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Friday, February 28, 2003

Viacom Sends Cease and Desist Letter to Soundboard Site

CNN via CourtTV is reporting that media giant Viacom has sent a cease and desist letter to the 23-year-old operator of a web site that hosts, among other things, around two dozen celebrity sound boards -- online audio samples that are often used to make prank calls. According to the story, Viacom is threatening to bring a copyright action over sound clips of Judge Judy, Dr. Phil, Howard Stern and Tim Meadows -- celebrities who work for Viacom. The webmaster and his father are apparently going to try and call Viacom's bluff and have not given in to Viacom's demands to remove the clips.

Funny, but the Howard Stern Show often broadcasts prank calls made by listeners using the soundboards, including one that I remember uses Stern's own voice. This raises the question: Could Howard Stern be sued as a contibutory copyright infringer for broadcasting his own voice?

Patent Holder Targets Small Newspapers With Infringement Suits

Editor & Publisher reports that Paul Heckel, holder of two patents for web-based display technology, has filed suit against a dozen small newspapers across the country alleging that their web sites infringe upon his rights. The article notes that Heckel has sent out over 60 cease-and-desist letters to publishers offering to resolve the matter for a one-time license fee of $1 for each print copy in circulation, as listed in the 2002 Editor & Publisher International Year Book.

The article also reports on the speculation that Heckel is trageting smaller publishers in order to build a "war chest" to go after bigger fish.

Where's that Whistling 'Rollback' Guy When You Need Him? $8.5 Million Judgment Stands Against Wal-Mart

With Wal-Mart apparently opting not to move for remittitur (reduction), Mississippi Circuit Court Judge Andrew Howorth has let stand an $8.5 million defamation verdict by rejecting the company's post-trial motions for judgment notwithstanding the verdict and new trial. According to a report in the Washington Post, Wal-Mart has indicated that it will appeal the verdict to the Mississippi Supreme Court.

The defamation claim was brought by former Wal-Mart truck driver, Lamon Griggs, who had been accused of shoplifting tobacco. An earlier article from The National Law Journal stated that Griggs claimed that he left a Wal-Mart store with a pack of chewing tobacco in order to make a phone call to his supervisor. While Griggs apparently informed the "door checker" that he would return to pay for the item, he was stopped by the store's loss prevention staff on his way back to the store and subsequently fired for taking the tobacco outside in accordance with Wal-Mart policy. When Griggs's fellow truckers complained about the dismissal, they were informed by a Wal-Mart supervisor that Griggs was a "habitual thief" who had been captured stealing on videotape.

The jury awarded Griggs $1.5 million in actual damages and $7 million in punitives. According to the National Law Journal report, prior to trial, the defense had offered $30,000 to settle, while Griggs's attorneys countered with $1.2 million, but would have settled for $750,000.

Interestingly, while Wal-Mart apparently complained in its post-trial motions that the award was excessive, it did not ask the judge to reduce the size of the award. Judge Howorth may have been receptive to such a request as he noted in his order that Wal-Mart did not ask that the award be reduced and stated that the court would not reduce the verdict on its own.

Fun Fact of Little to No Value! I was involved in a trademark litigation against Wal-Mart and got to travel to Wal-Mart's headquarters in the beautiful (but dry - alcohol-wise) town of Bentonville, Arkansas for a week of depositions [hey, that's where the 'rollback' guy's been hiding]. There must have been a sale on blue vests and name badges cause everyone was wearing one.

Playboy Seeks 'The Women of Starbucks,' Promises to Bring the Trademark Home by Eleven

Tech Law Advisor posts on Playboy's announcement that it is seeking to do a pictorial on the 'Women of Starbucks;' Starbucks is not exactly thrilled.

Jeez, I thought the women from 'Battlestar Galactica' would be kinda old by now. (Sorry.)

Thursday, February 27, 2003

What Is This Internet You Speak Of?

I was researching an interesting issue concerning Internet jurisdiction (which I will be at liberty to discuss once I am certain that the action is over) when I came across this oldie but goodie -- Hearst Corporation v. Goldberger, (S.D.N.Y. 1997). The case was a trademark infringement action [back in the pre-UDRP/ACPA days] brought by Hearst Corp., publisher of Esquire magazine, against Ari Golberger, the operator of the esqwire.com web site [hey, Ari's still there!] . While Magistrate Judge Peck of New York's Southern District Court ultimately holds that the out-of-state creation of a web site that is accessible in New York, standing alone, does not provide personal jurisdiction, I really enjoyed the following:

"In order to understand the personal jurisdictional issues in this case, it is necessary to understand the Internet. (The computer-literate who are already familiar with the Internet may wish to skip to the next section)."

Magistrate Peck then goes on to provide a "brief description" of the Internet in eight paragraphs. How quaint . . . .

Will New York Be the Next State to Adopt a 'Peeping Tom' Law?

The front page article in today's New York Post reports on the sentencing of William Schultz, a Long Island landlord, who set up a hidden camera to capture his 29 year-old female tenant in "private moments." Schultz, charged with trespassing because New York law does not reach surreptitious video recording, received a sentence of 3 years probation, 280 hours of community service and$1,468 in restitution.

According to the article, the judge expressed regret that she could only "uphold the laws of the state" and noted there was a drive to close the technological loophole in the criminal statutes. This did not impress Schultz's victim who called the sentence "a joke."

Cases like these have inspired other states to pass so-called "Peeping Tom" laws.

Wednesday, February 26, 2003

Islamic Charity's Defamation Suit Dismissed

U.S. District Court Judge David Coar of the Northern District of Illinois has dismissed a defamation claim brought by the Global Relief Foundation, an Islamic charity, against several media companies over reports that the government was investigating whether the charity had any links to terrorism. According to a report on CNN, the judge found that sworn statements by two officials involved in the terrorism investigation "have proven that GRF was in fact under investigation for possible links to terrorism at the time of their news reports." Opinion here.

The New York Times Co., Associated Press, ABC Inc., The Boston Globe, The New York Daily News and Hearst Communications, in addition to the individual reporters, were named as defendants.

Tonight on CBS - "Cracker Comedy"!

U.S. Senator and admitted hillbilly Zell Miller complained on the Senate floor yesterday about CBS's plans for "The Real Beverly Hillbillies." Article via Washington Post. Prior post here.

You can't google GOOGLE

A little off topic but Kevin at Tech Law Advisor has been tracking the recent discussions regarding Google's attempts to protect the GOOGLE trademark. Apparently, Google's attempts to protect its intellectual property has everyone up in arms. One critic has put forward the theory that Google has no rights in the term because its a verb: "Of course google is used as a verb. And why not? It only makes sense, it is short, it is fun, it works. And what the Google (TM) lawyer knows, but does not say, is that the company he represents cannot do anything about its use as a verb, legally. They cannot sue, as one cannot claim proprietary rights to a verb."

I think that this argument puts the cart before the horse by implying that the use of the term "google" for searching existed before the GOOGLE trademark. As Google's History Page makes clear, GOOGLE is a fanciful play on the term googol (the number represented by 1 followed by 100 zeros). As applied to a search engine or web-based information service, GOOGLE is clearly a fanciful term. The only reason people use the term google as a verb is because of the popularity and success of Google. Google shouldn't lose its proprietary rights in the term merely because people misuse it. Perhaps I have been "brainwashed" by representing trademark holders for the past few years, but they often send notices regarding proper use and they shouldn't be faulted for trying to protect their rights. Snarky comments aside, just because people use trademarks as verbs because "it is fun" doesn't make it right (and I assume when Cory went out to get his kleenex and aspirin, he was rollerblading).

Tuesday, February 25, 2003

Unfortunately, He Wasn't Kidding

BBC News is reporting that celebrated French chef, Bernard Loiseau, has apparently committed suicide after one of his restaurants, Cote d'Or, was downgraded from 19/20 last year, to 17/20 this year by the prestigious restaurant guide Gault Millau. According to the report, other chefs are blaming the guide for the chef's death saying that the guide (and others like it) wield too much power and drove the chef over the edge. (I have it on good authority that this might actually make for a decent negligent publication/wrongful death claim in France.)

Gault Millau asserts that Loiseau had other problems that led to his death. There are conflicting reports concerning statements Loiseau made about the possibility of a restaurant downgrade. While one account indicated that he would have relished the challenge to be better if his restaurants were downgraded, one chef stated that Loiseau had told him, 'If I lose a star, I'll kill myself.'"

[Thanks to Mr. Wolf for the tip]

Chicken Story Found Sensational and Inaccurate (No Word On Taste)

According to The Minnesota News Council, a December 9, 2002 news report by WCCO-TV on the hazards of eating chicken treated with antibiotics was unbalanced, sensationalized and inaccurate. Gold'n Plump, a poultry company, filed a complaint with the News Council, accusing the station of relying too heavily on a single source -- the Institute for Trade and Agriculture Policy ("IATP"). Gold'n Plump claimed that IATP was an advocate of organic foods and a critic of corporate farming and the brand-name food industry. [via AP and The Star Tribune].

The Minnesota News Council is an independent watchdog group that holds public hearings on complaints about news coverage. It comprises people who work for news organizations and people who work in other professions. Its findings carry no sanctions and people who bring complaints to the council waive their right to sue.

It Will Never Stop. Ever.

Yahoo! News via AP reports that Michael Jackson's attorneys have asked a London court to enjoin television company Granada from releasing unpublished footage filmed during the making of the program "Living With Michael Jackson."

According to the report, "Jackson and his company MJJ Productions Inc. said in a statement Monday they were seeking an injunction against Granada so that it cannot use unseen footage until wider disputes are settled -- specifically whether [filmmaker Martin] Bashir 'breached the terms on which he was permitted to film Jackson.'" A hearing is expected Friday.

Prior post here.

Welcome to the Real World!

E! Online reports the recent arrest of MTV's current Real World cast member Alton.

The article also recaps the legal run-ins of other past cast members.

More here from The Smoking Gun.

Just Battling?

The Washington Post reports on the on-going feud between hip-hop mags The Source and XXL.

I'm just waiting for the reply brief where I can borrow the XXL's editor's phrase, "What the peanut butter and jelly bullshit was that?"

Monday, February 24, 2003

Britney Denies Coke Report; Mulling Suit

According to this E! Online report, Britney Spears is considering filing suit over a Star magazine report that she was seen snorting cocaine in the bathroom stall of a Miami, Florida club.

Supreme Court Refuses Review of Juror Access Issue

The U.S. Supreme Court has denied a petition for certiorari requesting review of a New Jersey judge's gag order prohibiting members of the press from talking to jurors who had deadlocked in a high-profile case involving a New Jersey rabbi accused of arranging his wife's murder. The trial court judge had reasoned that the publication of details concerning the first jury's deliberations would make it harder to find an impartial panel for a retrial. The rabbi was subsequently convicted and sentenced to life in prison following the retrial.

According to the report [Freedom Forum via AP], "four Philadelphia Inquirer reporters were fined for a story in which they quoted a juror. Three of the reporters also were ordered to perform community service, or go to jail."

The case is Philadelphia Newspapers v. New Jersey, 02-945 [not yet updated].

Are You Infinging?

USA Today reports on the the potential lawsuit being considered by the creators of hotornot.com over ABC's use of their "trademark" phrase "Hot or Not" on the new show "Are You Hot?"

Saturday, February 22, 2003

Koufax Update: The Post Apologizes

The New York Post has apologized for and retracted the blind item that caused Hall of Fame pitcher Sandy Koufax to cut off all ties with the Los Angeles Dodgers. [article via The New York Times]

The Post apology can be found here. Interestingly, the Post seems to point the finger at its cross-town rival The Daily News for sleuthing the identity of its unnamed "Hall of Fame basebell hero." The apology states: "Two weeks [after the blind item ran], the Daily News' Michael Gross, after finding 'Sandy Koufax: A Lefty's Legacy' by Jane Leavy on the best-seller list, named Koufax as the player and ran a photo of him."

The Daily News, for its part, has a banner across its front page trumpeting "Koufax Quits Dodgers Over Post Item" and covers the story on page 10 under the headline "Koufax Slams Post Smear." According to The Daily News, "The Page Six item could only have referred to Koufax, the only Hall of Fame pitcher with a biography then on the best-seller list. But Daily News columnist Michael Gross tracked down the twice-married Koufax and his current girlfriend and made clear that the Dodger great is heterosexual." Hmmm, the Post kind of forgot that last part.

Friday, February 21, 2003

Ah, Synergy! Koufax Cuts Ties to Dodgers Over Blind Item in New York Post

According to the Associated Press [via ESPN], Sandy Koufax has responded to a blind item in the New York Post by severing all ties with the Los Angeles Dodgers. The Post and the Dodgers are both owned by Rupert Murdoch's News Corp.

Koufax's decision to "no longer attend spring training at Dodgertown in Florida, visit Dodger Stadium or participate in any activities while they are owned by News Corp." was reportedly a reaction to a blind item that ran in the New York Post on December 19, 2002 that stated: "Which Hall of Fame baseball hero cooperated with a best-selling biography only because the author promised to keep it secret that he is gay? The author kept her word, but big mouths at the publishing house can't keep from flapping."

In addition to the News Corp./New York Post/Los Angeles Dodgers entanglements, the publisher of the best-selling book, "Sandy Koufax: A Lefty's Legacy," by Jane Leavy, is HarperCollins, which is, you guessed it, also owned by News Corp.

Thursday, February 20, 2003

Larry, Is That You?

Lawrence Botts III has sued his former employer advertising firm Young and Rubicam (Y&R) for libel over an ad created by Y&R for the United Negro College Fund. The ad depicts a disheveled black man sitting on a wooden crate while holding a liquor bottle wrapped in a brown paper bag. Superimposed over the figure's face is a glossy photo designed to look as if it was ripped from a high school yearbook. Under the yearbook photo is the name "Larry Botts" with the words "Dream: To study journalism and keep the politicians on their toes."

Botts, who is white and reportedly left Y&R in February 2001 on bad terms, claims that Y&R used his name as an act of vengeance. Mr. Botts's father, Lawrence Botts, Jr., has also joined the suit. According to the complaint, the ad "unfairly and maliciously depicts the plaintiffs Lawrence Botts Jr. and Lawrence Botts 3rd as a despicable individual of low esteem, portrayed by a picture intended to depict the plaintiff in an alcoholic stupor, socially unfit and incapable of gainful employment."

The New York Times, which ran the ad, and the United Negro College Fund were also named as defendants. [via Romanesko] [Article via The Star Ledger here]

Miami Herald Libel Suit Dismissed

Via Romanesko, Judge dismisses Miami Herald gossip column libel and invasion of privacy suit. Article via Miami New Times here.

More on Public Disclosure of Private Facts

In response to the post here about the Idaho Supreme Court's dismissal of a public disclosure of private facts ("private facts") claim in Uranga v. Federated Publications, Inc., (Idaho 2003), Tim Hadley of Math class for poets has another good post that further examines the torts at issue in the case (private facts and intrusion). Tim also poses the following questions:

"I wonder how many other states have dealt with questions of invasion of privacy arising from publication of information in court records or other public records after Cox. I also wonder whether invasion of privacy by publication of private and embarrassing facts applies when someone republishes embarrassing facts that have appeared in some form of public but nongovernmental record like a (well-reputed) newspaper."

As Tim pointed out in his post, private facts claims give rise to liability for the publication of truthful information. Because of this a number of courts have simply refused to recognize the tort. In those jurisdictions where the tort is recognized, Sack on Defamation notes that "only rarely has information reported in the press been held not to be of legitimate public interest or concern." Sec. 12.4.5. There are, of course, cases were private facts claims were stated against the media ranging from the silly (front page publication of woman's dress being blown above her waist by a funhouse fan (Daily Times Democrat v. Graham, 162 So. 2d 474 (1964)) to the serious and arguably more understandable (publication of statements made by mother to the body of her son in a hospital room following his shooting (Green v. Chicago Tribune Co., 675 N.E.2d 249 (Ill. App. 1996)).

To address Tim's questions, following Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Supreme Court has addressed the media'a potential liability for publishing matters of public record on two separate occasions. In Smith v. Daily Mail Publ'g, 443 U.S. 97 (1979), the Court held unconstitutional a statute imposing criminal liability for publishing the name of a juvenile charged with a crime. Similarly, in Florida Star v. BJF, 491 U.S. 524 (1989), the Court reversed a damage award won by a rape victim whose name was published in violation of a Florida criminal statute. The information had been erroneously disclosed by the sheriff's office. Sack also notes that in at least two cases after Cox recovery was denied for the publication of the names of victims of sex crimes -- Poteet v. Roswell Daily Record, 584 P.2d 1310 (N.M. Ct. App. 1978) (name obtained from preliminary hearing) and Ayers v. Lee Enters., Inc., 561 P.2d 998 (1977) (name obtained from police records).

There had been a line of cases prior to Cox that held that the passage of time (and particularly with respect to the rehabilitation of criminals) could reinvigorate a private facts claim premised upon the publication of matter contained in the public record. See Melvin v. Reid, 297 P.2d 91 (Cal. App. 1931) and Briscoe v. Reader's Digest Ass'n, 483 P.2d 34 (Cal. 1971). The argument was that rehabilitated criminals should be protected against the republication of their past crimes even if the information is found in the public record. Sack notes, however, that the Cox decision sheds "serious doubt" on the continuing vitality of this line of cases.

With respect to whether publication in a newspaper would be the equivalent of a court document for purposes of a defeating a private facts claim, the answer should be yes. Simply, the plaintiff in a private facts case must prove that the facts were private. Thus, because the first publication makes the information public, subsequent republication of the same information by others should not be actionable. See Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040 (1984).

Wednesday, February 19, 2003

Effort to Do Away With Kansas Criminal Libel Statute Fails

The Freedom Forum reports that efforts to repeal or weaken the Kansas criminal libel statute have failed. According to the article, 'Interest in abolishing the statute was spurred by last year’s convictions of two Wyandotte County men who put out a free, occasional tabloid. They were prosecuted for falsely reporting that a Wyandotte County mayor and her husband, a judge, actually live in another county in violation of state law.' The men are appealing their convictions.

The statute provides that knowingly spreading false information about someone is a misdemeanor, carrying a maximum sentence of a year in jail and $2,500 fine. Interestingly, the law appears to extend protection from "vilification" to the deceased.

Those Must Be Some Pictures...

Today's BNA Internet News provides a link to a morningsun.net (based in Pittsburg, Kansas) article concerning the sentencing of a former parochial school teacher on an obscenity conviction arising out of two photographs of nude adult women he had on his computer. According to the article, the defendant plead guilty to the obscenity charge relating to the pictures rather than face charges for child pornography arising out of an order the man placed, and then cancelled, with Yahoo's photo service to convert pictures of young-looking females from electronic form to photo prints. Despite the cancellation of the order, the postal inspector got permission from federal authorities to deliver the order, leading to the arrest and giving authorities the right to search the man's home computer.

According to the terms of the plea agreement, the man was ordered to provide passwords to the government, federal probation officers can check his computer at any time, or attach software to let them watch his online activity. If he goes to the wrong site, he could be sentenced to prison.

Wait a second.... There's pornography on the Internet?!?

Tuesday, February 18, 2003

Idaho Supreme Court Reverses Itself on Privacy Issue

The Idaho Supreme Court has reversed itself and held that the media cannot be held liable for invasion of privacy for "accurately publishing a document contained in a court record open to the public." Uranga v. Federated Publications, Inc., Docket No. 27118 (Feb. 14, 2003). Opinion here and article via Freedom Forum here.

The plaintiff, Fred Uranga, sued after The Idaho Statesman published a story in 1995 recounting the 1955 Boys of Boise homosexuality scandal. The paper included a photograph of a handwritten statement by one of the men eventually convicted. The statement indicated that the man had an affair with a man who later killed himself because of the scandal and also claimed that the man had an affair with his cousin. Fred Uranga was the cousin, but his name never appeared in the story.

In June 2001, the Idaho Supreme Court reversed a lower court dismissal of the action and ordered that a hearing be held on Uranga's claims. Coverage here and here. In July 2002, the Court agreed to rehear the case. Coverage here. (all via Freedom Forum)

Access Issues Concerning Vince Foster Crime Scene Photos Reach Supreme Court

law.com reports that three petitions for certiorari involving access to the Vince Foster crime scene photos are to be considered by the U.S. Supreme Court this Friday. The parties to the suits are the Office of Independent Counsel (OIC), Foster's widow and his sister, and attorney Allan J. Favish, a solo practitioner in Santa Clara, Calif., who once worked for Judicial Watch in Washington, D.C. Favish, who believes that Foster was murdered, filed a FOIA request for 150 death-scene and autopsy photos from the OIC in 1997. When his request was denied, Favish filed suit in the Central District of California. The Ninth Circuit Court of Appeals (on the case's second appeal) ultimately ruled that four photos should be released.

At issue is the scope of a FOIA provision that allows the government to withhold documents that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Favish claims the provision only applies to the privacy of the person who is the subject of the documents -- not family members. The Foster family argues that Favish should have been required to submit "compelling evidence of governmental misconduct to warrant overriding privacy interests implicated by such records." OIC says the privacy issue needs to be resolved and notes that all the circuit courts that have ruled on the issue say the privacy exemption of FOIA extends to close surviving family members.

Favish has posted a number of the relevant pleadings (including the respective petitions for cert.) on his web site. The Reporter's Committee for Freedom of the Press discusses the privacy exemption here.

Mars Attacks! Reality Show Draws Lawsuit

MediaLife magazine reports that a Los Angeles woman is suing the Sci Fi Channel, for physical injuries and emotional trauma she suffered while unwittingly being filmed for segment on the show 'Scare Tactics.' According to the report (bottom of page), the woman was told she had been invited to an exclusive party at a desert resort. On the way there, her car stalled and her companions urged her to flee what appeared to be an attack by space aliens. The suit accuses the show's producers of wrongs including fraudulent misrepresentation, invasion of privacy and false imprisonment.

On a 'scarier' note, the SciFi series, set to premiere April 4, 2003, is apparently being hosted by Shannen Doherty.

Update: CNN reports on the story here and The Smoking Gun has the complaint here.

Aspiring Model Awarded $575,250 on Hidden Camera Claim

According to a report in the Ann Arbor News, a Michigan jury has awarded $575,250 in damages to an aspiring model who was unlawfully videotaped while changing at a Brighton, Michigan talent agency. The award included $325,000 in damages for invasion of privacy, $250,000 for intentional infliction of emotional distress and a statutorily set $250 for violation of the Consumer Protection Act, which protects citizens from unscrupulous activities by business people.

The owner of the agency was reportedly arrested and charged with three counts of eavesdropping. He was sentenced in August 2001, to 16-24 months in prison, and was released on parole in December 2002. According to the report, two other civil suits brought by women were settled prior to trial. (via SALTYT - new address)

Monday, February 17, 2003

Jackson Feeding Frenzy Continues

The frenzy over Michael Jackson-related reports continues. (via The New York Times)

And a handy television guide. (via USA Today)

'Nation' Readers Upset by Fox News Ad

According to a report in The New York Times, readers of The Nation, a magazine reflecting the political left, are upset by the appearance of an ad for the FoxNews channel in the magazine. 'The Nation' once called the FoxNews channel "a calculated mouthpiece for the right that remains thinly veiled behind its misleading mantra, 'fair and balanced.'"

Magazine Editors Continue to Spar

The New York Times reports on the war of words that has been heating up between the editor of GQ magazine and the editor of Stuff magazine. Prior coverage in Gawker's February 5, 2003 media post.

Saturday, February 15, 2003

Science Journals Urge Self-Censorship

ABC Online (that's the Australian Broadcasting Corporation) reports that amid concerns that terrorists could use scientific studies to make chemical and biological weapons, the editors of leading science publications have signed a statement urging self-censorship. According to the article, the statement provided that "Any work that might be used by terrorists for malevolent purposes should not be published," and cited "self-governance" as "an alternative to government review of forthcoming journal articles."

Political Activism Without That Hippy Smell

In posting the prior piece on 'American Idol's' ousting of Frenchie I came across PetitionOnline.com where you put your signature on a number of different petitions from the comfort of your couch (or desk chair as the case may be). Currently the site is hosting petitions ranging from the serious (a plea to Prime Minister Tony Blair to not attack Iraq (43263 signatures)) to matters that are really important (a plea to George Lucas to release the theatrical versions of the first three 'Star Wars' films on DVD (not just the retouched and altered versions released by Lucas in 1997) (6296 signatures and counting)).

Sign away, but be careful though, others can view your signature and your friends in your Star Trek fan club might not take kindly to your divided loyalties.

American Idol Goes After 'Telephone Typosquatter;' Faces Ire Over Ousting Frenchie

According to a report in The Salt Lake Tribune, producers of 'American Idol' have filed suit against a Utah telemarketing company alleging the company set up telephone numbers similar to those used in 'American Idol's' voting in order to dupe viewers. According to the suit, the company, Telemarketing Inc., set up the same phone numbers as 'American Idol's' but with the toll-free "800" prefix ('American Idol' uses the 866 prefix). Callers who mistakenly call Telemarketing, Inc.'s numbers, would then hear a recording that asks the caller to dial a "900" number, which costs anywhere from 99 cents to $1.99, to "vote for your favorite contestant." Producers of the show also allege that Telemarketing has been engaged in the "scheme" since the show's first season and has made more than $250,000 conning viewers.

'American Idol' is also facing the heat after removing a contestant from the show because she had appeared on a porn site five years ago. The contestant, Frenchie, was apparently a fan favorite, and a petition site has been set up to bring her back. A Washington Post article remarks on the apparent inconsistency in the removal as one of last season's final three contestants had worked as a stripper and one of the two finalists in 'Joe Millionaire' appeared in bondage and fetish films as a cheerleader.

Thursday, February 13, 2003

Tornillo, Anyone? Rejected Advertiser Sues CNN

The New York Times reports that the IDT Corporation is suing CNN for allegedly unfairly refusing to run its ads. The suit, filed in the Superior Court of New Jersey in Essex County (?), asserts that CNN's refusal to run IDT's commercial is based upon CNN's fear of offending other telecommunications companies. IDT is demanding an injunction preventing CNN from rejecting its commercials; as well as damages. IDT claims that CNN is a "vital public facility" that must be administered without favor and that by running commercials from IDT's competitors but not from IDT, CNN is engaging in discriminatory conduct contrary to the government's policy of encouraging competition. Huh? Is CNN a public forum?

I thought that this was resolved long ago in Miami Herald v. Tornillo, 418 U.S. 241 (1974). Tornillo held:

"The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

(I know, I know, CNN is not a newspaper)

The article also includes an some interesting points regarding the Federal Trade Commission's recent request for publishers to turn down ads for weight-loss products that it says are misleading.

No Cameras in the Jury Room in Texas Death Penalty Case

The New York Times reports that the Texas Court of Criminal Appeals has reversed a trial court judge's decision to permit a camera from "Frontline" to record jury deliberations. In November, Judge Ted Poe granted the series producers' request to tape every aspect of the trial of Cedric R. Harrison, including jury deliberations. Mr. Harrison is accused of shooting a man to death during a carjacking. According to the article, while the Court was split 6 to 3 and issued six differing opinions, none of the judges actually endorsed the idea of taping the deliberations. Read the opinion here and links to the concurring and dissenting opinions here.

Exposed Confidential Source's Suit Dismissed

The Washington Post reports that a federal court has tossed out the lawsuit brought by a one-time confidential source against The Cincinnati Enquirer. The "burned" source, attorney George Ventura, had alleged that the paper failed to protect his identity in the wake of a controversial story concerning the Chiquita banana company (check out the link just to hear the opening bars of the Chiquita banana song!). According to the ruling, the newspaper was not responsible for identifying Ventura, nor could it be held responsible for the disclosure Ventura's indentity to authorities by a reporter who had already been fired by the paper.

If you don't remember the Chiquita/Enquirer mess, which ended up with reporter Michael Gallagher pleading guilty to unlawful interception of communications and unauthorized access to computer systems, you can get some background here and here.

Jeez, Someone Should Start a "Boycott Blog"

First there was this, this and then this. Now 'Joe Millionaire' viewers are threatening to boycott the show over the finale flap, but cooler heads prevail as Russell Simmons calls off proposed Pepsi boycott over pulling of a Ludacris ad (both via CNN).

Wednesday, February 12, 2003

Someone Mention Disposable Cameras?

A few posts ago, I joked that given the ongoing London trial against Hello! magazine for publishing unauthorized photos of the the wedding of Catherine Zeta-Jones and Michael Douglas, that there must not have been any of those disposable cameras there that are sometimes given to wedding guests to take their own pictures. Further coverage of the Zeta-Jones trial reveals that disposable cameras had actually previously scuttled another exclusive photography agreement between TV star (?) Gloria Hunniford and Stephen Way. OK! magazine (the alleged gatecrasher in this instance) claims that it published photos of Hunniford's wedding after receiving them from wedding guests. Hello! magazine, which was to pay £70,000 for exclusive access, doubts the story based on the quality of the photos.

More coverage of the the Zeta-Jones trial can be found here and here. A tidbit: Apparently one of the secretly snapped shots featured Douglas and Zeta-Jones doing the ole' "Groom Feeds the Bride" number. The picture was run with the caption "Catherine Eater Jones." Given that recent stories have had headlines like "Catherine Bleater Moans" and Zeta-Jones's testimony that the £1million fee for exclusive access to be paid by OK! "is a lot of money to people in this room but it's not that much money for us," it does not seem as if Zeta-Jones is getting a lot of sympathy from the British press (but then, who does).

More Boycotts

The Wire is reporting that the Muslim organization, Project Islamic Hope, is unhappy with the response issued by Oneworld Magazine publisher John Pasmore and planning a boycott until it receives an apology from Russell Simmons, owner and founder of the magazine. The group's complaints arise from the publication of a recent cover featuring rapper Lil' Kim appearing half naked in Muslim attire. The group plans to boycott all of Mr. Simmons's companies, which include Oneworld Magazine, Def Jam Records, Phat Farm Clothing, Baby Phat Clothing, and Def Poetry Jam.

They Seem Like Reasonable Demands

E! Online News tells us of the breach of contract battle heating up between VH1 and Liza Minelli and her husband David Gest over the reality show that never was. VH1 has filed a counterclaim in response to Minelli/Gest's $23 million breach of contract suit (pleadings via Smoking Gun) seeking to recover the $1.5 million it claims it lost on the deal as well as other damages. The article details some of VH1's allegations regarding the difficulty of dealing with Gest. Also discussed here.

Rolling Stone to Stand Behind 'Bug Chaser' Story

According to MSNBC (via Newsweek), Rolling Stone magazine will stand behind "Bug Chasers - The Men Who Long to Be HIV+," a controversial story that appeared in its February 6, 2003 issue. Following publication, in an article published by Newsweek, two of the doctors quoted in the piece claimed that their quotes were either twisted or fabricated. According to the report, Rolling Stone will address the controversy in its March 6 issue, on newsstands this Friday.

Is It Really Worth It?

Yahoo! News reports that CBS President Leslie Moonves and other CBS executives had a sit-down with the folks at the Center for Rural Strategies to discuss concerns arising out of CBS's plan to cast a real-life version of "The Beverly Hillbillies." Neither side stated that the talk had done much to change its position. According to the article, CBS announced in August that it "was sending its talent scouts to the backwoods of America in search of a rural, rustically telegenic family willing to star in the the show." Rural Strategies responded by running "a series of newspaper ads around the country in recent months condemning the prospective 'reality' show as demeaning to rural Americans and calling on CBS to pull the plug on the project."

Tuesday, February 11, 2003

Rumors of Security Bug Slander Suit Squashed

According to CNET, game maker Epic Games, creator of the Unreal Tournament virtual shooting games, is denying reports that it intends to file a defamation suit against security firm, PivX Solutions. PivX released an advisory last week identifying several security bugs in Epic's Unreal Engine -- the core software used to create its games.

It Had Better Please The Court

The New York Times recently reported that the Indiana Supreme Court has reduced the punishment imposed on a lawyer who had criticized a lower court's decision in a footnote to a brief. Instead of the 30-day suspension that was handed down in October, lawyer Michael A. Wilkins, will now only be reprimanded. Mr. Wilkins drew the sanction with the following comment:

“Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee…and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision.)”

On rehearing, Justice Robert D. Rucker, who had supported the suspension in the earlier ruling, chose to recuse himself. Justice Rucker was one of the judges on the lower appellate court panel targeted by Wilkins's ire.

Monday, February 10, 2003

Kentucky Federal Court Adopts Single Publication Rule

Math class for poets had a good post yesterday on a decision from the U.S. District Court for the Western District of Kentucky which held that Kentucky 1) would adopt the single publication rule (which provides “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition or a motion picture or similar aggregate communication is a single publication,” Restatement (Second) of Torts §557A (1977), thus limiting plaintiffs to a single cause of action once the claim first accrues), and 2) would apply the single publication rule to Internet-based publications. The case is Mitan v. Davis (WordPerfect format.)

The Kentucky decision follows the lead of New York courts, which in Firth v. State of New York, 706 N.Y.S.2d 835, 841 (N.Y. Ct. Cl. 2000) and Van Buskirk v. New York Times Company, 200 U.S. Dist. LEXIS 12150 (S.D.N.Y. 2000), applied the single publication rule to Internet publications. In all of these cases, the courts found "no basis for treating defamatory Internet communication differently than any other form of aggregate communication [i.e., books, magazines, television broadcasts, etc.]." While I'm happy with the result, I wonder if the courts are too quick to analogize the Internet to traditional media.* Taking the plaintiff's perspective, it seems that there is arguably a big difference between a web site that will display the same defamatory information day in and day out, that, in all likelihood, could easily be edited/clarified/annotated, and a newspaper that was published 8-10 months ago. Part of why the single publication rule makes sense to me in the traditional media context is because it reflects the way the media operates. Books, broadcasts, mags are prepared and published -- they are released to the public and then generally fade from view. With the Internet, the effect somehow seems more time-released and the defamatory publication may remain potent because, even though it may have been published two years ago, it appears on the web as fresh as today's news.

*Note, not all analogizing to traditional media has had a happy result for Internet publishers. In fact, back in 1995 a New York judge in Stratton Oakmont v. Prodigy ruled that Prodigy was just like a newspaper and could therefore be held liable for the defamatory postings on its message boards. Congress effectively reversed the decision with the passage of the Communications Decency Act, 47 USC §230 (immunizing providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by third parties).

Guess They Didn't Have Those Disposable Cameras on The Tables

The Washington Post is reporting that Catherine-Zeta-Jones testified in London today in her action against Hello! magazine for publishing unauthorized pictures of her November 2000 wedding to Michael Douglas. Among other things, Zeta-Jones complained that the unauthorized photos made her "look large." Zeta-Jones and Douglas had signed a $1.6 million deal with OK! magazine granting exclusive rights to photograph the wedding for publication. OK! was scooped by HELLO! when it published unauthorized photos from the wedding three days before OK!'s pictures were published. I think I need to change the name of this blog to "actualmalice.com!"

Sunday, February 09, 2003

"Hey, What Happened to the Donut Fund?"

Ken Paulson of The Freedom Forum reports on the Fourth Circuit's recent decision reversing the dismissal of civil rights claims brought by Maryland newspaper, St. Mary's Today, against six police deputies. According to the suit, the deputies, suspecting that the paper's election day issue would include articles critical of the sheriff's department and a state's attorney candidate friendly to the department, decided to take matters into their own hands and canvassed the county buying up all copies of the paper.

While the district court had dismissed the case on the ground that the officers were acting as private citizens (they were not in uniform during their shopping spree), the Fourth Circuit reversed stating: “In suppressing criticism of their official conduct and fitness for office on the very day that voters were heading to the polls, [the deputies] did more than compromise some attenuated or penumbral First Amendment right; they struck at its heart.”

Oh, Those Things Were On?

The Washington Post is reporting that Michael Jackson is taking action in the UK against the recently-aired documentary, "Living With Michael Jackson." According to the article, Jackson's camp has already filed complaints with British Broadcasting authorities calling the documentary "a gross distortion of the truth" that violated the singer's right to privacy. Jackson's London PR firm also released a statement indicating that Jackson would be producing his own video excerpts, filmed by his personal cameraman during the eight-month documentary shoot, to prove that interviewer Martin Bashir's portrayal was hypocritical. "The film shows extraordinary scenes of Martin Bashir praising the way Michael treats children and commenting on how good a father he is," the statement said.

Given that ABC ran the same documentary a week later, I wonder if Jackon will do anything stateside.

Saturday, February 08, 2003

Thanks

Thanks to Denise, Tom and Ernie for picking up the fact that actualmalice.com has gone public. Special thanks to Kevin Heller of Tech Law Advisor who was very patient the first 25 times I said "a what?" after he said the word "blog." After that he just turned kind of cranky. Seriously, Kevin has given me a lot of guidance in getting this thing rolling (and hopefully still will). It almost makes me regret the abuse I heaped upon him back when we worked at the same firm together. Almost.

While I'm still working on infrastructure issues (and probably always will be) I have a lot of plans for future content including First Amendment-related book reviews, revisiting some historic libel and privacy media cases, and just generally keeping abreast of developments in the law. Don't worry, my goal is to keep it entertaining and I've also got plans for some games like "Guess the Plaintiff" and "Is It Defamatory?" For example, "What famous lawyer and legal commentator sued a major porn magazine over being called, among other things, a 'scum sucking turd dispenser?'" Answer here. P.S. He lost. Let the hilarity begin . . . .

Friday, February 07, 2003

Too Much Time On His Hands

The Associated Press is reporting that an Internet news site operated by Computerworld magazine was forced to retract an article claiming that a radical Islamic group had release the recent Slammer worm as part of a cyber-jihad. The article was based on an e-mail interview with "Abu Mujahid" who claimed to be a member of Pakistan-based Harkat-ul-Mujahadeen. The problem with the article was that "Abu" was actually Brian McWilliams, a free-lance writer whose written for Salon.com and Wired News.

According to the article, McWilliams "registered the Internet domain name harkatulmujahideen.org - one transliteration of the group's name - for use as a "honeypot" to attract correspondence from Muslim radicals, planning to use messages received as story fodder." Further, McWilliams "left a mirrored version of the Web site on a server in Pakistan, and even sought to boost its authenticity by defacing it in an effort to make it appear that pro-U.S. hackers had attacked the site."

McWilliams claims his actions were in the tradition of undercover reporting and wanted to teach reporters "to be more skeptical of people who claim they're involved in cyberterrorism." He further explains his actions on his own web site.

Computerworld removed the article three hours after it was posted when they heard that McWilliams was bragging on an e-mail list about pulling off the hoax, but not before the piece was advertised to the 200,000 recipients of the Computerworld's daily e-mail. Computerworld posted an article revealing the hoax the next day.

Thursday, February 06, 2003

The Devil Made Me Do It

New York's Appellate Division, Third Department, has ruled that an artist's caricature of a Town Justice with devil horns and a tail in an oil painting, and subsequently in flyers promoting the artist's gallery, was protected by the First Amendment. The Town Justice had asserted claims under New York's misappropriation statutes, which provide criminal and civil penalties (along with injunctive relief) for the unauthorized use of a person's name, portrait or picture for advertising or commercial purposes. The First Amendment did not protect the artist, however, from the fine for criminal contempt that was entered against him for violating a preliminary injunction with respect to the painting by offering it for sale on e-Bay and by posing before the painting in a picture that was then published on the front page of the local newspaper. [via How Appealing]
Where's That Lightning Bolt When You Need It?

Adam Liptak of the New York Times reports on the story of a Kennebunk, Maine restaurant owner who claims that a town official asked him to remove the Hebrew National table umbrellas outside his restaurant because the words "Hebrew National" were "personally offensive." The town claims the restaurant owner's story simply isn't true and that the request to remove the umbrellas is based upon a town rule limiting the number of outdoor signs a business can have. Both sides, of course, have filed suit.
Massachusetts Anti-SLAPP Statute Applies to Web Posting

The Associated Press reported that the Massachusetts Appeals Court has applied the state's Anti-SLAPP (Strategic Lawuits Against Public Participation) statute in dismissing a libel claim against a web site operator. The web site, now defunct, included statements suggesting that a town official of Athon, MA was a Nazi. The appellate court ruled that the Superior Court erred in denying the defendant's special motion under the Anti-SLAPP law, which is designed to protect defendants from suits that are intended to harass and intimidate individuals and entities from becoming involved in public issues and controversies.

Anti-SLAPP statutes generally provide for expedited treatment of motions to dismiss, heightened fault standards that plaintiffs must meet, and attorney's fees if the SLAPPed defendant is successful in dismissing the action. Of the states that have passed Anti-SLAPP statutes, defendants, particularly media defendants, have been most successful in California, which defines the conduct that can potentially be viewed as a SLAPP suit quite broadly.

Tuesday, February 04, 2003

Gandhi's Having A Bad Week

First, Maxim magazine apologized for a depiction of Gandhi in a cartoon feature entitled "Maxim's Kick-Ass Workout." Then MTV apologized for depicting a "a fictitious Gandhi clone who wears dangly earrings, eats junk food and is the ultimate party animal" in its cartoon "Clone High." Both apologies came in response to the furies unleashed by irate Indians and others offended by the depictions. The offended discussed boycotts and even, in Maxim's case, prepared model letters to be sent to Maxim advertisers.

Has Gandhi become an "Untouchable" in death?

Monday, February 03, 2003

An Interesting Article and It's Only Day Two....

John Dean takes on libel law and explains why Gary Condit will win his libel suit against Dominick Dunne here.

Sunday, February 02, 2003

Welcome to actualmalice.com

I hope to use this blawg to post information of interest regarding First Amendment and Media law, particularly issues relating to libel, privacy, newsgathering, right of publicity as well as intellectual property.
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