The idea for the network came out of CMLP's work over the last 3 years helping online journalists understand their legal rights and responsibilities. During this time period, we've published and updated our legal guide and legal threats database, blogged on topics of interest to online publishers, partnered with like-minded organizations on a variety of educational projects, and filed amicus briefs in cases with significant implications for online speech. While we are proud of the impact we've had and the success of the CMLP website, we also recognize that many online journalists and bloggers need more than generally applicable legal information--they need their own lawyers to tackle their own individualized legal issues.

The new Online Media Legal Network aims to fill this need by making it as easy as possible for online publishers to find legal help.  If you know of anyone that could use our help, please direct them to the OMLN website.  Conversely, if you are a lawyer and you want to help, please sign up!

More info on the launch is available here.

Which is why it is so refreshing to see a shift in perspective occurring (perhaps even, gasp, a paradigm shift?) at two of this country's preeminent journalism schools: the Columbia Graduate School of Journalism and UC Berkeley Graduate School of Journalism. In commencement speeches last month, Nicholas Lemann and Barbara Ehrenreich both exhorted the graduates to view these difficult times as an opportunity to reinvent journalism.

From Nicholas Lemann's speech at Columbia (posted by Clay Shirky because Columbia didn't see fit to post it!? - I guess that answers my question about a paradigm shift):

It's amazing to think about how many new journalistic forms have been developed over these last few years, because of the Internet: blogs, wikis, interactive graphics, animations, audio slide shows, and so on. If you keep constant our basic mission of gathering, assessing, and presenting information, the specific ways in which we do this are changing more rapidly than at any time I can remember. And we don't get to decide on our own how they change-that depends on what the technology permits us to do, what provides an economic basis for our work, and what our audiences respond to. This is not a time for journalists to say, "We have decided that the traditional news story is the best basic form of news delivery, so we're doggedly sticking with it." This is, instead, and more interestingly, a time for experimentation, which also means it's a time for listening.

Second, and more broadly, we have been in the habit of assuming that whatever appears in a newspaper or a magazine or on a broadcast or a news organization's Web site is available there uniquely, and represents a distinctive and irreplaceable contribution to public life. I spent a lot of my time these days talking to non-journalists about journalism, and I can tell you that we all have to learn to make a more sophisticated argument for ourselves.

***

So this is your charge. You will not only have to reinvent journalism, you will also have to reinvent the conversation about journalism, making it less internal to the profession, and more interactive with the rest of society. That's an enormous job; I wonder whether any generation of journalists has had a more momentous mission than yours. But, to me, and I hope to you too, it sounds like fun.

Barbara Ehrenriech echoed similar thoughts in her speech to the graduates at UC Berkeley (available on the school's website), noting that they will be trying to "carve out a career . . . within what appears to be a dying industry" but in the end, "we will not be stopped."

We are not part of an elite, akin to movie stars, anchorpersons and hedge fund managers. We are part of the working class - which is exactly how journalists have seen themselves through most of American history- as working stiffs. We can be underpaid, we can be jerked around, we can be laid-off arbitrarily - just like any autoworker or mechanic or hotel housekeeper or flight attendant.

But there IS this difference: A laid-off autoworker doesn't go into his or her garage and assemble cars by hand. But WE - journalists - we can't stop doing what we do!

As long as there is a story to be told, an injustice to be exposed, a mystery to be solved, WE WILL FIND A WAY TO DO IT. And what is so special about YOU, compared to a grizzled old veteran like me, is that you possess a multitude of new skills so that you can invent and CREATE NEW WAYS TO DO IT.

A recession won't stop us. A dying industry won't stop us. Even POVERTY won't stop us because we are ALL on a mission here. That's the meaning of your Berkeley degree. Do not consider it a certificate promising some sort of entitlement. Consider it a LICENSE TO FIGHT.

And consider this day to be your induction into a kind of knighthood-or samurai brotherhood and sisterhood. You are not civilians any more. You are journalists, which means you are part of a worldwide, centuries-long fight for truth and justice.

In the 70s, it was gonzo journalism. For us right now, it's GUERILLA journalism, and we will not be stopped.

To these inspiring speeches I'd add the following additional points: Most of you will not be working for "traditional" journalism organizations. Many of you will be freelancers using tools such as blogs, wikis, and micro-messaging (ala Twitter). Some of you will start or join online-only ventures. These "facts" should be viewed as presenting opportunities, not limitations. And lastly, the Citizen Media Law Project is here to help you with the legal issues you'll likely face as you reinvent journalism.

It's time to get to work.

We've also added some detailed background on Section 230, links to our legal guide materials, and feeds showing recent legal threats from our database, blog posts, and news from other websites. The page also has a list of outside resources and will soon host a compendium of Section 230's legislative history.

We hope that this new page will help citizen media and other online publishers conveniently access the diverse and ever-increasing materials and commentary on our site and across the Web relating to Section 230 and provide useful context for understanding the statute and the debates surrounding it.

You can check out the new page here.

The amicus coalition, represented by Harvard Law School's Cyberlaw Clinic, submitted a "friend of the court" brief yesterday in the case of Maxon v. Ottawa Publishing. The case is before the Illinois Appellate Court for the Third District and involves pseudonymous comments posted on mywebtimes.com, the website for The Times, a local newspaper in Ottawa, Illinois published by Ottawa Publishing Company. Local business owners Donald and Janet Maxon served a pre-litigation petition for discovery on Ottawa Publishing seeking the identity of several anonymous commenters. Ottawa Publishing opposed the request, and an Illinois trial court dismissed the Maxons' petition in October 2008, applying the test for protecting anonymous speech laid out in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). 

In the brief, we urge the Illinois appellate court to affirm the trial court's choice of a heightened standard and join the consensus among courts nationwide by holding that a party must undertake reasonable efforts to notify the anonymous speaker of the request for disclosure and demonstrate that its underlying claim has legal and factual merit before the court will order disclosure of an anonymous Internet speaker's identity. The brief highlights the long tradition of anonymous speech in the United States and the important role of anonymity in promoting an online marketplace of ideas.  We took no position on the merits of the plaintiffs' defamation claims -- rather, the brief urges that the Court balance the plaintiffs' interest in pursuing legitimate legal remedies against the rights of individuals to speak anonymously by putting the onus on the plaintiffs to demonstrate that their claims have merit.  The brief also recommends that the appellate court follow cases such as Dendrite, Mobilisa, and Brodie in further balancing the equities between the parties, before ordering disclosure.

You can read more about the case and about issues concerning anonymous speech on our website.  The entire brief is available here.

The 2009 Presidential Inauguration is actually a series of events held over four days. The festivities start Sunday, January 18 with a "kick off" event at the Lincoln Memorial and conclude Wednesday, January 21 with a prayer service. A list of official events is available on the Presidential Inaugural Committee website, and a map of Washington displaying where the various events will take place is available from The Washington Post.

We expect that many attendees will want to document the events, whether for purposes of reporting on a blog or other website, or simply to create a personal record of their own experiences. During the Inauguration, strict security measures will be in place across the area, particularly where official events are taking place. These security measures, as well as tickets, permits, and credentialing requirements, will impact what you can do to document the events.

While many inaugural events are open to the public, free of charge, some events, like the ten official Inaugural Balls, will require a ticket to attend. The Presidential Inaugural Committee handles ticketing for official events other than the swearing-in ceremony, which is handled by the Joint Congressional Committee on Inaugural Ceremonies. You should check the Presidential Inaugural Committee's website for information about which events require tickets, and how you can acquire them.

Your location and what events are taking place at the time will influence what legal and other limitations you may be subject to. Generally speaking, you should have no problem if you bring small, handheld still and video cameras and carry them in a small bag (but not a backpack). While we found nothing written that suggested any size limitations on cameras, officials told us in telephone conversations that small, handheld equipment is the safest bet, given that security screeners have discretion to prohibit any item "that may pose a threat to the security of the event." To the best of our knowledge, small microphones and other recording devices will be permitted as well.

To help you navigate the security requirements and get the most out of the Inauguration, we've created a Guide to Documenting the 2009 Presidential Inauguration. The guide is the product of a tremendous amount of work by Alexandra Davies, a third-year law student at Harvard Law School and a participant in the Berkman Center's Cyberlaw Clinic. Alex researched the many security directives and made countless telephone calls to officials at the Secret Service, D.C. Metropolitan Police, U.S. Capitol Police, and the National Park Service in order to get to the bottom of what is permitted and prohibited at the Inauguration.

The Citizen Media Law Project began rolling out its Legal Guide, with the generous financial assistance of the Knight Foundation, in January 2008 and continues to add information addressing the legal issues creators of citizen media may encounter as they gather information and publish their work. The guide is intended for use by citizen media creators with or without formal legal training, as well as others with an interest in these issues. You can access the full guide to documenting the Inauguration here: Documenting the 2009 Presidential Inauguration.

Which is why the papers' authors conceived of the project as a conversation, facilitated by a series of papers that look at different facets of these issues. The series includes a fifty-page overview, News and Information as Digital Media Come of Age, followed by seven issue papers:

• International News: Bringing about the Golden Age by Ethan Zuckerman;
• Principles for a New Media Literacy by Dan Gillmor;
• Public Broadcasting and Public Affairs: Opportunities and Challenges for Public Broadcasting's Role in Provisioning the Public With News And Public Affairs by Pat Aufderheide and Jessica Clark;
• Digital Media, Democracy and Diversity: an Imperfect Discourse by Ernest Wilson III;
• Pride of Place: Mainstream Media and the Networked Public Sphere by John Kelly;
• Editors -- the best is yet to come? by Tom Stites; and
• A Typology for Media Organizations.

And four case studies:

• iReport: Participatory Media Joins a Global News Brand;
• The Gothamist Network: Gateway to Local News?;
• The Forum, Deerfield, NH: Seeking Sustainability in Hyperlocal Journalism; and
• The Chi-Town Daily News: Creating a New Supply of Local News.

The project was supported by the John D. and Catherine T. MacArthur Foundation and was led by Berkman Fellow Persephone Miel and Berkman Research Director Rob Faris who spent a year talking to journalists, bloggers, citizen media creators, public broadcasters, publishers, advertising networks, researchers, technologists, lawyers, and many others.

On balance, the papers present a cautiously optimistic picture. There is enormous potential to expand the reach of journalism and to bring it closer to the people who need it. The tools that enable new kinds of reporting, flexible ways to combine information, and networks that connect people to information and to each other are getting better. Tough challenges remain, but it's great to see such smart and dedicated people focused on these issues.

If I haven't convinced you yet that it is worth your time to download the papers, take a minute to watch the video trailer (it's literally a minute long):

(Note: I am a fellow at the Berkman Center and the project I direct, the Citizen Media Law Project, is hosted there, along with Media Re:public.)

I don't think I am the only one who feels this way. The evidence of chatter from both sides of the political divide reveals a wide current of apprehension and skepticism about the legitimacy of our election system generally, and this election in particular. For a flavor of these concerns, see Time's recent piece on 7 Things That Could Go Wrong on Election Day which concludes that the American voting system is "a worrisome mess, a labyrinth of local, state and federal laws spotted with bewildered volunteers, harried public officials, partisan distortions, misdesigned forms, malfunctioning machines and polling-place confusion."

Even a cursory review of these problems reveals them to be systemic and in many instances intractable. We certainly aren't going to fix them all between now and November 4. But that doesn't mean we are powerless to do anything about it. After all, this is OUR ELECTION.

We can use the technological tools most of us have in our pocket right now to get started down the path of fixing these problems. I am talking about cell phones with text messaging, photo, and video capabilities. These incredibly powerful -- and network enabled -- tools can allow you to share your experience in near-real-time. How long was the line to get into your polling place? Did you have difficulty registering to vote or proving that you were registered? Did you experience any problems with the voting equipment? Did you see any evidence of voter fraud or suppression? Even if you don't have a cell phone with these capabilities, you have access to a computer, right? Gena Haskett at BlogHer has a number of great suggestions for ways you can share your voting experiences.

If you have the capability to take photos or video, you can document the problems you experience in a more compelling and concrete way than mere textual descriptions provide. This is what is so exciting about the projects that are helping voters "video the vote," including YouTube's Video Your Vote project (Note: The Citizen Media Law Project, which I direct, is involved with this project) and Video the Vote, a national initiative to protect voting rights by monitoring the electoral process. Both of these ventures make it easy to upload your videos and share them with the world. Keep in mind that a number of states limit what you can record in and around polling places, so you will want to check the Documenting Your Vote page in our legal guide before heading to the polls.

But simply capturing the experiences of individual voters is only one part of a larger effort to understand and make a record of what is going on at the polls during the election. In fact, we really see the potential for citizen media in the websites that aggregate and filter information submitted by individual voters. Sites such as MyFairElection.com, which provides a crowd-sourced map of electoral conditions across the United States, and the Voter Suppression Wiki, which seeks to be a collection point for information relating to voter suppression, are examples of sites that are using the power of Web 2.0 to monitor the election.

These sites could identify problems while they are still small and potentially fixable on election day, as well as provide the impetus for comprehensive election reform. Imagine if voters in Florida had taken photographs or shot video of the butterfly ballots that caused so much confusion in the 2000 election. If those images had been made available to the public at the time, election officials in Palm Beach might have understood the extent of the problem and acted quickly to replace the ballots or issue additional directions to voters on how to use them. Perhaps we will see this sort of real-time corrective action in this election, but even if we don't, these sites are laying the groundwork for real-time adjustments in future elections.

But let's return to the issue of election reform, which is where the long-term impact of the efforts to harness the power of citizen media will bear fruit. One of the impediments to election reform has been the dispersed nature of the problems and the fact that they are largely invisible to the average voter. As Heather Gerken at Yale Law School noted:

Discarded ballots, long lines, machine breakdowns, registration problems -- these all occur routinely during the election process. But voters only become aware of these problems when a race is close enough for the problem to affect the outcome. Given that most races are not competitive, that's a bit like tracking annual rainfall by counting how often lightening strikes. Because voters learn about election administration problems in a haphazard, episodic fashion, politicians have no incentive to pay attention to them unless there's what Rick Hasen calls an "electoral meltdown."

If enough voters record and share their experiences on election day, and this information is aggregated and filtered in meaningful ways, this could galvanize voters to demand comprehensive election reform and would begin to provide election officials with the data they need to identify what needs fixing.

We might also find that by sharing our voting experiences (both the good and the bad), we actually increase voter enthusiasm and turnout. Voting is, after all, a social act and the quintessential shared experience of our democracy.

(For information on the legal issues involved in documenting the election, including a list of state election laws, websites, and contact information for election officials in all 50 states and the District of Columbia, as well as detailed analysis of the law in many battleground states, see the Citizen Media Law Project's guide to Documenting Your Vote.)

So how big are the legal risks? It depends on what you publish and how you go about doing so. If you publish a blog about cute cats, for example, your risks are going to be lower than they would be if you run a website focused on local police corruption. Over the next few weeks we'll attempt to quantify and analyze these risks by digging into the Citizen Media Law Project's legal threats database, but even at this preliminary stage, we can say that the threats directed at online publishers have clearly been increasing. As the figure to the right shows, in the last 10 years, the number of civil lawsuits filed against bloggers and other online publishers have increased from 4 in 1997 to 89 in 2007.

While most lawsuits never get to trial, even frivolous suits dismissed at a relatively early stage of the litigation can be expensive to defend. Unfortunately, if you lack the money to carry out a vigorous defense, your only option may be to settle (perhaps agreeing to take down the offending content or even your entire site) regardless of the merits of your defense.

For these reasons, it is important to assess whether your online activities are covered by insurance. For most non-professionals, this means your existing homeowners or renters insurance. (If your online activities are part of an existing business, you may be able to add coverage to your business insurance policy through an add-on rider.) Keep in mind, however, that most homeowners policies exclude coverage for "business pursuits." How "business pursuits" is interpreted varies from state to state. (See the Insurance Exclusions for Business Pursuits section of our legal guide for more information.) In most states, your activities may be excluded from coverage if you earn advertising income from your site or blog or you collect money through other online means.

If your activities are not covered by your existing insurance, you should give serious consideration to getting media liability insurance. Although these policies can be prohibitively expensive, a new insurance program offered by Media/Professional Insurance called "BlogInsure" is aimed specifically for bloggers and other independent online publishers.

The new insurance, which currently is available only to members of the Media Bloggers Association (MBA), provides coverage for defamation, invasion of privacy, and copyright infringement claims. Premiums start at $450 per year for $100,000/$300,000 in coverage ($100,000 per claim and $300,000 aggregate per year) and go up from there depending on how much revenue your blog or site generates and the type of content.

Bob Cox, president of the MBA, has been working tirelessly on this issue for years and deserves a great deal of credit for putting this together. He was also instrumental in getting Poynter's News University to develop an online media law course for bloggers and other online publishers. The free course, which is required for anyone seeking to enroll in the new insurance program, launched last week. (Note: I co-authored the course with Geanne Rosenberg from the City University of New York's Graduate School of Journalism.)

The legal guide, which runs more than 575 pages, is funded by the John S. and James L. Knight Foundation. It covers the 15 most populous U.S. states and the District of Columbia and is broken into six major sections:

• Forming a Business and Getting Online, which covers the practical issues online publishers should consider in deciding how to carry on their publishing activities, including forming a for-profit and nonprofit business entity, choosing an online platform, and dealing with critical legal issues relating to the mechanics of online publishing;


• Dealing with Online Legal Risks, which covers managing a website and reducing legal risks through compliance with the Digital Millennium Copyright Act and other laws, finding insurance, finding legal help, and responding to legal threats;


• Newsgathering and Privacy, which addresses the legal and practical issues citizen media creators may encounter as they gather documents, take photographs or video, and collect other information, including information on state shield laws and using confidential sources;


• Access to Government Information, which provides information for citizens to proactively use the law in an affirmative manner to enhance their reporting and highlights the extensive amount of information available through government sources and explains how both traditional and non-traditional journalists can use various public access laws, including the Freedom of Information Act, state open records and open meetings laws to gather and make effective use of government information;


• Intellectual Property, which explains various intellectual property concepts, including copyright, trademark, and trade secrets, and provides practical advice to online publishers about how to use the intellectual property of others and protect their own property from exploitation; and


• Risks Associated with Publication, which covers defamation law, privacy law, rights of publicity, and other legal risks that can arise from public distribution of content. This section also explains the legal risks associated with the publication of reader comments and other user-submitted material.

Of course, law is never static, so we'll be updating the guide from time to time.  If you would like to stay abreast of these changes and any new material, please sign up for our weekly newsletter, the Citizen Media Law Brief.

The legal guide is the product of a tremendous amount of work by CMLP students and staff, especially Sam Bayard, CMLP's assistant director, and Tuna Chatterjee, CMLP's staff attorney. We also received help from Allan Ryan, the Director of Intellectual Property at Harvard Business School Publishing, and a team of top lawyers at Skadden, Arps, Slate, Meagher & Flom LLP, including Richard Hindman, Jane Harper, Kai Kramer, David Pawlik, and Eric Sensenbrenner. 

New York's Libel Terrorism Protection Act was meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case.

After Ehrenfeld's plight became widely known, the New York legislature passed the Libel Terrorism Protection Act to give Ehrenfeld and others who are sued abroad for libel the right to obtain a declaration by New York courts that U.S. law protects their speech. Governor Patterson signed the Act into law on April 28, 2008.

In a similar effort at the federal level, Senators Arlen Specter and Joseph Lieberman have introduced the Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. 

Yesterday, Specter and Lieberman published an op-ed in the Wall Street Journal explaining the proposed law:

Our bill bars U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment. If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.

First Amendment scholar Floyd Abrams argues that "the values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each." We agree. But it is not in our interest to permit the balance struck in America to be upset or circumvented by foreign courts. Our legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards. No more. No less. 

Apart from Specter and Lieberman's gratuitous reference at the end of their op-ed to "Islamist terror" as a justification for the federal law, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear, however, that AP is continuing to pursue a "hot news" misappropriation claim against Drudge Retort, and for good reason. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

Accordingly, to succeed with a "hot news" misappropriation claim, AP would have to prove not only that the Drudge Retort is a direct competitor to the AP, but also that its headlines and text were time-sensitive and Retort's use of this content would so harm the 1,500 member news cooperative that their continued publication would threaten AP's existence.

Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.

I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.

Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.

(You can follow further developments in the AP's dealings with Drudge Retort in the Citizen Media Law Project's Legal Threats Database entry: Associated Press v. Drudge Retort.)

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.

As Netanel correctly notes, news organizations (be they old media or new media) that do original reporting suffer from the classic public good problem: while they invest in investigating, reporting, editing, and fact checking their work, their competitors can simply use the finished product without making a similar investment in original reporting. One remedy to this problem proposed by the Pew Research Center's Project for Excellence in Journalism involves having news providers create a consortia to "charge Internet providers and aggregators licensing fees for content."

But this raises a host of concerns, which Netanel points out at the end of his piece:

To my mind, giving news providers a proprietary veto over online news aggregators', Internet providers', and bloggers' referencing of news stories would impose an unacceptable burden on speech. I argue in Copyright's Paradox that, all in all, holding such referencing to be fair use or otherwise noninfringing of copyright is the best solution. But I can see advantages to imposing some sort of statutory license or levy on commercial Internet service providers and news aggregators who profit from news providers' investment. Newspapers should not have a veto over who references their stories or how. But ensuring that they receive some compensation for their investment in quality reporting might be our only hope for maintaining that investment and the vital fourth estate benefits that flow from it.

You can read the entire post here. I also recommend reviewing the comments to his post, which has, as you would expect, elicited some good discussion.

On April 21, magistrate judge Muirhead granted Seidel's well argued motion to quash the subpoena. In so doing, the judge also ordered Shoemaker

to show cause within 10 days why he should not be sanctioned under Fed R Civ P 11 - see Fed R Civ P 45(a)(2)(B) which requires that a deposition subpoena be issued from the court in which the deposition is to occur and Fed R Civ P 45 (c)(1) commanding counsel to avoid burdensome subpoenas. A failure to appear will result in notification of Mr Shoemaker's conduct to the Presiding Judge in the Eastern District of Virginia.

Shoemaker will have a difficult time explaining why the subpoena he issued is justified, as it demands the disclosure of documents that appear to have no relevance to the Sykes litigation. Instead, it is rather obvious that the subpoena was intended to coerce a critic of his clients to "shut up."

The use of unjustified legal threats should never be allowed to silence speech. We all lose when we allow that to happen.

(You can follow further developments in the case by going to the entry in the Citizen Media Law Project's Legal Threats Database: Sykes v. Seidel.)

Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs, Lisa and Seth Sykes, seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent."

Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents. Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege."

Thankfully, the subpoena has received widespread coverage in the blogosphere (see here, here, and here, to start). But it still highlights the vulnerability many bloggers face because they simply don't have anywhere to turn when they recieve these sorts of legal threats. In fact, the more popular a blogger becomes, the more likely he or she may be the target of a legal threat. As Carolyn Elefant noted on Legal Blog Watch:

That Shoemaker felt compelled to intimidate Seidel with a subpoena is, as some bloggers have pointed out, a testament to her blog's influence. Says Law and More's Jane Genova: "Kathleen Seidel's blog "Neurodiversity," which deconstructs autism vaccine litigation, has influence. Why else would those she discusses have issued a subpoena for the documents used for her blog posts?" And Matt Johnston asks, "So what happens when a blogger becomes something of an expert? They get slapped with a subpoena for their research."

While Seidel is opposing this subpoena herself, she doesn't lack for supporters. We're behind you Kathleen. Keep up the fight.

(You can follow further developments in the case in our Legal Threats Database entry: Sykes v. Seidel.)

To whet your appetite, I've pasted the first part of the overview to this new section below:

Access to Government Information

This section of the legal guide outlines the wide-array of information available to you from government sources. These sources range from your local city council all the way up to the largest agencies in the federal government. In fact, you might be quite surprised at how much information is available to you. And the best part is that you generally don't need to hire a lawyer or file any complicated forms -- you can access most of this information simply by showing up or filing a relatively simple request. Moreover, you don't need to be a professional journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can make the information available to anyone in the world. For an impressive example of how some people are using the power of new information technologies in conjunction with government information, check out Adrian Holovaty's Chicagocrime.org, a browsable database of crimes reported in Chicago.

Regardless of what you publish online, it is likely that at least one (if not many) of the information sources we discuss in this section will be valuable to you. For example, you might want to find out whether the drinking water coming out of your faucet contains pollutants (information that is likely contained in documents held by the Environmental Protection Agency or one of its state counterparts). Perhaps you'd like to know more about how your local school board makes decisions (information that you can get by attending school board meetings). Or perhaps you are concerned that a real estate developer may have been sued for fraud (information that is available by visiting the courthouse in person or accessing the court's electronic docketing system).

Information from these government sources will be especially useful to you if you want to take your publishing activities beyond merely commenting on material posted by others. These sources can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on subjects of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section focusing on city government, which is largely based on meetings of the New York City Council.

We should point out, however, that the information you gather from these government sources doesn't have to be limited to the actions of the government itself. Government bodies collect extensive information on individuals, corporations, and other organizations. Much of this information is available to the public. You just have to know where to look.

The first thing you will need to consider is which government entity likely has the information you are seeking. Public access to government information extends to a broad range of government sources, including federal and state agencies, Congress and state legislatures, government boards and committees, and the courts. In fact, it might be the case that the information you are interested in is located in more than one place. A little advanced research on your part can go a long way when dealing with the government. Because different laws apply to different government entities, you will want to review each section of this guide that might apply to your situation. If you are not sure whether the information you seek is associated with a federal, state, or local government body, refer to the page on Federal, State, and Local Government Bodies for some helpful information.

It is also worth bearing in mind that laws granting access to government information are only one of many important fact-finding tools in your information gathering toolbox. These laws can be very powerful, but their scope is limited to records and information available through government sources. For a broad overview of how you can investigate a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation.

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If you are interested in reading more, you will find the rest of this overview in the Legal Guide.