AP Too Hot to Handle

By Cristina Luiggi

The Associated Press filed a lawsuit against All Headline News Corp. (AHN) in February accusing them of copying and rewriting AP articles and selling them to other news outlets, according to the AP.

What has generated attention is not the charge of copyright infringement, but the court’s acceptance of AP’s claim of “hot news” misappropriation.

According to the court’s memorandum, the AP is resting on a 1918 U.S. Supreme Court decision, dubbed the “hot news” doctrine, which found that, because the AP had spent time, effort, and money gathering the news, it should be protected from “free-loading” competitors.

That is, other news organizations taking their news and profiting from it. This gave the AP a quasi-property right – separate from copyright – on its time-sensitive breaking news.

An article published by the Wiley Rein LLP firm, said that "this is the first time that a court has applied the "hot news" doctrine to content on the Internet."

Questions: Because the time-sensitivity of the news qualifies it as "hot news", how can the court define what constitutes as breaking news in the Internet? In other words, for how long after a breaking news story is published online is it protected by the "hot news" doctrine? Can bloggers that are re-reporting on recently published AP stories be held accountable under this doctrine?

YouTube: A Copyright War Zone

By Cristina Luiggi

Consider these three videos that were posted on YouTube:

1. A girl playing the piano and singing the Christmas carol, “Winter Wonderland.” (See this YouTube video)
2. A man teaching sign language to the 1980s song, “Waiting for a Girl Like You.”
3. Music video of A-Ha’s “Take On Me” without the actual lyrics, but with a man singing about what’s happening in the video. (A genre dubbed “literal videos”.)

All three videos were removed from the site because of copyright infringement according to a New York Times article. These removals are part of an ongoing conflict between Google-owned YouTube and Warner Music Group (WMG), which owns the copyright to all three songs.

The dispute began when YouTube refused WMG a portion of the advertising revenue in exchange for permission to stream its music videos. Not only has WMG removed its artists’ official music videos, it has extended the measure to all user-generated content that uses its music.

According to the United States Copyright Office, the fair use doctrine of the U.S. copyright statute has a four-part test to determine whether the copyrighted material was used fairly. It includes determining the purpose of the work – whether it’s for personal profit or the advancement of knowledge. Whether or not a work has been transformed considerably from the original version is also evaluated in copyright cases.

A lawyer from an Internet civil liberties group argued in the NYT article that videos such as the “Winter Wonderland” video fall under fair use because “they are non-commercial and include original material produced by the user.”

Although the user who posted the video does not make money off it, lawyers from WMG argue that Google does make money from the site and therefore the video should be considered commercial.

Question: Should these videos be considered commercial because the website that hosts them makes money off of them even though the users who generate them do not get a dime? How “original” should they be so they’re not accused of copyright infringement?

The Woes of "Sexting"

© 2004 Associated Press

By Cristina Luiggi

According to an AP story, a 14-year-old girl from New Jersey posted 30 nude pictures of herself on MySpace for her boyfriend to see. When the county sheriff was notified, the girl was arrested and charged with possession of child pornography and distribution of child pornography. If she's convicted of distribution of child pornography, she would have to register as a sex offender and could face up to 17 years in jail.

The article says the accusation seems to have no legal precedent. However, there have been a number of cases in other states involving teens sending “provocative” pictures via cellphones.

A New York Times article follows a case from Pennsylvania involving semi-nude pictures of three teen girls taken during a slumber party. The district attorney warned the girls that if they didn’t attend classes on pornography and sexual violence, he would file charges of sexual abuse of a minor. The three girls refused.

The girl’s parents filed a federal lawsuit against the district attorney claiming the pictures were not child pornography and that the girls didn’t consent to having their picture distributed. There is also the issue that the pictures were obtained from confiscated cellphones – and the Fourth Amendment protects the personal information contained in cell phones.

According to another NYT article, a federal judge commented that the children were being considered both the victims and perpetrators. The distict attorney's lawyer countered that state law “doesn’t distinguish between who took the picture and who was in it.”

Questions: Can the DA prove that the teenagers who sent nude or semi-nude pictures of themselves through text messages are engaging in child pornography? Would this change whether the pictures were published online or sent over a wireless phone?

Facing Facebook

By: Jessica Nahmias

The newest disclaimer on Facebook could be this: “Your Facebook page may be used against you in a court of law.” In what the Toronto Star considers a “precedent-setting decision”, an Ontario man was ordered to answer questions about the content of his Facebook page in an ongoing court battle.

John Leduc claims he was injured in a car accident back in 2004. He sued Janie Roman, the woman with whom he had the accident, for damages, claiming his quality of life had been impacted since the accident.

Roman and her lawyers believed content posted on Leduc’s Facebook page contained information to prove that his quality of life, had not, in fact, been impacted in a negative manner.

Justice David Brown of Ontario’s Superior Court of Justice said Leduc must submit to cross-examination by Roman’s lawyers about the content of his page on the argument that, “Facebook profiles are not designed to function as diaries; they enable users to construct personal networks… with whom they can share information about themselves,” concluding that Leduc’s Facebook page, “likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident,” The Toronto Star reported.

Assume this case took place in the USA: - What privacy rights can Leduc claim in order to maintain the privacy of his Facebook page? - Is there an expectation of privacy when one uploads photos, videos, or text to Facebook, Myspace, Twitter, Blogs, etc? - Should courts have the power to compel people to divulge the information on their Facebook pages? Should the content on these sites be valued evidence in a court of law?

Bagging Defamation for Good

By: Jessica Nahmias

A case a New Jersey judge deemed an “inherent tension between defamation law and The First Amendment,” was recently thrown out because of defamation protection in satire, The Smoking Gun reports. Three women filed a lawsuit against publishers Simon and Schuster, et al, for their appearance in the book “Hot Chicks with Douchebags.”

The book is a spinoff of the website Hot Chicks with Douchbags, which explores the “dark cultural trainwreck of hottie/douchy commingling.” Author, Jay Louis, known as “Douchebag1” on his site, says his site and book are about poking fun at “douche-[expletive] and the hotties who love them.”

The women whose photographs appear in the book filed a lawsuit claiming defamation, alleging their reputations were damaged because of their appearance in the book. The women were photographed at clubs and were not provided with, nor asked for, consent forms.

But recently, Judge Menelaos Toskos ruled that Jay Louis’ 2008 book was “replete with obvious attempts at satirical humor”, and as such, dismissed the case.

(C) 2003 Associated Press

Soccer star Christiano Ronaldo has been called a "douchebag" on the site by the author, Jay Louis

- If someone’s picture is taken with consent, and then later used in the context of satire, should said person be allowed to claim defamation if he/she feels his/her reputation has been hurt?
- What implications does the Judge’s decision have on defamation? How far can satire go without being considered defamatory?

Shielded by Shield Law

By: Jessica Nahmias

(C) 1973 Associated Press
Pulitzer Prize winning journalists Bob Woodward and Carl Bernstein at The Washington Post, May 1973

Even before Watergate and “Deepthroat”, journalists and the privacy of their sources have been a highly contested issue in courts of law.
And while New York State does have Shield Law, 14 states do not, including Texas.

A recent Houston Chronicle article reports that a bill was approved by a House committee in Texas, which was a compromise between media groups and district attorneys who have argued over shield law. The House committee voted 11-0 on a committee substitute version of the bill, which would allow journalists and their sources to retain “privilege against having to testify in court.” As part of the compromise district attorneys or trial lawyers would have access to already published material, however.

The Chronicle reports that the history of this particular battle harkens back to Texas prosecutors who argue that gathering evidence is more important than a journalist’s privilege to private sources. However the compromised version of the bill, which is supported by various Texas news organizations and would give journalists protection from revealing confidential sources, was passed after a 12-hour meeting, temporarily appeasing the parties involved, the Chronicle article said.

- Should all states have shield laws? Why or why not?
- As journalists, what do you feel is more important, protecting sources or cooperating with authorities?