ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech

from the not-cool dept

So we just had that post about how a TV station in Boston was abusing copyright law to take down slightly embarrassing video of a weatherman it employs. In the post, I noted that while this was just over a potentially off-color joke, there were important free speech implications to it. Law professor Peter Friedman quickly points us to a more serious case of a giant company stifling criticism through DMCA takedown. Apparently, food conglomerate, Archers Daniel Midland (famous, among other things, for getting caught in a massive blatant price-fixing scheme that made pretty much all of your food a lot more expensive than it needed to be), doesn't believe criticism of its CEO should be allowed. Friedman had posted a link to a video that took a bland, boring video of ADM's CEO droning on about "agriculture's role in the growing economy," and edited it to "make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets." Honestly, the original video looks just like the ridiculous corporate video that is made in the movie Michael Clayton, about a company that is clearly supposed to be ADM.

Friedman points out how this is a clear abuse of copyright law and a violation of free speech:

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution's guarantee of free speech, all you need is to think of a situation like this -- one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it's unconstitutional censorship!

The courts have tried to reconcile the question of how copyright law can possibly survive a First Amendment challenge (after all, the First Amendment says Congress shall make no law that interferes with freedom of speech... and yet that's exactly what copyright does) by saying that a robust fair use exception is the key to making it okay. But when fair use is trampled on repeatedly, it makes you wonder how anyone can still claim that copyright isn't a massive abuse of the First Amendment.

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Company Decides To Run For Congress

from the brilliant dept

Earlier this week, we jokingly pointed out that with the Supreme Court's ruling on how corporations were people, a company like Google could run for President. Well, it appears that others have the same basic idea. A PR firm in Maryland has announced that it's running for Congress in Maryland's 8th District and has put together a nice campaign ad:

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New South Australian Law Forbids Anonymous Political Commentary During Election Season

from the freedom-of-speech-also-includes-anonymous-speech dept

A bunch of folks have sent in the news of a new law in South Australia that forbids any anonymous political commentary leading up to elections. Literally, the law reads:

"A person must not during an election period, publish material consisting of, or containing a commentary on, any candidate or political party, or the issues being submitted to electors, in written form, in a journal published in electronic form on the internet or by radio or television or broadcast on the internet, unless the material or the program in which the material is presented contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of that material."

Apparently, things like The Federalist Papers would not have been welcome in South Australia. It's clearly a method of censorship, though, of course, the guy behind it, Michael Atkinson, is spinning it as the opposite of censorship: "The real point of this legislation is not blocking or censoring freedom of speech -- it's just making sure freedom of speech is attributed to the right person."

Reader cofiem points out that Atkinson has a bit of a history as being technologically reactionary, such as his strong support for banning video games that he feels are too violent even for adults. Cofiem also points to some of the legislative history behind this, which includes Atkinson making it clear that this law should apply to "blog sites, Wikipedia and internet newspapers" but thankfully he does "not want to go into twittering because that is too much like individual communication over a mobile phone. So, that is where we are putting the boundary." Phew. Each political Twitter won't need to be accompanied by your address.

That same report suggests that Atikinson has aimed this legislation at a particular online publication that he does not like:

It is being supported by Atkinson in the most appalling way -- the news reports quote him apparently frothing at the mouth about 'Adelaidenow', which the law seems implicitly to target;

Nice use of elected office to try to stifle the ability of your critics to speak freely.

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Court Says It's No Free Speech Violation To Kick People Out Of Presidential Speech Due To Their Bumper Stickers

from the but-does-it-make-sense dept

In an interesting appeals court ruling, a court has said that there was no free speech violation in two individuals being removed from a George W. Bush speech (while he was still President), because of the bumper stickers on their cars (which were decidedly anti-Bush). While I'm a big supporter of free speech -- especially when it comes to criticizing the President or other elected officials -- I have to admit that I tend to agree with the court here. The President and his staff had every right to determine who attended the speech for whatever reason. Excluding anyone from hearing a speech isn't a violation of their free speech rights, because there is no guaranteed right to attend such a speech in person. That said, I think it's particularly lame that a President -- or anyone in authority -- would purposely keep out those who disagree with them, rather than being willing to respond to their criticisms. As we saw just last week when President Obama responded directly to Republican questions, responding to those who disagree with you can often be quite a lot more productive than ignoring them.

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Israeli Court Supports Anonymity For Online Commenters

from the good-for-them dept

While the US courts have been quite good about protecting the anonymity of online commenters, very few other countries feel the same way. However, Roni Evron alerts us to a ruling in Israel that also protects the anonymity of blog commenters, ruling that the site doesn't need to hand over the IP addresses of commenters:

"The good of online anonymity outweighs the bad, and it must be seen as a byproduct of freedom of speech and the right to privacy."

The court didn't necessarily say that commenters could never be revealed, but that courts have to be careful to measure the impact:

Avraham suggested looking at issues such as how extreme the allegedly damaging remarks are, whether the attack was systematic or a one-time phenomenon, and how seriously a reasonable reader would take the comments.

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Summit Entertainment Shuts Down Twilight Fanzine For Infringement

from the journalism-or-business dept

Rose M. Welch points us to the news that Summit Entertainment has won an injunction against the makers of a Twilight fanzine, claiming that the zine was not for journalistic purposes. A journalist would have a strong free speech claim on the right to make use of these photos (which were found on the "press" page for the movie itself), but Summit claims that the zine is not journalism, but a business. To be fair, it is true that the creators of the zine is a company that sells trading cards, but does that mean that a fanzine is suddenly no longer protected by the First Amendment? In an age when who is and who is not a journalist has become a lot more complicated, it seems like a pretty questionable decision to put an injunction on a publisher just because they have a good business model. Separately, it's worth pointing out that Summit is being pretty ridiculous here in shutting down a zine for fans. Stop trying to punish fans and focus on giving them what they want.

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Sometimes Protecting Free Speech Means Protecting Speech You Don't Like

from the even-repugnant-speech dept

I'm a big fan of Vivek Wadhwa, who I think has done some excellent research showing the importance of skilled immigration and how it helps the US economy and helps expand jobs, rather than take them away. I've also been an outspoken supporter of encouraging greater skilled worker immigration into the US, as I believe it's much better to have those individuals working in the US, for US companies, rather than working at home against US companies. I've been regularly yelled at and attacked for these views, often by a group of folks who all are on a particular mailing list of anti-immigration supporters that often runs into extremely racist territory. The people on that list seem to be under the belief that the world owes them high paying jobs, and they do not need to keep up on new technologies nor compete in the global marketplace. Some of those folks have set up a series of rather horrific websites that are blatantly racist, economically illiterate and at times disturbing, in their attacks on skilled immigration, specifically from India.

However, last month, when some of those sites were taken down by a court order, we were among the first to suggest this was a major overstep by the court. The lawsuit was about these sites posting a work agreement from a company that employs many H-1B visa recipients, suggesting that the company abuses the visa system. I'm all for exposing abuses of the system, because I believe that a skilled immigration program works better without such abuses. Oddly, the company, Apex, accused the sites of both libel and copyright infringement over the posting of the documents. If it were libel, it would mean the postings were not accurate. If it were copyright infringement, then that means Apex is admitting the contents were covered by copyright (meaning, they were accurate).

But rather than just demand the takedown of the specific content in question, the judge ordered the sites taken down completely, and even a Facebook group closed. That's way over the line and goes well beyond what the lawsuit was about. It was great to see the EFF take up the case, but it's a shame to see others miss the bigger picture.Esahc writes in to point out that Vivek Wadhwa has penned a column for TechCrunch blasting the EFF for defending these sites. I can understand why Wadhwa is upset about the sites. The sites are undoubtedly racist and despicable. They are also ignorant and economically illiterate. Some of the posts are, clearly, hate speech, and inciting violence against certain individuals.

If the lawsuit filed by Apex was about that, then he might have a point. But it was not. The lawsuit targeted a specific piece of information on three sites, and because of that, the court shut down all three sites, and related Facebook pages. It's an overreach. Yes, the sites are dreadful, but the EFF is absolutely right to try to prevent such a judicial overreach. One of the reasons so many immigrants want to come to the US and want to work here is because of our respect for free speech principles and not condoning overly broad censorship, even of speech that we find repugnant. In the past, I've stepped forward and supported the free speech rights of even those who have attacked me the most on certain topics, when they were also attacked. I think that Wadhwa is going too far in attacking the EFF in this case. I certainly don't agree with the EFF on everything it does -- but in this case, it has made the right decision. The anti-immigration websites are disgusting, vile, racist and ridiculous -- but that doesn't mean we should allow a court to shut them down completely over a single complaint over some specific information.

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Proposal In Italy Would Require Gov't Authorization To Upload Any Video

from the media-controls dept

Over the last few years we've noticed a troubling trend for Italian politicians to push absolutely ridiculous anti-internet policies. Some have claimed that much of this comes from the fact that current Prime Minister Silvio Berlusconi owns a lot of the mainstream media outlets in the country, and the lack of control over the internet bothers him and his party -- which could explain why they use almost any opportunity to lash out at the internet. To make matters worse, there seems to be particular confusion over things like YouTube, leading to the ongoing lawsuit that could sentence Google execs to jailtime for not removing a video fast enough (Google took the video down within a couple hours of being alerted to it). Then there's the politician who tried to file lawsuits against thousands of YouTube commenters.

So perhaps it shouldn't come as a surprise that politicians in Italy are proposing that all web video in the country must first be authorized by the Communications Ministry (found via Slashdot). Officially, Italian officials say that they're just implementing an EU directive on how to deal with product placement, but others note that this clearly goes way beyond that, with many seeing Berlusconi trying to stomp out online video competition to his media holdings.

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The Slippery Slope Of Internet Censorship In India

from the and-how-companies-have-to-deal-with-it dept

Slashdot points us to a WSJ article that focuses on how Google is dealing with censorship laws in India, by taking down certain content and complying with local laws. While it is disappointing that Google appears to be willing to simply accept, rather than question, some of those laws, the bigger issue may be with the laws themselves. As the WSJ details:

The nation of 1.2 billion is the world's largest democracy and in principle affords free speech to its citizens. But the country has a volatile mix of religious, ethnic and caste politics and a history of mob violence. So, the government has the authority to curtail speech rights in certain cases. India's Constitution encapsulates that gray zone: Free speech is subject to "reasonable restrictions" for such purposes as maintaining "public order, decency or morality."

Authorities say Internet companies in India, including Yahoo Inc., Facebook Inc. and Twitter, are expected to help government enforce those standards online by removing objectionable material and, occasionally, helping to track down users. Under a law that took effect in October, corporate officials from any Web site that fails to comply with requests to take down material or block sites can face a fine and a jail sentence of up to seven years.

But how is a site like Google to know when speech is "objectionable" or when it's just "disliked by someone in power"? That's why "reasonable restrictions" on free speech often present a pretty dangerous slippery slope. It's hard to blame Google for this, however. It's likely that most internet companies in India are complying with the law. The real question should be whether or not the law itself makes sense.

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Court Overreacts And Orders Full Takedown Of Anti-H-1B Websites Over Contradictory Libel/Copyright Claims

from the going-too-far dept

It's no secret that I'm a supporter of allowing more skilled immigrants into the US. The arguments against it make little sense and are usually thinly veiled racism against foreigners. Plenty of studies have shown that skilled immigrants help create new jobs rather than take them away. And barring skilled immigrants from coming into the US just means that they end up working for non-US competitors, rather than helping US companies grow. It's hard to fathom a reason to be against increasing skilled immigration, other than being racist or economically illiterate. Now, that said, it's also no secret that the H-1B process that is one of the main (though not only) routes for skilled technology foreigners to work in the US has some serious flaws and is often abused. But the response should not be to end the H-1B program, but to fix the abuses.

All that said, I'm somewhat horrified at the reports (which a whole bunch of you are sending in) about a judge ordering three anti-H-1B websites be taken totally offline. I disagree heavily with those three sites, and think that they are misleading in the extreme, but the order to take them offline goes way overboard. The judge even went further and ordered Facebook to disable the Facebook page of one of the sites.

At issue are libel and copyright charges from a company named Apex, which these sites accuse of abusing the H-1B process. Given that I'm very much against the abuses, I'm all for exposing those who abuse the process. Now here's where things get weird. The main issue is that these sites posted a copy of what's supposedly an employment agreement from Apex, and the discussion "alleges that employees will find it difficult to leave Apex because of its contract terms." Apex claims that this is defamatory, and notes that it had three "consultants" refuse to report for employment because of it. Yet... it also claims that it holds the copyright on the documents. In other words, it admits that the documents are real and legitimate. Otherwise it wouldn't hold the copyright. Thus, it's hard to see how the two charges can stand together. Either the documents are false and defamatory, or there's (potential) copyright infringement and the documents are accurate in portraying Apex's contract terms. So which is it?

Unfortunately we don't know, because the judge has shut down everything.

What's not at all clear is why the judge would completely shut down all three websites and the Facebook page. If there are problems with just this document, order an injunction against that document. Completely shutting down all three websites goes way too far, and seems to go well beyond what either defamation law or copyright law should allow.

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FCC Hires Law Professor Who Believes Broadcast Indecency Laws Are Unconstitutional

from the that-seems-like-a-good-thing dept

There are many people out there who are greatly troubled by the way the FCC "enforces" efforts against broadcast indecency -- with some even questioning whether or not it's even constitutional for the FCC to act as a public arbiter of indecency. It looks like the FCC has just hired one such person, in the form of Duke telco law professor Stuart Benjamin. Since I consider myself among those who question how indecency fines can fit with a First Amendment, this seems like a good thing -- but the reporting on it, at the link above, only focuses on the complaints about this hire. But the complaint comes from the Parents Television Council, whose main claim to fame is flooding the FCC with bogus complaints about "indecent" programming from people who didn't even see whatever it is they're complaining about. So you can understand why they might complain. If they lose the ability to create moral panics, it's harder to keep going.

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Italian Politician Blames Facebook For Berlusconi Attack; Facebook Begins Self-Censorship

from the well-that's-nice dept

By now you've probably heard that Italian Prime Minister Silvio Berlusconi was attacked with a statue last weekend. Apparently, his political friends have decided that Facebook and Twitter are to blame for this, and they're now considering laws to crack down (even more than already) on what is allowed on such sites. Perhaps aware of how Italian prosecutors are still pushing forward with criminal charges against Google execs over a single video on YouTube posted by some kids, Facebook apparently was quick to respond that it will happily monitor and censor content on the social networking site that relates to Berlusconi.

As the CSMonitor article points out, Berlusconi owns a significant portion of the media business in Italy, and the internet is often viewed as a problem because he hasn't been able to control it. Thus, this may just be another political move to try to gain more control over dissenting voices online -- and it's a shame that Facebook would so easily play along. Update: The politician in question has apparently clarified his remarks to say that there is no plan to introduce new internet legislation. Really. Of course, one could easily interpret the original statement as a trial balloon -- and the resulting outrage leading to the "clarification."

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Convicted German Murderer Wants His Conviction Erased From Wikipedia

from the bit-of-a-conflict... dept

EFF has the bizarre story of a convicted murderer in Germany who is demanding that Wikipedia censor all mentions of the guy's name. Apparently, he (and his lawyers) are using a part of German law that allows for the protection of "names and likenesses of private persons from unwanted publicity." However, as the EFF points out, he's not a private person. He became a very public person when he was tried and convicted (along with his half-brother) for killing Bavarian actor Walter Sedlmayr. Apparently, his lawyers are going after multiple service providers, trying to get the guy's name taken off the internet. The EFF points out that the press has published the two convicted murderers' names for Sedlmayr's death: Wolfgang Werle and his half-brother Manfred Lauber, and that this appears to be nothing more than an attempt to censor history across multiple borders.

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YouTube-Using Russian Police Officer Fired For Whistleblowing

from the careful-where-you-whistleblow dept

One of the great things about the internet these days is that it gives a platform for people who had no voice before to speak out. Of course, there are certain risks associated with that. Apparently a police officer in the Russian port of Novorossiisk put up a YouTube video accusing his superiors of corruption. The video got lots of attention (over 200,000 views) leading Russia's Interior Ministor (who is responsible for the police) to start a probe. That probe apparently lasted all of two hours before it ended and the police officer who made the video was fired. Of course, many will assume that this was punishing a whistleblower, which certainly sounds plausible -- though, an argument could also be made that if the guy really was making stuff up, that's pretty bad as well. Either way, it is a reminder that just because you have a platform to speak out (whether legitimately or not), it doesn't mean there aren't consequences for doing so (as unfair as those consequences might be in some cases).

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Tech Company Sues Gartner Because It Doesn't Like How Gartner Placed It In Its Magic Quadrant

from the hello-first-amendment dept

While I'm no fan of Gartner, and tend to think its analysis is pretty weak in many cases, a recent lawsuit filed by ZL Technologies, because ZL doesn't like how Gartner ranked it in Gartner's famous "magic quadrant" analysis, is pretty silly, and hopefully will get thrown out quickly. Gartner has every right to rank companies as it sees fit -- just as courts have noted that Google has every right to rank websites as it sees fit. Even if there are questions about the integrity of Gartner's rankings, I don't see how that's a legal issue at all. All it might do is call into question the value of relying on Gartner's ranking system. But that's a business issue, not a legal one. The court will hopefully toss this lawsuit out quickly on First Amendment grounds, and let Gartner go on pushing out magic quadrants, no matter how flawed they might be.

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IAB Takes On FTC Over Silly Blogger Disclosure Rules

from the good-for-them dept

While more disclosure is generally a good thing, the FTC's new guidelines for blogging disclosure have some pretty massive problems, and probably aren't legal. As more and more people are recognizing this -- and interviews with the FTC folks in charge of this suggest they either haven't put very much thought into this issue or they don't quite know how the world works outside of their government cocoon -- the backlash is growing. Now, the Internet Advertising Bureau (IAB) has stepped in with quite the open letter to the FTC, asking them to scrap the rules, while noting (snarkily) how impossible they are to follow, in practice:

So there I was last Saturday, about to send out on my Twitter feed -- which automatically updates my Facebook page and links to my personal blog -- a photograph of this wonderful baked halibut dish I'd just made as a surprise for my wife. I was in the middle of typing a rave review of the recipe, which I'd pulled from my favorite cookbook, Delicioso! The Regional Cooking of Spain by Penelope Casas. But before I could press the "post" button, I stopped and canceled the whole thing.

I remembered that the book was a freebie, sent to me by an editor at the Alfred A. Knopf publishing house 13 years ago. And I didn't want you guys to haul me into court and fine me for violating the rules you've just promulgated to muzzle social media.

While this may seem silly, it really does highlight the problems with the FTC's rules. They're totally unclear and absolutely could concern things like this. Getting a free book here or there happens all the time -- and the FTC actually claimed that if people don't return them, then they may face sanctions. That's ridiculous. Last month, we ran a fun contest for people to win free copies of a Kevin Smith book. If the winners from our comments mention that book anywhere online, do they need to mention they got the book for free? If they mention it to a friend, do they need to do the same thing? Because most of the time when posting stuff online, people really are just talking to their friends.

Again, it's not clear why people can't just sort this out themselves. People who post bogus reviews of things because someone pays them to, or because of something "free," are going to get called out on it eventually and lose their credibility. When people talk amongst friends, they don't reveal where they got the products they talk about, or if they happened to get a promotional sample -- and that's fine. While you can understand where the FTC is coming from, it really has gone overboard with these rules.

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Jim Dolan's Lawsuit Against Cityfile Highlights The Need For Stronger Anti-SLAPP Laws

from the silencing-dissent dept

The Citizen Media Law Project has yet another story of bogus lawsuits being used to silence something someone doesn't want written about them. In this case, it involved Jim Dolan, known (but not particularly liked) to New Yorkers as the owner of Cablevision, the Knicks and Madison Square Garden. More recently, Cablevision bought the newspaper Newsday -- so you might think that Dolan would be a little more aware of why it's bad to sue a news publication claiming defamation over a clearly speculative piece. And, yet, sue he did. Dolan sued the blog Cityfile for posting a piece about rumors that Dolan was considering getting rid of the famous "Christmas Spectacular" involving the Rockettes at Radio City Music Hall in New York. As Arthur Bright points out, the original post doesn't seem all that different than speculative articles published all the time in pretty much every media outlet.

Unfortunately, facing a protracted legal fight, Cityfile agreed to settle and "retract" the story. Bright notes that this is silly, and any decent lawyer should have been able to get the lawsuit tossed on First Amendment grounds. The problem is the time and resources needed to fight such a thing.

Bright then points out how this highlights the need for stronger anti-SLAPP laws in New York. Anti-SLAPP laws let people fight back against such bogus lawsuits, whose purpose is only to silence speech (SLAPP stands for Strategic Lawsuit Against Public Participation). The problem, however, is that right now anti-SLAPP laws are at the state level, and only a few states have really strong ones. New York is not one of them. While Bright says this is evidence of why NY should strengthen its anti-SLAPP laws, a better solution might be a strong federal anti-SLAPP law, that shows a strong support for freedom of speech, and helps prevent bogus lawsuits whose only purpose is to allow those with more money to silence speech they dislike.

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Tiananmen Activist... Turned Entrepreneur... Turned User Of Trademark To Stifle Free Speech

from the free-speech-for-me,-but-not-for-thee dept

Paul Alan Levy alerts us to yet another shameful case of someone abusing trademark law to try to silence critics. In this case, it involves the software company Jenzabar, which makes software for colleges and universities, and apparently likes to play up the fact that its founder and CEO, Ling Chai, was one of the "leaders" of the Tiananmen Square uprising in 1989, before fleeing to America. Apparently Chai likes to play up that connection for PR purposes, and has been able to get the press to cover Jenzabar with headlines like "From Tiananmen Leader to Netrepreneur" and "From Starting a Revolution to Starting a Company."

However, when the makers of a documentary film about the uprising at Tiananmen Square included some comments and links to articles that were critical of Chai, she went legal. It started with a lawsuit claiming defamation against the film makers, which got quickly tossed out. So, instead, Chai and Jenzabar appear to be trying to use trademark law to bankrupt the filmmakers. They've filed a trademark lawsuit, claiming that the filmmakers' web page, that talks about Chia and Jenzabar, violates its trademarks, noting that the page turns up in search results on Jenzabar and the term is in the metatags.

Pretty much everyone involved recognizes that this is a ridiculous abuse of trademark law to stifle free speech. There is no violation of trademark here. Posting links to stories about Chai and Jenzabar that are critical of her is not a trademark violation in any manner. Using the term in metatags is totally meaningless. It's a shame that someone who apparently once stood as a voice for freedom is now trying to stifle free speech in others via trademark law abuse.

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Judge Tells Gamer That Sony Doesn't Violate His Free Speech Rights By Banning Him

from the sony-ain't-the-government dept

Back in July, we wrote about an annoyed videogamer who sued Sony for banning him from the Playstation 3 game "Resistance" for things he said to other players in the game. He claimed it was a violation of his First Amendment rights -- though, as we explained at the time (and, as anyone actually familiar with the First Amendment already knows), the First Amendment only covers actions by the government, not private corporations. Sony has every right to bring down the banhammer if it wants to. It should come as no surprise then, that the judge wasted little time explaining this to him in the process of dismissing the case. However, there is one interesting aspect, as highlighted by Eric Goldman in the link above. The judge rejected the idea that Sony might be covered by the First Amendment as a "company town." Goldman points out that some have suggested this argument in the past, and now there's at least one ruling that totally rejects it:

Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users (Pl.'s Reply in Supp. of Opp'n. to Dismiss 1), these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State." Hudgens, 424 U.S. at 519 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972)).

Sony does not have a sufficient structural or functional nexus to the government. Plaintiff has not suggested that Sony is part of the state or federal government. The Network was not created to further government objectives. The government retains no permanent authority to appoint any directors of Sony or the Network, or any other private body associated with the Network. There is no indication that Sony has assumed functions traditionally reserved to the government, or that the government had any part in encouraging Sony to create the Network. Count one of the complaint does not state a plausible First Amendment claim for relief, and therefore must be dismissed.

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More Problems With The FTC's New Disclosure Rules: Free Speech And Liability Problems

from the disclose-everything dept

I've already noted my general problems the FTC's new disclosure rules, but as others look into the details, the worse they seem and the more you realize the unintended consequences may be pretty bad. Jeff Jarvis makes some key points concerning how this could be seen as a restriction on free speech. And that's because the FTC seems to be viewing blog posts as if they are media, rather than straightforward communication. As we've pointed out in the past, for many, blogging is often no different than a conversation. It's not journalism. It's not reporting. It's having a discussion with people:

Second, the FTC assumes -- as media people do -- that the internet is a medium. It's not. It's a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don't think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they're making media. They're connecting. They're talking. So for the FTC to go after bloggers and social media -- as they explicitly do -- is the same as sending a government goon into Denny's to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.

As such, you could make a case that the new rules are an unconstitutional law hindering First Amendment guarantees on freedom of speech. As I noted originally, it seems like these things get sorted out in the marketplace of ideas -- whereby those who do something so stupid as to sell their "views" on things face the potential of a substantial loss in credibility. But suddenly demanding people reveal the sourcing of some product they mention in blogs leads to all sorts of silly results, amusingly mocked by Mark Cuban in a blog post, where he wonders what sorts of disclosures he'll have to make if he mentions a breakfast at IHOP where the managers comps the breakfast. And while he's mocking the overall situation, it's not so silly. You shouldn't have to confer with your lawyers to figure out how you mention any particular product, just because you got a freebie or a sample somewhere.

And, what's really scary? It appears that even the FTC isn't sure what the policy actually means, and hasn't thought through any of the unintended consequences or fuzzy borders.

Separately, Eric Goldman highlights another massive problem with the new guidelines that no one else seems to have picked up on yet: that in some cases it's the company providing the product that will be liable -- ridiculously blaming the company if a blogger makes claims about its products that are not true. As Goldman points out, there's no way the FTC would be successful in going after companies for that, as Section 230 clearly would protect the advertiser from bogus statements by someone else. But, even assuming that the FTC never considered the Section 230 issues, why would the FTC ever think it's reasonable to fine an advertiser for statements made by someone else?

Despite tons of feedback and discussion when the FTC first proposed these new rules a few months ago, it really feels like no one at the FTC put much time into actually thinking through what these sorts of rules would actually mean in the real world.

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