The National Pulse
Fear of Blogging
As the Law Catches Up to the Technology, Bloggers Look for a Few Good Attorneys
Posted Jul 28, 2005 1:16 PM CDT
By Wendy N. Davis
Last December, Jeff Jarvis called for a few good lawyers. “We need all the many blogging lawyers to band together to provide legal help for their fellow bloggers,” Jarvis wrote on his Web log, BuzzMachine.
Jarvis is a media consultant and creator of the online publishing company Advance.net and the magazine Entertainment Weekly. He posted his plea after blogger Jason Kottke landed in hot water with Sony Pictures Television. Kottke had tweaked Sony by posting an audio clip of Ken Jennings losing on Jeopardy, after winning 74 games in a row and more than $2.5 million in prize money.
Although the mainstream media have also written about Jennings’ loss, it was Kottke’s blog that riled Sony, the show’s producer, enough to spark threats of litigation for copyright infringement. That, in turn, prompted Jarvis’ call to action. “Civilians can’t afford the fight. And that’s just the point, of course,” he wrote on his blog. “So we need our own lawyers.”
The legal community hasn’t been swift to respond, but such is the way with new technologies: The law will be developed only after problems arise.
“Anytime there is a new technology, many laws—starting with the Constitution, copyright law and intellectual property laws—try to catch up,” says Los Angeles attorney Mark Litvack, chair of the Committee on First Amendment Rights in the Digital Age in the ABA’s Science and Technology Law Section. Changes in the law almost always follow, rather than lead, the technological innovations, he adds.
But that may be changing. Last November marked the launch of the Media Bloggers Association at BloggerCon3, a convention at Stanford Law School. The group of media-critic bloggers, now at about 350 members, hired Clifton, N.J.-based media lawyer Ronald Coleman as their general counsel.
The purpose of the MBA is to protect “the little guys from assertions of power by the big guys,” Coleman says.
The group is just one outgrowth of the surge in blogging. Once the obscure hobby of pajama-wearing basement dwellers, blogs have become mainstream, regularly featured on Web sites posted by nationwide interest groups, publications and other entities. The Pew Internet & American Life Project reported in May that 6 percent of Americans have created blogs, while 16 percent of U.S. adults read them.
And the law is catching up. Besides the Jeopardy skirmish, bloggers have faced challenges in employment law, campaign finance rules and First Amendment law. In a case being appealed, a judge in California granted Apple Computer permission to subpoena Nfox, the Internet service provider for PowerPage, a blog that published information about an upcoming Apple product.
Apple had sued anonymous John Doe defendants after posts about an upcoming product appeared on the blogs PowerPage and AppleInsider. The bloggers intervened by filing for a protective order asking to quash the subpoena. Nfox isn’t a party to the case. California has a shield law that protects journalists from being held in contempt for refusing to disclose confidential sources. Although the bloggers themselves have not been subpoenaed, the San Francisco-based Electronic Frontier Foundation argues the same principles that protect journalists from having to disclose their sources should allow the bloggers to intervene to quash the Nfox subpoena. The EFF claims that California’s shield law confers the same rights on bloggers as on reporters for any traditional publication.
Santa Clara County Superior Court Judge James P. Kleinberg, who decided the case in March, sidestepped the question of whether bloggers are journalists, ruling instead that even if the bloggers had statutory or constitutional privileges to withhold information, such rights weren’t absolute. Apple Computer v. Doe, No. 1-04-CV-032178. “Even if the movants are journalists, this is not the equivalent of a free pass,” he wrote. Another area involving the status of bloggers is campaign finance law. The Federal Election Commission is considering rules regarding campaign finance limits on the Internet that could affect whether bloggers can link to campaign Web sites or accept ad dollars from political camps. In the past, the FEC excluded the Internet from the strictures of the 2002 Bipartisan Campaign Reform Act, known as the McCain-Feingold law. But last September, U.S. District Judge Colleen Kollar-Kotelly ruled that the FEC may not give the Internet a blanket pass from the law. Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C.).
Publishing Goes Public
As with the Apple case, a crucial question for the agency is whether bloggers are journalists, which would exempt them from contribution limits. Otherwise, a blogger’s editorial endorsement of a politician could be considered a campaign contribution that is subject to limits.
But how to characterize bloggers is a surface issue. For the first time since Johannes Gutenberg invented the printing press, publishing has no entry costs. Anyone with a computer and an Internet connection can blog. Even a computer might not be needed much longer: Google is testing a service that would allow blogging from cell phones. The result, says Washington, D.C.-based First Amendment lawyer and bloggers’ advocate Lee Goodman, is “the democratization of the press.”
“The distinctive feature of blogging is how little it costs,” Goodman says. “Now, every citizen has a printing press at their fingertips that costs less than $1,000.”
Their readership and credibility ironically make bloggers threatening to mainstream media. “The speed at which a lot of news has been broken” has astounded media companies, says EFF staff lawyer Kurt Opsahl. “People are saying the same things that they would say at the watercooler but saying them in a context where they could be heard by anybody,” he says.
The institutions that bloggers attack often push back. MBA founder Robert Cox, who runs a blog called The National Debate, had problems last year with The New York Times after parodying the Times’ corrections policy.
The newspaper’s lawyers contacted Cox and his ISP, claiming that the satirical posting violated the Times’ intellectual property rights under the Digital Millennium Copyright Act—which provides that copyright holders can take action against hosting companies as well as the individual that allegedly violated the copyright.
As word of the dispute spread through the blogosphere, Cox became a populist hero and secured Coleman as his lawyer. Cox also added a disclaimer to his page saying it was a parody, and the Times dropped its demands.
Some bloggers have had troubles beyond defending lawsuits. More than a handful have lost their jobs. Blogger Mark Jen was fired in January from his job at Google—a search engine that itself is one of the largest providers of free blog-hosting services. Jen, who had worked at Google for only two weeks, wrote about the company on his blog. He’s now at another Internet company, Plaxo.
Another high-profile firing came last fall, after Delta Air Lines first suspended and later let go a flight attendant who blogged under the name “Queen of Sky” for posting pictures of herself in uniform.
The flight attendant had filed a sex discrimination complaint before she was dismissed. However, the Electronic Frontier Foundation’s Opsahl notes, many states, including the tech hotbed of California, prohibit private employers from firing employees for activities they undertake on their own time.
Those and other terminations prompted the EFF to post instructions on its Web site this April about how to blog safely, with a section devoted to the ins and outs of anonymous blogging.
Still, even as corporations try to swat them, bloggers seem to have the last laugh. “It’s known within the IP bar that you have to write every cease-and-desist letter with an eye to the highly likely possibility that the letter itself will end up on the Internet,” Coleman says.
And, he adds, bloggers have at least one advantage over their pamphleteering counterparts. “The blogosphere,” Coleman says, “has made it easier to get hold of good legal advice.”