Thursday, May 6, 2010

Food for Thought: Cook’s Copyright Case








The U.S. Court of Appeals for the Second Circuit has ended the food feud between two cookbook authors. Missy Lapine sought damages for copyright and trademark infringement from Jessica Seinfeld, comedian Jerry Seinfeld’s wife. Lapine alleged Seinfeld stole her solution for getting children to eat their fruits and vegetables and her book’s trademark, a winking chef.

Lapine included the idea to puree fruits and vegetables and hide them from children in their everyday foods in her book, The Sneaky Chef. A winking chef is featured on the cover. The guide was published in April of 2007.

Seinfeld’s book, Deceptively Delicious, was published in October of 2007. Her guide shared the same basic concept of Lapine’s by providing recipes that concealed fruits and vegetables in kid’s dishes. Her book cover also displayed a winking chef. Oprah invited Seinfeld on the show to explain the cuisine philosophies encompassed in her book.

Lapine filed a lawsuit against Seinfeld in January of 2008. The District Court of New York ruled in favor of the defendant, Seinfeld. The court asserted that Lapine’s concept was not exactly novel and maintained that an idea is not protected by copyright. As for the trademark, the court held that the cover drawing of the winking chef on each book appeared amply different and distinctive and readers would not confuse the two. The Court went on to examine the content, design and arrangement of the books. They judged that Lapine’s book focused more on the texts and explanations while Seinfeld’s contained more visual and graphic elements to aid the text. The plaintiff appealed the decision and the case went to the Second Circuit, where the ruling of the lower court was affirmed and the complaints were thrown out.

I concur with both the decision and dicta of the two courts. Copyright does not protect ideas and Lapine’s concept is not an exception to this rule. Lapine cannot simply claim ownership over the puree idea. In addition, after evaluating the covers myself, I also found them to be very unlike one another. It would be difficult for readers to confuse them. Thus, while Lapine may have been able to prove that Seinfeld got a hold of her work, she did not show that the two books were considerably alike. Without the satisfaction of these two requirements, one cannot win a copyright infringement case..

The free flowing of ideas has always been an integral component of American society. Allowing for the copyright of ideas would significantly obstruct the free marketplace of ideas. While Lapine may be after damages, I believe another intention (if not her main intention) was to generate publicity and consequently greater sales for her own book. She is also currently involved in a lawsuit against Jerry Seinfeld for defamation. On the Late Show with David Letterman Seinfeld referred to Lapine as, “a nut job,” “a wacko” and “hysterical.” The outcome of this case is pending.

The original decision can be found at http://www.loeb.com/files/Publication/87c18ac3-165e-4728-b769-3f50600060f8/Presentation/PublicationAttachment/02b19f0b-60f1-4d09-b0a0-4108cc8bed07/Lapine%20v%20Seinfeld%20SDNY%20Sept%202009.pdf

The appeal case can be found at http://www.ca2.uscourts.gov/decisions/isysquery/bcb565fe-4de6-45cf-ba5a-b0456e3729fc/1/doc/09-4423_so.pdf

A preview of The Sneaky Chef can be found online at http://books.google.com/books?id=OLTPuzhIzFYC&pg=PA252&dq=sneaky+chef+vs+deceptively+delicious&hl=en&ei=ITTZS9zLJISBlAfVotnRAQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA#v=onepage&q&f=false

Wednesday, May 5, 2010

LimeWire: Still Hanging In There

According to the 2009 edition of “Communication and the Law”, after Metro Goldwyn-Mayer Studios Inc., et al. v. Grokster, Lts., 545 U.S. 913, 918-19 (2005). also know as MGM Studios v. Grokster, the Court suggested that when “a widely shared product” is suspected of infringement, it’s unrealistic to go after every single person directly who has used or is using the software or program. So, the next best option is to sue the distributor for contributory or vicarious infringement. According to the Supreme Court contributory infringement is when the distributor “intentionally induces or encourages direct infringement” (155). Vicarious infringement suggests that the distributor is profiting from the direct infringement while refusing to “stop or limit it”.

So what does this court decision have to do with anything? Well a couple of weeks ago we covered the copyright infringement of file sharing services. Although many cases involving the Recording Industry Association America (RIAA) were discussed in class, there was one P2P service that wasn’t mentioned. It’s one that I consider to be one of the most popular file sharing services, LimeWire. We’ve all either used it or at least heard of it; but how has a peer-to-peer giant such as LimeWire continue to run? Has this service found a way to escape copyright infringement? Well, it has an interesting case.

Like other P2P services such as Bearshare and WinMx, LimeWire received the “cease and desist” letters in 2005 from the RIAA asking it to "...immediately cease-and-desist from enabling and inducing the infringement of RIAA member sound recordings”. Unlike Bearshare and WinMx, LimeWire didn’t cease or desist, it instead put word out that it would install a copyright filter to block illegal files. As time passed, new user friendly features surfaced but no copyright filter. Then the RIAA sued.

In 2006, The RIAA sued Lime Group, LLC (the company that LimeWire belongs to), LimeWire, LLC, the CEO Mark Gorton and the CTO Greg Bildson. For the first since MGM studios v. Grokster, the RIAA also sued for “inducing direct infringement”. Meaning, LimeWire was sued for encouraging its users to share or download illegal files. The file sharing service was also sued for vicarious infringement and common law infringement.

LimeWire continued to set itself apart, as it wasn’t going down without a fight. First, LimeWire tried to reason with the RIAA and become a licensed music service but the RIAA declined and suggested that it use a filtering service approved by the record labels, or join forces with the P2P file sharing service iMesh. LimeWire didn’t like either suggestion so in 2006 LimeWire’s CEO and CTO filed a countersuit against the RIAA in Arista Records LLC v. Lime Group LLC. 532 F. Supp. 2d 556. (S.D.N.Y 2007). They claimed that the record industry group “conspired to restrain trade and monopolize the market for the distribution of copyrighted sound recordings over the internet” In other words, LimeWire was accusing the RIAA of trying to put them out of business. The P2P giant also denied the RIAA’s allegations against them in the counterclaim.

Unfortunately, LimeWire accusations against the RIAA didn’t hold weight, as U.S. District Judge Gerard E. Lynch in New York tossed out the counterclaim in December 2007 and disallowed the case to continue in state court. He said that LimeWire failed to prove that the RIAA had any ulterior motives aimed at putting them out of business, and that the RIAA’s actions were “independent decisions”.

With the counterclaim out the window, attention turned back towards the first lawsuit against LimeWire. As of now, this is case is still pending but LimeWire has added some disclaimer information to it's website. In fact it has a copyright page that gives users warnings about “downloading unlawful material” and notifies them about the repercussions of taking part in copyright infringement. There is also an interesting line that says “LimeWire is not responsible for the content on the P2P network and does not monitor it”.

Perhaps, the disclaimer will work in LimeWire’s favor when a decision is finally made by the court. However, the file sharing service’s refusal to give up their assets to the RIAA and their decision to countersue them was bold and should be appreciated. Yes, it didn’t work out for LimeWire in court but at least they tried. If anything, it was a smart move as they’ve bought themselves more time and if you haven’t noticed LimeWire is still up and running!

Links/Sources:
LimeWire Counter-claim: http://www.lexisnexis.com.libproxy.temple.edu/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T9269642569&homeCsi=6323&A=0.3105255992679483&urlEnc=ISO-8859-1&&citeString=532%20F.%20Supp.%202d%20556&countryCode=USA
LimeWire official website: http://www.LimeWire.com/legal/copyright
Articles: http://www.foxnews.com/story/0,2933,314977,00.html
http://www.slyck.com/story1299_LimeWire_Counter_Sues_the_RIAA
http://www.slyck.com/story1258_LimeWire_Sued_by_the_RIAA

Monday, May 3, 2010

Copyright Infringement and Architecture

This 2nd Circuit case involves a dispute that arose between plaintiff (Peter F. Gaito Architecture) and defendant (Simone Development Corp). Gaito pulled his designs and involvement out of a project called the "Church Street Project" in New York. The defendant decided to go ahead with the plans and the plaintiff believed that the "new" plans were too similar to his own. Rather than answering the complaint and seeking summary judgment, the defendant asked the court to dismiss the complaint immediately on the theory that there were not enough similarities between the two sets of plans.

This is a very recent decision by the 2nd Circuit Court of Appeals, in order to cut costs for defendants and dismiss cases when there is no "substantial similarity". The interesting part of this case is that there are significant similarities. The plaintiff was creating a high-rise residential tower with shopping structures at the bottom of it. It included a water structure, a park, parking for residential and commercial tenants etc. These were also included in the "new" plan, and the spots in which they were to be built were also the same.

The court decided that there are so many high-rise residential spots with very similar structure and basically the same ideas that the plaintiff had in his copyrighted plans. Therefore, although the plans were very similar, based on other high-rise residencies, similarities that show between all of them cannot count toward the case. They believed the plans as a whole were substantially different and that there were no significant similarities for the court to decide upon.

In my opinion, this is a huge breakthrough because copyright infringment cases can be crushed before they even have the time to be processed through the court. A minor worry about this decision is that many more "frivolous" requests for dismissal will be made in many copyright cases and can delay court processes that need to take place. Defendants will learn to abuse this dismissal request just like all of the others in order to delay court dates and crush weak apponents in a battle of money.

Here is the case:
http://iplawwatch.foxrothschild.com/uploads/file/int4B.PDF

Here is an article I found about the case:
http://iplawwatch.foxrothschild.com/2010/04/articles/copyrights/a-faster-end-to-frivolous-copyright-infringement-cases/

Friday, April 30, 2010

In My Opinion-Shaun Gallagher-Is GQ Magazine Article Defamatory?


In My Opinion-Shaun Gallagher
So as I'm sure you're well aware...and if you're not...Marvin Harrison has had ties to trouble in Philadelphia. He grew up in a bad neighborhood he ran with a rough crowd but he fought adversity to become one of the top wide receivers in the history of the NFL. So when news of a shooting at his car wash surfaced, many were shocked that this quiet, "do good" player was rumored to be involved. While it may be tough to know what exactly happened the day of the shooting, one thing that is known is that Philadelphia District Attorney Lynne Abraham has publicly stated that there are no charges against Marvin Harrison and she came to this conclusion because there are “nine or so various versions” of witness accounts (http://www.usatoday.com/sports/football/nfl/colts/2009-01-06-harrison_N.htm).
That being said, any reasonable reporter would not put together a story about what happened that day and you especially would not make Marvin Harrison guilty within an article about the topic. But Jason Fagone of GQ Magazine wrote an entire re-enactment of what happened that day. It starts out with the sentence “It was a scene* to make anybody stop and watch.” The asterisk leads to a note at the very bottom of the page, that says the story is "Re-created from interviews, court filings, and police reports, and told through the eyes of Robert Nixon." There is no need for this note to be at the bottom of the article unless you are trying to make Harrison look guilty. Fagone could have easily had the first sentence say "This story re-creation is generated from the words of Robert Nixon, interviews, court filings and police reports," then it could go into the story. But Fagone acted in a reckless manner by using the asterisk that the average reader would probably miss.
The article goes on to make Harrison seem like Denzel Washington in Training Day with guns a blazing. After reading Condit v. Dunne, 225 F.R.D. 100, (2004), I immediately thought of this article and that Harrison would have a good chance if he were to bring a case against Fagone. The only difference is that Harrison wasn’t really hurt by the article. He had retired from the league months before, he’s settled with his life as it is and he is known to be quiet to the media. Therefore, to not do anything about the article is atypical of Harrison because he doesn’t want to be in the public eye about the subject.
If this were to go to trial I believe that Harrison would win because he is a public figure and he would have to prove actual malice. After reviewing the Condit V. Dunne in clss, we know that if he could prove that he was hurt by the article, Harrison and company could win the case.
Fagone of GQ Magazine and Dominick Dunne wrote in a very similar medium. They both are in an area of the media that is not really considered “hard news” so they may feel they can get away with more. The only problem is they are defaming these public figures. Whether it is an athlete or public official these people are still humans who have to live with what these writers are saying about them. Dunne and Fagone are both making enormous accusations about both Condit and Harrison being murders or at the very least being a part of the murders.

In My Opinion-Jenine Pilla-Campus Free Speech in Action



I'm sure everyone has seen these signs in various areas around campus because it's pretty hard to miss. While walking by the bell tower on Monday morning, you could hear the screams resonating from all around. People asking how they (the anti-abortion protestors) have the right to litter our campus with'garbage like that.' Well, thank you America for granting us the First Amendment.

Freedom of speech is a wonderful thing and America wouldn't be half the country it is today without it. But when does freedom of speech get stretched too thin? When does the concept not hold up? Like we discussed in class, the limitations of speech on a college campus are similar to those in other public arenas--not many. Unfortuately for those students disturbed by the anti-abortion protestor's graphic signs, the only possible restriction I can see on these protests would be in terms of time, place and manner.

On Monday, every class I entered was hustling and bustling with the flooding emotions that were carried in with students like the mud on their shoes.
"How could they do this?"
"Who in Temple allows this?"
"Why do they think this is a good idea?! Do they want to start a riot?"

My question is, how far would this student outrage have to go before this is this could be a situation of "material and substantial disruption of the educational process?" This is the standard outlined by the U.S Supreme Court in TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731; 1969 -Jenine Pilla

Thursday, April 29, 2010

Justice Department Targets Online Piracy



U.S. DEPARTMENT OF JUSTICE;

Father and Son Plead Guilty to Selling Counterfeit Software Worth $1 Million


This case on copyright infringement is very recent and sentencing has been scheduled for June 18th 2010. In this case, four men have been convicted for operating web sites that are engaged with the sale of pirated software. Father and son, Robert and Todd Cook pleaded guilty to criminal copyright infringement and conspiracy to commit criminal copyright infringement. According to documents from July 2006 to May 2008 the Cooks operated several websites that sold large amounts of counterfeit software with a combined retail value of $1 million. They admitted that they were selling unauthorized software without permission from the copyright owners. Both defendants face up to five years in prison and a fine of $250,000 and three years of supervised release.

This case is part of the U.S Department of Justice’s extended initiative to combat online auction piracy. Including the men that have already plead guilty in this case, the department has gained 46 convictions in similar cases.

This case highlights the importance of copyrighting one’s property and how it is common place to steal or ‘borrow’ another person’s property. It is a major issue and reading this case showed me the importance of finding these people involved with piracy and charging them criminally for their theft, especially online.


Full Story:
http://www.justice.gov/criminal/cybercrime/cookPlea.pdf

Tuesday, April 27, 2010

Can Public Schools Punish Student Speech on the Web?

I am a Facebook user as many of you are. It is becoming normal to see someone posting derogatory comments about a friend or an ex on their Facebook status. And more and more cases are cropping up in the media regarding high school students and Facebook comments. Just how much is student speech protected? Can the school intervene, even if the action in question was posted off-campus?

In this article, an Oak Grove High School student, Megan Wisemore from Missouri, went to her Facebook status to complain about another student. She posted a comment that said, “You’re a skank and I hate you with a [expletive] passion.” Now, she claims this was only meant for her and her friends to see, however, the next day in school the two girls got into a altercation. Wisemore, who wrote the comment did not throw a punch, but both girls ended up being suspended. Wisemore's mother said the school should not intervene and it was her daughters First Amendment right to say what she said. Student speech is protected somewhat under the case, TTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) which stated, “It is established that public school students have First Amendment rights unless there is a real threat of violence or a substantial disruption to the educational environment.” In J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the court affirmed that school officials had the authority to discipline a student for an off-campus website containing derogatory and threatening when they amounted to an actual or substantial disruption of education.

Since the rise of social-networking this is getting harder to define. State courts seem to be all over the place on this issue.? For example, the Layshock v. Hermitage Sch. Dist., No. 06-116 (July 10, 2007) , a student made a fake MySpace page, citing the principal as a “big whore” who smoked a “big blunt.” The court said it was within the student’s free speech rights. While in another case in Pennsylvania, J.S. v. Blue Mt. Sch. Dist., 2010 U.S. App. LEXIS 7342 (3d Cir., Apr. 9, 2010) which also concerned a student who made a fake MySpace page of their principal, calling him a “tight ass” who liked “hitting on students and their parents.” J.S. v. Blue Mountain said the student’s speech was not protected and upheld her suspension from school.

The Oak Grove High School upheld the students suspension stating, "The Missouri Association of School Boards said schools may discipline off-campus behavior, if a connection is shown between the behavior and something happening in school." The Missouri Association of School Boards also said, "the courts go back and forth on the issue." Missouri lawmakers are currently considering a provision to specifically include cyberbullying in school safety legislation.

Because of the growing popularity of social-networking sites like Facebook and MySpace, the courts are going to be dealing with more and more cases like these everyday.

June Fredericks on Copyright Infringement in Cyberspace

Universal Music Sues MySpace for Copyright Infringement (2006)
http://www.nytimes.com/2006/11/18/technology/18myspace.html
I found an interesting article about a copyright infringement case dealing with Universal Music Group and Myspace. UMG attempted to sue Myspace for copyright infringement due to music from the label’s various artists being available for downloading and sharing through Myspace. Interestingly, UMG made sure to file the case in the state of California which at the time was just making provisions to its safe harbor act, which required sites to remove all material at the copyrighter’s request. In the case, UMG argued that Myspace enabled downloader’s to infringe on the company’s copyright holdings; whereas Myspace argued that they did not condone any unlawful copyright violations and made music available while still respecting creator rights.
Assessment
The case could deal with contributory infringement –being that Myspace profited from advertisements on its site, which accumulated numerous viewers from the listeners/ downloaders that accessed the pages.
Myspace may have prohibited UMG and is corresponding artists from making money on unreleased music, which was subsequently being released, shared and downloaded on myspace for free.

Questions for Discussion for class:

How could Myspace defend UMG's claims?
Is there a definite way to stop copyright infringement from downloads on the internet or are copyrighters fighting a losing battle in regards to the net?
From the surface, what do you think would be the outcome of this case?
Could this case be classified as purely copyright infringement of contributory infringement?

Wednesday, April 21, 2010

Cory Victorella's Blog Post

According to inclusion upon seclusion i believe the school is at fault. Lets look at the facts, the students did not know they were being monitored. The pictures were taking in the privacy of their homes while on the lap tops. The school paid for a specific program so they can take photos and track down stolen laptops. I think that since the school not only took pictures from the stolen laptops but also took pictures from random students laptops in a manner of 55,000 pictures they will get charged with invasion of privacy and get a huge fine. I think that they should have made the students aware of this program and only taken pictures from the stolen laptops. It also would have been better if the police monitored this program not the school district, The problem is that they invaded the privacy by using a program and took advantage of the fact that the laptops had web cams

A lot of attention has been given to the Lower Merion School District with the recent scandal of the laptop computers. Students are given laptops to work on both on campus and off campus. Lower Merion's attorney says the tracking program, lanrev, took screen grab images and webcam photos every 15 minutes to help find computers. The school says that most of the pictures came from the stolen laptops and none of the pictures seemed to be inappropriate. But some of the pictures came from students chatting online with friends and there is currently a lawsuit against the school district saying what they did was an invasion of privacy and they shouldn’t be allowed to monitor students when they are off-campus. Also they shouldn’t be taken over 56,000 photos for a few stolen computers that just doesn’t make sense. Also students that didn’t have their laptops stolen reported that they have had their pictures taken chatting online. This definitely violates the privacy of the students at home. Mark Haltzman the attorney representing the student suing the school said, "I am not surprised," Haltzman said. "And remember, that number, 56,000, is only what they've been able to recover. We know that there are many, many more pictures that we believe of even Blake Robbins alone, there's at least another 300 to 400 screenshots and webcam pictures that they haven't been able to recover – or say that they haven't been able to recover." So for the school to be taking these photos of students when they are at the privacy of their own homes is wrong. Haltzman is calling for the computer running the monitoring program to be investigated but the school has yet to turn it over to the police.

Plaintiffs Michael and Holly Robbins think that pictures were being taken while students were attempting to change and during their showers. They also compared this recent scandal with the George Orwell book 1984 calling their school district big brother. .http://www.myfoxphilly.com/dpp/news/local_news/042010_Lower_Merion_Webcam_Spying_Case

Thursday, April 15, 2010

Can Testifying on a work matter get you promoted, demoted, or fired?

"It is equally well-settled that refusing to renew an employee's contract for public employment as a result of the employee's exercise of First Amendment rights, even where the employee does not have a right to such renewal, constitutes a form of retaliation prohibited by the First Amendment." See e.g. Newsom v. Norris, 888 F. 2d.371. 376 (6th Cir. 1989)" (Quote from Tammy v. CVSD case)


The decision in the case 2:09cv1086, 2010 U.S. Dist. LEXIS 31605, Tammy Whitfield, Plaintiff vs. Chartiers Valley School District(CVSD) and Chartiers Valley School Board, Defendants was issued on Aug. 17, 2009 and decided on March 31, 2010 in the United States District Court for the Western District of Pennsylvania. Whitfield, an assistant superintendant at CVSD, filed this suit against her employer because she didn't think testifying at a school board hearing would hinder the renewal of her contract with CVSD. This request for an injunction was sought to stop the defendants from retaliating against the plaintiff for using her rights granted under the First Amendment.
Whitfield has been employed with CVSD for the past twenty-one years and in Oct. 2004 she obtained the assistant superintendent position. Her contract started on Nov. 1, 2004 and was for a period of five years(until Nov. 1, 2009). Two years into serving as assistant superintendent, a matter came to light about one of CVSD's employees, Tim McConnell. In 2006 McConnell was the basketball coach and dean of students at a middle school. As the dean of students, the Pennsylvania public school regulations require h/she to have a PA Public School Certificate or a emergency permit, which McConnell needed in order to renew his contract. He showed no interest in enrolling at a university to obtain the certification and in consequence he was suspended for twenty days without pay in 2006.
Anthony Skender, the new superintendent, asked the plaintiff to investigate enrollment policies at local universities, in order to determine the opportunities that have been available. McConnell appealed his suspension and a public hearing was held on Nov. 1, 2006, where the plaintiff was asked to testify under oath regarding background facts and events leading to his suspension. During her testimony there was a lot of disapproval being expressed, mainly by two other members on the school board. Also during her testimony, McConnell's attorney attempted to show that there was some bias expressed against his client during a board meeting when his suspension was discussed. Over all McConnell, in Feb. 2008 settled the appeal and his suspension was reduced to ten days with back pay and elimination of requiring him to return to college.
In March 2009 the plaintiff received a letter stating that her contract is set to expire in Oct. 2009, which gave her 210 days in advance notice, but Whitfield states that her actual contract required 365 days of notice. In May 2009 she worked with the director of human resources to form a purposed contract with some stipulations that she wanted to include in her new contract. May 12, 2009 a committee was put together in order to discuss he renewal of the plaintiff's contract. Because there were differences in her contract with CVSD, the plaintiff hired counsel and afterward no one was allowed to speak to the plaintiff about her contract only through her attorney. On Aug. 11, 2009 the committee was suppose to discuss her contract once again but several disagreed. "Board member Galluze responded: 'she hired an attorney so I wash my hands with her.' Board member Kelly agreed and further commented that plaintiff's hiring attorney did not how good faith, so she had no interest further pursuing the matter." Whitfield filed the suit on Aug. 17, 2009. In order for Whitfield to gain injunctive relief she has to prove that her contract was not renewed(retaliation from the board members) because she exercised her first amendment right by testifying against a CVSD employee and that a showing of an imminent irreparable injury has taken place.
The defendants claim that Whitfield's testimony was given as "official duties" as assistant superintendent based upon the case Garcetti v. Ceballos, therefore her speech is not protected; "the court reasoned that limiting an employee's speech that arises only as part of his "professional responsibilities" does not encroach on the freedoms the employee enjoys as a citizen" (Quote within case). However the courts says that she spoke as a citizen at the appeal hearing and that her speech enjoys first amendment protection. Because of the disapproval from other board members, the defendants had to show justification for treating Whitfield differently after her testimony, but they didn't have enough proof. Therefore it shows that certain board members didn't want to discuss her contract in retaliation for the testimony. In other words, her testimony played a huge role in determining her current state of employment. Finally, the plaintiff proved imminent irreparable injury/damage because there is already distrust and a lack of corporation between Whitfield and other board members so restoring her to assistant superintendent with a new contract is unthinkable.
For many other reasons that were detailed in the case "the plaintiff's motion for injunctive relief will be granted. "


Wednesday, April 7, 2010

Headmistress Lawsuit Against Winfrey; Defamation

I read this article last week and was glad it came up in class since it deals directly with defamation.

Oprah Winfrey is involved in a defamation lawsuit with one of her headmistresses at her girls school in South Africa, Nomvuyo Mzamane, who said that Winfrey defamed her when she stated to the press that she was “performing poorly” at her [Winfrey’s] South African school. The remarks were reflected on how Mzamane supposedly ignored the students sex abuse complaints. Mzamane claims Winfrey defamed her back in 2007 when the sex-abuse scandal started. Mzamane had a difficult time finding a job after Winfrey said she “lost confidence” in Mzamane and was “cleaning house from top to bottom”.

Winfrey and Mzamane decided to settle differences one on one, without lawyers present. Perhaps this was done to avoid widespread media attention that could have lost Winfrey a lot of her fans. U.S. District Judge Eduardo Robreno did not dismiss the lawsuit though and says Mzamane had enough evidence to make her defamation case go to trial.

Winfrey defended herself by stating that Mzamane neglected the upkeep and safety for the girls at the school, after being warned about her lacking performance as headmistress of the school. Winfrey said she was just expressing her opinions based on what she knew about the schools ongoings. Mzamane said she did not know about dorm matron Tiny Virginia Makopo’s sexual abuse towards the six students at the school.

Mzamane wouldn’t have to prove that the defamation was “of and concerning her” since Winfrey stated her name and title in her comments to the press. She would have to prove that Winfrey’s statements were false and since she ejected herself into the public scene by bringing the lawsuit, she would fall under limited public figure. Winfrey, treated as a public figure, made these statements to the press/public, and the court judge ruled it as “potentially defamatory as they ascribed ‘conduct which would render Mzamane unfit for her profession as an educator’.”

Were Winfrey’s comments an act of reckless disregard for the truth (malice)? Arguments could be made that Winfrey comments can be backed up with the prior knowledge of Mzamane’s bad performance as an educator/head mistress. For example, in the article, Winfrey had planned to hire over 150 nurses to be dorm matrons for the students but Mzamane employed only eight females from an “unqualified” company.

Article:

http://news.findlaw.com/ap/e/1401/03-24-2010/20100324042005_02.html

(Amy Fuhrmeister)

Tuesday, April 6, 2010

Defamation and Online Anonymous Sources

Many of us find ourselves responding to articles, opinion makers and all kinds of material on-line. Who among us hasn't been tempted to write a nasty little response under our "on-line identity"? What if I end up defaming the writer, subject of the story to which I'm responding to on-line? Can an anonymous person be sued for defamation? How does the plaintiff know who to sue?

There are several state cases explaining how plaintiffs successfully uncovered the identity of the alleged defamers and proceeded to sue for defamation. One such caseThe Swartz v. Doe case can be used as an example of how this can be done.

Swartz v. Doe took place at a trial court in the state of Tennessee.

The Plaintiffs in this case, Donald and Terry Swartz, from Tennessee, worked with real estate sales and operations of recovery facilities for substance abusers. They sued the anonymous blogger who is obviously referenced as John Doe, for defamatory statements made on his blog titled, “Stop Swartz” that called Swartz an arsonist and said he was exploiting the recovering addicts.

Judge Brothers was the presiding Judge who used the standard court case, Dendrite International v. Doe (as most judges do in anonymous online defamation cases) as a precedent for his decision. Under this standard, there are four things the Plaintiff must do. 1) The Plaintiff must notify the unidentified blogger that he or she is the subject of a discovery procedure 2) and give the blogger a reasonable amount of time to oppose the discovery 3) The Plaintiff must identify the specific statement or statements made by the blogger that gives rights to the Plaintiffs claim 4) make a “prima facia” or substantial showing for each element of each cause of action (prima facia is a Latin expression that means “on its first appearance” and therefore is used to signify that on the first examination, something appears to be self evident from the facts)

If the Plaintiff can provide meet the burden noted above, the court then must balance the defendant's “right of anonymous free speech against the strength of the plaintiff's case and the legal necessity for the disclosure.” (www.law.com) In this case, the court decided that the Plaintiff made substantial legal and factual showing and was entitled to the blogger’s identity.

One important thing to remember is that anonymous speech on the Internet is not absolutely protected and just because it is an opinion, it does not mean you cannot be held accountable for defamation.

Swartz gave adequate notice by serving a subpoena to Google and Google had given a notice to Doe and Doe filed a motion to quash and because the Plaintiffs had not taken any more action toward Doe for a few months, the court determined that the Defendant had “ample time to respond.” The Plaintiffs had also identified the specific statements that they believed were defamatory and supplied an affidavit stating that the defamatory statements were false and had damaged them and therefore, they were granted permission to know the identity of the blogger.

Sources: http://www.digitalmedialawyerblog.com/2009/11/swartz_v_doe_tennessee_ruling.html



Ashley Huber

Monday, April 5, 2010

University of Chicago censors facebook

http://www.firstamendmentcoalition.org/2010/03/university-of-chicago-censors-student-facebook-post/

A student at the University of Chicago posted a dream he had about killing on of his professors, who wrote a controversial book, on his facebook page. The University began to question this students political viewpoints, saying they would look into comments he has made on his radio show, and demanding he take the post down. The student contacted FIRE (Foundation for Individual Rights in Education). FIRE said the post was clearly a joke. If the student really was part of a secret organization set on killing this professor why would he announce it on facebook? The University took the post as a death threat however. The campus police contacted the student and said if the post was taken down in 30 minutes he would not get in trouble and his teacher would not be notified. The student asked for 2 hours, which he was granted and removed the post. This is the second time the University of Chicago has censored a students facebook. The school continues to monitor students off campus Internet use. Since no one threatened legal action the school refused to talk to FIRE anymore.

Thursday, March 18, 2010

Sexting and First Amendment Rights

JURIST - Paper Chase: Federal appeals court rules against child pornography charges in texting case

Teens Could Get Hit With Child-Pornography Charges For Sexting

In this case, the prosecutor claimed two teenage girls who had topless photos of themselves on several different people's cell phones were practicing child pornography. This case touches on both the obscenity and student speech cases we have been studying in class. In recent months, 'sexting', or sending naked photos has been discussed rather frequently in the media. The 14 year- old girls were wearing bras in the photos and a third friend took the picture. The ACLU defended the teenagers, saying that they never intended for the photo to be distributed and they were just having fun, as claimed in the linked articles. This is interesting because with modern technology how can someone control where a text message gets shared? Are girls wearing bras being obscene? I just think that if the girls were wearing bathing suits it wouldn't have gone this far. The prosecutor wanted the teens to take a class on sexual harrassment and gender identity, the girls refused to take part in the class saying it was a violation of their first amendment rights to have to write essays on things they didn't feel comfortable with. I'm sure there are many other cases like this one going on right now. It is very interesting to see what kind of laws, if any, will be made against text messages and minors.

Tuesday, March 16, 2010

campaign dollars and the first amendment

RICH DEAVER BLOG POST
"JOURNALISM AND THE LAW"
UPDATED POST 4/19/2010


THE ISSUE: Is it constitutional to limit a companies donation and is it a violation of free speech?

Recently the Supream Court stuck down McCain Feingold. Essentially the action by the court now allows cooperations to donate limitlessly to campaigns. Before it was not unusual for a large company like GE or AIG, in the world of politics to hide, launder or channel money to a candidate through other sources.

This was because it was illegal for large companies to flood money to one candidate or the other. This would, in theory present an unfair advantage to the candidates; and it is usually the one who raises the most money who wins.

The legal issue here with the 2002 McCain Feingold act is it limits free speech. It was argued that First Amendment’s most basic free speech principle — that the government has no business regulating political speech.

The court ruled on a very divided 5-4 vote and the dissenters opinion given by Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings. Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals.that allowing corporate money to flood the political marketplace would corrupt democracy.

The majority's opinion stated “If the First Amendment has any force,” Justice Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

From a completely legal standpoint this was a correct decision. It is unconstitutional for the government to limit Political or any form of free speech as per the first amendment. the argument is however that this was going on anyway in the form of soft money contributions and PA C's.

"The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions."

(New York Times)







RICHARD R DEAVER JR.
www.therichdeaverprogram.webs.com

Articles to read to find out more......

http://www.foxnews.com/politics/2010/01/21/supreme-court-sides-hillary-movie-filmmakers-campaign-money-dispute/

http://writ.news.findlaw.com/hilden/20010416.html

http://www.humanevents.com/article.php?id=35287

http://www.opensecrets.org/law/court/mcconnelltable.php

http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

Monday, March 15, 2010

Lyrics and Expression- James Riggio

In July of 2009, a Florida rapper known as T.O. was arrested and plead no contest to charges of threatening a public servant based on lyrics from a song of his, “”Kill Me a Cop,” that say in part, “I’ma kill me a cop one day,” and was sentenced to 2 years in jail. The question, however, is whether these song lyrics even constitute any sort of crime.

Antavio Johnson plead no contest in order to avoid a longer jail sentence. Prosecutors in the case believed that the lyrics were a crime, not only because the rapper threatened police, but because he named two police officers specifically in the song.

In order to determine if this speech was a true threat, one must look at the totality of circumstances. The first is how listeners would react to hearing these lyrics. The police department obviously took this as a true threat, as did prosecutors, considering charges were brought against him. However, the main intended audience was fans of his work, so to truly understand how audiences felt, some T.O fans would have to be spoken to. Although no articles I have read speak to any of them, I would gather that most were not offended; many other rap songs also bash and threaten cops without crimes being brought against them, and most fans of the genre would probably understand that it is a song and nothing more.

The second factor is past experience. Although he was in jail at the time due to an unrelated probation violation, the fact that this seems to be a onetime event and not a pattern makes the speech less threatening. However, it would seem as though Johnson has some sort of history with these two cops to single them out, although the extent of that history is unknown. This exact history would have to be further investigated to truly understand the situation.

The third factor deals with whether or not the threat was directed toward an individual or not. This is where I believe things get a little tricky. Although the two officers were named in the song, the threats were not said directly to them; it is not as though Johnson went up to them on the street and verbalized the threats to them, and even that in itself doesn’t mean it’s a threat. The officers would have to listen to the song to even know the threat existed.

The final factor is whether or not the victim truly believes the threat will be carried out. In my opinion, I cannot see how the officers could honestly believe the threat would be carried out. Johnson was in jail at the time the lyrics were discovered, making it impossible for him to carry them out at the time. The lyrics and song were also between two and three years old, and he had not yet carried out the threats of killing the cops.

Would the average person see this as being a threat? The fact that he put it out there, put the “threat” in his music that, it today’s world, can literally be listened to by anybody, makes me think that this is not a true threat. If you wanted to truly kill someone, I don’t think making that wish public is very smart. The lyrics seem to be more of a way to venting frustration rather than a threat. I find these lyrics to be extremely stupid, but do not think they are a true threat, and believe he should not be serving time in jail because of them. The lyrics, in my opinion, are simply expression, and therefore should be protected by the First Amendment.

Below are links to 2 articles (one from FoxNews and the other from FoxTampa), as well as the lyrics of the song in question:

FoxNews-
http://www.foxnews.com/entertainment/2009/08/01/amendment-lawyers-say-jailing-rapper-kill-cop-lyrics-violates-rights/

FoxTampa- http://www.myfoxtampabay.com/dpp/news/local/polk/Rap_artist_writes_lyrics_thre\

Lyrics-
http://www.wtsp.com/news/mostpop/story.aspx?storyid=110682&provider=top

Thursday, February 18, 2010

Student's Free Speech- Jenny Hong

I found this article from the Los Angeles Times, which relates to the topic that we were discussing in class about student's free speech.

This article, "For Students, a right to be mean online," written by Victoria Kim, is about an eight grader girl who was bullied by Cohen, who posted a YouTube video of the girl calling her "spoiled," a "brat", and a "slut". The eight grader went crying to her school counselor, Ms. Hart. Ms. Hart then reported this issue to the school district, which resulted in suspending Cohen. Cohen sued the school for violating her free speech. The courts sided with Cohen because this did not cause a disruption in school. Cohen made this video off campus and off- limits to the school administration's regulation.

Do you agree with the court's decision? Was Cohen's First Amendment being violated? Or do you agree with the school's decision for suspending her?

(I agree with the courts because this did not cause a disruption in the school community. Internet has become a way for all kind of people to express their feelings/ opinion. This case did not cause any danger/threat/violence/harm. Feelings were hurt, but it does not really matter in court, unless danger or physical harm or disruption were done due to this posting of the video.)

Here is link to the article:
http://articles.latimes.com/2009/dec/13/local/la-me-youtube-schools13-2009dec13

Or read it here:

For students, a right to be mean online?

With schools meting out discipline for what they see as cyber-bullying, some courts, parents and free speech advocates are pushing back.

December 13, 2009|By Victoria Kim

One morning in May 2008, an eighth-grader walked into Janice Hart's office at a Beverly Hills school crying.

She was upset and humiliated and couldn't possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her "spoiled," a "brat" and a "slut." Text and instant messages had been flying since. Half the class must have seen it by now, she told Hart.

Hart took the problem to the vice principal and principal, who took it to a district administrator, who asked the district's lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights had been violated.

Last month, a federal judge in Los Angeles sided with her, saying the school had gone too far. Amid rising concerns over cyber-bullying, and even calls for criminalization, some courts, parents and free-speech advocates are pushing back. Students, they say, have a 1st Amendment right to be nasty in cyberspace.

"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school's activities, runs afoul" of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.

"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.

Schools' ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens' social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.

Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet.

"It's better to have a lawsuit and lose some money than have a situation where a student commits suicide," said Eugene Volokh, a 1st Amendment expert and UCLA law professor who has criticized a bill in Congress that would make cyber-bullying punishable by up to two years in prison. "People don't appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct."

The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials' restriction of student speech or discipline meted out in such cases.

Attorneys and experts said court decisions have been "all over the map," offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.

"We're in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted," said Robert O'Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.

O'Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students' speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school's walls, administrators are faced with a tricky calculus.

"Everybody is justifiably confused about what they can and cannot do," said Witold Walczak, an attorney with the American Civil Liberties Union.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.

U.S. District Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student's speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web," he wrote.

Walczak, the ACLU attorney who argued the case, said censoring is often the "easy way out" for schools that want to be able to say they did something about the situation rather than stand by and watch.

"The Internet doesn't change what students say about other students or school officials, it just makes it more apparent to a larger number of people," he said.

The school district has appealed to the 3rd Circuit Court of Appeals, where a decision is pending.

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for alleged cyber-bullying. Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I've ever met" and invited others to express their "feelings of hatred."

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether students are allowed to express themselves freely.

"The audience, whether it's one person or 1 billion people, doesn't change that Katie still had a 1st Amendment right," Bavaro said.

In the Beverly Hills case, the student's lawsuit said her "speech" was entirely off campus and off-limits to the school administrators' regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school's computers, her attorney contended.

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was "designed in such a manner to reach many persons at once," making it different from earlier cases involving school newspapers or a violent drawing, he found.

However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.

"The fear that students would 'gossip' or 'pass notes' in class simply does not rise to the level of a substantial disruption," he wrote.

The plaintiff's attorney, Evan Cohen, who is also her father, said the case highlighted the school district's failure to realize the limits of its authority.

"Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it's OK for them to be a super-parent," he said.

Cohen's daughter, now a high school sophomore, is glad to put the case behind her and move on with her life, he said. She will be awarded nominal damages of $1 from the school, he said, and her two-day suspension will probably soon be removed from her academic record.

Attorney Gary Gibeaut, who represented the Beverly Hills Unified School District, declined to comment, saying the district had not decided whether to appeal the decision.