Yelp.com has sued a California law firm for allegedly fake reviews posted on the review site - read the details in a news story published in Bloomberg Businessweek which includes a link to the complaint that has been filed in the California court.
The defendants here are McMillan Law Group, Inc., and Julian McMillan, who practices bankruptcy in San Diego, California.
The twist to this story: McMillan sued Yelp.com earlier this year - and won. Yelp successfully appealed that decision according to the Business Insider and now, Yelp has sued the lawyer in another lawsuit.
There's more coverage with more details, if you're interested: the Wall Street Journal has blogged about it; and ArsTechnica.com reports that the Yelp case has been ordered to binding arbitration.
What I find interesting about all this is that: (1) apparently, Yelp has yet to make a profit on its review site, where revenues come in from advertising; and (2) allegedly, lawyers are not only getting friends and family and employees to write sweet and wonderful reviews for their Yelp profits but lawyers are also purportedly grouping together, so that firms can submit glowing reviews about each other's practices on Yelp.com, too (this all, according to Yelp).
Two things:
1. If Yelp isn't turning a profit, then how long can it survive? Just wondering here.
2. I realize that lawyers come in all shapes and sizes, but asking Aunt Harriet to write a fake Yelp review, or forming some secret review society to chock the site with fake reviews for the group? Sure, I'm jaded enough to think that there may be some lawyers out there doing this. I just don't know any lawyer that would bother. They don't have enough hours in the day as it is. And I mean, really.
Showing posts with label Blogger Lawsuits. Show all posts
Showing posts with label Blogger Lawsuits. Show all posts
2/10/12
Cut and Pasting From the Web: Be Careful.
Last week, another client was happily posting away on their blog and proud of their word count. Which was good. However, most of that word count involved cutting and pasting from other web sites. Not so good.
First of all, it's fine to share news releases. They are written to be distributed -- the intent of that release is to get that message out. So, sharing these cuts and paste excerpts in a blog post with an intro "news from Acme site this week" is not a bad, horrible (and by that I mean illegal) thing to do.
Second, it's fine to share information provided on government sites, for example in their "frequently asked questions" section. Intro the cut and paste excerpt with something like "the [name of agency] recommends the following" and you're fine.
Third, it's okay to share your own stuff. Excerpts from your firm website in a firm blog post isn't violating anything. Example: the post is discussing a major product recall and you provide an excerpt from the site that discusses your state's products liability law.
Here's where it's not okay. It is not okay to take content from other sites - especially news sites - and cut and paste them into your blog post, wham bam. My client, excited about coverage in the media, plugged media coverage into the blog without getting any okay from the media source.
Not to mention not checking with the news source to determine how much they wanted in payment for the use of their news story. And its photos.
Luckily, that post was not published online before someone checked with me and I pointed out that this was copyright infringement of the copyright held by the media source.
Newspapers and television news departments publish news with photos and videos online because that is how they generate revenue. They will share that content and those images with you, but they may want payment for the use. Maybe it's a lot. Maybe it's a little.
Point is: news stories and television videos - even if you are prominently a part of the story - should not be duplicated on your web site or blog without the permission of the copyright owner.
Sure, you may think I am nit-picking. After all, aren't you helping that news source by publicizing its work? Sorry, but I don't know that the owner of the copyright will agree with that argument. And, after all, isn't the story all about you and your victorious win, so don't you have some sort of indirect ownership right in the news article anyway? No. No you don't.
Go ahead if you want to risk it. Lots of sites do this, true. However, now that NewsRight is out of the box, my nit-picking today may seem prophetical tomorrow.
Better safe than sorry, folks. Plus, it's the right thing to do. Don't just plug those news articles into a blog post, even if you or your firm is the star of the story.
First of all, it's fine to share news releases. They are written to be distributed -- the intent of that release is to get that message out. So, sharing these cuts and paste excerpts in a blog post with an intro "news from Acme site this week" is not a bad, horrible (and by that I mean illegal) thing to do.
Second, it's fine to share information provided on government sites, for example in their "frequently asked questions" section. Intro the cut and paste excerpt with something like "the [name of agency] recommends the following" and you're fine.
Third, it's okay to share your own stuff. Excerpts from your firm website in a firm blog post isn't violating anything. Example: the post is discussing a major product recall and you provide an excerpt from the site that discusses your state's products liability law.
Here's where it's not okay. It is not okay to take content from other sites - especially news sites - and cut and paste them into your blog post, wham bam. My client, excited about coverage in the media, plugged media coverage into the blog without getting any okay from the media source.
Not to mention not checking with the news source to determine how much they wanted in payment for the use of their news story. And its photos.
Luckily, that post was not published online before someone checked with me and I pointed out that this was copyright infringement of the copyright held by the media source.
Newspapers and television news departments publish news with photos and videos online because that is how they generate revenue. They will share that content and those images with you, but they may want payment for the use. Maybe it's a lot. Maybe it's a little.
Point is: news stories and television videos - even if you are prominently a part of the story - should not be duplicated on your web site or blog without the permission of the copyright owner.
Sure, you may think I am nit-picking. After all, aren't you helping that news source by publicizing its work? Sorry, but I don't know that the owner of the copyright will agree with that argument. And, after all, isn't the story all about you and your victorious win, so don't you have some sort of indirect ownership right in the news article anyway? No. No you don't.
Go ahead if you want to risk it. Lots of sites do this, true. However, now that NewsRight is out of the box, my nit-picking today may seem prophetical tomorrow.
Better safe than sorry, folks. Plus, it's the right thing to do. Don't just plug those news articles into a blog post, even if you or your firm is the star of the story.
2/6/12
NewsRight: Has Main Stream Media Found a Bigger and Better Righthaven Model? Many Think So. Bloggers, Beware.
This past month, concern has grown over NewsRight, which has many of Main Stream Media's biggest companies (Associated Press is its shareholder, others include the New York Times), working together in their fight to stop various web sites (bloggers, news aggregators) from profiting off their words.
You'll remember my post from long ago, where AP was wanting to be paid per word for its content. If you quoted - or cut and pasted - over five words from one of its stories, AP expected to be paid. Five words, fork over $12.50.
That didn't work, apparently. And now, these MSM folk have banded together to form NewsRight. You can read what they want you to know about this new venture on their website.
Meanwhile, consider what others are thinking.
MediaPost hat tips to Righthaven as it discusses NewsRight as an attempt to stop "scrapping" of news stories by web sites. Techdirt considers NewsRight to be "Righthaven Lite," since they don't appear to be as sue-happy as Righthaven was (Righthaven would sue without any advance cease and desist notice). At least one media law professor seems to agree - we won't see lots of lawsuits being filed (yet).
And, for an different perspective, consider Nieman Labs optimistic take on things: NewsRight is a good thing. Really.
1/28/12
COPPA Applies to Blogs: the Xanga Story
More and more, it appears that blogging will gain the respect that it deserves not from appreciation of its content, its growth as a solid, accepted social media outlet, nor its ability to share breaking news, but because bloggers have become parties to litigation in various forms.
Alongside copyright infringement and shield law cases popping up all over the country, consider this: the Children's Online Privacy Protection Act (COPPA) was passed by Congress to protect kids from online skulduggery.
In sum, COPPA regulates how personal information is gathered and used when it's kids who are inputting the stuff. It requires things like parental consent for purchasing info, for example.
Last spring, Disney got hit big time with a fine by the Federal Trade Commission to the tune of $3,000,000.00 for collecting info from kids at its Playdom, Inc. site without parents' okay.
However, here's the point I'm making. Bloggers must adhere to the COPPA regulations just like Disney Corporation and other Big Kahunas.
Xanga.com, for example, is a blogging service that was sued for COPPA violations awhile back. Xanga offered MySpace-like services to kids and got hit with a $1 million fine (the biggest COPPA fine at that time, according to MSNBC).
Seems Xanga was allowing kids under 13 years of age set up blogs in its "blogging community" and the Federal Trade Commission found this did not comport with COPPA requirements.
True, Xanga isn't a blog itself -- it's a blogging service. However, it's still within that blogging realm and its story is a part of the path to blogging's respectability.
1/24/12
Illinois Shield Law: Chicago Case Rules No Protection for Blogger
Another blog fight over application of state shield law. Expect this Illinois case of first impression to go up on appeal, after all the losing party has already announced that the fight’s not over.
Nevertheless, a Chicago court has set a precedent on how Illinois will apply its shield law in the case of a blog out of California, TechnoBuffalo, which has been sued by an Illinois printing company, Johns-Byrne Co., in a lawsuit asking the court to force the blogger to reveal its source for an image of a Motorola cellphone (the Droid Bionic).
John-Byrne argued that it needs the name of the blog’s source in order to seek legal remedies against what it believes to be an evildoing employee who violated John-Byrne’s legal rights by sharing the images.
TechnoBuffalo responded by arguing the state shield law, and claiming that it was acting in the same role as a traditional media source reporting on the cellphone industry.
What is the big deal? TechnoBuffalo published the pix on its blog before the cellphone was actually available for sale.
Some would call that a “scoop.”
Nevertheless, the Cook County Circuit Court Judge ruled that the blog is not the same as Main Stream Media and shield laws of Illinois (and presumably California? though how the Chicago judge could rule on Cali law escapes me) and ordered the name of the blog’s confidential source to be released.
Let’s see if the appellate court agrees.
Nevertheless, a Chicago court has set a precedent on how Illinois will apply its shield law in the case of a blog out of California, TechnoBuffalo, which has been sued by an Illinois printing company, Johns-Byrne Co., in a lawsuit asking the court to force the blogger to reveal its source for an image of a Motorola cellphone (the Droid Bionic).
John-Byrne argued that it needs the name of the blog’s source in order to seek legal remedies against what it believes to be an evildoing employee who violated John-Byrne’s legal rights by sharing the images.
TechnoBuffalo responded by arguing the state shield law, and claiming that it was acting in the same role as a traditional media source reporting on the cellphone industry.
What is the big deal? TechnoBuffalo published the pix on its blog before the cellphone was actually available for sale.
Some would call that a “scoop.”
Nevertheless, the Cook County Circuit Court Judge ruled that the blog is not the same as Main Stream Media and shield laws of Illinois (and presumably California? though how the Chicago judge could rule on Cali law escapes me) and ordered the name of the blog’s confidential source to be released.
Let’s see if the appellate court agrees.
1/13/12
Recommended Read: “ETrouble” and 4 Things Companies Can Do About It
Great article in Corporate Counsel discussing the risks of social media these days. Etrouble, they call it.
I read it via Law.com: “From the Experts: Your Company Tweeting its Way into Trouble? Four Steps to Safely Engage in Social Media,” by Judah Lifschitz and Laura Fraher.
Now, this article is written from the perspective of the corporation and the risks of social media upon the company when Twitter, Facebook, etc. is used by employees, etc.
Worth your time to read, even if you read it as the lawyer for The Man pondering the impact of free speech among the little people.
Employers do have a right to wonder what their exposure is legally when their employees do things like the Starbucks guy who tweeted about “…shoot[ing] everyone.”
Good read.
1/12/12
More on Shield Laws: Will Congress Pass the Free Flow of Information Act – And Will This Hurt Bloggers?
More on bloggers and the extent to which legal protections provided to traditional journalists will be extended to them: right now, there is a bill moving through the House of Representatives that seeks to extend establishing journalistic protections in the law to only those writers who write "for a substantial portion of [their] livelihood or for substantial financial gain."
This might cover some non-traditional journalists. It’s not going to cover lots of other bloggers who are crusaders or whistleblowers or other bloggers who are collectively being labeled “citizen journalists.”
New Jersey has ruled that its shield law can cover these citizen journalists. So has California. Will the federal shield law be deemed to be less welcoming to these activist bloggers?
From the bill’s summary description:
Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.
Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.
Requires the content of compelled testimony or documents to be limited and narrowly tailored.
Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.
Exempts certain criminal or tortious conduct.
Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.
It’s entitled The Free Flow of Information Act of 2011.
1/9/12
Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.
While we were all enjoying the holiday season from Thanksgiving to the New Year, another opinion came down regarding defamation suits against bloggers that bloggers everywhere may be interested in reading. It's the third case of which I'm aware where state shield laws are used as a defense by bloggers sued by defamation: Oregon isn't as blogger-friendly as New Jersey or California.
Oregon Shield Law - No to Bloggers
The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.
Read the Oregon federal judge’s ruling here.
In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group. Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.
Judge Hernandez ruled against Cox. His rationale? Shield law is limited in its application to “traditional media” and blogging isn’t traditional media.
Cox, he opined, had no traditional education in journalism. She had no street creds from a “recognized news entity.”
Result: the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.
New Jersey Shield Law - Maybe to Bloggers
If you’re following this stuff, this opinion may sound familiar. There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.”
Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”).
Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum. Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall. (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)
The New Jersey Supreme Court’s rationale? From the opinion:
Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers. In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.
From O'Grady:
Here’s something to think about: if Cox had been interviewed on television, or by a “traditional journalist” for a printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law? I think so.
Oregon Shield Law - No to Bloggers
The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.
Read the Oregon federal judge’s ruling here.
In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group. Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.
Judge Hernandez ruled against Cox. His rationale? Shield law is limited in its application to “traditional media” and blogging isn’t traditional media.
Cox, he opined, had no traditional education in journalism. She had no street creds from a “recognized news entity.”
Result: the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.
New Jersey Shield Law - Maybe to Bloggers
If you’re following this stuff, this opinion may sound familiar. There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.”
Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”).
Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum. Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall. (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)
The New Jersey Supreme Court’s rationale? From the opinion:
New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.California Shield Law - Maybe to Bloggers
Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers. In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.
From O'Grady:
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.
Here’s something to think about: if Cox had been interviewed on television, or by a “traditional journalist” for a printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law? I think so.
11/11/11
Can Book Reviewers Be Sued for Bad Reviews? Yes. Amazon Reviewer Sued by Self-Pub Author for Libel under British Law After French Award for Criminal Libel, and U.S. Precedent
The New Yorker's Book Bench is spreading the news about a lawsuit filed across the pond against an Amazon reviewer as well as Amazon.com and Richard Dawkins by the self-published author of a book entitled, "The Attempted Murder of God: Hidden Science You Really Need to Know."
It's filed under British libel law and the first hurdle appears to be something akin to a Rule 12(b) motion under the Federal Rules of Civil Procedure -- and it will be interesting to see what Great Britian does with this attempt to get money damages out of someone who wrote a thumbs down review of a self-published book uploaded for sale on Amazon.
Laura Owen has written a nice summary piece on this reviewer libel suit over at PaidContent, entitled "Self-Published British Author Sues For Libel Over Bad Amazon Review.."
Book Reviewer Found Guilty of Libel in France for Bad Review
Think this is nuts? Well, if this plaintiff had been following the news out of France, then maybe he is being crazy like a fox. Seems that a plaintiff suing for "criminal libel" under French law for a bad online review won -- got a nice chunk of change in an award, too.
Among the defendants: the editor of the European Journal of International Law, New York University Law Professor Joseph Weiler. Notice that an American book reviewer and noted law professor is being sued for damages in France, and he's posting about his courtroom experiences online.
Wow.
Could this happen in the United States? Should American Book Reviewers Worry About Being Sued for Damages by an Author for a Bad Book Review?
In the United States, authors have already sued reviewers for allegedly destroying their writing careers by giving bad reviews of their work. I haven't done extensive legal research on this, but I am aware of a landmark case where the New York Times got sued by an author named Dan E. Moldea for a review it published by NYT sports writer Gerald Eskenazi.
That case, really cases, sets a standard for review - there are two relevant opinions here:
Moldea 1: Moldea v. New York Times Co., 15 F3d 1137 (D.C. Cir. 1994)
Moldea 2: Moldea v. New York Times Co., 22 F3d 310 (D.C. Cir. 1994)
Interesting thing about Moldea: upon appeal from a district court dismissal of the case as being without merit, the appellate court initially recognized a cause of action for damages based upon a bad book review -- then, the court changed its mind ... finding that the book reviewer cannot be sued as long as the review is (Moldea, 22 F3d at 315) :
It's filed under British libel law and the first hurdle appears to be something akin to a Rule 12(b) motion under the Federal Rules of Civil Procedure -- and it will be interesting to see what Great Britian does with this attempt to get money damages out of someone who wrote a thumbs down review of a self-published book uploaded for sale on Amazon.
Laura Owen has written a nice summary piece on this reviewer libel suit over at PaidContent, entitled "Self-Published British Author Sues For Libel Over Bad Amazon Review.."
Book Reviewer Found Guilty of Libel in France for Bad Review
Think this is nuts? Well, if this plaintiff had been following the news out of France, then maybe he is being crazy like a fox. Seems that a plaintiff suing for "criminal libel" under French law for a bad online review won -- got a nice chunk of change in an award, too.
Among the defendants: the editor of the European Journal of International Law, New York University Law Professor Joseph Weiler. Notice that an American book reviewer and noted law professor is being sued for damages in France, and he's posting about his courtroom experiences online.
Wow.
Could this happen in the United States? Should American Book Reviewers Worry About Being Sued for Damages by an Author for a Bad Book Review?
In the United States, authors have already sued reviewers for allegedly destroying their writing careers by giving bad reviews of their work. I haven't done extensive legal research on this, but I am aware of a landmark case where the New York Times got sued by an author named Dan E. Moldea for a review it published by NYT sports writer Gerald Eskenazi.
That case, really cases, sets a standard for review - there are two relevant opinions here:
Moldea 1: Moldea v. New York Times Co., 15 F3d 1137 (D.C. Cir. 1994)
Moldea 2: Moldea v. New York Times Co., 22 F3d 310 (D.C. Cir. 1994)
Interesting thing about Moldea: upon appeal from a district court dismissal of the case as being without merit, the appellate court initially recognized a cause of action for damages based upon a bad book review -- then, the court changed its mind ... finding that the book reviewer cannot be sued as long as the review is (Moldea, 22 F3d at 315) :
rationally supportable by reference to the actual text he or she is evaluating.
From the Moldea 2 opinion (22 F3d 311-312, 315-316):
After careful consideration of the Times' petition for rehearing and Moldea's response to that petition, we are persuaded to amend our earlier decision. The original majority opinion was generally correct in its statement of the law of defamation. Unfortunately, that opinion failed to take sufficient account of the fact
11/2/11
Righthaven Update: US Marshalls Are Now Seizing Assets
Quick update on Righthaven: yesterday, a federal judge signed the writ of execution for defendant Wayne Hoehn against losing plaintiff Righthaven, and the U.S. Marshalls are now authorized to take Righthaven assets in order to satisfy a $63,000+ judgment.
For details on Mr. Hoehn's case and what's going on here, check out my earlier Righthaven posts.
It's a good day for bloggers everywhere.
For details on Mr. Hoehn's case and what's going on here, check out my earlier Righthaven posts.
It's a good day for bloggers everywhere.
11/1/11
Freelance Writer Who Blogged While Sitting on Illinois Wrongful Death Jury Found Not to Have Compromised Jury Integrity and $4.75 Million Award Stands. For Now.
It should not come as a surprise to many that the juror who blogged about her experiences while on an Illinois jury gave defense counsel a solid basis for appealling the $4.75 million verdict that came down against a commuter railway in a wrongful death case brought by the widow of a blind man who died, she alleged, as a result of the railroad's negligence.
Some, however, may be surprised to find that the juror's blogging about her days on the jury, for a total of six posts, did not result in a reversal: on September 30, 2011, the Illinois appellate court ruled that her actions didn't sway the jury or compromise the integrity of their deliberations. (Read the opinion here.)
Who was this blogger? Eve Bradshaw is a self-described freelance writer based in Chicago, 50 years old and a mother of three, who sat on an Illinois jury and wrote about it, in a series of posts for her Blogger blog The Green Room, which she has been publishing for several years.
Read the posts in question, or read Mrs. Bradshaw's blog in general, and you'll find a nice person. Her posts about what was going on during the trial aren't smoking guns of jury tampering or jury evildoing; there is nothing sinister here, which was important to the appellate court.
Nevertheless on appeal, the defendants argued that jurors should have been interrogated to determine whether or not the blog posts had impacted their deliberations, especially since the posts contained descriptions of communications between the jurors themselves. It wasn't a winning argument -- however, part of that result springs from the content of the posts themselves (see, e.g., paragraph 63 of the opinion).
It's not over: the appellate court decision could get taken up to the Illinois Supreme Court, and with almost $5 million on the line, I'm betting the defendants will do so. (There are other points of error here as well; a subsequent appeal seems pretty much a given.)
Now, here's what I'm thinking: first of all, what the heck? As a lawyer, no I don't think that jurors should be blogging about what is going on -- no more than they should tweet about it, chat over coffee at Starbucks about it, or discuss anything with a member of the media. At most, I might be willing to consider the posts being saved as drafts ... but to publish them while the trial is in process? Scary stuff for a lawyer, juror blogging.
I don't think any communication by a juror about the trial process should be condoned, period. It's a slippery slope to find blogging different than, say, chatting with a reporter, no matter the content of the posts themselves. If Mrs. Bradshaw had voiced these communications to a reporter who then published them in the local newspaper, would we have the same result?
That being said, it also makes me wonder about the additional responsibilities this places upon trial attorneys because if I were still litigating, you can bet your bottom dollar I would have a paralegal assigned to monitor every juror to insure there was no web chatter - be it Twitter, Facebook, or now, personal blogs.
Seems to me that some will argue that okaying this blogger's posting means that lawyers now have a duty to monitor juror blogging (and to discern that they are or may be blogging) since the blogging itself has been found acceptable. That's probably true even if there's a jury instruction not to blog (or tweet, etc.).
Taking off the lawyer hat and putting on the writer one, I have to wonder about the risks here. First, to blogging itself. Blogging is such a stepchild; a journalist reporting the day's events in the courtroom is one thing. Posting about jury experiences while you're on the jury and sworn to protect its integrity doesn't do much to uplift the reputation of bloggers in the eyes of the traditional media.
Second, to the blogger. Consider the potential personal risk of ciivil liability here -- what happens to the blind man's widow if the Illinois Supreme Court goes the other way and reverses that $4.65 million award because of six blog posts? What happens to the blogger then?
Scary situation up in Illinois.
Some, however, may be surprised to find that the juror's blogging about her days on the jury, for a total of six posts, did not result in a reversal: on September 30, 2011, the Illinois appellate court ruled that her actions didn't sway the jury or compromise the integrity of their deliberations. (Read the opinion here.)
Who was this blogger? Eve Bradshaw is a self-described freelance writer based in Chicago, 50 years old and a mother of three, who sat on an Illinois jury and wrote about it, in a series of posts for her Blogger blog The Green Room, which she has been publishing for several years.
Read the posts in question, or read Mrs. Bradshaw's blog in general, and you'll find a nice person. Her posts about what was going on during the trial aren't smoking guns of jury tampering or jury evildoing; there is nothing sinister here, which was important to the appellate court.
Nevertheless on appeal, the defendants argued that jurors should have been interrogated to determine whether or not the blog posts had impacted their deliberations, especially since the posts contained descriptions of communications between the jurors themselves. It wasn't a winning argument -- however, part of that result springs from the content of the posts themselves (see, e.g., paragraph 63 of the opinion).
It's not over: the appellate court decision could get taken up to the Illinois Supreme Court, and with almost $5 million on the line, I'm betting the defendants will do so. (There are other points of error here as well; a subsequent appeal seems pretty much a given.)
Now, here's what I'm thinking: first of all, what the heck? As a lawyer, no I don't think that jurors should be blogging about what is going on -- no more than they should tweet about it, chat over coffee at Starbucks about it, or discuss anything with a member of the media. At most, I might be willing to consider the posts being saved as drafts ... but to publish them while the trial is in process? Scary stuff for a lawyer, juror blogging.
I don't think any communication by a juror about the trial process should be condoned, period. It's a slippery slope to find blogging different than, say, chatting with a reporter, no matter the content of the posts themselves. If Mrs. Bradshaw had voiced these communications to a reporter who then published them in the local newspaper, would we have the same result?
That being said, it also makes me wonder about the additional responsibilities this places upon trial attorneys because if I were still litigating, you can bet your bottom dollar I would have a paralegal assigned to monitor every juror to insure there was no web chatter - be it Twitter, Facebook, or now, personal blogs.
Seems to me that some will argue that okaying this blogger's posting means that lawyers now have a duty to monitor juror blogging (and to discern that they are or may be blogging) since the blogging itself has been found acceptable. That's probably true even if there's a jury instruction not to blog (or tweet, etc.).
Taking off the lawyer hat and putting on the writer one, I have to wonder about the risks here. First, to blogging itself. Blogging is such a stepchild; a journalist reporting the day's events in the courtroom is one thing. Posting about jury experiences while you're on the jury and sworn to protect its integrity doesn't do much to uplift the reputation of bloggers in the eyes of the traditional media.
Second, to the blogger. Consider the potential personal risk of ciivil liability here -- what happens to the blind man's widow if the Illinois Supreme Court goes the other way and reverses that $4.65 million award because of six blog posts? What happens to the blogger then?
Scary situation up in Illinois.
10/17/11
Bloggers and Anonymous Commenters Sued for Defamation by Cooley Law School
Defamation claims against bloggers may be on the rise, and it may be that lawyers, law firms, and law students are providing an online prototype for others interested in suing bloggers for alleged defamatory conduct. Seems that a story that has been brewing on the web for months now just got some big, national exposure today as the National Law Journal (and Law.Com) have published an article entitled, "Ripping a critic's mask off: A law school fought to learn the secret identity of an ex-student blogger," written by Karen Sloan.
Blogger Rockstar05 and Anonymous Commenters Sued for Defamation by Cooley Law School
In the National Law Journal piece, readers are given a blow-by-blow of Thomas M. Cooley Law School's ongoing litigation against an anonymous blogger publishing under the moniker of Rockstar05 and three other anonymous defendants (at least two of which are those leaving comments to Rockstar05's post, with another leaving a comment at the Huffington Post), a suit filed by the law school asserting the school has been defamed by the defendants via the words that they wrote online. The law school is also suing a New York law firm, one of its partners and another lawyer working there, for "trolling" websites under the guise of investigating a class action while "...posting false and defamatory statements about Cooley on various public websites." Complaint in Cause No. 11780, pp. 1-2 (full copy here).
Rockstar05 is fighting against his or her name being revealed; there's a gag order in place right now on Rockstar05's identity, although Cooley's counsel knows who Rockstar05 is (and so does Karen Sloan of the NLJ, who interviewed Rockstar05 for her article). What did Rockstar05 do, exactly?
Rockstar05, according to Cooley's complaint, wrote a post entitled, "the Thomas M. Cooley Law School Scam," which can be read in its entirety as Exhibit B to the Cooley pleading (full copy here).
Public Citizen Has Filed an Amicus Brief in the Cooley Law School Case, Arguing Application of Dendrite Int'l.
Also contributing to the national import of this growing story is the amicus curiae ("friend of the court") brief filed by Public Citizen, a nationally-known consumer rights group. In its brief, Public Citizen argues for the First Amendment rights of anonymous bloggers, citing to Dendrite International Inc. v. Doe No. 3, et al., where the New Jersey courts have defined a set of guidelines for trial courts "...faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP [ internet service provider] to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses...."
Among the standards set by Dendrite Int'l, the burden of the plaintiff to establish:
October 24th Hearing On Merits of the Defamation Suit
Right now, there is a setting on October 24, 2011, where the law school's law suit against Rockstar05 and the John Doe defendants will go forward. More and more eyes are watching this case, and there is some commentary already that by filing this suit, Cooley has actually given the controversial words a lot more exposure than they would have had otherwise, by filing this lawsuit.
For details on the suit, you can read the press release by Cooley as well as the petitions that have been filed (pdfs available for reading and downloading at the Cooley Law School site).
For more commentary, consider:
Professor Turley, who points out the Pandora's Box of discovery that Cooley Law School may have opened for itself.
Blogger Rockstar05 and Anonymous Commenters Sued for Defamation by Cooley Law School
In the National Law Journal piece, readers are given a blow-by-blow of Thomas M. Cooley Law School's ongoing litigation against an anonymous blogger publishing under the moniker of Rockstar05 and three other anonymous defendants (at least two of which are those leaving comments to Rockstar05's post, with another leaving a comment at the Huffington Post), a suit filed by the law school asserting the school has been defamed by the defendants via the words that they wrote online. The law school is also suing a New York law firm, one of its partners and another lawyer working there, for "trolling" websites under the guise of investigating a class action while "...posting false and defamatory statements about Cooley on various public websites." Complaint in Cause No. 11780, pp. 1-2 (full copy here).
Rockstar05 is fighting against his or her name being revealed; there's a gag order in place right now on Rockstar05's identity, although Cooley's counsel knows who Rockstar05 is (and so does Karen Sloan of the NLJ, who interviewed Rockstar05 for her article). What did Rockstar05 do, exactly?
Rockstar05, according to Cooley's complaint, wrote a post entitled, "the Thomas M. Cooley Law School Scam," which can be read in its entirety as Exhibit B to the Cooley pleading (full copy here).
Public Citizen Has Filed an Amicus Brief in the Cooley Law School Case, Arguing Application of Dendrite Int'l.
Also contributing to the national import of this growing story is the amicus curiae ("friend of the court") brief filed by Public Citizen, a nationally-known consumer rights group. In its brief, Public Citizen argues for the First Amendment rights of anonymous bloggers, citing to Dendrite International Inc. v. Doe No. 3, et al., where the New Jersey courts have defined a set of guidelines for trial courts "...faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP [ internet service provider] to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses...."
Among the standards set by Dendrite Int'l, the burden of the plaintiff to establish:
... that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.This is a big deal - and while Michigan isn't required to follow New Jersey, the opinion is well thought out and does recognize the free speech interests at stake when bloggers are sued for what they have written.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
October 24th Hearing On Merits of the Defamation Suit
Right now, there is a setting on October 24, 2011, where the law school's law suit against Rockstar05 and the John Doe defendants will go forward. More and more eyes are watching this case, and there is some commentary already that by filing this suit, Cooley has actually given the controversial words a lot more exposure than they would have had otherwise, by filing this lawsuit.
For details on the suit, you can read the press release by Cooley as well as the petitions that have been filed (pdfs available for reading and downloading at the Cooley Law School site).
For more commentary, consider:
Professor Turley, who points out the Pandora's Box of discovery that Cooley Law School may have opened for itself.
10/2/11
Blogger Sues Blogger for Copyright Infringement: Nikki Finke's Deadline Hollywood vs The Hollywood Reporter
Nikki Finke reports on the comings and goings of the Hollywood biz at her blog, Deadline Hollywood, and I've read her for years -- she has been instrumental in making blogs more respectable as a legitimate news source. Nikki Finke's background as a journalist - working at Newsweek, the Los Angeles Times and The New York Observer, in addition to having her writing appear in The New York Times, Vanity Fair, and The Washington Post means that she had top of the line journalistic credentials when she jumped over into the blogging arena.
Nikki Finke's decision to become a blogger is important to all bloggers, and in doing so, she undoubtedly felt a lot of backlash from the traditional journalists who do not consider blogging to be respectable as a news source. That's a rabbit trail topic - something to discuss in more depth on another day.
Point here is, I'm not the only one who admires her work, apparently.
Over the past few weeks (or maybe months), Finke has been posting about her battles with The Hollywood Reporter and her claims that her stuff has been popping up without authorization over at THR, which is another blog. Today, I read on Reuters that Finke's filed suit: "Deadline blogger sues The Hollywood Reporter."
Among her claims (and by "her" I mean Finke as well as her parent company, both plaintiffs in the litigation), an allegation that source code was swiped from Deadline Hollywood. That's plagarism, 21st Century style.
Finke goes on: she's also alleging that there has been theft of "intellectual decisions" in what she follows in her blog posts. As bloggers understand all too well, posts go up minute by minute (almost as fast as tweets) when there is a big story -- and deciding what to post and when is a big thing when you're publishing a blog. Blogging will get more consideration and exposure as a venue for words, and news, and opinion, because of this lawsuit - if for no other reason than everyone's got to catch up with what exactly Nikki Finke is alleging is the harm that has been done and how it happened.
Once again, Nikki Finke may be helping bloggers everywhere gain more respect for the medium - this time, not on the screen, but in the courtroom.
Nikki Finke's decision to become a blogger is important to all bloggers, and in doing so, she undoubtedly felt a lot of backlash from the traditional journalists who do not consider blogging to be respectable as a news source. That's a rabbit trail topic - something to discuss in more depth on another day.
Point here is, I'm not the only one who admires her work, apparently.
Over the past few weeks (or maybe months), Finke has been posting about her battles with The Hollywood Reporter and her claims that her stuff has been popping up without authorization over at THR, which is another blog. Today, I read on Reuters that Finke's filed suit: "Deadline blogger sues The Hollywood Reporter."
Among her claims (and by "her" I mean Finke as well as her parent company, both plaintiffs in the litigation), an allegation that source code was swiped from Deadline Hollywood. That's plagarism, 21st Century style.
Finke goes on: she's also alleging that there has been theft of "intellectual decisions" in what she follows in her blog posts. As bloggers understand all too well, posts go up minute by minute (almost as fast as tweets) when there is a big story -- and deciding what to post and when is a big thing when you're publishing a blog. Blogging will get more consideration and exposure as a venue for words, and news, and opinion, because of this lawsuit - if for no other reason than everyone's got to catch up with what exactly Nikki Finke is alleging is the harm that has been done and how it happened.
Once again, Nikki Finke may be helping bloggers everywhere gain more respect for the medium - this time, not on the screen, but in the courtroom.
9/23/11
Righthaven RIP: Assets Being Seized, Rumors of Righthaven Bankruptcy Roam the Web
Righthaven's going down, and going down fast: today the news is that creditors are seizing assets of Righthaven, Inc. - the company that struck fear into many a blogger's heart as it filed copyright infringement lawsuits throughout Nevada and other states (South Carolina, Colorado) without so much as a cease and desist notice letter.
Righthaven is reported to be considering bankruptcy even as I type this.
There's more. Attorney Todd Kincannon is reportedly mounting a class action lawsuit against Righthaven, Inc. If you believe that you may have been harmed by the actions of Righthaven, Inc., then Mr. Kincannon wants to chat with you.
What did Righthaven do? It bought the copyrights from various media sites and then sued websites and blogs for violation of federal copyright laws (see my July 2010 post for details, "Profiting from Copyright Infringement - New Vegas Company Sues Bloggers After Buying Media Copyrights.")
What happened next? After over 250 of these suits were filed (some reports are that they've filed over 275 cases), federal judges started acting. The suits were blown out of court for things like standing problems. (See, "Righthaven's Days May Be Numbered: Federal Judges Are Ruling Against Standing and More.")
And, Righthaven started losing cases. In the asset seizure making news now, Righthaven defendant Wayne Hoehn is seeking to enforce a federal court order that orders Righthaven to pay Mr. Hoehn $34,000 as reimbursement of the legal fees that he had to pay to defend himself against their copyright lawsuit.
Righthaven whined to the federal judge, the Honorable Philip Pro of the United States District Court for the District of Nevada, asking him to stay the award because having to pay Mr. Hoehn right now might force Righthaven into bankruptcy. Judge Pro was not swayed; the order stands.
So, right now, federal marshalls will be executing on Righthaven assets to meet that $34,000 award and Righthaven may be filing a bankruptcy petition (where the automatic stay might temporarily stop the marshalls).
For all things Righthaven, check out the excellent website that is monitoring all this: RighthavenLawsuits.
Does this mean no more copyright infringement suits? I doubt it. I don't know that "copyright trolls" will have a big future - but those that own the copyrights are free to sue for federal copyright law violations. Righthaven was acting as a middleman, in a way: buying those rights and then suing based upon them.
Take out Righthaven, what have you got? No more middleman. If it is cost-effective to sue for copyright violations, then owners will do so. Maybe Righthaven's aftermath will be that they will be more inclined to file.
Righthaven is reported to be considering bankruptcy even as I type this.
There's more. Attorney Todd Kincannon is reportedly mounting a class action lawsuit against Righthaven, Inc. If you believe that you may have been harmed by the actions of Righthaven, Inc., then Mr. Kincannon wants to chat with you.
What did Righthaven do? It bought the copyrights from various media sites and then sued websites and blogs for violation of federal copyright laws (see my July 2010 post for details, "Profiting from Copyright Infringement - New Vegas Company Sues Bloggers After Buying Media Copyrights.")
What happened next? After over 250 of these suits were filed (some reports are that they've filed over 275 cases), federal judges started acting. The suits were blown out of court for things like standing problems. (See, "Righthaven's Days May Be Numbered: Federal Judges Are Ruling Against Standing and More.")
And, Righthaven started losing cases. In the asset seizure making news now, Righthaven defendant Wayne Hoehn is seeking to enforce a federal court order that orders Righthaven to pay Mr. Hoehn $34,000 as reimbursement of the legal fees that he had to pay to defend himself against their copyright lawsuit.
Righthaven whined to the federal judge, the Honorable Philip Pro of the United States District Court for the District of Nevada, asking him to stay the award because having to pay Mr. Hoehn right now might force Righthaven into bankruptcy. Judge Pro was not swayed; the order stands.
So, right now, federal marshalls will be executing on Righthaven assets to meet that $34,000 award and Righthaven may be filing a bankruptcy petition (where the automatic stay might temporarily stop the marshalls).
For all things Righthaven, check out the excellent website that is monitoring all this: RighthavenLawsuits.
Does this mean no more copyright infringement suits? I doubt it. I don't know that "copyright trolls" will have a big future - but those that own the copyrights are free to sue for federal copyright law violations. Righthaven was acting as a middleman, in a way: buying those rights and then suing based upon them.
Take out Righthaven, what have you got? No more middleman. If it is cost-effective to sue for copyright violations, then owners will do so. Maybe Righthaven's aftermath will be that they will be more inclined to file.
7/13/11
Righthaven's Days May Be Numbered: Federal Judges Are Ruling Against Standing and More
More than one federal district judge appears to have had enough with Righthaven's strategy of buying copyrights from various media sources (usually in Nevada) and then suing for copyright infringement under federal law without so much as a form cease and desist letter. (For details on the Righthaven plan of action and its early success, read my prior posts on the subject.)
The worm turns.
Federal judges setting in more than one state don't seem to think that Righthaven is doing the right thing, apparently. Standing has been found wanting. Fair use has been found. Copyright has been determined not to be at issue in the first place.
For a nice recap of these various court opinions, read David Kravets' article in Wired's June 20, 2011 issue, "Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use."
Today's news: Righthaven isn't paying attorneys' fees.
This morning, TechDirt reports that Righthaven is avoiding paying around $3000 in attorneys' fees to a defendant even though it's been ordered to do so by a federal judge. The company has asked the court for a 30 day stay ... doesn't sound smart, but we'll see what happens.
The worm turns.
Federal judges setting in more than one state don't seem to think that Righthaven is doing the right thing, apparently. Standing has been found wanting. Fair use has been found. Copyright has been determined not to be at issue in the first place.
For a nice recap of these various court opinions, read David Kravets' article in Wired's June 20, 2011 issue, "Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use."
Today's news: Righthaven isn't paying attorneys' fees.
This morning, TechDirt reports that Righthaven is avoiding paying around $3000 in attorneys' fees to a defendant even though it's been ordered to do so by a federal judge. The company has asked the court for a 30 day stay ... doesn't sound smart, but we'll see what happens.
4/2/11
Follow the Lawsuits Being Filed Against Web Sites, Bloggers for Copyright Infringement by Nevada's Righthaven
I've posted in the past about Righthaven, and how they are building up quite a business by buying copyrights and then suing (without notice or cease and desist letters) for violations of federal copyright laws. Go here to read about them.
Recently, I discovered a website that is tracking Righthaven's activities. RighthavenLawsuits is not affiliated in any way with the company that has become a professional plaintiff. Here, from the RighthavenLawsuits site:
This web site appears to be current and comprehensive. Interesting to me: since my post in July 2010, the company has expanded its activity into South Carolina and Colorado. What will happen next? Will Righthaven's tenticles creep into other states - or will other companies pop up in these other states as direct competitors to Righthaven? Money talks, you know.
Recently, I discovered a website that is tracking Righthaven's activities. RighthavenLawsuits is not affiliated in any way with the company that has become a professional plaintiff. Here, from the RighthavenLawsuits site:
This website is dedicated to gathering together and posting for Righthaven Defendants and the public information about Righthaven LLC -- the Las Vegas “technology company”that has been filing copyright infringement lawsuits in the U.S. District Court for the District of Nevada (and South Carolina and Colorado) against numerous unsuspecting website owners (almost always without notice) for copyright infringement of news articles originally published in the Las Vegas Review Journal (and Denver Post) and purportedly assigned to Righthaven (sample assignment here) which subsequently registers the copyright to such articles with the U.S. Copyright Office in order to then file suit in federal court.
This web site appears to be current and comprehensive. Interesting to me: since my post in July 2010, the company has expanded its activity into South Carolina and Colorado. What will happen next? Will Righthaven's tenticles creep into other states - or will other companies pop up in these other states as direct competitors to Righthaven? Money talks, you know.
11/1/10
Update on Mass Vegas Copyright Litigation from Winston & Strawn
Winston & Strawn has been monitoring a Las Vegas company I wrote about a couple of months back -- the corporation that bought copyrights from various Nevada news media and began suing websites and blogs, personal and commercial, who had cut and pasted copy from the news articles into their own sites. Suing in federal court for violations of the Copyright Act.
The company -- Righthaven -- got lots of media attention as it filed suit after suit, oftentimes against nonprofits and such. Political affiliations and hidden agendas were questioned. Biggest issue: Righthaven was doing this without bothering to first send a cease and desist. (Rambo lives.)
Winston is now reporting that Righthaven's days may be numbered. One judge has decided, according to Winston's "special alert" that fair use applies. Righthaven loses, although the winning defendant may have had to pay lotsa legal fees to defend itself and may find the victory bittersweet.
For more, check out what Winston has for you.
The company -- Righthaven -- got lots of media attention as it filed suit after suit, oftentimes against nonprofits and such. Political affiliations and hidden agendas were questioned. Biggest issue: Righthaven was doing this without bothering to first send a cease and desist. (Rambo lives.)
Winston is now reporting that Righthaven's days may be numbered. One judge has decided, according to Winston's "special alert" that fair use applies. Righthaven loses, although the winning defendant may have had to pay lotsa legal fees to defend itself and may find the victory bittersweet.
For more, check out what Winston has for you.
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