Seven Years of Serving and Studying the Legal Needs of Digital Journalism

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We have some important news to share from the Digital Media Law Project. After seven years of providing legal assistance to independent journalism through various methods, the DMLP will soon spin off its most effective initiatives and cease operation as a stand-alone project within the Berkman Center. The upcoming changes will ensure that our work continues in a robust and sustainable fashion, and so, while those of us here are a bit melancholy to see the end of an era, we are hopeful for what comes next.

I wanted to take this opportunity to look back over the history of the DMLP and its accomplishments, and to talk a bit about what the future will hold for our work.

The Beginning

In 2007, a group of scholars and attorneys at the Berkman Center for Internet & Society recognized a growing problem for online speech: namely, that a vast array of bloggers, citizen journalists, and other non-professional writers were publishing information on the Internet without a solid understanding of their rights and responsibilities under the law. Those without legal training or resources were unprepared for challenges such as defamation, privacy, and copyright claims, and often ran into pitfalls when dealing with issues such as corporate formation, contract negotiation, and development of website policies.

While the Berkman Center had been providing legal services to online ventures for several years through the Harvard Law School Cyberlaw Clinic, this growing need among independent publishers was simultaneously too widespread for the Clinic to address through its existing service model and too basic in many specific instances to present a valid case-by-case training opportunity for law students. A different approach was required.

Thus, in May 2007 the Berkman Center launched a new experiment: the "Citizen Media Law Project." The CMLP was an offshoot of the Cyberlaw Clinic, intended to address the lack of legal knowledge among bloggers and citizen journalists through the publication of online informational resources targeted at lay readers. The CMLP's primary resource was a detailed Legal Guide, which provided basic information on a broad array of media law and business law topics that online publishers could expect to encounter. The CMLP's Threats Database tracked legal challenges to online speech, such as lawsuits, police activity, and cease and desist letters, in order to address the lack of publicly available background information and primary source material relating to this type of activity.

The CMLP also engaged in a number of public outreach efforts, including organizing conferences, making speaking appearances, publishing its regular blog, and maintaining an online forum for discussion of legal issues affecting digital speech. These activities had the effect of raising the public profile of the project as an authoritative source of legal information.

The Online Media Legal Network

While these resources were successful and popular, there remained situations where citizen journalists and bloggers required more than just general legal information; rather, they needed the direct assistance of attorneys. Many members of the CMLP's audience were unable to afford counsel to support their legal rights, even if thanks to the CMLP's resources they had an understanding of those rights. Occasionally, CMLP staff members would represent a client directly in connection with narrowly defined legal questions; more commonly, the CMLP would appear as an amicus curiae in cases involving free speech issues. But this was insufficient to meet the needs of the CMLP's constituency.

Again, a broader solution was necessary, and in November 2009 the CMLP expanded its ability to support clients with the launch of its free attorney referral service, the Online Media Legal Network. The launch of the OMLN marked a quantum leap in the breadth and impact of the CMLP's services, placing individual online media clients in contact with skilled media and business attorneys throughout the United States willing to provide legal services on a pro bono or reduced fee basis. The network expanded dramatically as the CMLP promoted the concept of pro bono media law services, eventually reaching the point where the OMLN's member attorneys included hundreds of law firms, individual attorneys, and legal clinics, with members in all fifty states (plus the District of Columbia) and affiliations with international media law networks.

The "Early Warning System"

Throughout the growth of the project, the CMLP was building relationships with a wide array of partners, including the attorneys of the OMLN and their clients, non-profit organizations dedicated to journalism and online freedom, academic affiliates at other universities, and journalists and press organizations experimenting with online media. These individuals and organizations were eager to share their experiences with law in the digital age, and it became apparent that this feedback could provide critical information about breaking legal issues affecting online speech.

The CMLP began to treat these networks as an "early warning system" for legal questions worthy of attention. For example, at the end of 2011, the CMLP's networks alerted the project to issues at the Internal Revenue Service with respect to the agency's withholding of tax exemptions for non-profit journalism. Over the next three months, the CMLP investigated the issue and developed a tailored response in the form of an interactive resource that identified the challenges for journalism at the IRS, demystified the IRS's decision-making process, and provided guidance for meeting the agency's standards. The CMLP's IRS resource was extremely well received, and appears to have had a significant role in breaking up a backlog of applications at the agency.

Through the early warning system approach, the CMLP added greater flexibility to its operations, allowing us to identify new systemic imbalances in the law affecting online speech and to develop responses accordingly. This approach provided the CMLP with the guiding principle for its research, speaking appearances, and interventions in court cases.

Putting the Pieces Together

Over time, the CMLP organized its various efforts into five core initiatives: (1) the Legal Guide; (2) the Threats Database; (3) the Online Media Legal Network; (4) a "Research and Response" system to handle emerging issues; and (5) CMLP publishing through a series of online fora, including this blog. It was now easier to see how the activities of the project could function together to provide a coordinated set of legal resources for the public. When a client needed to speak to an attorney, they could be sent to the OMLN, but when their issues were not ripe enough to need a one-on-one consultation, the Legal Guide could serve their needs. The Threats Database provided attorneys and academics with neutral information about pending cases, but when legal issues became a problematic trend, the Research and Response initiative would develop more targeted responses. The CMLP blog changed in its tone from a forum for general commentary to a source for deeper insight and analysis of breaking issues at the intersection of law, technology and journalism.

It had also become clear that the original concept of the CMLP as serving a class of amateur bloggers and citizen journalists distinct from professional news outlets did not accurately reflect the nature of the online publishing environment. The CMLP had repeatedly encountered and assisted professional journalists who were nevertheless independent of traditional media outlets, either by choice or due to the economic disruption of the journalism industry. The project found that these clients had needs as significant as those of their "citizen" counterparts. The project recognized that distinctions between professional and citizen journalists were less important than analyzing the needs of online media as a whole.

The "Digital Media Law Project"

With this shift of focus, the project was able to respond to a range of important legal issues, including: First Amendment protection for the use of cameras to record the actions of public officials; legal constraints on newsgathering at the 2012 U.S. political conventions and the use of cameras at the 2012 national elections; the abuse of trademark law as a method of suppressing critical speech; the impact of legal regimes governing online intermediaries on data journalism and crowdsourced reporting; the use of digital technology to inform the public about judicial activity; systemic issues in the issuance of media credentials by government and private organizations; and more. Formalizing its new approach, the CMLP removed "Citizen" from its name in 2013, becoming the "Digital Media Law Project."

The Online Media Legal Network had by this time also emerged as an independent source of data for research purposes. By September 2013, the OMLN had placed its 500th client matter with a network attorney. In recognition of that milestone, the Digital Media Law Project conducted a comprehensive survey of its past clients and their legal needs, releasing that information in a report entitled The Legal Needs of Emerging Online Media: The Online Media Legal Network at 500 Referrals. This review of the issues facing a substantial sample of new and innovative online journalism ventures revealed that these clients' legal needs were in many respects not very different from those of traditional media organizations; while there were some distinctions, the primary difference lay in their ability to meet those needs.

The Future

Fundamentally, the Berkman Center is an incubation space that fosters experimentation in the study of the Internet and the development of tools and services that address the online world's many challenges. After seven years at the Berkman Center, the DMLP has grown from an experimental project that addressed the legal needs of an emerging class of bloggers and citizen journalists into a service organization that provides structured legal resources for the entire range of independent online journalism. We are extraordinarily proud of the work the DMLP has done, but now that the experimentation phase of the project is over, we have determined that the best path forward is to identify the most useful elements of the DMLP's operation, and make sure that they have permanent homes.

Some of our services - most notably our Legal Guide and Threats Database, along with our collection of research studies - will remain at the Berkman Center, reintegrated into the Cyberlaw Clinic where they will benefit from the support of law students and serve not only as an important resource for the public but as a tool to train young attorneys about legal issues vital to online communication. While our blog will cease publishing new posts, our archive of blog entries will remain available to the public. The Online Media Legal Network will find a new home outside of the Berkman Center with a non-profit organization that shares the DMLP's commitment to providing legal services to online media (we have a very exciting prospect lined up, but it's a bit early to report). While different aspects of the DMLP's work will continue in different places, we expect that the organizations taking on this work will work closely together to provide a coherent set of resources that address the diverse legal needs of online media.

These transitions will take place over the next few months, and the DMLP itself will wind up operations as an independent project as of September 30. As for those of us who work at the DMLP, we'll be moving on to other projects as well. I myself will be stepping back from my full-time role as the director of the DMLP as of June 30, but will be serving as a consultant to the Berkman Center through the transition period. Andy Sellars, our assistant director, will join the Cyberlaw Clinic as a Clinical Fellow and continue his work on freedom of speech and intellectual property issues in that context, including supervision of the Legal Guide and Threats Database in their new home. We don't know yet who will take custody of our office spider plant, Meiklejohn, but we're sure that the decision will be made by an electorate informed by the free flow of ideas.

***

It has been our pleasure to serve our constituency of online media projects and independent journalists over the last seven years, and those of us at the DMLP look forward to continuing this work in new ways. I would like to offer our gratitude to all of our colleagues at the Berkman Center (and especially the team at the Cyberlaw Clinic), our partners at other organizations, the volunteer attorneys of the Online Media Legal Network, our roll of contributing bloggers, and all of our donors and foundation supporters.

Most especially, I would like to thank: our founder and first director, David Ardia; our mentors and principal investigators, Phil Malone and Urs Gasser; Cyberlaw Clinic Managing Director Christopher Bavitz; my assistant director, Andy Sellars; and all of the other staff and interns of the CMLP/DMLP throughout the years: Sharo Atmeh, Julie Babayan, Lee Baker, Sam Bayard, Kristin Bergman, Reed Bienvenu, Rebekah Bradway, Arthur Bright, Jillian Button, Lauren Campbell, Tom Casazzone, Tuna Chatterjee, L.T. Ciaccio, Jason Crow, Alexandra Davies, Nicholas DeCoster, Jim Ernstmeyer, Vanessa Fazio, Courtney French, Helen Fu, Kelly Hoffman, Marshall Hogan, Kimberley Isbell, Olivia Jennings, Kyle Junik, Dan Kahn, Ryan Kane, Jane Kleiner, Erika Kweon, Frances Katz, Michael Lambert, Tim Lamoureux, Jason Liss, Matt Lovell, Katie Mapes, Ryan McGrady, Tabitha Messick, Natalie Nicol, Daniel Ostrach, Marc Pennington, Marina Petrova, Rich Quincy, Colin Rhinesmith, Amanda Rice, Caity Ross, David Russcol, Matt C. Sanchez, Alison Schary, Samantha Scheller, Natalie Senst, John Sharkey, Justin Silverman, Brittany Griffin Smith, Aaron Sokoloff, Lina Somait, Jillian Stonecipher, Konstantinos Stylianou, Tom Sullivan, Yixin Tang, Daniel Ungar, Caitlin Vogus, Miriam Weiler, and Stefani Wittenauer.

Addendum: The DMLP by the Numbers

Jeff Hermes has been the Director of the Digital Media Law Project since 2011, and has been proud of every minute.

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