Paul Secunda of the Workplace Prof Blog has a post up observing that the Supreme Court's decision last term in Garcetti v. Ceballos, "completely eviscerated public employee free speech protection." According to Secunda:

Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.

Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.

In a recent case applying the Garcetti framework, the 7th Circuit was faced with a situation where a police officer had made allegations of misconduct by his police chief to an assistant district attorney and in a civil deposition. In the case, Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007), the 7th Circuit held that the officer's statements to the assistant district attorney were not protected under the First Amendment because -- and the court seems to have turned the world on its head to conclude this -- the officer was acting within his official duties when he reported the alleged misconduct.

Interestingly, the Morales court also held that because the officer made the same allegations in a deposition, that speech was protected under the First Amendment:

Because the 7th Circuit was unable to determine which speech was the motivation for retaliation against the officer, the court remanded the case for a new trial.

So what does this have to do with citizen media? This could make public employee blogs even more important as a means to ensure that those who report governmental misconduct are afforded full First Amendment protection. Report the misconduct only to another government employee and you run the risk of losing your job. Report the misconduct on your blog and the First Amendment will likely protect you (there are obviously other issues involved here, including state whistleblower statutes).

Let's hope the district court clarifies this important issue on remand.

JD Lasica has a post up on Social Media about rights-of-publicity associated with video blogs. JD interviewed Colette Vogele, who provides some very useful (and concise) advice. One of the things Colette highlights is the importance of having your subjects sign a release form if you plan to use the video commercially.

We'll be including a detailed analysis of this subject in the soon-to-be-public CMLP Legal Guide along with links to model forms you can use to get the necessary releases.

Citizen journalists commonly embed video clips to illustrate a story or other posting. Sometimes, the posting itself (and its dissemination on YouTube) is the story. Have you ever wondered whether embedding that video clip might lead to copyright woes? If so, apparently you're not alone. There's been a good deal of discussion relating to this issue on various blogs and websites recently. The discussion took a humorous turn this week when a Seventh Circuit Court of Appeals judge inserted a link in an opinion directing readers to a YouTube video about George Brett's famous "pine-tar incident," only to find that the link was removed from YouTube due to a notice of infringement by Major League Baseball. (For more details see Eric Goldman's blog.)

The Blog Herald recently ran a story suggesting that, indeed, bloggers could be held liable for embedding an infringing video on their sites. The story quoted an IP attorney to the effect that "[a]ny time you incorporate a copyrighted work into a site without the rightsholders' consent, you're potentially liable. . . It doesn't matter where it's hosted." The story further indicated (on the opinion of the same attorney) that it does not matter if the person doing the embedding is aware of the infringing nature of the work because innocent infringement is just as actionable as intentional infringement.

Fred von Lohmann's informative post on EFF's Deep Links makes some good points that go a along way toward lightening up this rather gloomy picture. The post points out that an embedded YouTube video is just a link. So, there is "no copy of the YouTube video being stored on your server (only the HTML code for the embed)." A post on Techdirt last week made a similar observation, noting that "[a]ll you've done is put a single line of HTML on your page."

As von Lohmann writes, this makes embedded video just like any other in-line image links found on the web, including Google Image's search functionality. This is significant because an important recent case from the Ninth Circuit Court of Appeals, Perfect 10 v. Google Inc., held that Google Image's in-line linking of copyrighted photographic images posted on third-party websites did not constitute direct copyright infringement of the plaintiff's display or distribution rights because no copies of the plaintiff's photographic images were stored on Google's computers. The court wrote:

The Reporters Committee for Freedom of the Press reports that Oregon Governor Ted Kulongoski recently signed two bills that increase public access to government records.

The first of the two bills now requires that "the public body receiving the request shall respond as soon as practicable and without unreasonable delay." While this is an improvement over the prior law, which merely required that the requester be given a "reasonable opportunity to inspect or copy the public record," see ORS 192.440, Oregon still provides no set time period by which a governmental body must respond to a request for public records.

The New York Mayor's Office of Film, Theater and Broadcasting is considering new rules that would require any group of 2 or more people who want to use a camera on city property -- including sidewalks -- for more than a half hour to get a city permit and $1 million in liability insurance, the New York Times reports today:

That is the question that Jason Fry raises in a provocative column in the Wall Street Journal Online. Fry writes that:

Property deeds, marriage and divorce records, court files, motor-vehicle information and tax documents are increasingly being digitized, and contain a wealth of information that few of us would want online: Social Security numbers, birth dates, maiden names and images of our signatures. Local governments have rushed to put those documents online for a decade or so, often without scrubbing them of such information. And that's made them potentially fertile ground for busybodies, stalkers and identity thieves.

I have no doubt that this comes as a shock to many people. But it shouldn't. The records being put online are public. They are available to anyone willing to schlep to the courthouse or county clerk. As Fry notes, "[o]pen records are a longstanding American tradition."

Robert Ambrogi reports that:

Let's hope the Massachusetts legislature follows through on this. While state open meetings laws can provide useful leverage in the battle to get access to the workings of government, they typically lack any real enforcement mechanisms. Oftentimes the only recourse available when a meeting has been improperly closed is to get a "ruling" by a state official -- long after the fact -- that the meeting should have been open. Allowing fines and the recovery of attorneys' fees will add some real teeth to the Massachusetts act.

You can track the status of the Massachusetts bill at OpenMass.org.

Well, Dell Computer is learning about the web. See the confession at Consumerist, in which the company admits its mistake in demanding that the site take down a posting about its kiosk sales operation. Some things do change.

Yesterday our very own Mary-Rose Papandrea, a professor at Boston College Law School, testified before the Joint Committee on the Judiciary at the Massachusetts State House regarding a proposed shield law. For most of the hearing, the questions focused on the scope of the privilege (the bill proposes an absolute privilege for the identity of sources and a qualified privilege for newsgathering materials) and not on who would be covered under the privilege.

However, near the end of the hearing, Senator Robert Creedon expressed concern about extending the privilege to bloggers, describing them as "loose cannons." Papandrea, together with Lucy Dalglish, Executive Director of the Reporters Committee for the Freedom of the Press, responded that the term "bloggers" is ill-defined and includes many journalists from the mainstream media. Given that it would be unwise to place internet communications outside the scope of any shield law, Papandrea and Dalglish argued that the better answer would be to define those covered under the law by their function - i.e., whether they are disseminating information to the general public. Papandrea also pointed out that the proposed shield law would not immunize bloggers - or anyone else - from libel suits, which appeared to be Senator Creedon's primary concern.

You can track the status of the Massachusetts "Free Flow of Information Act" at OpenMass.gov.