Guide Through the Legal Jungle

Europe May Forbid Photos of Your Home; US Law Does Not

Threats to Google’s Street View program illustrate how variations in international law can impact internet companies.

Street View, a 360-degree zoomable web application, allows you to use your computer to take a virtual tour of cities and towns and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology.

Google’s plans to expand Street View into European cities are encountering some bumps in the road. Germany threatened sanctions if Google failed to make some changes to the Street View program. Among other problems, Germany was most concerned with Google’s unauthorized filming of people’s residences and private property without their permission. Evidently that’s a no-no under German law. Directly across the pond, Beatle Paul McCartney joined in on the Google bashing and demanded that his London mansion be removed from Street View’s UK application. News reports indicated that Google complied with McCartney’s demand.

Don’t Try That In the United States

The European complaints about Street View remind me of a similar situation in the United States that generated a much different result. This U.S. situation focuses on singer/actress Barbara Streisand.

The California Coastal Records Project offers 12,000 aerial views and frames of the California coastline. After discovering that a single frame included her Malibu estate, Barbara Streisand sued claiming that the inclusion of her home in the photo invaded her privacy, violated California’s "anti-paparazzi" statute, and threatened her security. Not only was Streisand’s lawsuit dismissed on an anti-SLAPP motion, she was also ordered to reimburse California Coastal Records and other defendants $177,107.54 for their legal fees and her actions were extensively ridiculed in the media.

Courtney Love’s Twitter Defamation Lawsuit

Dawn Simorangkir, aka Dawn Younger-Smith, aka Boudoir Queen is an up and coming fashion designer who was retained by singer Courtney Michelle Love. After becoming unhappy with their business relationship, Love posted some not-very-nice and profanity-filled online comments about Simorangkir.

Simorangkir has filed a lawsuit against Love for libel and related claims.

Why Is Everyone So Atwitter Over the Courtney Love Defamation Lawsuit

Everyone seems quite excited that this defamation action spawned from comments that Love posted on the popular social networking site Twitter. Evidently, the Love/Simorangkir lawsuit is the first defamation action connected to someone’s activities on the micro-blogging site. Note that Love also posted comments on MySpace and on Simorangkir’s etsy.com feedback page

Is This Defamation Lawsuit Really Special?

Outside of the use of Twitter, I would say this defamation lawsuit is not that special. However, it should serve as reminder that bad behavior is not immune from consequences just because the bad behavior takes place via the internet.

As a general review of how to avoid defaming people, you might want to listen to my recent One-Minute How-To – Challenge interview during which I gave a one-minute overview of How to Avoid Defaming People In Your Writing.

Is Courtney Love In Trouble?

Maybe. Much of Love’s internet musings are a rant which could be classified as Love’s statement of her opinion about Simorangkir or simply as name calling. Insults and name calling by themselves are normally not actionable as defamation.

However, within her rant, Love does make statements that a court might interpret as being offered as statements of fact. According to Simorangkir’s complaint, Love said Simorangkir sold drugs, is a drug addict, has a history of dealing cocaine, has a history of assault and burglary, has a record of prostitution, has committed grand theft, stole cash and goods from Love, has engaged in felonious behavior, lied, embezzled money, has committed blackmail, was deemed an unfit parent, lost custody of her child, is a racist and homophobe, has outstanding warrants for her arrest, and that the Austin police confiscated Love's property from her home.

If Love made such statements about Simorangkir and the statements are false, those are good grounds for a defamation claim.

Some Fan Site Do’s and Don’ts

I recently responded to an inquiry about how a company could get an unofficial fan page removed from a popular social networking site.

The query came at a great time. I’m completing the manuscript for my next book which is on internet law issues and was just working on the chapter that discusses what you can and cannot place on a fan site. Here's a preview:

Some Fan Site Do’s

A true fan site is a form of expression. You cannot use copyright, trademark, and other intellectual property laws to stop people from expressing themselves, from giving their opinions, and from otherwise exercising their First Amendment rights. That means fan sites can criticize, parody, and offer other forms of commentary concerning the object of their “fandom”.

Some Fan Site Don’ts

Activities that take fan sites beyond First Amendment parameters include

• referring to the fan site as the official site
• selling products or commercial advertising
• using a domain name that misleads consumers into thinking the fan site is an official or endorsed site
• posting copyrighted material in a manner that goes beyond fair use

Responding to Stolen Content with a DMCA Take-Down Letter

Having your original, creative content used online without your authorization is a common problem. In a recent posting, I addressed potential responses you can take if your content is stolen. While the suggestions are in a posting entitled “Bloggers’ Legal Problems”, the discussion is relevant to anyone whose content is stolen. As discussed in that posting, options for fighting against scraped content include the following:

• Sending a cease and desist letter
• Sending a DMCA take-down notice
• Filing a copyright infringement lawsuit

A Few More Words about Sending DMCA Take-Down Notices

To be effective, your take-down notice must have the proper information. The Digital Millennium Copyright Act (DMCA) insulates interactive service providers (e.g., companies like Google, GoDaddy, and YouTube) from claims of contributory copyright infringement for material posted by their customers and online visitors. Promptly removing infringing material upon the request of the copyright owner is a requirement to getting that insulation - so interactive service providers generally respond fairly quickly to take-down requests.

However, if your take-down request – which you can send via email – does not have the proper information, the interactive service provider can just ignore it.

A Real-Life Example

Recently, a blogger of a popular cooking blog discovered that another site had duplicated all her content without her permission. After searching on Whois and locating the site’s webhost and domain registrar, the blogger sent them an email explaining the site’s theft.

The blogger’s email didn’t conform with DMCA take-down requirements so it produced no results except for an “I’m sorry. There’s nothing we can do” from the webhost and a form letter from the domain name registrar indicating in very opaque, unclear language that it could do nothing based on the current request. Once the blogger put her request in proper DMCA take-down format and sent it to the domain name registrar, the knock-off site was taken down almost immediately. A happy ending!

Blogger’s Common Legal Questions – Part III

This is the final posting summarizing questions I addressed during a recent panel discussion on Blogging Basics. See Part I and Part II for a discussion of other legal issues that interest bloggers.

Do I Need Permission to Use Other People’s Material on My Blog?

As a general rule, you should obtain permission before using another person’s material on your blog unless you determine there’s an applicable exception to needing permission such as one of the following:

• Use of Material in the Public Domain. Once a copyright expires, the work falls into the public domain and can be used without the copyright owner's permission. Listen to my one-minute explanation of determining whether material is in the public domain.
  
• Use Covered by the First Amendment. If the material is the only source of information and that information is vital to the public's understanding of certain events, the material can be used without the copyright owner's permission.
  
• Copyright Fair Use. The fair use exception to copyright protection allows you to use a reasonable portion of a copyrighted work without permission. There is no bright line rule in determining what qualifies as fair use. Read some examples of how the fair use doctrine is applied.
  
• Parody. A parody is a form of commentary that borrows liberally from the original work in order to make fun of it. In order to qualify as a parody, the work must be a commentary on the original author's work.
  
• Federal Government Works. United States government works created by federal government employees or commissioned as works made for hire are in the public domain. State and local government works may be protected by copyright.

Finding Trouble-Free Material for Your Blog.

When you want to incorporate outside creative material into your blog, consider the following sources:

• Content owners and social networking sites that allow you to embed video and other content into your blog.
  
• Material available under a Creative Commons License.
  
• Stock houses that license images, video, and music at inexpensive rates.

You can find extensive information on exceptions to needing permission and sources for trouble-free materials in my book, The Permission Seeker’s Guide Through the Legal Jungle.

Blogger’s Common Legal Questions – Part II

Here are a few more issues I addressed during a recent panel discussion on Blogging Basics.

What Rights Do I Have in Comments Left by Visitors?

Most blogs have an interactive element and invite readers to submit comments on each of the postings. Copyright ownership extends to the person creating the comments. That means the person placing the comments on the blog owns them. By their conduct, readers give the blog owner an implied license to post those comments on the blog. If bloggers want to use the comments beyond that purpose, they should consider incorporating license provisions into the blog’s posted terms and conditions.

Can I Blog Anonymously?

Under the First Amendment, you have the right to blog anonymously. However, if your blog material violates the rights of someone, the person may be able to obtain a subpoena compelling any third party provider (such as your blog hosting provider) to release your identity.

To read my comments about protecting your blog material and steps you can take if someone copies your blog postings, see Part I of this series.

Round One Goes to EBay Auctioneer in Battle to Sell Used Software

Recently, I discussed the Vernor v. Autodesk case under the blog posting “Does Copyright Law Prohibit the Sale of Used Software on eBay?”.  After Autodesk got a few of Timothy Vernor’s auction listings for used copies of AUTOCAD bounced off of eBay, Vernor filed a lawsuit asking for a declaratory judgment that his sale of the used software was legal.

Rather than backing down, Autodesk asked for a dismissal of Vernor’s lawsuit or for a summary judgment ruling in its favor. The court refused Autodesk’s request. After doing numerous somersaults and back flips through diverging case law precedent, a federal court in the state of Washington decided that Autodesk had sold rather than licensed copies of AUTOCAD to a Seattle architecture firm.  The Seattle architecture firm subsequently sold the copies to Vernor. As a result, the first sale doctrine applies to the AUTOCAD copies and Vernor’s sale of the used AUTOCAD software on eBay is not copyright infringement.

I wish I could stop my blog entry right here and tell you that the court's ruling is the end of the story.  But that would make life too easy.  So I continue . . .

Intellectual Property Owners Pay for United States’ Snub of World Trade Organization's Ruling

In an attempt to stamp out offshore internet gambling, the United States outlawed access to offshore internet gambling.  Antigua, known for its beautiful Caribbean beaches, found the action had a negative impact on its nascent online gambling industry and complained to the World Trade Organization (“WTO”) that the action violated free trade treaties. The WTO agreed with Antigua and told the United  States to remedy the violation. Instead of complying, the United States opted to pass additional legislation – this time ordering United States banks and credit card companies to stop processing payments to online gambling businesses.

What’s All That Got to Do with the Price of Eggs?

What has online gambling and the Antigua/WTO situation have to do with intellectual property owners, you ask. I would say not much.  However . . .

Determining Songwriters’ Livelihood with a New Mechanical Royalty Rate

In previous posts, I’ve commented that while recording artists get the glamour, it is songwriting and the ownership of songs that generate greater revenue within the music industry.

Songwriters have multiple music licensing opportunities and can often live on royalties from hit songs for decades.  One of the songwriter’s primary sources of revenue – the mechanical royalty – is facing a challenge.  Last month, the Copyright Royalty Board began a proceeding to determine the new mechanical royalty rates for songs.

What’s at Stake?

The current mechanical license rate is 9.1 cents.  A record label pays mechanical license fees for each copy of a song it distributes.  Cover artists who re-record and distribute previously released songs also pay mechanical license fees.  For a brief introduction to mechanical licenses and how songs generate revenue, see my article Music Publishing: How Your Songwriting Generates Income

How Not to Write a Cease & Desist Letter

A cease and desist letter is a letter that a rights owner or her attorney sends to someone who is allegedly infringing the rights owner’s copyright, trademark, or other intellectual property asset. In the letter, the rights owner explains how your actions are violating her rights and demands that you stop such activities.

Cease and desist letters usually carry the threat of additional le­gal action, usually a lawsuit, if the activity does not stop. Sometimes, the rights owner means busi­ness and has the intention and the resources to follow through with a lawsuit if you fail to comply. However, other cease and desist letters are the equivalent of the rights owner huffing and puffing with no real power to blow your house down. The rights owner may have a weak or no valid legal argument against your activities and hopes that the cease and desist letter will scare you into compliance. In effect, the rights owner is just bluffing. Sometimes the recipient calls the bluff. A cease and desist letter too strongly worded can backfire as bad publicity for the sender.