And That's It for 2012...

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Tomorrow, Harvard University will shut down for its annual Winter Recess, marking the end of the calendar year for those of us at the Digital Media Law Project.  It seems like this year has flown by, with so much that we have done and so much that we still plan to do.

I’ll leave the full summary of our activities to the December edition of our newsletter, the Citizen Media Law Brief, but thought it would be worthwhile to highlight some of our major projects in 2012.

Through our legal referral service for online journalism and publishing ventures, the Online Media Legal Network, we secured legal representation for a number of journalism entities seeking a Section 501(c)(3) tax exemption from the Internal Revenue Service. As a result of this work, the DMLP was one of the first organizations to become aware of a pattern of delays in IRS decisions on these applications, with some applicants waiting two years or more for a ruling. These delays pose a serious threat to non-profit newsrooms, as Section 501(c)(3) status is essential for these organizations to receive tax-deductible donations, and many foundations require a tax exemption in order to award supporting grants. The DMLP responded to this issue in April 2012 by publishing an interactive legal guide for applicants seeking tax-exempt status, to help them better understand the often convoluted and counterintuitive standards applied by the IRS. Since then, the logjam at the IRS has started to dislodge, with a few long-delayed applicants finally receiving recognition of their tax-exempt status.

We also dug deeply into legal issues related to news coverage of the 2012 presidential elections, publishing two comprehensive resources for professional and citizen journalists:

  • In August, we launched our guide to covering the Republican and Democratic National Conventions, which included specific information regarding the intersection of First Amendment newsgathering rights with applicable laws and ordinances in Charlotte and Tampa; special rules applicable to events controlled by the U.S. Secret Service; and guidance in dealing with police, public officials, and event organizers. The conventions guide and related materials were complemented by live online chat sessions produced in partnership with Free Press in which Andy Sellars, our staff attorney, responded to journalists’ questions about the conventions.
  • On November 2, 2012, we launched a state-by-state legal resource for those wishing to use photography or videography to document the 2012 national elections, Documenting the Vote 2012. This guide covered laws in all 50 states limiting the ability to use cameras at or near polling places, as well as laws prohibiting disclosure of the content of a voter’s own ballot. This resource was widely used and cited during the elections, with over 115,000 unique page views between November 2 and November 7, more than 60 mentions in local and national media, and referrals on Twitter by a diverse range of popular users – including, believe it or not, MC Hammer. We were geekily proudest, however, that we were cited as a reference to help dispel urban myths about photographing one’s ballot on Snopes.com.
We were, and remain, very concerned about the abuse of trademark law to chill critical speech and other expression protected by the First Amendment, and appeared as an amicus curiae in several cases involving these issues:
  • In Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533 (Mass. App. Ct. January 18, 2012), defendant-appellee Long Bow Group, a documentary film company, posted speech critical of plaintiff-appellant Jenzabar on its website, and used Jenzabar's name in metadata to identify that content for users and search engines.  The DMLP argued in its amicus curiae brief that Jenzabar's invocation of trademark law to prohibit the use of its name in metadata was an effort to render Long Bow's protected speech inaccessible on the Internet and was therefore barred by the First Amendment and Article 16 of the Massachusetts Declaration of Rights. 
We are pleased that the Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, but unfortunately the Court persisted in applying the traditional trademark likelihood of confusion test to Long Bow’s expressive uses of the Jenzabar mark. The likelihood of confusion test is ill-suited to expressive speech, as reflected by the fact that the Appeals Court had to twist the factors of the test beyond recognition to apply them here. Moreover, the fact-based nature of the analysis is not usually susceptible to summary disposition – meaning that constitutionally protected speech could be dragged through the extraordinary expense of discovery, expert witnesses and trial before the defendant’s First Amendment rights are vindicated. (For our deeper analysis, see here.) The Supreme Judicial Court of Massachusetts has recently denied Jenzabar’s petition for further appellate review of this case -- another welcome victory for Long Bow, but we will likely need to pursue the deeper issues in another forum.
  • In Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 3:12-cv-00240-MEJ (N.D. Cal. January 27, 2012), the Digital Media Law Project joined the Public Citizen, the American Civil Liberties Union, and the Electronic Frontier Foundation in filing an amicus memorandum on the proper standards for discovery of the identities of anonymous online speakers in a trademark and defamation case. The plaintiff, the campaign committee for 2012 Republican presidential candidate Ron Paul, alleged that the Doe defendants were owners of a YouTube and Twitter account named "NHLiberty4Paul," and that under this pseudonym, Defendants uploaded a video on YouTube entitled "Jon Huntsman's Values" that attacked Huntsman and ended with the following text: "American Values and Liberty - Vote Ron Paul." The plaintiff claimed that the Does' use of Ron Paul's name in the video constituted false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a), false description and representation in violation of the Lanham Act, 15 U.S.C. § 1125(a), and common law defamation. Accordingly, the plaintiff sought expedited discovery as to the identity of the Does. After receipt of the amici's brief, the court denied the plaintiff's motion, finding that the Ron Paul campaign had failed to plead actionable claims. The plaintiff voluntarily dismissed the case without prejudice.
  • In Commonwealth v. Busa, No. 1101CR005277 (Boston Mun. Ct. May 21, 2012), the Digital Media Law Project prepared an amicus brief in a criminal prosecution in Boston Municipal Court in order to challenge the constitutionality of Massachusetts' anti-counterfeiting act, Mass. Gen. Laws c. 266, § 147. Section 147 criminalizes, inter alia, the unauthorized manufacture, use, display, or distribution of any item or service bearing a word, image, or other mark that has been used and registered by another to identify goods or services. However, unlike traditional trademark protection, Section 147 is not limited to uses in commerce or where there is a likelihood of confusion, and contains no exceptions for fair use or other uses protected by the First Amendment. Accordingly, the DMLP argued that Section 147 is overbroad, in violation of the First Amendment. Similarly, because Section 147 prohibits display or manufacture of fixed expression without any of the additional elements found in trademark law, the DMLP argued that the statute is preempted by federal copyright law under the Supremacy Clause. The Commonwealth of Massachusetts subsequently decided to drop the case, and the defendant's unopposed motion to dismiss was granted on June 20, 2012.

Although we are proud of the efforts that we have made over the past year, there is always more to do. In 2013, we plan to continue our efforts to bring sense to the intersection of trademark law and the First Amendment through amicus filings and other resources. We are also concerned by instances of police department discrimination against independent journalists with respect to credentialing and/or inclusion on press release lists; we will be investigating to see if this is part of a broader trend and, if so, what should be done about it. On the practical side, we remain committed to providing support to fledgling journalism ventures, and want to explore new ways to help these organizations tailor their business models to their journalistic goals (rather than vice versa, as so often turns out to be the case).

And all of this is on top of our core functions of maintaining and updating our Legal Guide for digital journalists, tracking legal threats against online expression in our Threats Database, placing qualifying journalism clients with pro bono or reduced fee legal assistance through the Online Media Legal Network, and our conference and speaking engagements.

Like many academic and non-profit projects, we operate very leanly, making up for limited resources through the efficiency and dedication of our staff and our partners. For that reason, I’d like to end this year by voicing my personal thanks to all who enable the Digital Media Law Project to function, including:

  • our founder, David Ardia, for giving us the shoulders on which we stand;
  • Harvard University, and in particular the faculty, staff and fellows of the Berkman Center for Internet & Society, who give us a home and make this one of the finest places to work in the world;
  • Phil Malone, Chris Bavitz, Kit Walsh and Dalia Topelson of the Harvard Law School Cyberlaw Clinic, our closest partners, for their intellectual muscle, willingness to jump in to support our efforts, and tolerance of us as their rowdy next-door neighbors;
  • our past and present law student interns, including Lauren Campbell, John Sharkey, Natalie Nicol, Tabitha Messick, Kristin Bergman, and Jillian Stonecipher;
  • our former research attorney, Arthur Bright, who taught all of us now at the DMLP how everything here works, and who is off to further exciting ventures;
  • our staff attorney, Andy Sellars, for many, many things, but mainly getting things done so I have time to think, and thinking when I need to get things done;
  • and finally, to all of those who rely upon our project for legal information and assistance -- we appreciate your trust in us, and look forward to serving you in the future.

We wish you all a very happy holiday season, and will see you again in 2013!

Jeff Hermes is the Director of the Digital Media Law Project.

(Photo of a janus-herm courtest of Flickr user diffendale pursuant to a Creative Commons CC BY-NC-SA 2.0 license.)

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