that pressing the “like” button can, indeed, carry a message that can and should be protected by the First Amendment.

Unfortunately, the Fourth Circuit doesn’t have an official Facebook page to “like.” (Although there’s a page for former clerks.) But you can go to Justia’s Facebook page for Fourth Circuit opinions and like the Bland v. Roberts decision.

By doing so, you’ll be making an expression of support — and enjoy the protection of the First Amendment for doing so.

 

Eric P. Robinson is co-director of the Program in Press, Law and Democracy at the Manship School of Mass Communication at Louisiana State University.

Iowa’s media/non-media distinction in libel law could be trouble for bloggers

Editor's note: This is a preview of an article that appears in the spring 2013 print issue of Gateway Journalism Review.

In mid-January, the Iowa Supreme Court decided to maintain the distinction in Iowa state law between “media” and “non-media” defendants in defamation cases, with the latter easier to sue for some types of libel. In Bierman v. Weier, the court said the distinction is “a well-established component of Iowa’s defamation law.”

The decision raises the question of whether bloggers would get the greater protection of media companies or the lesser protection of non-media defendants.

The Iowa court retained the distinction in the context of “libel per se” cases. These cases involve statements that the law deems to be inherently defamatory, so that the plaintiff does not have prove actual harm to his or her reputation. Traditionally, examples of such statements include those saying that someone has committed a crime, is sexually promiscuous or has a “loathsome disease.”

The Bierman case is a libel suit

based on Weier’s memoir, “Mind, Body and Soul,” which focuses on Weier’s personal transformation after his divorce from plaintiff Beth Weier. Scott Weier paid vanity publisher Author Solutions Inc. $3,183.81 to design and print 250 copies of the book, and he distributed 20 to 30 copies to friends, family, and local businesses. In addition, three copies were sold through Author Solutions’ website, and one sold through Amazon.com. The rest of the books are in storage.

One of the statements from the book that was at issue in the case alleged that the author’s ex-wife suffered from mental illness because her father, plaintiff Gail Bierman, had molested her as a child. The father’s suit against Scott Weier alleged that this statement claimed he had committed a crime – molestation of his daughter – and was thus libel per se.

Under Iowa law, the court said, “[w]hen the defendant is a media defendant … presumptions of fault, falsity, and damages are not permissible, and thus the common law doctrine of libel per se cannot apply.” So the question became whether Scott Weier and Author Solutions were media defendants.

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Courtroom devices get different state treatments

Editor's note: This is a preview of a story that will appear in the next print issue of Gateway Journalism Review.

While almost all state trial courts allow some level of still and video camera coverage of court proceedings, the rules on usage of modern communications devices and techniques – blogging, tweeting, texting and emailing using cellphones, tablets and other devices – are a wild patchwork of policies which vary from state to state, courthouse to courthouse, and often even courtroom to courtroom.

An example of this is in two wildly diverging policies adopted in late 2012 in Kansas and Illinois’ Cook County. In mid-October, the Kansas Supreme Court amended the state’s courts rules to explicitly permit tweeting and texting from courtrooms, becoming one of only a handful of states that explicitly allow such coverage of their courts. In mid-December, meanwhile, Cook County chief judge Timothy Evans issued an order barring devices “capable of connecting to the Internet or making audio or video recordings” from all of the county’s courthouses where criminal matters are heard, effective Jan. 15.

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Arkansas Case Shows Dilemma of Juries and Social Media

The Arkansas Supreme Court has reversed a murder conviction — and death sentence — in a case where one juror tweeted during trial and another fell asleep. Both of these problems, the court said, constituted juror misconduct requiring reversal and a n

ew trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Dec. 8, 2011).

While the court said the dozing juror alone required reversal of the conviction and sentence, the court added that the second juror’s tweets also required a reversal.

 

The Supreme Court was particularly concerned about one of the juror’s tweets, “Its (sic) over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror’s Twitter feed – including, the court said, at least one journalist (with the online magazine Ozarks Unbound) – “had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court.”

Dimas-Martinez’s lawyers also pointed out that the tweeting juror had sent his messages during the trial despite continued admonitions to the jury throughout the trial warning jurors not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet he had sent. (That one said, “Choices to be made. Hearts to be broken. We each define the great line.”)

Courts nationwide have been struggling with the issue of jurors’ use of social media during trials, which is a challenge to the legal system’s notions that the evidence jurors use in deciding a case must conform to rules of evidence and other legal considerations; jurors should not discuss the case with each other until deliberations, and with non-jurors until after verdict.

These cases raise the question of whether admonishing jurors to not use the Internet and social media is effective.

In 2009 the Indiana Supreme Court denied a new trial in a civil case in which a juror had answered a cell phone call during deliberations. Henri v. Curto, 908 N.E.2d 196 (Ind. 2009). In that decision the court recommended that trial courts “discourage, restrict, prohibit or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.” This led to changes in the state’s jury rules banning juror use of all electronic communications devices, and to jury instructions admonishing jurors not to use these devices or social media to discuss or research the case. The jury instructions also explain “the reason for these restrictions is to ensure that your decision is based only on the evidence presented during trial and court’s instructions on the law.” Ind. Patt. Jury Instrs., Crim., Instr. 1.01.

 

Among other Midwestern states, Michigan, Minnesota, Missouri, Ohio, Oklahoma, Tennessee and Wisconsin all have amended their criminal and civil jury instructions in similar manner.

The Arkansas Supreme Court expressed its clear concern in the Dimas-Martinez case and suggested measures more drastic than admonitions may need to be taken:

[W]e take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case. Thus, we refer to the Supreme Court Committee on Criminal Practice and the Supreme Court Committee on Civil Practice for consideration of the question of whether jurors’ access to mobile phones should be limited during a trial.

Of course, one problem with such bans is that they are not effective once the jury goes home for the day. Another is that they are often unevenly applied. For example, when the federal courthouse in New York City proposed a total ban on electronic devices, lawyers’ groups sought an exemption from the rules. More recently, a new rule on electronic devices recently adopted by the local courts in the District of Columbia purports to ban all use of electronic devices in courtrooms, but then adds exemptions for people like pro-se litigants (with court permission); attorneys; probation officers; social workers in court on official business; and reporters (again, only with court permission).

While the jurors in the Dimas-Martinez murder trial were told not to tweet about the trial, it does not appear, based on the admonitions repeated in the Arkansas Supreme Court’s decision, that they were told why they should not do so. This is despite the fact that the state’s model jury instructions for criminal cases includes a lengthy discussion of the subject: After stating that “You must decide this case only on the evidence presented in the courtroom,” the model instruction, Ark. Model Jury Instr., Civil 101 (Dec. 2010), states:

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. The parties have entrusted their case to you and to no other person or entity. If you become aware of any violation of these rules you must notify court personnel of the violation.

Such full explanations of the possible consequences of jurors tweeting, texting and using other social media and the Internet during trial are probably going to be the only way the courts will be able to deal with this growing issue. Futile attempts to keep the electronic equipment out of the courthouse, or adopting unrealistic rules limiting their use, is not going to put the electronic genie back in the bottle.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He blogs for Harvard’s Berkman Center for Internet and Society and on his own blog, www.bloglawonline.com.