I'll be at the CMJ 07 conference in New York tomorrow moderating a panel on the Viacom v. YouTube litigation and Sam is at the Online News Association Convention in Toronto. Postings may be a little light as a result.

Yesterday, the U.S. House of Representatives overwhelmingly passed -- for the first time ever -- a federal shield bill by a vote of 398 to 21. This follows on the heels of the Senate Judiciary Committee's passage of a similar bill on October 4. The House version, however, makes a critical change in the language regarding who is entitled to the bill's qualified protections by excluding those who do not receive "substantial financial gain" for their activities.

Under the House version, H.R. 2102, a "covered person" is defined as

I've highlighted the new language in the quote above, which came about as the result of a last minute amendment by Representatives Boucher and Pence, two cosponsors of the original bill that did not include this ill-conceived requirement. In contrast, the original version of the House bill extended its coverage to any person "engaged in journalism," including "a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

This change significantly narrows the bill's coverage and is plainly aimed to exclude non-traditional journalists. But it doesn't just exclude those whom some in Congress derisively call "bloggers." The new definition would likely exclude many freelance journalists who must rely on other work to supplement their incomes. Do we really want judges to be deciding whether a journalist is earning enough money to qualify for protection?

More to the point, is financial remuneration the criterion we want to be using when we draw the line between those who are entitled to engage in journalism under the protection of a federal shield law and those who must venture forth unprotected? It seems to me the answer is no. To limit the privilege only to journalists who receive "substantial financial gain" misses the point of how media and journalism are evolving. Most crucially, it misses the growing -- and essential -- role of citizen media creators. They are the closest analog since the nation's founding to the Tom Paine-style pamphleteers the First Amendment was designed, in part, to encourage.

We formally launched the Citizen Media Law Project's website back in April, so it's about time that I provided an update on what we have been up to and where we are headed in the next few weeks and months.

William Patry has an excellent post today called "Misuse via Cease & Desist Letters." It discusses the recent trend of lawyers asserting copyright in cease-and-desist letters in an effort to prevent posting of those letters on the Internet.

Robert Niles, editor of the Online Journalism Review, posted a helpful article today about updating website Terms of Use in order to minimize inter-user abuse and conflict. He advocates telling users in plain language what rules the website expects them to follow when they post comments and suggests rules prohibiting impersonation, offline harassment, and the creation of multiple unlinked user accounts. He also recommends that websites adopt explicit rules setting forth the parameters for permitted commercial solicitation (if any). His remarks on impersonation are worth excerpting in full:

Insist that readers be who they are, and not attempt to pass themselves off as someone else. If you[r] site allows pseudonymous posting, insist that readers use a consistent handle or account name, and take whatever technical steps you can to keep people from posting under others' names.

Don't allow readers to mislead others about their identity, either. Warn readers against omitting information from their profiles or posts that would lead other readers to believe that they are someone other than who they are. Elected officials shouldn't be allowed to pretend that they are not when posting to a discussion about local politics, to use the Telegraph's example.

These recommendations are important from a practical, ethical perspective more so than from a legal perspective because CDA 230 (47 U.S.C. § 230(c)(1)) gives website operators immunity for publishing content submitted by others under most circumstances. From this practical, ethical perspective, however, I agree wholeheartedly with Niles. There is a difference between respecting and promoting a user's ability to engage in anonymous speech and allowing a user to mislead others and manipulate the tools put at his/her disposal. Perhaps a Term prohibiting impersonation would be hard to enforce (maybe not?) -- at the very least, a Term of this kind puts users on notice about what kind of community you want to create and makes a statement about engaging in speech and debate responsibly.

Columbia Law School's Program on Law & Technology, directed by law professor Tim Wu, recently launched another valuable online resource: Keep Your Copyrights: A Resource for Creators.

Today, the Chilling Effects Clearinghouse posted a cease-and-desist letter from MediaDefender to gpio.org complaining that MediaDefender's leaked emails had been posted to the site. The operator of the site, which subsequently moved to http://mediadefender-defenders.com (but not because of the letter), also posted the letter and his reply. His reply quite effectively points out that he and his server are in Norway and thus "it appears that your legal grounds for throwing letters at me claiming this-or-that is shaky enough that you might want to relocate."

This exchange reminded me of an article in Ars Technica a few weeks back discussing the reactions of peer-to-peer site operators to similar letters from MediaDefender. I meant to post on this article at the time, but forgot about it until today. The gist of the story is that some peer-to-peer site operators received cease-and-desist letters from MediaDefender and responded with blistering comments ridiculing the MediaDefender lawyers for their impoverished understanding of U.S. copyright law. For example:

[isoHunt's] formal response to SMR&H is filled with caustic wit and considerable legal expertise. "If Mr. Gerber is truly as experienced in IP law as his bio claims he is," asks the isoHunt administrator in his response, "why is it that he is incapable of composing a DMCA takedown notice as per USC Title 17 Section 512?" The isoHunt administrator explains that Gerber failed to adequately specify the allegedly infringing content as required by law. The administrator also helpfully provides a link to a valid sample complaint so that SMR&H will be less likely to send the improper information in their second attempt. The following is an excerpt of the isoHunt administrator's response:

"This e-mail serves as a counter notification under USC Title 17 Section 512(c)(3)(A)(iii) that you have failed to properly identifying links to content that allegedly infringes your copyright/trademark/rights (or, in this case, has something to do with really embarrassing trade secrets *and* employee social security numbers) AND you have failed to address your e-mail to the appropriate agent, namely copyright@isohunt.com, so I invite you and your clients to take a long walk off a short pier, since you and/or your clients might actually manage to NOT get something that simple wrong."

In closing, the isoHunt administrator says that the he will comply with the request if it is properly submitted. "Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it," he concedes, "just as soon as we're done laughing at you."

The Harvard Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

A recent case from Texas highlights the difficulty of identifying the correct legal standard for determining when a court should order disclosure of the identity of an anonymous person engaging in speech on the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog.