Outline of Intellectual Property Law Concepts

These observations are based on my experiences as a writer. I am not an attorney. Seek an attorney for questions about specific situations. (See note a few paragraphs below for links.)

Intellectual property is, after all, “property,” and it has its own “properties,” just as does tangible property and real property. It shares with real property the feature that its future monetary value may be very different than today’s but differs in that it is not inherently finite.

Intellectual property law is expressed in both statutory law (such matters as copyright and obscenity) and common law (several of the common torts).

Many of the concepts are tricky, and the age of the Internet and other kinds of self-publishing (low cost and low revenue but potentially large audience) may necessitate rethinking of many of them. Therefore they have a bearing on effective political speech, and important concept for the rest of this site.  Some of the ideas presented here (and on successive links) are admittedly theoretical and conjectural but could come up more or less unpredictably in the age where anyone can make the whole world an audience. So it is well to outline them. 

Understand that these are conceptual outlines intended to support political and social debates. They are not intended to be definitive for individual situations. Indeed, the Internet is posing scenarios for which no one know for sure how new legal doctrines may evolve. For your own situation, please visit the professional services links page to find an attorney. You can also visit findlaw or Intellectual Property Law Firms sponsored link.   Web advertising and click fraud has suddenly become an important topic.

Statutory Law:

Copyright

The centerpiece of American copyright law is, of course, the Copyright Act of 1976, Title 17 of United States Code, Public Law 94-553, 90 Stat. 2541. It is printed by the Library of Congress in a green softcover, circular 92. The easier place to find this on the web is the Library of Congress itself. There have been many changes since then, such as Public Law 104-39 of 1995, regarding digital sound recordings. The authority of Congress to provide for copyright is explicitly contained in Article I, Section 8 of the United States Constitution' "The Congress shall have the Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and to Inventors the exclusive Right to their exclusive Writings and Discoveries."

Copyright infringement can result (in extreme cases) criminal penalties (similar to larceny, since it is a form of theft), and (more often) civil judgments, including seizure and destruction of the infringing materials (books, periodicals, web sites, movies, videotapes, recordings). Any party (such as a printer or duplicating business) participating in an infringement can be held liable regardless of knowledge of the infringement, although actual litigation against unknowing participants has been rather rare (although one duplicating service was burnt badly in 1991 for duplicating pirated study guides)

Probably the most controversial concept in copyright law is "fair use." Technically, fair use exists only as a defense to litigation, although its application is reasonably predictable. Limited reproduction of or, especially, quoting from copyrighted works may be done without permission, depending on (1) the purpose or character of the use, with a preference intended for educational and nonprofit purposes (2) the nature of the copyrighted work (3) the amount of material copied in relation to the whole and (4) the effect of the copying on the potential market for the work.

Important fair use litigation includes Harper & Row v. Nation (1985), Harper & Row v. Liveright (1982), Hamilton v. Salinger (1986).

Here are a couple of questions not yet clearly answered by available litigation: (1) Would a non-profit organization be allowed more leeway in a fair use determination than an individual acting on his own (presumably for profit)? Could the individual's overall business conduct affect a fair-use determination? Note that for-profit enterprises can claim fair use; most publishers have policies regarding permissions required for quoting. (2) Is the forwarding of a wire-services news release to an "educational" email list-server fair use?

Sometimes companies will protect proprietary material from claims of “fair use” by maintaining that (for example, software manuals) are “unpublished” and may not even be referenced bibliographically. This may be dubious, although companies certainly may protect trade secrets and any licensed materials. Even so, when companies write their own internal manuals companies must comply with copyright laws, and there have been a few lawsuits when employees have plagiarized materials from other companies or from previous employers.

 

It is much more difficult to use a concept of fair use with respect to music. In fact, in 2004 the 6th Circuit in Cincinnati ruled that rap music artists must get permission or buy a license for every sample included in their commercially performed or sold work, even (digital) samples that are unrecognizable to a reasonable person. This ruling seems to come from the DMCA and other federal laws enacted in the late 1990s against digital piracy. The case involved the 1998 move I Got the Hook Up from No Limit Films. 

Another interesting concept: what is and what is not copyrightable. For example, ideas are not copyrightable. Anyone can discuss in a book, say, the military sociology underlying "Don't Ask, Don't Tell." Also, titles are not copyrightable (but see trademarks, below). So, I can't, under federal copyright law, stop a movie studio (and, here, I'm speculating!) from making an Adam Sandler comedy called Do Ask, Do Tell instead of a serious historical study of individualism like my Do Ask Do Tell book. Nevertheless, some states have "unfair competition" laws that would prevent reuse of a title if it would confuse the public. A related controversy is the practice of "parking" Internet domain names so that a commercial interest would have to pay a hefty fee to use it. This is coming to be perceived as unethical and is likely soon to be regulated by federal law.

By the way, one does not generally need permission to give a bibliographic reference or even a url link on a website (there can be problems with a link internal to a site if it bypasses advertising that the site operator intends all visitors to see). There are rare exceptions, such as with classified documents or trade secrets, or “unpublished” internal documents of corporations or for customers. But in at least one case, a consulting firm KPMG has objected to private individuals to even simple links (at least in connection with criticisms of the company) so I won’t give the direct link here (you can figure out what it is). The WiredNews story is at http://www.wirednews.com/news/business/0,1367,48874,00.html. Also, there is the article “Withdrawal of the Reference: Rights, Rules, and Remedies for Unwelcomed Web-Linking,” from 49 South Carolina Law Review 651-693 (Spring 1998) by Walter A. Effross at http://www.law.american.edu/  (at /pub/faculty/effross/withdrawl.html) where many theoretical questions regarding traditional torts and linking are examined. Although on a site like doaskdotell.com most of the links amount to bibliographic references (like in a dissertation or term paper), sometimes, in Efforss’s view, there is unfair use of the target site’s reputation or marks (as in framed references) or the original site may give an unwelcome context (such as association with pornography) to the target. Effross suggests that a “traffic light” approach be developed by the web publishing software industry, where a “red” icon means no linking is authorized or licensed, and a “yellow” means only specific sites may link, and where green implies unlimited linking licenses. In at least one case, web publishers have received cease and desist letters merely for providing links (or other descriptive information) to other sites that contain allegedly infringing copies of a plaintiff’s materials, where the purpose of the publisher had been to indicate that the plaintiff was falsely advertising or promoting its products or services. The details are at http://www.eff.org/Legal/ISP_liability/20031016_eff_pr.php  Also, many major engines can index all combinations of words on a page, and the ranking may be based on the presence of other links to the page from other domains (even message boards), an observation that could potentially make unsolicited links an issue.

 

Here are some other major references:  http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/2000040401.html

http://cyber.law.harvard.edu/metaschool/fisher/linking/linking/link1.html  (old, 1997)

http://www.templetons.com/brad/linkright.html

http://law.richmond.edu/jolt/v4i2/cavazos.html

http://www.ala.org/Template.cfm?Section=ifissues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=77114  (important – Kelly v. Arriba Soft – the Ditto.com case)) with http://www.dontlink.com/

http://www.wired.com/news/business/0,1367,48874,00.html 

http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling_pr.php

 

 

But (Nov. 2005) Mark Cuban (Dallas Mavericks owner and a principal player in Magnolia Pictures and some independent film ventures) suggests that major news sites pay for links to their stories when advertising revenue results for the original content owner. This is a “win-win” that would discourage print content infringement, at least, and pay for links, which have themselves been controversial. Go to http://www.blogmaverick.com/entry/1234000550066876/ 

 

One concept that original content holders will be strict about is inline “framing” – opening a pseudo-window (or a separate frame or thumbnail – thumbnails themselves are controversial) on your page to present their content, especially if it bypasses advertising. In general, one should not use the “target = _blank” keyword in HTML when linking to another’s content.  Some companies have been concerned that deep linking provides a misleading view of their site, implies their endorsement to the linker, or bypasses material that they or advertisers want visitors to see. However, in the end, a simple link is like a bibliographic reference. Content owners should not place material in a public space that they do not want some visitors to find out of context.

 

There is an Australian website peekvid.com that reportedly (according to a story on NBC4 on January 23, 2007) offers links to downloadable pirated copies of movies, including movies not yet released. Because the site offers just links, it is more difficult for the MPAA to make a legal case to sue.

 

Walter S. Mossberg provides The Wall Street Journal, March 10, 2005, a “Personal Technology” column, “Google Toolbar Inserts Links in Others’ Sites And That’s A Bad Idea,” discusses the controversial Google “Autolink.” 

 

First Amazon and then Google caused controversy by offering total-book searching.  Google plans to scan most books (apparently not just those in public domain) and offer excerpts to users, with its Library Project. Google would not earn direct revenue, “only” advertising, but will pay a royalty if the user purchases a hardcopy or e-copy of the entire book through its site. Nevertheless, the Authors Guild and some other parties have filed suit claiming copyright infringement. One problem seems to be that Google is storing complete  book text on its own servers rather than publishers’ servers, and most of these are books that are now out of print.  In practice, the likelihood that an author or trade publisher will lose revenue or royalties due to free online display depends upon the kind of book. A reference book (or perhaps a book used as a reference like a cookbook) would seem to be more vulnerable to causing revenue loss through free searching than a fiction work or a detailed nonfiction prose narrative. Free display is likely to help sell books with great narrative value, since it is impractical to view a lot at one sitting. Still, it would seem to me that if more than a certain amount of text is offered (proportionally) royalty ought to be paid. This whole problem illustrates the many different writing paradigms, and the idea that some people are much more dependent than others on the idea of advances and income from every piece written. The major references on this are “Google Me!” by Cameron Stracher in The Wall Street Journal, Oct. 24, 2005; and a debate presentation in The Washington Post, Oct. 22, 2005, “The Digital Library Plan”: Mary Sue Coleman, “Riches We Must Share…” v. Nick Taylor “ … But Not at Writers’ Expense”.  Some references:  http://www.authorsguild.org/news/sues_google_citing.htm http://www.csmonitor.com/2005/0926/p03s01-ussc.html  A more recent reference is Kevin Kelly "Scan This Book," The New York Times Magazine, May 14, 2006.  Kelly suggests that search companies maintain a "No Scan" list of authors or publishers who do not want their works scanned (like the "do not call list" perhaps).  Another issue is that scanning make make other people mentioned in a book uncomfortably easy to find for free with search engines.

 

Related to this is a suit, described by Helena Spongenberg, in Europe by AFP against Google for compiling various clips from copyrighted sources and making money off of advertising. The story is “Group: Online Content Cannot Remain Free”.  

 

http://news.yahoo.com/s/ap/20051206/ap_on_hi_te/europe_internet  or http://hosted.ap.org/dynamic/stories/E/EUROPE_INTERNET?SITE=CAACS&SECTION=HOME&TEMPLATE=DEFAULT

 

Part of this article deals with the idea that the public should be willing to pay for “gold standard” content and is taking free content for granted. Are bloggers and content providers like me then part of the problem?  I provide my own content.

Generally, unclassified government documents are public domain, although there are some arcane exceptions, such as zoning or building code regulations when a local government makes a contract with a local publisher for publication rights (this has already been challenged in Texas).  

Copyright law for digital works has become more complicated by the DMCA, the Digital Millennium Copyright Act of 1998, which critics say compromises fair use, first sale and limited time concepts for digital works.   See http://www.eff.org/IP/DMCA for more.  One troubling provision is the “safe harbor” for ISP’s that encourages them (to reduce litigation risk and expense) to take down content or remove customer sites when there has been an alleged (whether substantiated well or not) copyright infringement. This portion is called Online Copyright Infringement Liability Limitation Act (OCILLA), or DMCA 512.  Wikipedia has a detailed discussion and some pro and con arguments as well as a fictitious scenario at this link: http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act   Search engine companies will take down specific search engine results under the "safe harbor" provision with proper good faith notification (it has to be verified; email alone is not enough). Most companies document this (Google's is under dmca.html). Takedowns may be reported to "chillingeffects.org" (below) and posted.  Google has a "terms_of_service" page in which it also explains that caching (which might be perceived as copying) can be prevented by a NOARCHIVE meta-tag and that it can remove caches on case-by-case requests.

A special concern with copyright is plagiarism, the “use or passing off as one’s own ideas or writings of another” (The American Heritage College Dictionary). There have been controversies when historians have closely quoted other writers without proper attribution or use of quotations. According to the PBS Lehrer hour on January 28, 2002, Harvard University strictly includes the failure to use quotation marks, even accidentally, as plagiarism and will seriously discipline any student for even one accidental infraction. There is also controversy as to whether trade publishers should withdraw books for credible charges of plagiarism, whether they have a responsibility to make these charges public, and whether a clearinghouse should be set up to handle this kind of problem. It is not clear how this could work in the self or cooperative publishing realm.

In April 2006 publisher Little Brown withdrew the novel How Opal Mehta Got Kissed, Got Wild and Got a Life by Harvard student Kaavya Viswanathan for excessive similarity (whether subconscious and unintentional) to novels by Megan McCafferty (such as Sloppy Firsts and Second Helpings), which Viswanathan had read in high school.  The new novel was popular with young readers and on the way to becoming a best seller. The AP story is by Hillel Italie, April 28, 2006, "Novel By Harvard University Sophomore Is Pulled From Store Shelves."   Viswanathan had worked with a book packager which had helped her develop the story.

In August 2003 the SCO Group announced that it would puruse (or sue) individual Linux users for license infringement. The details are at Sept 1 2003 Computer Business Review, “SCO Preparing Legal Action Against Customer” by Matthew Aslett, at http://www.cbronline.com/latestnews/62cbf9d13b40711e80256d880018c80f  The claim is that Unix code was illegally copied onto Linux and that any customer could be liable. It is not clear whether owners of PC’s that use Linux (even Mac OS X uses it) could be pursued. The is a bit similar to the Unisys gif problem discussed on this page. A story by Jonathan Krim, “Showdown with the Linux Gang: One Company’s Lawsuits Challenge Open Source Code,” The Washington Post, June 10, 2004, develops the story further. Servers (not just home users) that use Linux might be at risk for paying the $700 license fee, and it seems now that businesses that buy software could be liable for indirect licenses even when they buy from vendors in good faith.

One may not record movies, songs, performances, etc. and include portions of them in one’s work without permission. One should not use images of celebrities without permission (that is right of publicity, below). It is probably all right, as “common sense” (or perhaps “fair use”) to include brief incidental music excerpts or images at free (outdoor) public events or celebrations on a website as long as the use is non-commercial and the performers were not expecting to earn additional profits from their appearances.

In Britain, authors Michael Baigent and Richard Leigh of the 1982 book The Holy Blood and the Holy Grail, from Random House, are suing Random House for publishing Dan Brown's novel The Da Vinci Code (2003), which the authors claim unfairly expropriates detailed research presented in the earlier non-fiction book. Ideas cannot be copyrighted, but in Britain, at least, there is legitimate controversy about detailed factual research. It is not clear yet what effect the lawsuit could have in the United States. It could affect release of Sony-Columbia's film of the novel, at least in Britain, scheduled for May 2006. A judge in Britain (Peter Smith) turned down the plaintiffs on April 7, 2006 and since Britain has loser pays in these circumstances, the plaintiffs could have to pay up to $1.75 million in attorneys fees for both sides. (In the US, "loser pays" applies only in some cases; check with your attorney; there is a movement in general tort reform to encourage its use in the US to stop SLAPP and frivolous lawsuits.)

Work for hire is still another controversial topic. Employers own the copyrights to works created by their employees during the course of employment. Generally, employees may create intellectual property works outside of their employment with full copyright ownership of their own work, but employees may not pass along confidential information in these works, and there must be significant distinction between the work and what was done in employment. So a salaried computer programmer could write a textbook on programming techniques as long as they were generic and not specific to his own job. More difficult could be assessing “substantial similarity” of inheritable code itself. This is likely to be controversial (especially in the age of Internet self-publishing) and difficult to assess in many situations, when an attorney's advice should be sought. The work for hire provision of the Copyright Act probably provides informal support for the notion that in most circumstances a non-management salaried employee may own (outside of the scope of employment) his own "publicity rights" (although there are troubling proposals in Congress to define all salaried professionals as “management”).

Related to work for hire is the practice of making book contents searchable online (Amazon’s “Search Inside the Book) without specific author or publisher additional compensation, which might raise copyright issues with some kinds of books (“how to” books or cookbook recipies) where small excerpts could be valuable.

There has been controversy over the practice of many media companies in requiring freelance writers to agree to contracts selling all of the writers’ electronic reproduction rights for freelance contributions. The media companies to this by structuring their contracts as work-for-hire contracts. The argument is advanced that such practices violate the intent of the Copyright Act. The National Writers Union has especially vigorously protested this practice with write-in campaigns. As a legal (related to anti-trust and fair competition laws) and ethical principle, it seems that a media company should not insist that a freelance writer agree to resale contracts in situations where the concept for the article came from the writer and where the writer had invested his own money first to develop the concept. The publication should not be able to regulate where the freelance writer submits other work with non-compete clauses. On the other hand, for work in which the concept came from the publisher (that is, ordinary work assigned to journalists) this does not seem like an unfair practice. The dichotomy between a salaried writer and a freelancer writer on contract with a particular company would be similar to that faces by software developers, in those cases where the project was conceived and funded by the employer or publisher. In those cases, work-for-hire arrangements are not illegal or inherently unfair.

There has suddenly arisen a new wrinkle, the possibility of extending copyright-like protections to collections of facts as in scientific or economic databases. This is the proposed Database and Collections of Information Misappropriation Act (DCIMA, H. R. 3261). Conceivably this could threaten anyone with a bibliographic reference and quoted “fact” to litigation, although in theory I suppose I could claim “infringement” for my political concepts database under development. (Don’t worry, I wouldn’t, out of self interest.) This is dangerous departure from the tested notion that facts and ideas cannot be copyrighted. Perhaps some of the pressure for this comes from the movement towards Open Source. The EFF website reference is http://action.eff.org/action/moreinfo.asp?item=2857

(Piracy and illegal downloading of music and movies): This has been a particular problem in the age of the Internet, particularly through peer-to-peer-computing. Because of the Grokster opinion in 2005, software vendors and even ISPs face possible downstream liability if they knowingly abet in infringement (and copyright law, as noted, generally accepts the idea of downstream liability for middle parties.) Some ISPs, like book publishers, have adopted indemnification policies (see below) and now have started offering DMCA (Digital Millennium Copyright Act of 1998) copyright infringement forms for complainants to submit reports of alleged infringement. (According to EFF, ISPs apparently have safe harbor if they remove infringing material immediately upon a credible complaint; they may remove material without telling the domain owner, although this issue is still up in the air in the court system, as of June 2006.) The main area of infringement is music songs and movie piracy, as well as making or distributing pirated copies of software. Many people, especially teenagers, have trouble understanding why such downloads are and should be illegal. The Software Publisher’s Association audits businesses for compliance with software licenses.

ISP’s might be exposed to “contributory infringement” in copyright, trademark, defamation, and other IP situations if they have knowledge of the infringement. This has led to suggestions that ISPs (and even people who provide blogging space) not monitor their customers’ activities (“play dumb” or “play possum”). There might be more downstream liability concerns specifically for copyright than other torts because sometimes copyright laws are interpreted as holding middlemen responsible. This is all murky as there has not been a lot of conclusive experience in court, but this will surely change with all of the piracy cases. A good reference is http://www.bitlaw.com/internet/isp.html   There is a position paper by Jim Harper at CATO on this problem, Spring 2005, at http://www.cato.org/pubs/regulation/regv28n1/v28n1-5.pdf

A new concept associated with copyright is copyleft, a term from Wikimedia, at http://en.wikipedia.org/wiki/Copyleft, that is "a copyleft license uses copyright law in order to ensure that every person who receives a copy or derived version of a work can use, modify, and also redistribute both the work, and derived versions of the work."

Copyright law does not protect an idea, such as a story plot or theme or motivating element. The presentation or treatment of the concept is what is protected, not the idea itself. That concept is very important to novelists and screenwriters. However, sometimes creative "ideas" can be protected as trade secrets. This concept is important in the film business. Often studios will only look at scripts or treatments (even loglines) from third-party agents because they do not want to be exposed to the risk of accidentally taking a "secret" idea. The fact is it probably happens all the time anyway, particularly in the age of the Internet. Studios that run message boards warn the public (with disclaimers and terms of service agreements) that anything posted could become the property of the studio, so be careful about posting your own storylines on movie studio message boards (like TheWB). I have wondered if I jeopardize my ownership of my own scripts by posting them online, but one could argue that by doing so I can prove that I created them. The closer they are to events or concepts in my own life, the more protection they would have, although then they could infringe on the privacy of others (below). Several times I have seen unusual ideas conspicuous in my own writings (such as "vicarious living") appear in movies or television series, and this may not be a coincidence. Generally, one is not free to use "trademarked" characters from other movie franchises (like comic book characters) in new work. There was a famous case where Art Buckwald sued a studio for taking a story about an African prince. Here is a typical legal reference: http://law.freeadvice.com/intellectual_property/copyright_law/copyright_idea.htm 

Paraphrase is often suggested as an antidote to plagiarism or copyright infringement problems, but it should be done in good faith. Many news sites have disclaimers like "this material must not be published, broadcast, rewritten, or redistributed." The "rewritten" would seem to prohibit paraphrase in blogs. Ozlem Uzener and Boris Katz have a paper from MIT, "Non-Verbatim Infringement Detection for Text," at this link (PDF). The mention parallel relationships among words in a document, like "lexical attraction, association ratio" and "syntactic relationships like subject-verb-object patterns." This may be easier to detect in other languages that have strict conjugation and declension rules. Generally, a blog entry based on a story should try to mention other comparable stories, or at least provide some editorial or contextual insight not in the piece being "paraphrased." It should state the significance of the piece with respect to other issues. 

A couple of major cases indicate the complexity of "fair use"

Harper & Rowe v. Nation Enterprises (1985) Supreme Court ruling here.

X17 Inc. v. Lavanderia, Citizen Media Law Project, link here., where a gossip blogger posted other's Internet photos without permission.

Patent: A patent protects the inventor of a functional process or manufactured item. Patents are regulated by the U.S. Patent and Trademark Office. However, up to a point, software programs or “methods” may be patented.  This has caused some controversy, because sometimes a patent-holder may be able to restrict the uses of his process by the end-user by charging the end-user for additional licenses or by requiring the intermediate software vendor (using the process) to properly license the specific customer uses.  This is more complicated than the usual issue of copyright and software licenses (a legal compliance issue in the workplace).  An example is the controversy over Unisys’s patent of the compression algorithms used in producing .gif files for the web.  See http://burnallgifs.org/ or David and Rhonda Crowder, Building a Web Site for Dummies, IDG Books, 2000, p. 94. Unisys gives its side of this at http://www.unisys.com/about__unisys/lzw/.  Apparently, according to burnallgifs, this patent expired in the United States on June 20, 2003 but is still valid in Europe and many other countries.

Another controversial example concerns Acacia Media Technologies Corporation, which in 1991 patented a straightforward technique for compressing digitized video. Acacia has recently been demanding royalties from adult entertainment companies for streaming video use, and has only more recently gone after cable and satellite companies, AOL and other large ISP;s, and even universities. Now, of course, the matter is in court, and the patent office has been criticized for granting patents too easily for digital products (such as methods in java libraries) given the nature of Internet technology. Jonathan Krim has a story, “Protecting Air or Protecting Property: Information Age Invents a New Problem,” The Washington Post, Dec. 11, 2003. See also http://www.fightthepatent.com/v2/Acacia.html

Apparently there are some copyright issues with caching and archiving. See the discussion below under my term "leveraging".

There has been some confusion over copyrighting of sports events. Certainly videos of MLB, NFL, NBA, NHL, etc. professional sports games are copyrighted and the major league sports franchise owners often charge subscriptions or small fees for access or viewing of some videos on their websites. There has been some controversy, especially overseas, over whether Chess and Go or similar game scores (maybe even poker or bridge, as in a casino event) are copyrighted. It appears that they probably are not. Bobby Fisher at one time may have tried to copyright his games. Here is one reference from the University of Washington. A writer or publisher would seem to be on safer ground if she keeps the collection of scores rather limited (fair use) and adds her own analysis or commentary to the games, or can make specific analytical or comparative points about the games. Commentary by other masters would be original intellectual property and would be copyrighted.  See comment under right of publicity below.

There is some anecdotal evidence that search engines sometimes remove specific searches of parties who do not like to be named on certain sites, possibly because recently employers have started looking up applicants with search engines. However I cannot find specific documentation of this practice on search engine help sections. This is similar to "safe harbor" take-downs of searches under the DMCA, above.

Trademark: A trademark is a phrase (trade or service name) or graphical entity that identifies a business and its products or services. Trademarks are protected under federal (and state) patent laws. Official registration with the U.S. Patent and Trademark office is not legally required, but in practice makes it much easier to uphold an otherwise “common law” mark, and companies serious about enforcing branding nearly always register them.  Generally the USPTO will recognize a mark only for a product or service that is marketed to the public in some significant repetitive volume, in such a way as to represent the legitimate concept of a “brand.”  One variation of trademark is “service mark.”  When registered, a trademark can be accented by the symbol “®.” Trademarks may be “weak” (commonly used words or phrases, like Todd Beamer’s “let’s roll” or like “do ask do tell,” if anyone tried to trademark either of these) or “strong” (indicative of specific branding).  The U.S. Patent and Trademark Office generally will allow the same wordmark to be used (with a trademark) by different entities in different kinds of businesses (there are up to 16 of these). Book titles cannot be trademarked, although an identifier of a series of related books (like the “for Dummies” [silly!] books from IDG) can be.  Abandonment of a trademark application would probably negate a future common law trademark infringement claim. Recently, there have been rather silly battles between large companies protecting their brand-names from distraction by small businesses, such as amazon.com and a women's bookstore in Minneapolis, or the Wall Street Journal and a New England kid's newspaper, the Small Street Journal. Large retailer, publishers or movie studios may fear that the opportunities for huge profits from a "public splash" can be lost to competition from very small businesses!   It is possible to get into trouble with an "assumed name" for a business registered in one state if there is another business that uses the same name with a federal trademark.  There have been problems (as with ISS v. Epix) in which Internet domain owners have been forced to relinquish domain names to trademark holders which the domain holders did not know to exist and which had not set up "obvious" domains matching their trademark names on their own (so small domain operators must exercise considerable diligence in choosing domain and business names to avoid infringement). [Note: Epix appears to have won this case, inasmuch the Clinton Street Theater has had to move to a different domain at considerable cost; visit http://www.epix.com/ and http://www.vpix.com/ for details; Later, it appears that ISS prevailed with the District Court and the Ninth Circuit. This is a pretty complicated case. Here is ISS’s discussion. Here is the opinion link.).  (“Generic” sounding names would be “weak” wordmarks and would not be as likely to constitute accidental trademark infringement; however businesses with “weaker” wordmark names sometimes may file assumed names in all fifty states in order to anchor claims to exclusive use of their names, an expensive procedure.)   Trademarks (and workmarks) are registered according to category of product or service, and domain name holders may sometimes want to consider indicating the type of product or service as part of the domain name.  Trademark infringement, like copyright infringement, can result in cease-and-desist letters, judgments, and orders to destroy all offending materials.

I have wondered if ICANN should set up separate TLD suffixes for each kind of business recognized by the US Patent Office (it would have to reconcile this to international practices), and encourage the use of the .name TLD suffix for individuals. Of course, .biz (as opposed to .com) is being promoted as a suffix for “real transactional commercial use” only, and it is quite expensive.

There have been a few cases where corporations have aggressively protected workmarks, even individual letters, when common sense would make one wonder if the corporations really ran business risk. Wordmarks do not always comprise the beginning of a title (as with the IDG “for Dummies” books). Possibly this eagerness to litigate comes from a misperceived sense of fiduciary duty to shareholders or from corporate bureaucracy.  Adam Liptak in the New York Times reported a suit against the publishers of Oprah Winfrey’s “O” magazine by a German publisher (Ronald Brockmeyer)of a fashion magazine with a similar name (and Brockmeyer claims ownership of the “O” workmark in the U.S.)  In 1996 McDonald’s tried to stop Mary Blair from opening a shop in England called McMunchies (that is “Mc” prefix was held to be trademark-protected). However letters and prefixes probably are weak marks in American law. If the letters or prefixes are embellished in a trade dress the protection claims should be much stronger.  Recently, a software developer was pursued by Microsoft was pursued for the way he used his own name (whatever his right of publicity, below) in his domain name for http://www.mikerowesoft.com/, although phonetic likeness as pronounced (apart from spelling) sounds like part of the problem. (He could have avoided this by using his entire name.) The new domain is http://www.mikeroweforums.com/

Another example is the August 2003 trademark lawsuit by Fox News Channel against CNN Reporter Bob Franken (and Penguin Publishers) for using the phrase “Balanced and Fair” in the title of an upcoming book “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.”  A look at the USPTO’s TESS database shows “Balanced & Fair” as a Fox trademark (from 1995) but not with the word “and.” It seems that the phrase is generic and common and that Fox’s action here is frivolous. But, again, a few companies are very aggressive and pro-active in protecting what they perceive as their own marks. Caroline E. Mayer reports in The Washington Post (“No Bend in Brand Names: Big Corporations’ Litigation is Changing Trademark Philosophy,” Jan. 29, 2003) that Kirby, a vacuum cleaner manufacturer, has challenged repair business owners for merely listing it in Yellow Pages ads (perhaps because the ad suggests dealership or the ability to do unauthorized warranty repairs); and Intel (which owns the “Intel Inside” trademark on personal computers) has challenged a trademark application by a psychic for a business called “SpiritInside,” claiming that the “Inside” component distinctly belongs to Intel’s brand (and it has challenged other applications using “Inside”). This seems to violate common sense, and furthermore trademarks are supposed to be issued within (up to 16) distinct business categories.

The United States Patent and Trademark Office (http://www.uspto.gov) is now (2005) allowing some special characters to be included in wordmarks. 

Recently (April 2000), the US Patent and Trademark office has suggested that individuals should use “.org” desginations on their  domain names, and that “.com” is intended for commercial organizations. Apparently .com should be used only when the individual files his business with the IRS as for-profit in the 3 out of 5 years rule.  This may eventually have a bearing on domain-name disputes. The reference is http://www.uspto.gov/web/offices/tac/notices/guide299.htm.

In November 2000, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted a list of additional domain suffixes.  These will include .aero, .biz (for business), .coop, .info, .museum, .name (for individuals), and .pro (for professionals). These suffixes may be available by Spring 2001. It is not completely clear how qualification standards will be enforced. “.biz” will be very expensive and available only to “legitimate” businesses that actually process volumes of transaction.  (As of late 2002, companies have started reproducing their sites under .biz, but relatively few consumers look them up this way.)  As noted above, the same intention had been defined for .com back in 1994, but there has never been any attempt to prevent non-commercial (“self-promotional”) use of .com.. Existing .com names would probably, in practice, be protected by grandfathering, although a web site with a “.com” suffix but without commercial business paradigm would probably be in a weak position in any administrative domain name dispute (following ICANN’s low-cost administrative dispute resolution steps) with a “real” business. However, the new TLD scheme could, for future names, relieve some of the trademark issues (as with the Epix case) and even smaller existing owners of .com names could be pressured to adopt “.name” suffixes for legal self-protection eventually. There would remain the question as to how search engines will handle these, although many of them already handle “pseudo-individual” subdomains such as those on America Online (AOL) Hometown.  A Long Island Newsday article on January 14, 2000 complains  “.. dot-coms are, in a sense, being overused and no longer say much about the person or business using them. A dot-com can easily be the personal Web site of a writer, such as Dolinar.com [or doaskdotell.com, mine!!- ed] as it can be a commericial site for the newspaper he writes for (Newsday.com).”  Network Solutions has pointed out that (as of late 1999) about 2/3 of all dot-com domain names either are unused by content or used by content with little customer interaction or genuine commercial intent (as opposed to individual “self-promotion”).  Perhaps, in the future, domain-name disputes will consider whether the alleged infringer has a legitimate, potentially profitable commercial operation behind his or her “.com” domain, or perhaps the new “.biz” will draw away the controversy.  There will be definite constraints on the use of some TLC suffixes (.pro will require a professional license, for example).

 In April 2001, ICANN reported that eventually there may eventually be enforcement of the original idea that .org should refer to non-profit organizations (after .name is available to individuals, as noted above) and even that .com (as wellas .biz) refer only to legitimately operational businesses, with eviction of current non-complying holders possibly by 2003 or 2004.  Possibly at some point in the future all free editorial or literary content would have to use a different TLD, and possibly (when individually owned) a main name indicative of a personal name (as well as a .name TLD).  There has been concern by some in Congress that in the future companies will become much more aggressive with trademark claims against entities using domain names remotely resembling established trademarks or brands. It is unclear whether future trademark holders (that is, for marks that are not registered yet) could evict users of established domain names (and similar names with all TLD suffixes) for domains that do not conduct business capable of branding.   

Another trademark controversy has arisen out of the attempt by smaller companies to stage “ambush marketing” at the Super Bowl or similar events. See the story over the controversy between the NFL and Subjex, in “NFL sacks local dot-com’s promo,” Minneapolis Star Tribune, Jan. 25, 2001, article by Melissa Levy.     

Some domain name v. mark issues remain unresolved. What happens if a person with a name identical to a celebrity’s wants to use that for his domain name (see “right of publicity” below)?

Another possibility is that a company uses a domain name as an internal mail server only, and then finds out that people misspell the name in email and it goes to another domain, giving away confidential information. Domains, especially those with short names, should always have automatic bounce mechanisms in place to prevent the email from other businesses with coincidentally similar domain names from being disrupted. However, a domain name used only internally could not claim trademark infringement from a similarly named domain (say one with a real web address for content) because by definition trademark involves publicly promoting a brand.  Companies sometimes avoid using these names as domain names because they fear confusion with a similarly spelled by very different content-concept site and believe that the general public will not understand the confusion that can come from spelling of names or from the way names and slogans are used in public discourse.

Televangelist Jerry Falwell won a trademark claim against a gay activist who set up a domain with the name “falwell.com” which the 4th Circuit in Richmond (Judge Claude Hilton) ruled as confusingly similar to the registered name “Jerry Falwell” and that the domain name had been set up in bad faith, to confuse traffic intended to visit one of the evangelist’s own sites. In this case, Jerry Falwell’s First Amendment rights, underneath his trademark claim, seem legitimate, even though one may be offended by his message. See http://www.cnn.com/2004/LAW/08/10/falwell.website.ap/index.html in the CNN Law Center Aug. 10, 2004.

Here is an interesting case in 2005 about the Hershey candy company’s objecting to the user of its trademark image and wordmark in a title of a book about the Hershey family (it is also the name of a city in Pennsylvania). Mark Scolforo, “Hershey Seeks Injunction on Book Cover,” http://hosted.ap.org/dynamic/stories/C/CHOCOLATE_LAWSUIT?SITE=MILAN&SECTION=HOME&TEMPLATE=DEFAULT

Sometimes people have had trouble using their own names as domain names if their names match those of companies or celebrities. For example, Jeopardy (TV quiz show) contestant Morgan Chase had a fight with a bank over using his own name. Would the ".name" suffix provide a solution? How would search engines treat these since they are obviously personal (although search engines seem eager to index personal blogs and profiles on social networking sites).

The Washington Nationals baseball team and Major League Baseball find themselves in a dispute with Bygone Sports in Cincinnati, Ohio, which had registered a trademark by the name Nationals in 2002 based on the old Nationals team for clothing. "Washington Nationals DC" has been registered as the wordmark for the baseball team. It would seem that this ought to be acceptable since a sports team is a different line of business from clothing, except perhaps that the clothing mark was based on the historical team from the past (remember that the name of the old team was changed to Washington Senators in the 1950s, a team which moved to Minnesota in 1961, with a "new" team from 1961-1971, which then moved to Texas). Thomas Heath has a story in The Washington Post, Sect E, Feb. 22, 2006. The main issue seems to be whether the Nats will be allowed to use their own name on their own apparel merchandise.

In early 2006, it appears that trademark searching technology has been advancing rapidly. Some ISPs (such as Verio) now offer much more comprehensive trademark research facilities to subscribers without extra fees than before. One such service is ActiveIP (SearchSmart), both of which are themselves trademarks and servicemarks. You can learn more at http://www.activeip.com/about.html  .  I expect to take their training soon and can report more about this soon. Again, you can also do reasonable searches at http://www.uspto.gov  and follow the links; generally the information is current within about a month and is updated most mornings Tue-Sat.

Despite the concerns over domain names and trademarks, David Kesmodel of The Wall Street Journal reports on Feb. 22, 2006, sec B, "'Drop catchers' Buy and Sell Web Names Others Let Slip."

A related problem is called phishing, which is the intentionally deceptive misuse of a commercial trademark or wordmark, sometimes for identity theft or fraud purposes, especially “attempts to trick account holders to give their account authentication details away.”  A software company, Netcraft (providing the definition just quoted), is offering services to look for abuse of workmarks and slogans on the Internet, including in spam. The eWeek story by Larry Seltzer, “Internet Security Firm offers Anti-Phishing Service” is at http://www.eweek.com/article2/0,4149,1426008,00.asp

Another important concept is “DomainPark” (parked domains) in which the domain name owner is paid for hits or sales resulting from placing of ads at the domain by a third party. This is popular with common word names (airlineticket.com), and it is not likely to result in trademark infringement as long as “common words” are used for the names.  Sometimes these domain names are sold for high prices because of the potential for quick advertising profits. I am not aware at this time that a third party could take away an existing domain for this purpose from an existing domain name owner if the domain is renewed on time, but some companies are offering “next registration rights” subscriptions for backordering domain names. The relevant news story is Bob Tedeschi, “E-Commerce Report: High prices for domain names are one helpful sign that the economy may be turning around a bit,” The New York Times, March 1, 2003, p. C5.

Donald Trump created a stir with his NBC Apprentice series when he filed a trademark application for his dreaded words: “You’re fired,” by only to sell on clothing and novelty items, not for general uses (the phrase is too generic).

There is a bill, the TradeMark Dilution Revision Act of 2005, HR 683, which would reduce the requirement that a trademark holder have been harmed—the holder could litigate in advance of dilution of the mark, even possibly in a different line of business. Go to http://trademark.blog.us/blog/2005/03/14.html#a1628 or http://www.doaskdotell.com/refer/tradedil.htm  This would seem to affect domain names that use common words normally regarded as “weak marks” in today’s trademark law. It apparently would not affect domains already in use before a company gets a new mark.

The ACLU (March 2005) has lobbied Congress to protect speech that parodies companies by making fun of their trademarks: http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=17508&c=42

We notice that for Richard Warren’s 2002 book The Purpose-Driven Life, publisher Zondervan-Inspirio claims a trademark registry (®) for the “purpose-driven” phrase in the title (at least on the bn.com publisher’s notes). According to uspto.gov, the registry occurred in 1996. Again, generally commonly used words are not supposed to be suitable for strong trademarks, and I was a little surprised to see this. (They may be more suitable for book series or franchises.)

In Canada, a gay pride group is trying to wordmark the word "Pride", again, a term so generic that I think this is inappropriate. Story: http://www.365gay.com/Newscon06/07/073006pride.htm 

A couple more links about domain names and trademarks:  http://www.hospitalitynet.org/news/4021087.html  http://www.law.pitt.edu/nathenson/articles/dnc.htm#II.B (“squatters, parasites, twins and poachers”)

While I personally disapprove of “parasites” and “squatters,” I want to point out that some domain name and trademark disputes may involve matters of public literacy. That is, a literate and critically thinking person realizes that one word can have more than one meaning (because English borrows from many languages), and very different words can have similar spelling as can unrelated names. Different companies in different lines of business may have the same or similar names. Unfortunately, market and bottom-line-driven mentality forces companies to look at the “lowest common denominator” in what may attract or confuse potential customers. Education improvements, especially in reading comprehension and literacy, would reduce the urgency of some trademark and domain name disputes. Public schools should educate high school students on theses issues, as with other ethical matters (like copyright infringement and file-sharing).

Despite the controversy over domain names and trademarks, Jon Swartz wrote a report for USA Today, April 14, 2006, "Sellers of Internet addresses surf for -- and get -- some big payoffs: Sales of 5,851 domain names drew $29M in '05".

Software licensing:  Businesses sometimes get into trouble inadvertently by not keeping proper receipts or documentation to show that their associates have the proper licenses to use all of their software copies at their workstations. Software publishers use the Business Software Alliance (BSA) to obtain warrants and search business premises and to sue or settle for infringements. For a detailed discussion, see Brian O’Connell, “Compliance Stormtroopers at the Gates,” Computer User, Feb. 2002.

Confidentiality: Trade secrets: A trade secret is a set of business information items or plans which, if revealed, could harm the business in relation to its competitors. Employees of a business may not use trade secrets for their own purposes or release them to the public. A related concept is "insider," a individual whose commercial (securities trading) activities can be regulated because of his inside knowledge of his employer's business plans.

The social networking site Facebook faces litigation for trade secret compromise by a college student from a rival ConnectU. The AP story by Jay Lindsay on July 24, 2007 is "Lawsuit seeks to shut down Facebook," link here.

Obscenity and other illegal content

Obscenity refers to intellectual property (writing, pictures, recordings, etc.) which appeals primarily to the prurient interest and is, according to community standards, utterly without redeeming social value. The community standards concept is troubling with a medium like the Internet (which cannot be excluded in a particular area the way a book or movie can).

Indeceny refers to content which is sexually explicit in a patently offensive way, regardless of redeeming social value. But the Supreme Court overturned the Communications Decency Act in 1997.

Harmful to minors means, essentially, "obscene with respect to minors." See discussion on the Child Online Protection Act (now under federal injunction) for details.

Child pornography, in federal law, refers to images (usually visual or images but sometimes text) of minors (under 18) in explicit or simulated sexual activities. Federal law, discussed more below, deals only with visual images (photos, movies, sometimes animation or cartoons). Some states, such as California, include verbal passages intended to incite others to produce visual child pornography. See http://www.adultweblaw.com/laws/childporn.htm and http://www.efc.ca/pages/law/cc/cc.163.1.html, or http://en.wikipedia.org/wiki/Child_pornography#United_States  . It is not necessary for genital or breast parts to be nude if the visual presentation is intended to be laviscuous. Also, and this is important, material can be illegal child pornography without being obscene (although obscenity does factor in to a new 2003 federal law, below). Under federal law, computer images that intentionally suggest minors having sex are also considered illegal child pornography, and this is controversial since minors obviously need not be used to produce such images.. Also, (also of the Child Pornography Prevention Act of 1996) when animation, cartoons, or actors over 18 are used to produce images that look like child pornography, the resulting images meet the federal legal definition of child pornography. It should be noted that in 2002 (Ashcroft v. Free Speech Coalition) the Supreme Court ruled the CPPA unconstitutional.  A good reference, by Michael Landau (“The First Amendment and ‘Virtual’ Child Pornography”) of Gigalaw can be found at http://www.gigalaw.com/articles/2002-all/landau-2002-07-all.html . Also, see

; http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/  or   http://www.law.indiana.edu/fclj/pubs/v55/no1/mota.pdf  or http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-795 .  A "Law and Order SVU" segment in Feb 2007 presented the question of whether scantily clad pictures of children could be considered child pornography when there is no actual explicit depiction of genitals or acts, and the show presented the idea that this depends on intent (it turned out that the pictures were taken in conjunction with illegal testing of a pesticide in an apartment building).

 

 Congress went to work trying to “fix” the CPPA. There was H.R. 4623 The Child Obscenity and Pornography Prevention Act, filed Apr 30, 2002, is described at http://www.aclj.org/News/Read.aspx?ID=557 http://www.aclu.org/Privacy/Privacy.cfm?ID=10364&c=252  also at http://www.govtrack.us/congress/bill.xpd?bill=h107-4623    )   This eventually led to  another bill filed in 2003, H.R. 1161, the Child Pornography and Obscenity Prevention Act of 2003, which tries to narrow the language to “indistinguishable images.” http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HR01161:@@@L&summ2=m&  Finally this e evolved into a bill that (to meet first amendment questions) focuses largely on obscenity, USC 1466A “Obscene Representation of the Sexual Abuse of Children” / 2251 “Sexual Exploitation of Children”/ 2252 “Material Involving the Sexual Exploitation of Minors” / 2252A  “Material Constituting or Containing Child Pornography” aka PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) / 2256 (the latest federal definition of child pornography), / 13032 (“Reporting of Child Pornography by Electronic Communications Service Providers”). Go to  http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1476#5  All of this became the new body of law (it is questionable whether it addresses all of the first amendment issues) and on December 1, 2005 the Associated Press reported that a man in Richmond, VA had been convicted under the law when he received cartoon images and drawings showing sexual abuse of children at a Virginia Employment Commission office. http://www.dailypress.com/news/local/virginia/dp-va--childpornconvicti1201dec01,0,4123312.story?coll=dp-headlines-virginia    It is technically illegal to possess even one such image, either a photograph or even a “deleted” image on one’s computer hard drive, even in private. Stings have been set up to entice child pornography users on computer networks, and persons have been imprisoned for participating in trading child pornography over networks. (A major sting involving Yahoo! and a Houston federal prosecutor was reported by Wired in early 2002; like chat room stings on Dateline, these have gone on for several years now.). Child pornography law does not provide an escape clause or affirmative defense of “serious social value.”  It does appear that material is illegal under this concept, however, only when the intention is to show or closely depict actual (as by simulation) genital (or breast) sexual activity (or at least “sexual” nudity) involving minors. Although most prosecutions are based on cases of images of real underage persons engaged in sexually explicit activities, the laws in some states would seem to allow persons not actually involved in sexually explicit images of children to be targeted, as by business competitors or by eager district attorneys seeking convictions. Some motion pictures have strongly suggested sexual activity involving minors, however, without prosecution. Generally, operators of “adult web sites” (even with the adult verification envisioned by COPA) can easily run afoul of child pornography laws if they are not “careful.”

 

A major issue is the possibility of doctoring legitimate photos. "Realistic fake photos challenge child porn prosecutors," on CNN in Feb. 2008, here.

 

The main "moral" justification for making mere possession of child pornography a crime (sometimes even as a strict liability offense) is that "consumer demand" drives the production of it and the subsequent abuse of minors. (Similar logic exists with drugs or controlled substances laws.) However, some of it is produced free, and some minors, as teens, are in a practical sense more competent to make their own decisions than others. Those observations have been used by some libertarians as to challenge the draconian nature of our current child pornography laws.

 

An important case is Charles Rust-Tierney, former president of the VA ACLU, convicted and sentenced in 2007 for possession of several hundred images in several web visits in 2005-2006. Wikipedia story here.

 

The formal federal definition (from U.S. C. 2256) ( http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002256----000-.html )

 is

 

18 U.S.C. 2256 – “CHILD PORNOGRAPHY” DEFINED

Child pornography is defined as any visual depiction, including any photograph, film, video, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where

·         the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

·         such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

·         such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

 

The Record Keeping Requirements are at

http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002257----000-.html

 

Here is a state-by-state table:  http://www.lorenavedon.com/laws.htm

 

In 2003, (as an implementation of the CPOPA of 2003), producers of visual pornography will have to maintain records that prove that actors are 18 or older. See http://www.cnn.com/2005/US/05/17/childporn.regs/index.html     (This site has no visual pornography and no visual nudity).

 

As Wilipedia points out well, many other countries (even Canada, Britain, and especially New Zealand) make some forms of textual child pornography illegal. In a few countries it is actually illegal to maintain private diaries that contain such text.  Generally, these laws refer only to specific sexual acts being described in detail in print. In a few cases there have been concerns that novels or fiction or movies that suggest such activities but that don’t explicitly depict them still can become illegal in some countries. For example, not only Lolita but even Shakespeare’s Romeo and Juliet, often taught in high school, could theoretically be viewed as child pornography, Generally, fiction, drama, films of legitimate artistic merit (like these) are considered legal even in these countries. It is possible that questions could be raised about the origin of the work, whether the author was already established.  This argument was raised in the overturning of the 1996 CPPA law (above) in the U.S.  Again, most people view “pornography” as the depiction of specific sexual acts or body parts, particularly in a lewd manner. The Webster definition (check http://www.m-w.com) , however, emphasizes the depiction of erotic behavior with the intention of provoking arousal in the reader or viewer. All of this reflects the different cultural values at issue in trying to come up with a common standard of acceptable public display in a pluralistic society where not only religious values but the ability to make and maintain family commitments, in the face of distraction, are serious practical issues for many people.

 

It is noteworthy that often the applicable age for child pornography laws is 18, even in countries or states for which there is a lower age of consent. Sometimes it does not apply to legally married couples (where one or both persons is under age; that could be a theoretical defense for Romeo and Juliet even with the 1996 law).  A minor or person under 18 sometimes is prohibited from making or distributing pornography of himself or herself. 

 

On Thursday, July 19, 2007, The New York Times (p A1) ran a story by Julian Sher and Benedict Carey, "Study of Pornography and Molesting Stirs Debate," this link: http://www.nytimes.com/2007/07/19/us/19sex.html?_r=1&oref=slogin (may require registration and purchase). In one government study, 85% of those convicted of child pornography offenses admitted to illegal sexual activity with minors, even if never arrested or convicted. The pattern seems to occur also in Canada and Europe. The samples chosen, however, may be misleading. 

 

Other references:  These EFF references are simpler to read and comprehend than many of the others.

http://www.eff.org/Misc/Publications/Mike_Godwin/kids_and_cyberporn_godwin.article

http://www.eff.org/bloggers/lg/faq-adult.php (note the discussion of record keeping requirements for production and distribution (commercial/non-commercial) of certain kinds of explicit photos or videos of performers)

 

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252----000-.html

 

Also, http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252---A000-.html (2252A), "Certain materials relating to materials constituting or containing child pornography."  (also called the "PROTECT" Act, as above): the controversial provision (3)(B) reads:

"(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—

(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct"

was added in 2003 and thought to make it possible to prosecute for making R-rated films suggesting teen sex, or even talking or trying to promote child pornography. It is true that one can be prosecuted for trying to distribute child pornography that one does not possess. On May 19, 2008 The Supreme Court upheld the section 7-2, but Justice Scalia said that the statute is quite narrow, and only applies to images or video with explicit sex, able to convince the viewer that sex with a minor really takes place in some physical sense. I discuss the opinion on blogger here.  The PDF for the Supreme Court slip opinion is here.

 

 

Offenders are typically caught in stings, where prosecutors run or enter user groups and chat rooms and pose as distributors of kiddie porn (in a like manner prosecutors or police often pose as minors in an attempt to lure pedophiles or ephebophiles into making arrangements to meet persons whom they believe to be minors), or when prosecutors seize illegal distributors and find the names of “customers.” Sometimes arrests occur because of overseas investigations. Generally, one can be arrested from an investigation initiated overseas if the violation would be illegal in the United States.

 

There has been a rapid growth of webcam-related child pornography, often started by teenagers themselves when they set up dynamic websites showing pictures of themselves through webcams, and connect to sites that lead them to “customers.” Kurt Eichenwald has a shocking and detailed account (“Through his Webcam, a Boy joins a Sordid Online World”) of this development in The New York Times, Dec. 19, 2005. The newspaper included a lengthy disclaimer reassuring the public that it did not violate laws against possessing illegal images while doing its journalism. One observation is that many kids enter this to make money from their bedrooms; often they are kids in families with job loss, divorce, and other common problems. The moral question of culpability arises, since the teenager has “intentionally” offered his or her own images on the web (which is illegal). Anyone associated with such a venture can be prosecuted, including customers who pay for illegal images with credit cards or Paypal.  One question would be the downstream liability of companies that enable the business and process the payments; they may be immune, but often there are state laws against promoting child pornography or illegal sex through communications devices (below). It is important to note that the teenagers themselves can be and sometimes have been prosecuted.  The New York Times link is http://www.nytimes.com/2005/12/19/national/19kids.ready.html?hp&ex=1135054800&en=5eb58e4d773204ee&ei=5094&partner=homepage but the user needs a subscription to view this article (for a small fee once archived). The story is so sordid that I need to reassure readers myself that I do not purchase, view or possess or otherwise handle such illegal images myself, and I do not visit such websites and chatrooms. NBC Today show reported the story on Dec 21, 2005, interviewed the writer Eichenwald, and also the boy, Justin Berry, who is now 19 and a federal witness. Apparently Mr. Berry could have been prosecuted.

 

Eichenwald followed up with another story on Dec. 30, 2005, “Child Pornography Sites Face New Obstacles,” on p. A17 of The New York Times.  Many portal sites that directed visitors to illegal webcam sites set up by minors have shut down, and others have removed links to illegal sites. The story points out that “customers” may prefer webcam sites because they can ascertain that they are talking to actual minors and not to police or volunteer decoys in stings (as in the recent NBC “Dateline” reports). I must add that I never knowingly provide links to sites set up for illegal purposes. For the record, I’ll give the link for the National Center for Missing and Exploited Children: http://www.missingkids.com/

 

On Sunday, Aug. 20, 2005 Eichenwald started a 2-part series "Dark Corners: With Child Sex Sites on the Run, Nearly Nude Photos Hit the Web". The legality of barely clad images of minors is controversial, and involves a complicated test that tries to determine the "intent" in publishing the image. There is a controversial site called Play Toy Entertainment. It is conceivable then, in my view at least, the the closing scenes of the film Little Miss Sunshine could raise legal questions.

 

Both Justin Berry and Kurt Eichenwald appeared on the Ophrah Winfrey show on Feb. 15, 2006. Justin said that he had forfeited a lucrative book deal by appearing on Oprah. Justin also said that Internet filters do not work against kids determined to beat them (this is relevant to COPA). Mr. Eichenwald said that teenagers should not be allowed to own webcams for their own computers, that they generally do not have legitimate uses, at least not in a kid's own room. He talked about a conversation with a retail clerk in which the clerk told him that the main use of webcams was "porn." Of course, many experts advocate not allowing kids to have computers in their own rooms, although they are becoming increasingly important for legitimate uses, like homework (especially in AP courses).

 

USA Today followed up with a story by Wendy Koch on Oct. 17, 2006, p 13A "In shadows of Net, war on child porn rages: Despite tough new measures, authorities say it's outracing attempts to control it." The story makes a number of claims or points. The Internet Crimes Against Children Task Force has reportedly identified 6.5 million pictures in the past two years, whereas only 3600 had been identified by 2003. The National Center for Missing & Exploited Children (missingkids.com) feeds pictures to some large companies to scan customers for matches. It also provides a mechanism for reporting sites with child pornography to ISPs, which could lead to sites being removed even if there is no law enforcement action. Credit card companies are supposed to be gearing up to let police know about child pornography sites. The story claims that web hosting companies are not required to report child pornography on their sites (unlike ISP's). That may be true for sites hosted overseas in countries (122 of them) where child pornography is legal. But in the US, larger ISPs near always say in their AUP's or TOS policies that they must report known child pornography to law enforcement and shut down sites, when complaints of abuse are actually verified. All major providers now have abuse departments for reporting illegal content. Apparently, it is also illegal to "approximate" nudity involving minors with scanty clothing, suggesting certain body parts. 

 

A Long Island politician Jeffrey Toback, a Nassau County state representative filed suit in New York State court against Google claiming that it facilitates and profits from child pornography. It claimed that Google has paid links to sites containing child pornography. Google insists that it has a safe search and that it removes sites containing child pornography from its search results, as it gets complaints from various watch groups (reported by Chilling Effects). Here is the link: http://www.nbc4.com/technology/9166072/detail.html   It would seem questionable whether the legislator has real standing to sue.

 

The July 29, 2007 New York Times has a disturbing story by Jennifer Steinhauer, "Parents' Ire Grows at Pedophile's Unabashed Blog," here: (requires purchase)

The story concerns a particular person (Jack McClellan, a rather common name to search for that would have many duplicates) who was "run out of Seattle" for a blog in which he describes pedophilic fantasies and posts pictures of individual children, though clothed. The reaction to him is similar to the reaction of the pedophile in the movie "Little Children", which is mentioned in the story. There was fear that his family would be attacked in Seattle. The police in Los Angeles, where he moved, say that there is nothing illegal because there is no pornography, and he has never been convicted of a sex offense. However, there is a movement in California to make it illegal to post a picture of a minor, even if clothed, in connection with a sexual solicitation or sexually explicit content. It would seem to be illegal in many states to post a picture of someone else against their consent (except incidentally from a distance in a public space) if the obvious intention is to target them for sexual interest. The Peachhead Families site is here. The CBS news clip in Los Angeles from June 14, 2007 is here. Here is another blog about it from Ohio. The ABC "Good Morning America" News Story is "Mothers Fight Back Against Pedophile Web Site; Law enforcement says there is little it can do to stop it," July 30, 2007, here. One message board comment on ABC was "Anyone who promotes exploitation of young children does not deserve to have the freedoms that we have. I bet legal beagle is not a parent." But another comment seemed to be a caricature of the whole problem (another example of offensive speech until read more closely).

On Aug. 3, 2007 Newsweek ran a detailed article "A lad-abiding pedophile? Jack McClellan blogs openly about where best to meet girls under the age of 12. The local authorities are watching him, warily. Should just talking about such matters be enough to get him locked up?" here. That story characterizes him as a "self-described pedophile." Of course, a state of being is not illegal; only actions are illegal. The idea that talking about a disturbing topic could be illegal is itself legal nonsense. "Disturbia!"  A live vote on MSNBC on that page of over 85000 responses by Aug. 7 on "Should Jack McClellan be locked up for blogging about pedophilia, including places to see young girls?" showed a 70% yes response. Again, that's totally wrong legally. If he made threats, stalked, took and showed pictures without permission (which allegedly he did), or displayed obscenity (or child pornography) that would be actionable and prosecutable. The Newsweek report suggests that he was rating meeting places of his "LG" 's.  In most cases, listing public "places" would not convey meaningful information. Authorities have noted that NAMBLA defends its advocacy on First Amendment grounds (there is nothing wrong with advocating changing age of consent laws through normal legislative channels), but the gay community does not want to be associated with that group because of the perception that it defames gays and links them, in people's minds, with inappropriate interest in minors. The McClellan situation, however, is entirely "heterosexual" (as have been most of NBC Dateline's "To Catch a Predator", the chatroom stings, covered here.)

Even so, on Aug. 3, a circuit court in Los Angeles issued a civil restraining order, which was served on him at LAX, to stay 30 feet away from those under 18 and take no pictures of minors. (See story above.)  Somehow McClellan's motives seem related to limelight and resentment of what he perceives as "oppressive" social norms; what is sounds like he is sharing is pain, like John Mark Carr with his false confession in 2006.

 A company has been purchasing domain names based on supposed pedophiles, and then setting up sites relating to their supposed activities. Off hand, this sounds like it could risk libel litigation--the web publisher would need to be sure that all facts presented were true.  It's complicated; there is the "opinion rule" and I wonder about the legality of calling someone a "pedophile" online if he has not been convicted, or at least arrested with a trial pending (as in one of the NBC Dateline stings). It sounds risky. Comments?  Check my contact link before and send an email and I'll post on the reader's page. I may make a blogger entry soon. Mob rule is not a good reaction. The visitor can check this "child safety club and blogs."

My blogger entry on this is here.

CAUTION:

 

A sixteen year old in Arizona was charged with possession of child pornography when Yahoo! monitors detected downloads of known child pornography onto his family computer. Police showed up at the family home at 6 AM in December. The boy thought he was looking at adult pornography.  For a while there was a concern that hackers could have placed the pornography on the computer. He could have faced 90 years in prison. Prosecutors allowed a deal where he plead guilty to distributing Playboy-like materials to other minors.  The ABC story is "Prison time for viewing porn?" at http://abcnews.go.com/2020/LegalCenter/story?id=2785054&page=1  (I believe that in some states it is illegal to possess pornography, even adult pornography, in one's car when on school premises, just as it is illegal to possess otherwise legal weapons.) The judge finally agreed that he would not have to register as a sex offender. The boy's family does not allow Internet connections in the home because "computers are not safe." ABC has a related story "Closing the Door to Internet Predators: How to Protect your Home Computer from Illegal Access." http://abcnews.go.com/2020/story?id=2791407&page=1  The possibility that a home computer user could be charged because of undetected activities of a hacker is disturbing, but actual incidents seem to be very rare. However, parents are definitely at legal liability risk (and even prosecutorial risk) what their kids, unbeknownst to them, do on computers in their homes. Some states regard possession of c.p. as a "strict liability offense." This was apparently an ABC 20/20 News story on Jan 12, 2005. Home and workplace users should eyeball subject lines of emails before opening them, and place emails that appear illegal in ISP or employer provided "report spam" folders when possible without opening them. Possession of a single c.p. image on a home or work computer, even if from opening a page with embedded html or MIME, could be illegal if the user knew or believed that it contained illegal content, although prosecutions from isolated incidents like this seem to be very rare. Deleting the image does not remove it from the hard drive. Of course, some users tend to open emails very quickly without noticing subject lines. Also, it is a good idea to spam-report emails with "no subject" and not open them. (I wish that AOL and other ISPs would simply not allow them to be sent.) Some such emails probably would result from computer viruses or worms and could have spoofed sender-ids.

 

Another man (Morton R. Berger, a 57-year-old former high school teacher) in Arizona was sentenced to 200 years for possessing twenty images of child pornography. Arizona law required sentences for each count to be served consecutively for this offense. This is longer than the sentence that could have been incurred in any other state or according to federal sentencing guidelines. The story by Linda Greenhouse in The New York Times appeared Feb. 27, 2007, here (may require subscription). The story concerns the refusal of the Supreme Court to hear the appeal on grounds of cruel and unusual punishment.

 

On Monday April 9, 2007 Adam Liptak wrote a sidebar ("Locking Up the Crucial Evidence and Crippling the Defense: A law meant to protect children rewrites the rules for the accused" in The New York Times, p. A10, about the Adam Walsh Child Protection and Safety Act, which characterizes child pornography as so toxic that defense lawyers may examine it only in a secured facility. This can hamper defenses, such as the possibility that a hacker could have placed it there (a grave situation to be sure), or that the images are computer-generated and not real kids, in conjunction with the overturning of the law cited above. My blogger entry on this is at http://billsinternetsafety.blogspot.com/2007/02/be-wary-of-possibility-of-strict.html

 

Most chatroom stings catching sexual predators seem to be prosecuted at the state level (based on the state in which the law enforcement agent posed as a minor over the Internet), but in some cases federal prosecutions occur, as with USC 2422, the "enticement" statute, where it is unlawful to use any interstate commerce medium to entice a minor into sexual activity, or to entice travel, or to actually do the interstate travel for criminal purposes. In practice, this statute seems to be limited to cases where there is a clear intent for specific criminal behavior. http://www.fbi.gov/congress/congress01/gallagher062101.htm  http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002422----000-.html   An example of the statute occurred as a result of the Aug. 2005 Dateline sting in Virginia, at NBC4:  http://www.nbc4.com/news/9256973/detail.html

ABC "Good Morning America" reported on Feb 16 2006 that middle school kids were making "fight club" videos and posting them on the Internet, and that a few kids had been arrested and processed as juveniles for disorderly conduct. Again, self-published Web materials depicting illegal activities can be used as evidence in court.

 

People have been arrested for turning in film for development when child pornography was found on it. However, in Randy Cohen, "The Ethicist" column, "The Boss's Computer," The New York Times Magazine, Dec 4, 2006, p. 30, Cohen advises a computer technician that he should not report child pornography that he finds on a work computer to the police, because the circumstances are too ambiguous and risky for everyone; he says that the technician is under no legal obligation to do so. (Other attorneys might disagree, I think.) 

 

Freestudents blog reports a case (2007) in which a sales clerk in Texas was arrested for selling a dildo from a shop "Something Sexy" in Lubbock, Texas. She could be required to register as a sex offender.  In Phoenix, AZ a teenager was almost forced to register as a sex offender for showing Playboy to another kid, and in Utah two minors may be forced to register for consensual sex -- with each other, not with adults.

 

A related issue, then is solicitation. There has been concern in a few states that laws (or at least bills) could cause First Amendment protected posted sexual information to be viewed as indirect sexual solicitations of minors, and inadvertently cause downstream liability for ISPs or for persons hosting guest books and comments or blogs by others. A couple of references (Illinois, Kansas, Maryland) are available from EFF: http://www.eff.org/Censorship/Internet_censorship_bills/Foreign_and_local/IL/il_sb747_95_aclu.analysis  and http://www.eff.org/Censorship/Internet_censorship_bills/Foreign_and_local/MD/

A typical law is Virginia’s, at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-374.3  Here it would be helpful if the adverb “directly” were used in the statute to narrow it to what I think legislators really intended. As it is, one could get into a Socratic discussion of “purpose.”  Speech could have First Amendment protection, but not just for an unlawful purpose. Ironically (in contrast with COPA), commercial speech, where the purpose is clearly defined to be profit from a credit third party, might not be as exposed as the free content of an unsupervised individual. If the purpose is less bureaucractically constructed political debate, fine, but does the debate have to be narrowly crafted to a particular cause? Then it loses objectivity. One can go on with this with all kinds of speculative padagims. The external circumstances in the speaker’s life could matter, apart from the speech content itself. At least, an individual speaker should always have a disclaimer that any initiated return contact should be for lawful purposes, and not behave ,in a manner that shows that one would actually answer any illegal return solicitations (such as some of those sent by spam).

 

Here are a few sites for parents concerned about protecting their children from exploitation (by chatrooms, webcams, pornography, or anything else):

http://www.ftc.gov/bcp/conline/pubs/online/kidsprivacy.htm

http://www.cyberguy.com/content/badguys.htm

http://www.softforyou.com/safety-tips.html  (one of the best pages)

One of the most prudent ways right now is to limit the sites that immature kids can see to a specific pre-approved list. Larger ISPs (like AOL) provide this capability. Then try the filters. At a certain point, kids (by the time they are teenagers) need to have the ability to understand mature-level information that they may find through search engines in context of a larger whole. Kids need to learn to recognize the difference between subject matter and the inappropriate method of presentation of some subject matter in a public space (that is, often, pornography), (as well as inappropriate contact with strangers on the Internet). Of course, middle and high school English courses teach this by teaching the context of literature in other historical periods (Romeo and Juliet is the obvious example), but the need is to learn the meaning of larger context as soon in life as possible given the world we have today.

 

Although many of the laws regarding illegal content are worded mainly to target content that is produced and displayed for profit or for directly commercial purposes (and although the government maintains this in defending some of the laws against constitutional challenges), it is clear that the self-publication of certain materials by individuals for expressive or recognition but non-monetary purposes can bring on some theoretical risks not experienced when larger companies deal with the same materials. This can even be the case with fiction, screenplays, poems, and the like, where there is a chance that others may interpret the material as indicative of the writer’s intentions or may perceive that others associated with the writer could be affected. The risk of actual harm to others is remote and more theoretical than practical.

 

There is also an issue with misleading domain names. USC 2252B makes it illegal to use a misleading domain name to entice a child into viewing material that is "harmful to minors." This would appear to be related to COPA.

 

Hate Speech, Drug Information, Weapons Information

It is likely that there will be legislation trying to limit hate speech, and the dissemination of weapons and drug information (such as the proposed Hatch-Feinstein Methamphetamine Antiproliferation Act of 1999), and the constitutionality of such legislation would be dubious. For example, with respect to "hate speech," it sounds reasonable to suppose that an "inductive definition" could be developed in a manner similar to that used for obscenity ("I know it when I see it.")  Similar concerns would apply to publishing material deliberately intended for illegal or destructive use (such as information on how to manufacture of deploy weapons of mass destruction, or to overthrow the federal government), although First Amendment law generally would say that this may only be illegal if it presents an “immediate threat of lawless action.”  Tort law recognizes negligent publication, the provision of incorrect technical instruction that cause injury (or death) to the customer if followed. (Here is a typical law firm's explanation.) A recent (3/2004) example is a recall and disclaimer by Southern Living magazine for publishing a recipe that, if followed, could cause household kitchen fires (even cookbooks can pose risks!) There is controversy today over whether ISP’s (Internet Service Providers) could be held concurrently liable for these offenses without a chilling effect—are they utilites or are they publishers?

Common law concepts (not dependent of specific statutes, but upon public notions of equity and fairness):

Publication: The transmission of a written (or electronic) message to at least one other person who understands it (for purpose of libel and invasion of privacy). For other purposes, the term means the offering and distribution to the public of a completed piece of intellectual property. Usually, a piece of writing cannot have legal consequences unless it is presented to at least one person. (There are rare exceptions. In Ohio, a man on probation was convicted for pandering when a probation officer found a diary of fictitious child pornography in his home; conceivably similar situations could occur with drug information or weapons.) See also the definition at my vocabulary link.

Another meaning of the concept of "publication" however is the placing of content in a public space where any member of the public can view it for a fair market price, or for free (as is often true of the Web).  The term could also apply when material is placed in a space in such a way that only a known list of people can see it (as a corporate Intranet, or whitelisted blog or social networking profile).  (The related term is "whitelisting").

Torts:

Libel: This concept refers to publication of written false, defamatory statements about another (living) person or corporate or organizational entity. ( “Slander” is the oral form of libel.) Truth is an absolute defense to libel in the United States (although a few states have statutes requiring that the author have behaved in good faith). (There is some controversy about this in Britain and other European countries, although the Peter Zenger trial in colonial New York in the 18th Century should be relevant.) There are qualified defenses (or "qualified privileges") such as self-protection and neutral reporting, or the Audubon Privilege (Edwards v. National Audubon Society, 1977).  Whether a statement is “defamatory” may depend on community standards or general societal values as well as the subject’s livelihood. For example, it would be libelous to falsely claim in published writing that a particular member of the U.S. Armed Forces is (“subjunctive mood”) in a homosexual relationship (even with an adult civilian).  

A serious concern is "indirect libel" in fiction, if even one reader can identify a poorly disguised (renamed or unnamed) character (and if that reader did not otherwise know about the implied defamation). Important cases are The Bell Jar and Touching, Bindrim v. Mitchell (1979).

Another point is that a false defamatory written (or oral) statement need be made available to one person (say, someone's boss or spouse) to instantiate the possibility of libel (or slander). In the context of libel, “publication” means a written statement to at least one other person who understands it (it could be an email or a letter), whereas generally “publication” refers to making intellectual property available to a large universe. See more discussion at my “vocabulary” link.

It is permissible (under First Amendment protection) to parody or to express unfavorable opinions about a public person under the "opinion rule" (also called "fair comment"). However, there sometimes is controversy over where to draw the line between reporting “fact” and opinion, as when a newspaper reporter writes an unfavorable review of a restaurant. See the case Pegasus v Reno Newspapers (1999) http://www.gannett.com/go/newswatch/2002/december/nw1206-3.htm  The restaurant owners would subsequently take out an ad in the Washington Times claiming that all small business owners can be treated by the press as “public figures” and harmed by unfavorable publicity.

Libertarian columnist Deroy Murdoch notes that a person who refers to a person acquitted from a crime by reason of insanity as if he were legally a felon might be construed as libel. This has been advanced as an argument for the idea of a verdict of “guilty but insane.” 

Reposters of putatively defamatory material previously published by others on Internet newsgroups, chat rooms or discussion boards are probably protected from liability (see the notes on the Rosenthal case in July, 2001 at the dadt chronology or http://www.eff.org/.   Generally, Internet postings that express concern about the behavior of public figures or of corporations in a responsible manner (and that don’t divulge legally confidential information), even if the concerns could not be conclusively validated, would be protected by the “opinion rule.”  However, writers (even in Internet blogs or for small publications) should be wary of disclosing “observed” behavior of other persons (even public figures) that the subjects reasonably behave is private and irrelevant to the public. On the “Judge Judy” show there was a case where a college newspaper writer was assessed a judgment of $5000 for disclosing that an interview subject, a musician, had used marijuana in his presence, when a hair follicle drug test did not confirm (for a 51% “preponderance of the evidence”, which is a lesser standard than “reasonable doubt” for a civil defendant to meet) that the interview subject had actually used illegal drugs within the reasonable past. This situation might also lead to invasion of privacy claims (next section).

There have been recent (late 2005) media reports about incorrect derogatory information about individuals (especially politicians and political candidates) in online encyclopedias and blogs offering free content, often run by unpaid writers. Often these sites have legal disclaimers. It would sound like liability for libel would exist, even if lawsuits against free content providers have been relatively rare. A recent incident involving apparently inaccurate information on Wikipedia on John Seigenthaler, AP story by Dan Goodin, at http://hosted.ap.org/dynamic/stories/W/WIKIPEDIA_RULES?SITE=PASUN&SECTION=HOME&TEMPLATE=DEFAULT There have been concerns that large amounts of disparaging postings in an election season could lead to new attempts at regulation, and there are also concerns that the Federal Election Commission will have to regulate some blogging regarding political candidates and parties.

The law recognizes a lower standard of capability by the press or media in the case of a false statement against a public figure. In this case, actual malice must be shown to sustain a libel claim. Generally, corporate officers are not considered public figures in this regard (I think they should be, for conflict of interest reasons!!).  The relevant case is Santa Barbara News-Press v. Ross (1989-1993; 1994), which the Supreme Court refused to hear in 2004.  Even here, the statement must be false (for example, that a particular corporate officer was investigated for embezzlement or insider trading when it was just another party, even if there was no conviction)

European countries tend to recognize a concept of "blood libel" where whole groups can be stigmatized.

There is an interesting story about a libel suit filed in late 2005 by Brittany Spears against US Weekly, at http://hosted.ap.org/dynamic/stories/P/PEOPLE_SPEARS?SITE=ALOPE&SECTION=HOME&TEMPLATE=DEFAULT

A professional golfer has filed a libel suit against a Miami law firm, claiming that a vandalistic defamatory posting about him on Wikipedia originated on the firm's computer. The posting would appear to have been intentionally made to harm his reputation. The "Sports Illustrated" story (2/22/2007) is here.

"Fair Report Privilege" encourages journalists to use official public records and government agency reports. Reprinting false defamatory information already published by others, even if attributed properly, could expose one to a libel claim (even if this is rather infrequent).

Mike Hiestand, of the Student Press Law Center, National Scholastic Press Association, gives some valuable analysis in "Fair report privilege: A valuable, pitfall-laden defense," Feb. 5, 2003, here.

Autolibel or “self-libel” (or self-slander if verbal) in a Socratic speculation (as in a fictive presentation) can sometimes present problems. My own William and Mary expulsion in 1961 for calling myself a “latent homosexual” (given the values of that historical period) provides an example. The military, according to federal law, can treat certain statements as indicating a propensity to break military law (against homosexual conduct) as (according to a rebuttable presumption doctrine) as predictive or real future conduct, the legal basis of the notorious “don’t ask don’t tell” policy. Since so far this has stood up at the appellate level in court, could this happen in other areas (like with teachers) or even in the interpretation of vaguely worded criminal statues dealing with intent or solicitation? This is a disturbing example of where a statute set up for sensitive areas like the military could have an impact (as a legal or constitutional precedent) in other previously unrelated areas. 

The law does have a built in bias that persons must protect their reputations even against somewhat irrational biases of others, particularly with fiction, which presumably is viewed as "entertainment" and is more likely to be perceived according to cultural prejudices of the reader, a reality than an author is expected to respect. (The exception occurs when a literary work is really well known and established enough, eg, "Romeo and Juliet"). Therefore, if a novel or movie portrays someone unfavorable with respect to some problem and that person is identifiable (even if not named) that target could probably win a libel judgment against the author and publisher or distributor. The "fiction" paradigm would likely extend this notion to self-libel and allow the legal idea of rebuttable presumption to take over.

Imagine, for example, that a college student on an ROTC scholarship writes a play in which a character that closely resembles him is portrayed as having engaged in homosexual acts. The military probably expects that that person would sue for libel if someone else falsely portrays him as engaging in homosexual conduct. Therefore the military can use the play as a credible statement that the person has a propensity to engage in homosexual acts, according to the 1993 Defense Authorization Law. This law could set a bad precedent for other areas. Suppose a teacher writes a play in which a character identifiably resembling him becomes involved with a minor and is punished as a sex offender. The incident did not happen in real life, but according to this reasoning a school district could "rebuttably" presume that the teacher has a propensity to engage minors if provoked and fire the teacher (even under doctrines like Tinker and Pickering-Connick). Because of this reasoning, it is even conceivable in some states that such a play could be regarded as an indirect criminal solicitation, if the writer cannot show a legitimate "purpose" in writing the story or play.  See also "first amendment in reverse" below. 

This issue also comes up with "bragging" about illegal behavior on social networking sites (like myspace.com). Such postings can be used as evidence in court, and might be prejudicial even if they were factually untrue. Or, such content may be objectively legal but be viewed by employers as disloyal to the sensibilities of customers or stakeholders and indicate unsuitability for the job, as if the posted or published comment had been made in an actual conversation at work. A self-publisher or poster cannot always presume "literary" respect and associated freedom from censorship that is expected in more conventional publication. 

Employers are particularly concerned when they find examples of this practice ("self defamation") by job applicants. Examples would be self-produced statements or videos showing underage drinking or drug use. This has been reported in the news media since about the beginning of 2006. One reason could be that employers fear legal liability should some sort of accusation be made later against the employee, even if factually untrue.  In general, employers are likely to follow the "military model" above with respect to any behaviors that are problematic in their specific work environments (such as cheating, that would affect suitability to work with money or securities). One job applicant found that he did not get calls from recruiters until he removed a spoof about resume cheating from his profile.

Libel Tourism:  This is a practice where foreign business interests sue authors or publishers in a country favorable to plaintiffs (Britain) without the material having even been published in that country. This has suddenly become a legal controversy. Blogger discussion is here. The book in question is (American author) Rachel Ehrenfeld 's “Funding Evil: How Terrorism Is Financed and How to Stop It.The New York Times op-ed on p 27, Oct. 11, 2007, "Home Court Advantage" by Michael J. Broyde and Deborah E. Lipstadt  is here  (may require registration and purchase).

Blacklisting and libel: Another concern in this area is "private investigation" and companies making lists of names of individuals and companies as parties to be "avoided" to sell. For example, various companies do this for landlords for perspective tenants. The important concept is that whatever is alleged about the particular party is factually true. For landlords, for example, that the applicant was previously evicted.  More companies are starting to offer such "services" for fees on the Internet. Several companies and organizations offer sex offender lists. That is OK as long as the lists are drawn from state-maintained lists of convicted sex offenders -- so far (as of 4/2006), it seems that they indeed are.  There would be a concern if a company developed its own criteria for putting people on a particular "blacklist." The underlying legal issue would still probably be whether the allegation on the list about a particular party is literally true (there might be a false light privacy concern, below). For example, a company could make a list of people who participate in pornographic videos or write pornographic or "adult-oriented" blogs, on the theory that such a person should not be hired to work with children, even though the person's activities are themselves perfectly legal and non-criminal. The company would have to be very sure that every person on the list actually does what is alleged and is not misidentified. (In this case, there probably is not a privacy issue unless the target had used a pseudonym, which might imply an expectation of privacy; anonymous speech is often viewed as constitutionally protected; this could even vary from state to state.)  This is not a good idea for amateurs!  I do not engage in anything like this! During the McCarthy era (up into the early 1960s), it was common for "suspected homosexuals" to be blacklisted in many applications; the police themselves created these lists when they raided gay bars and published the patrons' names in newspapers.  See First Amendment in Reverse, below.   

The blacklisting-libel axis comes to mind with a recent proposal to develop a "civil registry" of suspected sex offenders who have not even been charged with a crime. This was proposed by the Ohio legislature and was published in the Toledo Blade on August 29, 2006, at this link. The law appears to specify a procedure where a county prosecutor, the state attorney general, or a victim could ask a judge to declare someone a sex offender even without a formal civil or criminal complaint. Presumably a declaration could be based on a person's having contacted an undercover police officer (or even Perverted Justice volunteers) in a chat room when looking for minors, or even be based on a persons own reckless statements on the Internet. It is even conceivable it could name out-of-state residents at some point. It would work in a way similar to Ohio's Megan's law. "The person's name, address, and photograph would be placed on a new Internet database and the person would be subjected to the same registration and community notification requirements and restrictions on where he could live." This law has gotten buzz on the Internet because of an entry of the Blade story on Drew Curtis's fark.com. The legislation has been moved out of committee but not yet passed the Ohio legislature.

A story by Sharon Coolidge in USA Today on Oct 5 2006 indicates that the law is in effect. The link is this.  According to this report, the law would allow a district attorney to register "sex offenders who can no longer face charges or be sued because the time allowed for either action — the statute of limitations — has expired." Hamilton County prosecutor Joe Deters filed a motion in court (to be heard Dec 6 2006) to register a priest accused of abuse in the 1980s. I have been concerned that the law could be applied to people who make potentially self-incriminating statements on the web that do not result in criminal prosecution. 

Jaqueline L. Salmon, of The Washington Post, reports on Dec. 4, 2006, "Herndon Warned of Accused Pedophile: Victims Groups Make Door-to-Door Visits," here, that "members of two groups representing victims of abusive Catholic priests" went door-to-door with 38-page packets in Herndon, VA (Fairfax County) with information about accusations against a 56-year-old priest by the diocese of Wilmington, DE. "Community notification: Protect your children from a credibly accused sex offender" was written on the cover. The diocese had disclosed the names in its own weekly newspaper. The group is called SNAP, "Survivors Network of those Abused by Priests." The websites are http://www.survivorsfirst.org/ and http://www.bishop-accountability.org/ . The priest had apparently worked as a substance abuse counselor in Virginia but had surrendered "his license as part of a settlement with the Virginia Board of Counseling in 2003," after he was suspected of becoming "personally involved" with teens he was counseling. It is important that he has not been charged with or prosecuted for a crime, let alone convicted of one, as far as is known. (Therefore his name won't be repeated here.)  What the group is doing would seem to be legal, since what it reports is factually true as it reports it and of public interest. Lawyers may want to weigh in on this. (The group reminds one of the vigilante group trapping predators in chat rooms and getting them busted by law enforcement, Perverted Justice, as reported on NBC's "To Catch a Predator" series, discussed here.) This story also reminds one of the civil sex offender registry proposed in Ohio (paragraph above). One other legal point: it could be that "self-defamation" on the Internet (as has happened on some social networking sites, of great concern now to employers) could give a group like SNAP legal grounds for its own private "vigilante" neighborhood notification. Did SNAP remember to skip the specific house that the priest lives in? To put this in perspective, note that about the same time the Guardian Angels has been warning residents in SE Washington DC about a rape suspect who has not been apprehended.

 This is a good place to mention that there a companies like Reputation Defender and Naymz that offer to track online reputations and try to clean them. My blog entry on it is here. Of course, that doesn't do anything about mail or in-person campaigns. This leads to the next topic. 

Invasion of Privacy: This tort refers to publishing private (and, generally speaking, offensive) information about a (living) person and inflicting emotional injury or causing the person to lose economic or personal opportunity. The fur major variations of invasion of privacy follow:

1-Disclosure of Private Facts: The publication of highly offensive private information (even if "true") about a person. There is controversy about whether a person's life can become irrelevant with the passage of time. Mewshaw v. Dresbach. See Richard Goldfarb and Gail E. Ross, The Writer's Lawyer, Times Books, 1989, p. 133.  The Mewshaw book was Life for Death (Avon); here is a typical reference to the book. However, in that case the court quoted Dean William Prosser: "(O)nce a man has become a public figure or newsworthy, he remains a matter of legitimate recall to the public mind to the end of his days."  However, according to Goldfarn and Ross, some courts have ruled that criminals who have served their sentences do have some privacy rights if they do not continue to voluntarily place themselves into public purview.     

2-False Light: The publication of information which is literally true but which tends to misrepresent the person's character. An example would be reporting that a person was standing on the street in front of a building that happened to be a "crack house."

3-Misappropriation: Using a private person's name of likeness for commercial advantage. (Man v. Warner Bros.)

4-Intrusion: Intruding upon a person's property.

First, I would wonder about a December 2006 issue of National Enquirer with the tabloid headline, "Who's Gay .., And Who's Not: The Ultimate Hollywood Tell-All." It would be hard to say if this falls under libel (when untrue) or invasion of privacy, and if the legal standards are different with celebrities. There have been lawsuits against tabloids (especially overseas) from celebrities in the past over this issue. Yet kids will see these tabloids in supermarkets when with their parents, and believe that making this kind of stuff up on Myspace.com is a cool thing to do.

The common law tort regarding publication of private facts requires that the published facts be "highly offensive." However, all states have statutes that extend the coverage of invasion of privacy to the "widespread" publication any irrelevant facts about (usually) a person who has not sought publicity.  The development of the World Wide Web make keep “semi-controversial” (but not really legally offensive—like religious or sexual orientation leanings) facts about a person’s associations (such as with gay groups) available to the public through search engines without the person’s awareness, since universities, non-profit organizations, and even Internet self-publishers can keep listings up on the web indefinitely at very little cost (with no need for justify through operating revenues, which used to provide a brake on indefinite publication). It is not known whether future courts would hold this as a form of invasion of privacy, and whether some day people will be asked to sign releases before they are even mentioned on the web in conjunction with certain organizations! (Again, the public “issue” importance of the person’s association however would also be weighed. The overwhelming volume of search engine hits, and the common-name issue would also be factors.). We used to see similar concerns when gay groups (or gay churches) televised their proceedings and asked people who did not want to be televised to sit away from cameras; this is a little less common today (although there are a few known cases of people being fired after being seen on television at gay events). This kind of possibility could become important for members of the military, although appearance at a “gay event” does not by itself create the legal presumption that the servicemember engages in “homosexual conduct.”

Invasion of privacy claims (unlike libel claims) usually require the widespread publication of a fact to many people (as in a book, periodical, newspaper, or web site, and perhaps a list server). It is probably necessary that a significant number of people be able to identify an unnamed person to uphold an invasion of privacy claim, unless the few person(s) who identify the subject are important to the subject.

The major defense in invasion of privacy actions is that a person is a public figure with respect to a particular issue. A media outlet may report private facts about a person if they are relevant to an issue in which the person voluntarily associated himself. For example, it could report that a publicly outspoken gay activist was employed by the Boy Scouts. The better known the person (such as the president), the more privilege a writer or media outlet has in reporting his private activities.

Here is a possible problem. A person becomes temporarily known with respect to a controversial issue, and then is forgotten. Years later, and after the Internet has made self-publishing and broadcast practical, a web operator presents that person's story in order to support a political argument. The person has difficulty with employment or a relationship as a result. Was his privacy invaded according to this tort? It is far from clear how litigation like this would turn out.

Another recent issue is school teasing and bullying. High school students have sometimes set up websites to tease or bully other students. This activity may in some cases amount to both invasion of privacy and libel. Untested is the idea that Google or other popular search engines can make anyone a “public figure” and provide an invasion of privacy defense. But speech intended only as harassment and not as constructive issue debate arguably ought to become legally actionable (teasing itself is not under our current legal system). School districts (or employers) should have policies against such sites even though they are created with individual resources. The unsupervised nature of this public speech, while protected under the First Amendment, seems to become an issue, too. On the other hand, public teasing of politicians or major public figures has long been accepted. This problem was presented on ABC “Good Morning America” on May 6, 2003. The reader may want to follow the website Western Applications’ School Scandals.  The Western Apps company writes to me (11/16/2004): “The website program will now permit people to delete messages which they believe contain copyrighted materials, unlawful or unprotected speech, etc., whether it is their post or anyone else's post, by clicking a "Notify Moderator" button.  Registered members also are issued a certain number of "Instant Deletes" which they may use as they please (if they don't want to wait for the "Notify Moderator" process.  We believe that this will be the first "self-moderating" website of its kind. Soon, ConsumerScandals.com will be started, which will provide a forum for people to discuss products and services.”

There have been instances where consumers have set up criticism websites concerning companies, which sometimes will issue cease-and-desist letters or subpoenas to get the sites shut down. In cases where consumers have used a variation of the company’s name to draw viewers, the company may be able to claim trademark infringement. This area is likely to be explored further in litigation, against the First Amendment.

There is another way that false light invasion of privacy might occur. Sometimes activist groups have been known to publish names of people who work for businesses that they consider objectionable. The best known example is probably abortion clinics. But another problem has been animal rights activists targeting not only research laboratories but also companies that do business with these laboratories. Shaun Waterman has a United Press International story (The Washington Times, May 23, 2006) “Bill ties animal rights, terrorism: Aims to close third-party targeting, Internet loopholes” concerning the apparent targeting by animal rights activists of companies that do business with places that experiment on animals, and even try to target employees of those businesses on the Internet. The House Judiciary Committee is considering legislation to deal with this problem. This would seem to be related, at least conceptually, to the cartoon problem: businesses can be targeted for selling items or doing things that some activist groups consider morally objectionable.  It would seen that any enterprise that is socially objectionable to many people could be targeted, both directly and indirectly, this way. But publication on the Internet of where a non-management employee works, just because the employer is objectionable to some people, would seem to me to raise legitimate "invasion of privacy" tort claims. Congress is being pressured to act on this problem, and the danger here is overreaction, the risk of extending liability beyond the actual publisher and unintentionally creating downstream liability problems that could affect everyone's entry onto speech on the Internet. 

European societies are more likely to be sympathetic to protecting "family name" and protect estates from undue queries. A law professor at Stanford, Carol Schloss, filed suit against the estate of James Joyces for refusing to allow her access to certain research materials to quote on her academic website, to protect "the family name." Much of the material would concern Lucia Joyce, who was committed to a mental hospital at age 25. The AP story is "Stanford Professor sues Joyce's estate," by Lisa Leff, at http://news.yahoo.com/s/ap/20060613/ap_on_en_ot/james_joyce_lawsuit  This is a disturbing notion in a more individualistic society, because "family name" is a nebulous idea designed to shield less economically independent blood relatives in a particular extended family.  Schloss's book is Lucia Joyce: To Dance in the Wake. The professor maintains that her thoughts are an important thread in the Joyce novel Finnegan's Wake. The "family honor" concept would matter if one member "outs himself" with respect to some issue (like his own sexual orientation and personal history) and other if family members feel that they will be tainted in the view of others.

"First Amendment in Reverse": There is a particular concern about the possibility of both libel and false light invasion of property torts with respect to sex offender registries. There is a huge public animosity towards those who attempt sexual activities with minors and that can lead to antipathy against those who even express a potential interest or propensity to engage in those acts in the future. So far sex offender lists appear to be limited to persons actually convicted of sex offenses and are maintained by each state. (They might include those wanted for apprehension under legitimate due process and probable cause.) A number of companies offer consumers a simplified access to these lists for subscription. This is all right as long as the lists are limited to those of those convicted or otherwise identified by due process of law. So far this does seem that this is the case with these services. If an entry were made of someone not properly placed on a government list, that would be libel. What if the lists included persons whose statements on the Internet indicated to others a possible propensity to engage in such acts in the future? This might not be libel under the opinion rule, but it might be false light invasion of privacy. But possibly it would not even be invasion of privacy if the speaker had unfairly used free entry to draw attention to himself. Public figures have less expectation of privacy, and the free entry concept provides an interesting wrinkle. In other words, a person could give up some of his future legal claims against others under tort law with statements made in public spaces, even if those torts occur because of the prejudicial thinking of others. It's a kind of "First Amendment in reverse." This is a new and disturbing possibility that particularly concerns some employers, especially school systems with teachers and students. A practical concern will be that a person can be convicted for offenses admitted in blogs, but moreover might have a harder time defending himself against false criminal charges. Similar observations can be made about terrorism "suspects", where the government has maintained various lists whose accuracy is questionable, and where some companies try to get and sell these lists to the public (for example, to apartment property owners). See blacklisting and libel, above.

Right of Publicity: (also sometimes called "appropriation" with the tort of "misappropriation") A person's right of publicity is violated when his name or likeness is used without permission, and when the person is normally paid for the use of his name, or when the person loses financial opportunity because attention is drawn away from him. The use must be substantially commercial (just a book review or movie review never violates the right to publicity). Often, "right of publicity" claims involve claiming that a celebrity has endorsed a product or service without permission, or using a celebrity’s name or likeness to attract a customer’s attention without actually providing constructive commentary. Publicity rights are a bit like real estate: a public reputation can be converted to money through a sale. Gain of publicity rights may mean some loss of privacy rights. Publicity rights (as well as “freedom from libel”), while fundamental in common law, may be constitutionally justified as a subset “property” right as mentioned in the 14th Amendment, and therefore publicity rights are “fundamental rights” however controversial with some people. Important litigation: Monroe v. Norman Mailer, Agatha Christie v. Ballantine. In the new age of the Internet, the Right to Publicity is likely to become the most subjective area of intellectual property tort law, because there is effectively a new form of "free entry" or low "barrier to entry" to efficient use of a public space (in conjunction with search engines). Here are a couple of possible problems:

A person previously unknown becomes "famous" by running a web site in which he presents the stories of a lot of other people. The person gets a movie contract for his material, and one of the subjects of his site is denied a contract from the same studio. Has he violated the other person's right to publicity? (But then again, why should intellectual property be regarded as a "zero sum game"? Is this a case of “stretching” a legal concept, like “tortuous interference” in the film Insider. This is the major publishers' "space on the living room coffee table" argument.) As far as I know, this “leverage” doctrine (my terms for this are leveraging or perhaps right of recognition[1] ) has never been tested in the legal system as a possible tort. A relevant point could be how the traffic had been drawn from search engines (like by metatag keywords, and the use of static v. dynamic web pages, JSP’s  v. servlets and the like) and how legitimate the material presented had been as constructive discussion or criticism.   A very recent development (October 2003) has Amazon.com making all of the several hundred thousand books in its catalog internally searchable (whereas previously most of them probably had to be purchased in print or perhaps as e-books or cd’s); this was called Search Inside the Book. This means in principle that anyone mentioned in a low-volume self-published book could “stay in circulation” as a public figure, although it remains to be seen if this has practical importance. One subtle issue could also be whether the author has accumulated over time any third-party authentication to justify his “recognition.” Another possible risk for publishers that display their books online (for searching or maybe even as image files) is making “adult” (not necessarily pornographic) material available to children inadvertently, should COPA (the Child Online Protection Act) ever be upheld (it is enjoined now). Google has added to the controversy with its Google Library Project and, for various publishers, especially cooperative and self publishers, the Google Partner Program. Previous content that might have been available only in hardcopy (even with print-on-demand or Softlock e-books) with some expense and effort is easily located by search engines (Google now, as of 2005, has the Google Book Search).  While publishers sign on with these, it is important that authors understand the significance of this capability, are fully informed, and consent to the submission of these books to that facility with opt-in and opt-out mechanisms. In some circumstances the easy availability of information related to personal narratives might become disruptive to some people. This could be especially sensitive given periods of excessive public concerns and "irrational prejudice" or panic about the appearances that some persons present  about some legitimate concerns, such as terrorism or pedophilia, or with respect to persons in more sensitive jobs like the military, the priesthood, law enforcement or teaching. How this will eventually play out in the legal system remains unclear. Could family members have the right to bar self publishing of personal narratives that they think could affect them? Already we see this kind of thinking in school systems with teen and college student profile websites and blog hosting like myspace.com, facebook.com, xanga.com, friendster.com. 

The practice by high school and college students of posting materials that school officials consider anti-social on "social networking sites" (like myspace.com) as well as personal weblogs is leading to new concerns about the right of publicity. In some cases, persons have been arrested for content (even not related to pornography) in videos placed on the Internet (such as amateur "fight clubs"). Sometimes this content would have been acceptable in a conventionally distributed film or cable show, so do students or teachers or other individuals have less of a right to publish it themselves?  That is complicated. Schools are sensitive to disruption, and there is a body of case law balancing this concern with free speech (Tinker and Pickering/Connick). Similar problems exist in many workplaces, so some employers have started checking social networking profiles and weblogs (even with Google) of job applicants or even employees. The notion seems to be: if a work is professionally produced and distributed (whatever that means!) it will be viewed as a literary effort; if it is produced and posted by an amateur, it can be viewed as conventional and potentially disruptive speech or as an indication of the speaker motives and suitability for the school or employment environment. This leads back to the question, how does a person establish ownership of his or her right of publicity? This is quite unsettled now.

A relevant problem is that business associates or family members of a publicly visible person may perceive themselves adversely affected by the attention that a self-publisher gets from search engines. There had not been much discussion of this notion until perhaps the beginning of 2006, in connection with social networking sites. There ought to be a name for this concept, so we could call it secondary publicity.  

Along these lines, then, the legal system may have to develop new concepts like "closed" and "open publication" expressing the likely reach into the general public. In certain circumstances, an individual might have a better protected First Amendment right to "closed publication" speech than to "open publication" because of the secondary effects on others. The definitions are proposed at http://www.doaskdotell.com/refer/vocab.htm  . 

Related to leveraging is the practice of collecting and selling personal information about “ordinary people.” Large companies (until recently not well know) like ChoicePoint do this (their security leaks have been widely reported in the media in early 2005), as, of course, have credit reporting agencies for a century. In the past two or three years, small companies with relatively little capital (apparently) have offered free searches on the web and sold “background checks” on almost anyone inexpensively. One such company is zabasearch.com, which calls itself “the #1 people search on earth.”  I have tried searching for myself and found that anyone can locate my residence address and phone (not published). There is even a zoom-enabled satellite photo of my residential neighborhood.  I have not tried the background checks (I may on myself), and frankly I would not want to pull one on a friend out of “curiosity.”  It strikes me (as of 5/2005) that it is likely that there will be pressure on politicians to regulate this kind of site. (It would seem to a layman that they would be legally bound by the Fair Credit Reporting Act, the FCRA). If so, could regulation extend to sites that do not contain personal information on people but refer to them bibliographically (as mine do)? If carelessly written, such legislation would pose that danger. The Digital Edge on NBC in Washington DC covered this on 5/6/2005, and it reports that these sites will remove personal information when requested.  It seems that we need a term for this, so I would call it personaldata-banking. Clearly this could make skip tracing easy. (I used to work as a debt collector!) Tom Zeller Jr. reports in The New York Times, May 19, 2005, “Personal Data for the Taking: Students Surfing Public Records Learn It’s Easy to Find Out a Lot,” about a data-mining “proof of concept” project at Johns Hopkins University. Some states are considering laws limiting the publication of courthouse documents on the Internet, and a debate is emerging about protecting the home address information about people (for example, judges) who (or whose families) may become targets of people seeking revenge (as well as of stalkers or identity thieves). Jonathan Krim, “A Matter of Public Record: Activist Aims to Scare Officials Into Protecting Personal Data,” The Washington Post, May 25, 2005, reports that Betty Ostergren posts personal information about public officials on her website to pressure them. My websites do not. Here is my letter to Rep. Moran on the issue.

A possible issue could be the way search engines retain search results long after content has been deleted, orphaned, or even just changed within a link chain. There appears, from my experience, to be some issues with the way Google retains supplemental search results, as of spring 2006, although I suppose that this could change. Google's position would probably be that an ancient link is like a copy of an out-of-print book or periodical in a public library; it still had been "published" at one time. This is all unclear.
 

(In the later spring 2006 it seems that Google has removed many obsolete, deleted, or orphaned links; the instructions as to how to remove them seem more conspicuous.)

Actually, Healthcare Advocates has sued the Internet Archive (I believe that this is archive.org) for copyright infringement, because a competing company was able to use the archive in defending a trademark claim. The Archive claims that anyone can request to have information removed. The story is from the AP, by Joe Mandak, "Experts: Suit Raises Copyright Questions," April 12, 2006.

A person makes a name for himself while salaried by an employer doing apparently unrelated work, yet draws attention to the employer because he has surrendered some of his "privacy rights." This could be called a "publicity rights conflict of interest" (that is, a person may properly have only one identity or “instance” as a public figure, even granted the possibility of pseudonyms, as on the Internet). 

Many people will perceive the “right of publicity” concept as “unfair,” counter-intuitive, and favoring the established and the wealthy. Others may not even grasp the concept, as they may perceive it as contradictory to personal “privacy.” However, since common law regards publicity as a kind of “property right,” celebrities normally are entitled to be paid for the use of their names and likenesses in commercial endorsements.  Some well-established and high-profile celebrities take the position that they must take a “zero tolerance” stance to protect their publicity rights in the long term—and at the same time, perhaps with a certain degree of paradox, maintain an effective wall protecting some of their personal “privacy.” One point to remember is that celebrities—especially actors—often feel that they have “earned” their status in the “system” and have “paid their dues” (and taken risks and incurred “opportunity costs”) by giving up some privacy and, in some cases, by at least temporarily sacrificing their body images (weight gain, depilation, etc. for movie roles).  What will become controversial is that the modern era of Internet and low-cost publication or film technology may increase the likelihood that otherwise “ordinary” people make themselves into “celebrities” without “paying their dues” as predecessors had. There might occur periods where such “minor celebrities” do not earn money from their reputations (although they may expect to in the future) but the attention they attract affects others in their families, workplaces, and the like. Some people may view “attention-getting” in a negative light, as an evasion of “normal” interactions with others, as in family settings.   

In late 2002 there was a circumstance where a journalist received a cease and desist letter(from the lawyer for a rock musician) for using his own name because his name was the same as that of the rock musician and allegedly affected the musician’s right to publicity. It is unlikely that any states or juries would accept the idea that a lesser known person may not use his own name if it competes with that of an established celebrity.

The right of publicity concept actually does protect “ordinary people” too. On Monday April 12, 2004, ABC “Good Morning America” presented a case of a woman in Springfield, Ohio who sued a greeting card company for using her 1982 wedding pictures without permission. Apparently the picture had been used 21 years before without incident. Her attorney explained the process of “model release” and that every person owns the right to use his “image, voice and signature.” Nevertheless, some people would not be as willing to recognize a right of publicity if established non-competitively with "free entry."

An example of a “right of publicity” case is the lawsuit filed by tennis star Martina Navratilova on March 7, 2005 against the PA marketing company behind Rainbow Card (a Visa card) for misappropriating her likeness in promoting the card. Apparently she had once allowed her likeness to be used and then disagreed with the way the company was doing it and asked it to stop with a cease and desist letter first. The news story is by Eric Johnson, “Navritalolva Sues Owner of Rainbow Card,” in PlanetOut News, at http://www.planetout.com/news/article.html?2005/03/10/1

Some states (Virginia) have laws which prevent person’s likenesses from being used in pornographic videos or adult videos without their consent.

The "right of publicity" is the one intellectual property right that most invokes the "meaning" of what one does with one's life.

There has been some controversy over the "right of publicity" of sports figures. Software companies may have used sports celebrities names without proper permission in some manuals. Less "conventional" sports like chess have raised somewhat ambiguous issues, as at least one chess master is claiming a right of publicity when his name is published with a game score. See this reference

Fair competition:

The Internet and World Wide Web (as well as cheaper desktop and cooperative publishing) have created a situation whereby the individual may establish himself as a “public figure” in some ways mimicking the influence to an entire organization or corporation. This is putatively a very profound event when it occurs.  It is possible that if the individual does not make a living off of his activity, he could be perceived as competing unfairly with those that came up through the ranks in a more traditional way. Or he could be accused (in the spirit of an “intellectual” virus-writer) of disrupting “legitimate” businesses by distracting a naïve public.  On the other hand, one could turn all this around and call such arguments “turf-protection” especially since the market for works of a literary nature is hardly a zero-sum game.  (There’s a variation of this “giveaway” theme in the Microsoft case in that Microsoft was accused of “unfairly” giving away its browser when coupled with its Windows operating systems.)  Again, this is a totally unexplored area of law. The term “unfair competition” has often been used in trademark litigation.

An example of unfair competition involving the record industry was discussed on the May 24 ABC “20-20”. Radio stations have been using middleman “indies” to charge fees to record companies to get their songs played on high volume stations, to get around the “payola” laws of the 1950s. This sounds like a conflict of interest (similar to that sometimes associated with self-publishing) but here the result is to shut out the little guy, and wind up with radio stations that play similar, hackneyed pop, rap or country music content.

Here is a reference to unfair competition and trademark infringement. An important component is the Lanham Act, which does not require marks to be federally registered. Some of the concepts are “likelihood of confusion,” “false advertising,” “reverse passing off” (failing to inform the public who created a product), “implied reverse passing off,” “express reverse passing off” (various ways of implying that a credible entity created a product, or that the owner created another’s product, in various circumstances). Could the practice of offering free content while one also offers books for sale or articles in subscription or hardcopy for-sale publications be viewed as unfair competition (against those who must make a living writing)? What about the practice of selling one’s own books and offering reviews of the books of others?  I can imagine theoretical arguments distantly related to the Lanham law (I wonder, for example, if one should use a pseudo publishing name as a domain name when one does not really have an operating business as normally understood). In practice, most of these arguments would seem facetious. Intellectual property is not a zero-sum game; the presence of addition low-cost or free content in the market is as likely to encourage the purchase of subscription or hardcopy materials from more conventional sources as to compete with them. The establishment of some kind of “tortuous interference” (a term made famous by the movie “The Insider”) or a claim in equity, leading eventually to actual legal liability, is appropriate when a practice “sets a bad example” and is likely to be imitated by others and is likely to interfere with the rights of others in the long run. “Spam,” in this light, could be viewed as unfair competition, and of course we know that it is becoming illegal.  

A related topic is the “Trademark Dilution Revision Act of 2005”, discussed here.

Other topics:

Indemnification and media risks. Publishers require that authors warrant (be responsible for making sure) that they do not commit intellectual property torts (a tall order when intellectual property law can be so subjective). Generally, authors must indemnify publishers against both the legal defense costs and any actual judgments (sometimes for out-of-court settlements) for any litigation brought against them by any party making a claim that would imply the author’s warranty was invalid. This is true for trade, cooperative and subsidy publishers (but not for self-publishers, who, surprisingly, usually don’t have to indemnify desktop service providers or printers for copyright infringements). Publishers regard this as “fair” because publishing is a “joint venture” and because authors, despite less means, are in a better position to judge their own work. Even ISP's and blogging-facilitators are posting self-protective indemnification policies in their terms of service, even though they seem to be rarely invoked (except perhaps with regard to spam or piracy). For well established, high-profile and high-income writers this is not a big deal (settlements could be taken out of royalties) but this is a potentially a serious issue (and again “counter-intuitive”) for new writers who find a cooperative or small trade publisher and who don’t expect large sales at first. However, what an author warrants is facts (presumably capable of evaluation by a jury under preponderance of the evidence) about his/her material (his legal right to publish them under reasonable interpretations of law); an author does not warrant that someone cannot frivolously invent a new tort or cannot claim harm under an unusual stretching of existing case law.  It is possible to buy media risks insurance (sometimes called “media perils”), which today is usually very expensive for individual authors because most intellectual property litigation has tended to involve wealthier, high-profile people.  (There have been recent attempts to make this insurance available to low-revenue speakers, however.  In these cases, concepts related to time of publication, such as claims paid policies and occurrence polices, become important, and insurers, in the case of web publishing, may be concerned that logs are kept of rapidly changing content.  For details on the this kind of insurance see sites like http://www.nwu.org/ and http://www.copylaw.com/.) The rise of the Internet and of low-cost publishing, combined with the fact that many newer writers may do concurrently (for a living) many other kinds of professional consulting requiring some kind of professional liability insurance, may make media risk insurance (and connection to other umbrella insurance) a controversial issue in the relatively near future. Publishers (other than self-publishers) always carry “corporate” media risk insurance. Some may partially cover authors with their policies, while others may actually subrogate claims against authors (similar to deficiency mortgage judgments paid by PMI companies that then subrogate against borrowers), again a potentially dangerous and little-explored situation for new writers.  Whether Internet web self-publishers may need some kind of media risks protection in the future is a good question, since this whole area of possible litigation is so new (and since opinions of “right and wrong” will vary so much with judges and juries). In the wake of Grokster, as noted above, some ISPs have posted indemnification policies (the right to sue to recover and downstream liability losses) with respect to their subscribers and customers.

The Media Bloggers Association (as of Sept 18, 2008) is starting to offer amateur bloggers insurance ("BlogInsure") through a company called Axis. It refers completing an online course in media law and passing a test first. Only one site or blog can be insured per policy. The details are at this Press Release: The FAQ PDF is here.  

Conflict of Interest:  Elsewhere on this site (http://www.doaskdotell.com/hppub/3rdparty/isethics.htm) (and http://www.doaskdotell.com/content/empint.htm ) there is discussion of the problems if a writers editorializes about a company or customer group upon which he depends to pay the mortgage. The most obvious area for problems is probably investors’ newsletters, but Robert McGough and Shawn Young, in “Heard on the Street” in The Wall Street Journal, Nov. 17, 2000, report that there are no specific S.E.C. rules on “conflict of interest” in financial newsletters other than deliberate fraud and deliberate disclosure or misuse of insider information. The case discussed concerns George Gilder’s Gilder Technology Report and Level 3 Communications. (Don’t know if this is the George Gilder of Men and Marriage). But in R. Foster Winans’s Trading Secrets (1988, Random House), Winans reports that he was fired by Dow Jones for “conflict of interest” over intentional misuse of his own role in  “Heard on the Street,” when his own conduct sounds like it was deliberate insider trading.   

Downstream liability:  Persons who are dialed on to the Internet continuously through (DSL or RoadRunner, for example) with a connection that does not change IP address continually, should use firewalls to keep out intruders and hackers.  This would apply especially to people who run their own web servers. Otherwise they could bear a “downstream liability” (because of lack of “due diligence”) to other sites should their machines be “hijacked’ for denial of service attacks. 

In Twin Cities Computer User, July 2002, Roger Hughes (from the St. Paul Companies’s Data Security Advisors) writes that McCafee and Norton cannot detect all hacking tools or “zombie” programs even if properly used, and that most businesses should hire security professionals for routine audits as a due diligence protection. He writes, “Under the new Patriot Act, if your company is hijacked by a terrorist—your network, your Web site, whatever—and that terrorist uses it somehow to attack a government agency or critical infrastructure” (ed- maybe in the spirit of the 1983 film War Games)  “you personally can be charged with a crime of aiding and abetting a terrorist act. You can go to jail and get up to a $100000 fine, or you can just get nailed with an injunction that shuts down your company for 90 days….If somebody’s credit information get hacked because you didn’t do your due diligence for data security, you personally can be sued for that.” (I’m not sure here if “personally” refers to a non-officer employee of a company.) This quote should be studied in conjunction with a Washington Post article by Barton Gellman, June 27, 2002, “Cyber-Attacks by Al Qaeda Feared.” Of course, one wonders why critical infrastructure components (DCS or SCADA controls on dams or nuclear power plant cores) would even have IP addresses even accessible through the Internet. Another point here is that if a writer has a web domain on an ISP rather than his own home web server then the ISP probably has to do the due diligence (not leaving Unix SITE commands open on shared servers with anonymous FTP allowed, for example, is a simple responsibility!)  If that is so, then another issue that comes up of a practical nature is whether a “controversial” web site would attract hackers and pose an indirect risk for other unrelated web sites on the same ISP server.

A good discussion of intellectual property law can be found in:

Kirsch, Jonathan. Handbook of Publishing Law, for Authors, Publishers, Editors and Agents. Los Angeles: Acrobat Books, 1996. This book really spells out publication law in detail, and lays it on the line as to the vetting that should be done to avoid the torts above when putting out a book. Perhaps his cautions are a bit overdone.

A related concept is the honeypot, a worthless server or application intended to attract hackers (or sometimes child pornographers) so that they can be trapped or watched, but there may be legal risks (breaking wiretapping laws) in employing such a device. 

Recent development in California: (Barrett v. Rosenthal)

According to the 1996 Telecommunications Act (one portion of which was the notorious Communications Decency Act, struck down by the Supreme Court in 1997), Internet Service Providers and other utility-oriented third parties cannot be held liable for harmful content written by others, especially libel. A California state appeals court opinion has jeopardized this interpretation. According to Electronic Frontier Foundation:

“Last week (that is, the first week of Dec. 2004) the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a friend-of-the-court brief in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case in question is a libel suit filed against women's health advocate Illena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy. In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors.”  The brief is at http://www.eff.org/Censorship/SLAPP/Defamation_abuse/Barrett_v_Clark/20041124_BarrettAmicusFinal.pdf

Downstream liability concerns and recent media reports about serious issues with children and minors (especially in social networking sites)

This state of affairs tends to mean that ISP's typically have little liability for what their customers do (unless they are in a position to know about it, which would mean that they should not edit or monitor their customers proactively in many circumstances). That's good for the speaker because there is relatively little practical likelihood of a judgment against a service provide in most circumstances, so relatively little chance that the indemnification would kick in (as noted above). (ISPs carefully word their TOS documents on all this.) We have concerns about calls in Congress and state legislatures to make companies more accountable for what minors do online, since there have been so many reported problems with minors attracting sexual predators online. While there can be some structural protections (requiring a credit card to get service, or some kind of parental consent process) devised, it is important that legislators tread very carefully, or all speakers (including adults) could be exposed to much larger liability risks and "chilling effects." One positive step could be for companies offering "social networking sites" to become more proactive in offering services with restricted audiences (in the style of VPNs and intranets), so that teens, parents and teachers can communicate without exposure to "the outside world" and potential predators or stalkers. The management of chatrooms is also an important issue here. 

Freedom of the press: The First Amendment specifically enumerates the freedom of the press. To be part of the “press” and entity must be an organization or company with enough economic scale to do regular investigative journalism for regular reporting to the public, and an individual speaker must work for (or be under contract with) a press entity to claim specifically “freedom of the press.” Sometimes “the press” has First Amendment vehicles that an individual cannot enjoy. It sometimes (apparently not always) has immunity in protecting sources, and it sometimes has access to secured areas (combat areas, areas around the President) that individuals ordinarily do not have. But the press does not normally have an advantage in defending intellectual property torts; one need not be part of the “press” to use the usual defenses (like fair use, public import, etc.)  Recently (2002), however, there was a case in Seattle where a housing advocate Paul Trummel was prohibited by a court from publishing complaints on his own web site and jailed when he disobeyed; there seems in his case an insinuation by the court that sometimes the established press (or a paid “professional” journalist representing an employer) may have the right to publish controversial accusations in situations where an individual could be accused of “harassment,” which seems to be a new kind of tort similar (but lesser than) invasion of privacy. The legal and factual matters of this case remain murky and unclear. The freedom of the press (v. free speech) issue may come into play inasmuch as a “legitimate” journalist sometimes has the right to “first publish” a newsworthy item when a non-journalist would not, but once the item is first published it may be discussed by anyone not directly involved in litigating the issue, subject to normal torts and to respect for specific confidentiality agreements.

Sometimes an entity may pre-release an announcement (even on the WWW) and embargo the item from reporting by press sources. This might be true for a lawsuit announcement, embargoed until formal filing in court.

Implicit Content:  This concept has come into discussion with respect to blogs and social networking sites. It refers to the meaning that an average or likely visitor may infer from content based on external cultural circumstances, especially the motives of the speaker for placing it there. The concept is ambiguous troubling and could invoke other legal areas like solicitation or enticement in some cases.

Right to Publish: The notion that anyone may publish content and have it recognized in public as a "publication" or as literary in nature, not subject to ideas like implicit content. Social networking profile information is often viewed by others as "conversational" and not literary, and its posting sometimes therefore invokes conduct issues in the workplace, in such a way as to pre-empt normal notions of free speech. As noted above, there is some controversy as to amateurs have the same full "right to publish" as the established
"professional" press or media.  The First Amendment does not protect speakers from adverse actions by private parties (such as employers or families) in and of itself, only from actions by governments.

The Internet and individual consumers or micro-businesses: Since the Internet and World Wide Web provide a very efficient and low-cost way for individuals to reach wide audiences with their content (without the usual justifications or constraints of economic profit margins and without supervision) some people feel that intellectual property law should apply differently, such as the idea that the expectation of permissions (as when providing links or references) should be greater.  The absence of immediate profit motive (although there may be strategic profit motive) might argue for more lenient standards, however. In general, so far, judges have tended to apply intellectual property law concepts (statutory or common) to the Internet in the same manner as for printed or broadcast media, and have tried to stay with established statutes and case law. Yet, when someone sets up a controversial website at low cost and draws attention to himself without the necessity of making the site profitable from operating the site itself but rather intending to be discovered by the big boys for later opportunities, there is always a remote risk that he can affect others associated with him (at home or at work), possibly attracting lawsuits or even terroristic activities. This is all relatively new and good material for John Grisham type novels.

Associated with the Internet are other surprising paradigm problems associated with the enormous number of people that the Internet reaches at very low cost.  For example, there are many legal controversies associated with peer-to-peer computing and file sharing, which, when used with music and video or movies materials, results in what artists and media companies (probably rightfully) see as copyright infringement, depriving them of income and revenues, although consumers tend to see this as like sharing library books and records. The various litigations (Napster) and laws passed (DMCA) or under consideration are complex and some are discussed in detail elsewhere on this site. The most up-to-date account is John Seabrook, The New Yorker, July 7, 2003, “The Money Note: Can the record business survive?”  The RIAA is now threatening to sue individual consumers who download music or movies illegally, or especially those whose computers assist others in doing so; the RIAA is also creating controversy by subpoenas for names of consumers of ISPs, apparently with little judicial oversight. There is a danger that this will create a cost for ISPs that must be passed on to other consumers or business owners, or that all Internet users could be charged for the activities of only some. See http://www.doaskdotell.com/content/eriaa.htmfor an overview.

Since about 2000 or so, advertising companies have offered amateur bloggers a chance to earn advertising revenue by placing ads on their sites. Some schemes require purchases; some pay for clicks or even new ad delivery. The click systems have some issues with controlling "fraudulent clicks" or "click vandalism" where a company that has attracted social hostility may attract clicks trying to cause it expense; companies that offer these need extensive detection systems to manage this "social engineering" problem. Some controversial material may seem more provocative to visitors when found on amateur blogs than when reported in a conventional manner by the established media.

Spam, spoofing, and associated problems with viruses, worms, and security.

This discussion has been moved to the discussion: “Spam: The Inflection Point in the Revolution.”

Labeling of Sites as hazardous to visitors.

I have a blog entry on this, July 16, 2007, here: http://billsinternetsafety.blogspot.com/2007/07/internet-companies-start-offering.html

Webmasters can wind up downgraded by McAfee Site Advisor or StopBadware.org (tied to Google searches, as explained on stopbadware's site and by Google) because of inadequate security and actions undetected "injection attacks"  (with "invisible iframes” and “obsfucated  code) from hackers.

Anonymity.

Anonymous speech has generally been considered protected by the First Amendment. However, Internet users need to realize that fictitious screen names will not protect them if they engage in illegal behavior, such as copyright infringement, trafficking child pornography, or making threats. See Tara Bahrampour and Jamie Stockwell, “Message is Clear in N. Va.: ‘Threats’ Can Bring Teens Trouble in an Instant,” The Washington Post, May 29, 2005, for a story about the arrest of a high school student and middle school kid in two separate incidents in which the kids, from their home computers, sent “joke” threats against other students under fictitious screen names by Instant Messages (IM’s). The same possibility exists with conventional email; IM users may not have records of what they have sent and IM is in that sense more “dangerous.” In both cases their messages wound up being interpreted as threats against two different Arlington, VA schools, resulting in evacuations or lockdowns (with arrests of both students by police). Since Columbine and Red Lake, there have been “zero tolerance” policies with respect to these threats very much as there are such policies to protect airline flights. When someone uses an anonymous screen name for illegal purposes, usually law enforcement forensics can determine the source. Anonymity was intended to protect user privacy and to protect users from employer retaliation and stalking (even here it is not always effective, as employers have sometimes subpoenaed user-ids from ISPs for remarks critical of their companies or, especially, for content divulging trade secrets, as on investor “trash boards”). A possible problem could be spoofing when sending illegal content, as with spammers and worms and viruses. To date, law enforcement has been able to track content origin accurately even when spoofed, but there remains a possibility that someone could be “framed” by a clever enough hacker.

Freedom of speech, commercial purposes and self-promotion

The average citizen’s concept of the First Amendment is essentially one of participatory speech. One may criticize the government or private entities, most often as one individual participating in a debate or a vote. Some First Amendment rights (assembly, petition) are explicitly based on the idea of “counting heads” and assume that groups will speak for the interests of different constituencies. On the other hand, freedom of speech must recognize the idea that a particular individual’s speech may affect public policy because of its unique content and ability to reach many people. Technology, which, as noted above, greatly lowers the cost of this outreach becomes significant. Some problems arise. Does the First Amendment protect commercial speech and advertising? Yes, the Supreme Court says, in somewhat constrained circumstances. Conveying of information for profit (news and journalism) is certainly protected, and as noted above, the established Press sometimes has stronger First Amendment claims than an individual person. This gets to be important since the government is loosening the roles on media consolidation, leading to charges that large moneyed interests can control what the public gets through the media. On the other hand, in an Internet age, individuals (like me) have much more reach than many people realize. To the extend that such speech (“blogging,” for example) is motivated by the idea of self-promotion and future commercial gain, some persons may find it morally objectionable. It may cause conflict of interest situations in the workplace (at least in jobs requiring direct reports, public relations or other public visibility), or in other situations (such as with the military’s “don’t ask, don’t tell” policy regarding gays announcing the sexual orientation when serving in uniform, or the debate over protecting children from semi-adult materials on the Internet, such as with COPA, the Child Online Protection Act, currently enjoined). If so, this will become a new and ambiguous area of intellectual property law.  The legal system can indeed be ambushed by sudden technological capabilities. While (outside of the military and certain national security areas) the First Amendment very strongly protects individual speech from government interdiction (and, again, the war on terror and possible problems like steganography become potential issues), speech is legally much less well protected from private interests such as that from employers who may anticipate harm from disparaging statements in public spaces by employees. Of course, workplace speech is not protected against other concerns, too, such as trade secrets, sexual harassment, and other common torts. 

Blogging may raise pseudo-privacy problems even when not reasonably related to ultimate commercial motives. A good example is provided by the teacher rating site http://www.ratemyteachers.com/

Here is another example of a technically very sophisticated non-commercial “superblog.”  http://www.opengov.us/

Another good reference on the basic torts is “LOST AND FOUND IN CYBERSPACE: Informational Privacy in the Age of the Internet,” by Susan E. Gindin (1997) at http://www.info-law.com/  /lost.html.

Open Source

The whole paradigm that ties the value of intellectual property to money, though, seems up for grabs, if you read Gary Rivlin, “Leader of the Free World: How Linus Trovalds became benevolent dictator of Planet Linux, the biggest collaborative project in history,” in Wired, Nov. 2003, p. 152, along with Thomas Goetz, “Open Source Everywhere: Software is just the beginning.”. Goetz goes on to discuss various i.p. models in relation to the modern idea of open source, such as Wikipedia, and PLOS, the Public Library of Science (to which academics pay to contribute). My doaskdotell site could be regarded as a kind of open source, although “open source” publication usually is edited, approved and posted by a third party (most of mine is not).

Zoning Issues

At this point, it’s useful to provide a functional decomposition of just what zoning means with respect to “work at home.” In many cases, a person will get a business license from his or her locality, and may very well pay some local taxes based on income from the business, or may have to pay tax on physical property (computers, vehicles, equipment) used in the business. The taxes may be very low for small businesses, or may not kick in until a certain income stream is reached. The license will normally be associated with an assumed name (or assumed business name) legally registered with the local and/or state government. The assume name is recognized by financial institutions, vendors, creditors, and other stakeholders. Registering a business license and an assumed name must take place, for example, if one wants to self-publish or self-distribute a book that one has authored, or even a small independent film that one has made. (The ISBN system for books is keyed to these names.) Registering an assumed name (even if that name is used only as a domain name on the World Wide Web and is properly registered with an ICANN-recognized registrant) will help protect the business owner from possible trademark infringement claims (although the name might have to be registered separately in every state if the product is shipped to every state (even electronically by the Internet), usually not a practical option for a small business.)  The business, wherever it is operated, normally must comply with zoning laws, and if it is operated from the home or apartment as a home based business, the business owner usually needs a home occupation permit (and often a sales tax permit from the state). However, the converse is not true. A home occupation does not necessary imply the existence of a business entity (proprietorship, partnership, or corporation). A free-lance writer who submits articles for publication to third parties and gets paid at least once for such a submission and who created and submitted the work from home technically has a home occupation. (So would the writer who at any time in the past got his or her own ISBN under a business name or even his or her own name—which is allowed—to publish a book.)  A locality like LA, Chicago or some New Jersey communities known to have pursued writers in the past, would likely follow a “don’t ask don’t tell” rule on home occupations that don’t have separate business names—they would be likely to act or even find out only if another party complained (and such a party could be a competitor, a person who lost a “real” job to the freelancer, a heckler who did not like the person or what the person says or exposed, or even in some cases a family member who feels insulted). Therefore, zoning laws could be invoked for reasons that have little to do with the actual residential values of the property where the person works. Of course, a home occupation that actually does affect the neighborhood (with traffic, hazardous materials, appearance, and the like) would easily attract attention of zoning regulators even without the need for a business license.

The above is an extract from http://www.doaskdotell.com/content/smallbiz.htm

Wireless Issues

Check a story on freestudents blogger (here) about how someone in Sparta, Michigan was convicted of "stealing" wireless services for parking in front of an Internet wireless cafe (the Union Cafe) and checking his free email (he did not go inside the cafe and buy anything).

Insurance Issues

“Media perils” is already mentioned and discussed in this reference.

The following is an extract from http://www.doaskdotell.com/content/insur.htm

Home based business activities (including property items) are generally not covered by residential homeowner’s insurance. Many companies will over an incidental business endorsement or a business package policy.

 

The Independent Insurance Agents Association offers a good write-up:

 

http://www.iiaa.org/TC/Consumer/HomeApt/protecthomebiz.htm

 

Another good write-up is at

 

http://www.agencyinfo.net/iv/homeowners/planning/home-business.htm

 

Theoretically, some home-based businesses could offer an additional underwriting hazard to the original residential coverage if (1) the materials kept on site presented a fire or explosion risk (often precluded by zoning laws) or (2) the business attracted persons to the property intent on doing harm (that is, the business “made enemies” or attracted hecklers), a possibility that seems logical with respect to some issues (like abortion). I do not see evidence from research so far that this is in itself seen as a big issue by insurance company claims experience.

 

Audit Trails:

 

I have noticed that Network Solutions's Image Cafe publisher offers the ability to keep an automated audit trail of changes to a site, along the lines of "change control" systems in larger shops, on a shared hosting service. As noted above, the Internet Archive keeps copies of older files on a site, as do caches on search engines. Is this possibility of record keeping legally significant?

 

International Issues

Intellectual property laws vary widely from country to country. Because the First Amendment is very strong and well supported by the Supreme Court in various litigation opinions, individual speakers tend to have more freedom (in certain complicated circumstances) in the United States than in many other countries, even liberal democracies in Europe. It is relevant also that the First Amendment, as do other original and fundamental rights, tends to apply equally to individuals (because of the Equal Protection Clause) regardless of family responsibility, marital status, or previous accomplishments as recognized for others. This may not always be true elsewhere. I would be concerned, for example, if my site violated the laws of another country (especially a Muslim country or a socially conservative country outside of “the West”) that I could be arrested and detained if I set foot in that country. So far, I have not heard of that happening much. (It makes an interesting issue for Iraq in developing its own constitution and new legal traditions.) ISPs located in the United States tend to follow the laws of the US. Generally, I have not heard that they get in trouble with other countries. (Other countries can block objectionable domains, although, outside of China, they do this less than one would think.) There have been controversies in the U.S. about offshore ISPs and servers, however.

Chilling Effects

Visit Electronic Frontier Foundation’s “chilling effects” page at http://www.chillingeffects.org/  I give some of their references regarding frivolous SLAPP (Strategic litigation against public participation) lawsuits at http://www.doaskdotell.com/content/blog.htm 

Chilling Effects has reported that a few websites have been removed from search engine results because of illegal content, mainly child pornography (images) as detected by Internet Watch Foundation http://www.iwf.org.uk/ which seems to be based on British law. I would expect this trend to continue, although one wonders if a private group can determine that particular content is illegal. In libertarian thinking, however, a search engine company would have the right to define its own standards for inappropriate results, and many engines (like Google) have a safe search filter.

Chicken Little Problem (Reputation maintenance)

In some cases, families, churches, or other social groupings may believe that they have some control over the public speech of individual "members," and believe that these members must be held to standards of psychological loyalty beyond the normal ideas of defamation and invasion of privacy. Entities may have issues with "reputation" or "family name". In general, these claims probably have little legal significance. However, the "free entry" opportunities, in combination with the effect of search engines, may make these ideas more credible in the future. Some companies are already claiming that they will maintain an entity's (or a person's) "reputation", but beyond acting on known torts, it is unclear that they would have much legal power. The term (I coined it) comes from an episode in the Walt Disney animated film "Chicken Little" (2005) where his father claims that his (Chicken Little's) "acorn stunt" (claiming that the sky was falling) stained the reputation of the entire family on the Web and in other media.

The concept, if it expanded, could eventually have a serious effect on free individual expression, since it is impossible for someone to talk about himself or herself without impacting the family. For example, mainstream society no longer considers it defamatory to one's family to claim that one is gay, but some people take offense at that (because it suggests biological "failure"). Families like these believe that family solidarity and "loyalty to blood" should protect individual members from external ideas about their own "moral hazard." In theory, if the idea came to be legally recognized, individuals could be precluded from writing about themselves with any integrity. 

Families can imposed indirectly on members at the time of probate, with "dead hand" provisions in wills, that condition the keeping of inheritances on post-mortem behavior. This is more common in Britain than in the United States (and occurs in some Victorian novels). 

Network Neutrality:

This is the principle that Internet Service Providers should not discriminate based on different kinds of Internet content.

Wikipedia’s definition is “the ideal that network designs and operators show not discriminate between network applications.”

 

This bill is being debated as Internet Freedom and Nondiscrimination Act of 2006 (Introduced in House)  There is a similar bill, S 2917, the Internet Freedom Preservation Act. 

 

Govtrack for S 2686HR 5252  HR 2917   HR5417   There are various bills like this that did not become law and died each Congress, to be re-introduced with different numbers.

HR 5417 Congress voted against a version of this bill on April 27, 2006.  The Senate is having debates in June 2006. In the summer of 2005, an earlier version of "Network Neutrality" was apparently allowed to expire. There is concern about how cable and communications companies will "behave" without a new law.

http://www.npr.org/templates/story/story.php?storyId=5365854

Democrats have proposed legislation requiring ISP neutrality. Libertarians and conservatives believe that this could indirectly lead to more regulation. ISPs would have a nagging concern about downstream liability issues, and properly handling these issues is the right way to prevent regulation of individual subscribers and publishers. Here is an explanation from "Freedom Works": http://www.freedomworks.org/uploads/20060526.pdf    A major site arguing against this legislation is http://www.handsoff.org  Their ad claims that we already have "no blockage" "no discrimination" "freedom of choice" "use only the services you want." One observation is that already search engines accept payments for preferred placement, yet non-paying sites still are easy to find on Google and may other engines. A similar result could occur for access speed itself.

The pro-side for Network Neutrality legislation is given by http://www.savetheinternet.com/  and by a disturbing op-ed by Lawrence Lessig and Robert W. McChesney, "No Tolls on the Internet," The Washington Post, June 8, 2006. There is concern that large cable and phone companies could "extort' smaller companies and bloggers for services and could manipulate the market to keep independent filmmakers from posting their video cheaply (to reduce competition). So neutrality cuts both ways, as regulation (and liability) is one issue, and the temptation to drive away cheap competition is another -- yet the whole Internet was based on doing things cheaply. Craig Newmark, well known for his http://www.craigslist.org , appeared on CNN on June 10, 2006 and argued effectively for Network Neutrality. He claims that, without this legislation, communications providers will provide faster access to paying sites, and that this could gradually shut out "ordinary" sites (like this one) from effective access, because access to them would become much slower. Craig appeared on the NBC Today show on June 21, 2006 and the show indicated that he could be perceived as unpopular by some other publishers, who claim to be having a harder time selling classified ad space (competition again), but they might be having trouble anyway.

My blog on network neutrality is at http://billboushkann.blogspot.com 

Particular attention should be paid to the fact that some countries, especially Japan, have much better and faster broadband service than does the US; this is turning out to favor network neutrality, surprisingly. My latest posting on this dates to Aug 29, 2007:

http://billboushkann.blogspot.com/2007/08/japan-sets-good-example-for-efficient.html 

The new version of the bill for the 110th Congress is S 215, link on Govtrack here.

Web Advertising Issues

The Washington Post, Oct. 22, 2006, p A1, carries a story by Sara Kehaulani Goo, Muneesa Nqui (New Dehli, India) and Richard Drezan, "'Click Fraud' Threatens Foundation of Web Ads" Google Faces Another Lawsuit by Businesses Claiming Overcharges." The link is http://www.washingtonpost.com/wp-dyn/content/article/2006/10/21/AR2006102100936.html  The article explains a few business models for web ads.  One program has to do with paid, sponsored links. Apparently some of these have been abused by click fraud rings (especially targeting ads in certain kinds of consumer-intensive industries), and sometimes also by parked domains or by domains emulating domains with real content but offering only links. (Search engine companies generally try to outlaw parked domains or domains without real content from their automated programs.) Another one of these programs is an affiliate program run by large search engine companies like Google and Yahoo!  The Adsense or similar model places ads on a site or blog's page matching the page's content. Generally, offensive content is scanned out by artificial intelligence and disturbing pages are fed public service ads (there are inaccuracies in this), but most pages dealing with any reasonable topic can receive ads. The publisher is paid through a "pay-per-click" system. The system is supposed to be based on clicks that occur as a result of natural background visitor interest, but obviously this payment system opens the system up to the "click fraud" described in the article, where bogus companies hire people to click on ads. Generally these reimbursement systems are also correlated to traffic volumes on the blogs or sites (CPR and eCPM).  Other systems, less vulnerable to fraud, depend upon a visitor's viewing other content on the advertiser's site besides just clicking on the ad, or even purchasing something from the advertiser. (I believe that Linkshare works this way.) Search engine companies and software engineers are trying to develop tighter standards of what constitutes a reliable click. For example, any click from the publisher's IP address (es) or email address (es) should be eliminated, as should any unusual (statistically significant) concentration of clicks (from the same or related IP addresses). Search engine companies have developed proprietary methods for developing fraud, which they do not like to discuss too openly. One rule that they are being stricter on is publishers clicking on their own ads (which can be detected from IP addresses sometimes) or on enticing people they "know" to click, but the latter is intrinsically hard to detect except through statistics (the stuff you take in AP math courses in high school or in college! -- here is a real world use!)   

A quick search shows that Click fraud has been an industry concern for some time. For example, Duncan Parry has a web article "Click Fraud: The Reality" at http://www.payperclickanalyst.com/content/templates/article.aspx?articleid=326&zoneid=1 dating back to January 2005.

Because the "free entry" self-publishing on the web (low cost domains) has been associated with advertising revenue to hosting companies and search engine companies, it is vitally important to maintain integrity in this process. As the Post story notes, many publishers are very small businesses and individuals trying to "get in" to the media with essentially free entry. I will be looking into these problems further myself, the way I look at other problems (social networking sites, COPA, censorship, etc).  Since I participate on the blogger programs, I can only say to visitors, in "libertarianesque fashion", "do what you normally do," that is, please click (just) on items that would normally be of interest to you, in your usual and customary fashion, given the way you conduct your own life.

A related issue is SEO, or search engine optimization. This invokes some concepts like Google's trade secret and proprietary PageRank, and pejorative concepts like "link farm".  These are discussed in great technical detail on Wikipedia, and mentioned on my main blog Sept 5, 2007. This is more about ethical use of business models than the law, but it is evolving quickly and there are sure to be more details later.

Open Source Initiative:

Here is a link for the Open Source Initiative.

References:

Other sources are given at addbib and nbiblio at this site.

There is discussion of some of these items at doaskdotell vocabulary

More on intellectual property in the workplace

See discussion of MGM v. Grokster and downstream liability in peer-to-peer file sharing and copyright infringement

See log on blogging (special attention to "myspace problem"); see suggested employee blogging policy

See writeup on NBC Dateline series on predators.

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[1] Such a “right of recognition” might balance the right of an individual to make himself known through low-cost Internet technology (the web with search engines or file-sharing) with the right of non public figures not to remain in the public eye indefinitely in an unsupervised fashion. Generally, existing intellectual property laws like copyright have been applied to the Internet as in print, and this generates a lot of the controversy over problems like music piracy. The unsupervised and trusting nature of the Internet generates concern over abuse issues like spam.

©Copyright 2001 by Bill Boushka and High Productivity Publishing, subject to fair use. Again, this aims to stimulate reading and intellectual property law policy discussion in a new technological era. .

 

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