Blog Law Squishy
Wednesday, April 26, 2006
Blog Law Squishy,
But Copyright Law Clear, Panelists Say
SAN FRANCISCO--The worlds of blogging, journalism, and the law are colliding online and in the courts, with media and business advocates clearly disagreeing on free speech and trade secret theft.
The California Court of Appeals heard oral arguments April 20 on whether a trial court can order bloggers to reveal who leaked information to them about upcoming Apple Computer Inc. products. O'Grady v. Superior Court , Cal. Ct. App., No. H028579, oral arguments 4/20/06).
Kurt Opsahl, an attorney with the online civil rights group Electronic Frontier Foundation who argued on behalf of the individuals Apple sued last year, said bloggers enjoy the same First Amendment protections as journalists regardless of the medium or audience size.
"The size of the community has never been a basis for limiting the First Amendment rights, or the specialized nature of that community has been a basis for limiting those rights," Opsahl said. Consumers seek information vital for making choices, he said April 21 in a panel discussion at the Law Seminars International blog law conference.
Journalists all the time ask people for information that is unknown to the general public, said Terry Gross, an attorney with Gross & Belsky in San Francisco representing ThinkSecret.org which Apple sued for posting allegedly leaked information.
"The key really is, does the journalist do anything wrong in obtaining the information?" Gross said.
In another EFF case, the same California Court of Appeal that is hearing the Apple case held that the defendant, who posted DVD descrambling code on his Web site, was protected by the First Amendment. DVD Copy Control Association Inc. v. Bunner, Cal. Ct. App., No. H021153, 2/27/04. The court said that by the time the defendant posted the code, it was no longer a secret.
Marc Martin of Kirkpatrick & Lockhart Nicholson Graham, Washington, D.C., said the issue is whether information in the Apple case was rightfully obtained and whether the information is privileged.
While Section 230 of the Communications Decency Act grants broad immunity for service providers from liability for defamatory information, ISPs are not protected from intellectual property claims, according to Martin. Martin represents Apple in some issues but not in the case in the California appeals court.
At technology companies in general, Martin told BNA, all employees sign nondisclosure agreements, the firms operate secure facilities, have trade secret policies, and computers are behind firewalls, Martin said.
"If you're taking information that's proprietary from a company and one of your employees takes that treasured secret, walks out the door tucked in their sock, and runs over to the competitor, took it out of their sock, and gave it to them, that would be obvious. No one would contest that," Martin said.
"So what's the difference of that person instead of putting it in his sock and walking to the competitor, he instead went home, fires on line, and posted the content, and then all of a sudden it's available?" Martin said.
A California Superior Court, Santa Clara County, judge ruled in March 2005 that neither the First Amendment nor California's shield law for journalists bars discovery of the identities of persons who allegedly leaked Apple trade secrets to Apple-oriented bloggers. Apple Computer Inc. v. Doe, Cal. Super. Ct., No. 1-04-CV-032178, 3/11/05.
The California appeals court's decision is due within 90 days of oral argument. While not a federal case, the decision will be persuasive on judges in other states, Opsahl said.
"So long as the number of blog cases you can count on the fingers of two hands, I think this will be very important," said Bruce E.H. Johnson with Davis Wright Tremaine in Seattle.
The difference between a blogger and a journalist, said Johnson, is "a journalist has an editor."
Ensuring bloggers are included in state shield laws can be a fight, said Johnson. A failed Washington state shield law bill this past session was intended to be media neutral did not cover bloggers. "It's hard to create a privilege that applies to 13.4 million people," Johnson said.
The bill died in part because of opposition by business lobbyists and from the Society of Professional Journalists which wanted more extensive protection, Johnson said.
Copyrights and Blogging
A much clearer issue is who owns the copyright of material posted on a blog, said Raymond Nimmer, director of the Intellectual Property and Information Law Institute at the University of Houston Law Center.
"Copyright's automatic. Everything you're going to be dealing with, both stuff you write and gets written on your site and linked to, everything's copyrighted," Nimmer said at a session April 20. "Posting online is not waiver of copyright."
The professor gave the example of placing a book on the table and letting others look at it. "That doesn't give anybody the right to copy it. The simple fact of posting online isn't a waiver of copyright," Nimmer said.
Among the perils of employee blogging is ownership. When someone in-house is blogging, such as a law partner, Nimmer said an express contract is essential. "You really only get in trouble if you don't have a written contract," he said.
Putting aside the employment and work-for-hire issue, "if I write an entry on your site, either a comment or guest entry, I own the copyright to that unless I transfer. What you get is an implied license," Nimmer said.
By Joyce E. Cutler
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