Photo Credit: Michael Ochs Archives

By Scott Kennedy

Spend enough time following YouTube links, and you will know disappointment: “This video is no longer available due to a copyright claim by . . . .” Copyright owners, especially big ones, routinely monitor online media exchange platforms for their intellectual property. When they find a video or recording posted without permission, they can demand the website remove it. But some web users think enforcement efforts are going too far. Sometimes copyright owners demand removal even of original content incorporating only a small amount of copyrighted material.  A pending lawsuit, Lenz v. Universal Music Corp., has become a focal point of this controversy. After a summary judgment ruling this week by the U.S. District Court for the District of Northern California, the case seems likely to go to trial. Continue reading →

By Jessica Belle

While the New Mexico legislature is considering a bill to ban sex offenders from using any social media site, the Seventh Circuit struck down a similar Indiana law as violating Indiana registered sex offender’s right to free speech. Although Facebook and other social networking sites have successfully worked with state attorneys general on removing sex offenders from these sites, the most recent waive of state legislation indicates that prosecutors and other members of the community think the technology community is not doing enough. The crux of the issue is how much, if any, online free speech registered sex offenders should have.

The Indiana law at issue in the Seventh Circuit’s opinion prohibited a registered sex offender from using “social networking site[s]” or “instant messaging or char room programs” if the sex offender knows those under 18 years of age are permitted to access these sites or programs. This law was enacted in 2008 and broadly applies to anyone required to register as a sex offender, § 35-42-4-12(b)(1)-(2), with an exception for sex offenders who were close in age and had a consensual relationship with their victim, § 35-42-4-12(a). Though all parties agree that Indiana has an interest in protecting children from convicted sex offenders, in this case the Seventh Circuit held that the State too broadly limited the rights of sex offenders.

The case was brought as permanent injunction against the law by a class of sex offenders currently not subject supervised release and to whom the law in question applies. Following a bench trial with only four witnesses—two class members and two social media experts—the federal district court judge found the law was “narrowly tailored to serve a significant government interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

On appeal, the Seventh Circuit found that the law bars registered sex offenders from expressing themselves through social media and inhibits their ability to receive and exchange information. Holding that the Indiana law is be content neutral, the court applied intermediate scrutiny and found the law was not “narrowly tailored to serve a significant government interest.” Ward, 491 U.S. at 791. Instead, the Court held that the “law targets substantially more activity than the evil it seeks to redress” and therefore violates the registered sex offenders’ First Amendment rights.

The Seventh Circuit opinion accords with the two other federal rulings on other state laws restricting registered sex offenders from using social media. In February 2012, Chief Judge Brian Jackson held a Louisiana law that prohibited registered sex offenders from “using social networking sites, chat rooms and peer-to-peer networks” was “unconstitutionally overbroad and void for vagueness. However, just a few months later Louisiana passed a new, narrower law requiring registered sex offenders to list their status on social media.

In October 2012, senior U.S. District Judge Richard Kopf stuck down a Nebraska9 law that sought to limit sex offenders—whose crimes were against children—from using the Internet. The Nebraska law that required these sex offenders to inform the government any time they post online, consent to search and monitoring of all remote communication devices and refrain from any use of social networking sites, instant messaging and chat room programs that a minor could access. Judge Kopf held these provisions were not narrowly tailored to achieve the State’s interest and raised other constitutional concerns. Other states like Illinois prohibit the use of social networking sites as a condition of sex offenders’ parole.

There has been no move to request cert review by the U.S. Supreme Court of the Indiana case. However, the debate over registered sex offenders’ right to free speech online continues across the nation. Technology companies should play close attention to this debate as they may be forced to assist states that seek to enforce laws limiting sex offenders’ access to certain online sites and programs.

Image Credit: Yells Fire in a Crowded Theater

By Bryan Russell

In the midst of Superstorm Sandy, someone anonymously tweeted: “BREAKING: Con Edison has begun shutting down all power in Manhattan,” and “BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter.” Both of these statements were patently false—outright lies.  Continue reading →

One of our blog readers saw our article on cyberbullying and recommended 15 Strategies Educators Can Use to Stop Cyberbullying as further reading on the topic. The article is educator focused but as cyberbullying becomes more common, the responses suggested may well grow to represent the institutional standard of care.

Image Credit: Wikimedia Commons

By Scott Kennedy

The U.S. District Court for the District of South Dakota is currently considering a motion by ABC News to dismiss a defamation suit brought against it by Beef Products, Inc. (BPI), the makers of “lean finely textured beef (LFTB).” Last March ABC News reported on the beef product, which its critics call “pink slime,” sparking widespread consumer outrage. In response, BPI recently filed suit against ABC under South Dakota’s defamation law and another state law permitting businesses to recover from anyone who knowingly disseminates false information about food safety.

LFTB is a product made from beef trimmings which are processed into a smooth substance and treated with ammonia for safety. ABC’s report described the nature of the product, of which many consumers had been unaware, and warned that 70 percent of supermarket ground beef contains the product. The story was widely re-circulated and discussed across social media, and BPI says that it had to suspend operations at several of its plants after the decrease in demand that resulted.

BPI filed suit in South Dakota state court in September seeking $400 million in compensatory damages, which could potentially be tripled under a South Dakota law pertaining to the disparagement of agricultural products. The complaint alleges that ABC’s reporting included false and defamatory statements that misled consumers to believe LFTB is unsafe. ABC recently removed the suit to federal court, where it now seeks to dismiss the action under Federal Rule of Civil Procedure 12(b)(6). In a supporting memorandum it argues, among other things, that none of its statements described LFTB as unsafe, that BPI’s lawsuit threatens to impede free speech, and that while “pink slime” may be an unflatteringly colorful description, it conveys no false information about the product.

The survival of BPI’s lawsuit is of particular interest because it echoes another controversial episode at the intersection of the beef industry and defamation law. In 1996, and again in 1998, Oprah Winfrey was famously sued by a group of cattle ranchers alleging that her televised discussions of mad cow disease libelously misled consumers about the safety of the U.S. beef supply. After six years of legal battles and escalating costs Ms. Winfrey prevailed, but ABC news no doubt hopes to prevent a protracted fight. Should the action eventually go to trial BPI will face a steep challenge, however: their claims require proof not only that ABC’s reporting misled consumers to the detriment of the industry, but also that the news team knew or suspected their statements to be false. ABC news denies any such knowledge. More information about the case can be found under the name Beef Products Inc et al v. American Broadcasting Cos et al, U.S. District Court, District of South Dakota, No. 12-4183.