Ona09-legal

Online News Association -- San Francisco Oct. 2, 2009

http://densmore.newshare.com/research paper

Rough notes by Bill Densmore.

THE LEGAL PANEL -- What can (or should) journalists learn from recent legal kerfluffles, such as Facebook's recent terms of service changes? Exploring issues around online privacy and other pressing legal issue.

PANELISTS

• Jon Hart, partner, Dow Lohnes & ONA general council (moderator)
• Andy Mar, attorney, legal and corporate affairs, Microsoft Corp./MSN
• Fred von Lohmann, senior staff attorney, Electric Frontier Foundation
• Nicole Wong, deputy general counsel, Google Inc.

John Hart -- It's no longer correct that you get in legal trouble if you edit comments on your website.

Section 230 of the Communications Deceny Act controls.

Andy Mar -- As long as the website is publishing the content, you can review it, and you are following certain guidlines, you can assert immunity from publishing third-party content, as opposed to something you have developed yourself.

Nicole Wong -- The CDA was part of protecting children from the web. Congress wanted sites to feel OK about editing out pornography, without then feeling that they "owned" the content. It was designed to protect Internet Service Providers. "Where we have now come to is we want people to be cleaning up their sites," she said.

Fred von Lohmann -- The price paid is the tenor of UTube comments. Without Section 230 "it would be incredibly dangerous" to allow public comments. So the user-generated aspect of the web is a direct result of Section 230. "If your in the position of putting words into peoples' mouths, may be Section 230 doesn't protect you," he said. Stay away from "developing the content yourself."

Even a lot of lawyers are amazed at the provisions of Section 230.

Discussing international implications

AUDIENCE QUESTION: What are the global implications of this?

Nicole Wong -- This issue keeps her up at night. It's not clear whether the law in the United States or, say, Brazil, applies, if the complaining user is in Brazil. Google takes the position that U.S. law governs in all instances.

Von Lohmann -- "Once you go beyond defamation, there is really very little law at all." He discusses a lawsuit brought a French fashion-designer plaintiff about photos taken by an American blogger of a runway show and posted on a U.S. server. The French plaintiff sued, the blogger didn't show up, the French plaintiff then came to a New York court to enforce a French default judgement. "So you have this American blog that is facing a French judgement," says von Lohmann. New York court also said the blogger should have shown up in France to defend.

QUESTION: What about editing for dimensions?

Andy Marr: The same principles apply to non-text. If the information after editing changes the root meaning or context, that could be a problem. Accurate cropping of a picture is still fine.

"Your first line of defense against your own contributors is your terms of use," says Von Lohmann. "Certainly Facebook will never revise their Terms of Use again without at least the business office having something to do with it."

Discussing Terms of Use

"Google has kind of been best-of-breed in this," says Von Lohmann.

"What about a footer on the bottom of every web page?" asks John Hart.

Von Lohmann says that's probably not enough.

"Getting in front of your users without getting in the way of their experience is an incredible art form," says Wong.

The right of publicity

There's a discussion of the "right of publicity," the body of state and common law which prevents you from using the likeness of someone to promote a product without their permission. Journalistic use has always been carved out as OK.

Somebody tell this guy that "people should pay" is not a vision for a news company. http://jr.ly/w8ct InDenverTimes had the same "vision."

Discussion of copyright

DMCA -- Digital Millenium Copyright Act -- Creates safe harbors, which are discussed. SEction 512 of the copyright act, applies to online service providers.

Von Lohmann: "Basically what si says is you will not be held libel for ocpyright violations as long as you follow certain rules." It applies to four services:

Von Lohmann says:

• Straight Internet connectivity (ISP's got broadest)
• Caching (temporary saving of a file for technical or bandwidth reasons)
• Storing content on behalf of users. "That is exactly what YouTube does, that is exactly what Blogger does."
• Information location tools -- "a long way of saying linking" -- Bing, Google, all provide links -- sometimes to infringing stuff. They have this safe harbor, however.

What are the rules:

• Follow notice and take down. If you get a notice you have to remove the links.
• You must terminate repeat infringers.
• You have to file a notice with the Copyright Office of your copyright agent. You just fill out a form and send an $80 check to the Copyright office. "I am always stunned and amazing at how many sites fail to do that."

The safe harbors are not mandatory, you don't automatically lose, but if you do you get this Safe Harbor, otherwise you are at your risk under normal application of copyright law.

IMHO you've got the right aneswr!

Wrapup thoughts

Von Lohman doesn't think the current state of the law will change because of the players are terrified of reopening the issues at stake. He thinks the DMCA law is working reasonable well for the business although the users get somewhat the short stick.