Proposed in August and coming up for first reading in the Bundestag this Thursday, the Leistungsschutzrecht – or, ancillary copyright — would give news publishers the exclusive right to control re-uses of their output, requiring others obtain a license even to excerpt.

Google fought back on Tuesday by using a google.de homepage campaign to ask users to complain to elected representatives, casting the issue as one both of fundamental freedoms and of practicality: “For you, it would be so much more difficult on the internet to find the information that you seek. Defend your network.”

It is a mark of how seriously Google is taking the threat that it is trying to appeal to users’ emotions, enlisting them to fight the proposals. Google argues Leistungsschutzrecht will “damage the German economy” and “threaten the diversity of information”.

German publishers have formed their own counter-campaign…

Google is widely thought to be allowed to crawl news stories of which it republishes only excerpts. Emerging law may suggest otherwise — a Belgian court ruled in 2007 that it did not have the right to run such excerpts and UK copyright authorities this year ruled commercial news aggregators (though not free alternatives like Google News) must pay a license for doing so.

In Belgium, news stories were only returned to Google after a private commercial agreement between it and publishers. So German publishers may feel confident in seeking an equivalent arrangement. And that would challenge the widely-held belief in free online excerpting.

But Germany is not the only front on which Google is facing a threat to these core values on which it operates…

This week an Australian court ruled Google had defamed a man wrongly accused of being a criminal in a web page not hosted by but indexed by Google for its search results.

That contradicts the settled view of many legal jurisdictions that online platforms are not to be considered publishers of information placed by others, though is consistent with other case law that holds such platforms liable from the moment they are made aware of infringing material on their platform.

My colleague, paidContent legal correspondent Jeff Roberts, says this may make it more likely would-be litigants shop for victories in forums like Australia.

France also recently set Google a year’s-end deadline for agreeing to voluntarily pay news publishers — or  it may legislate that it must pay a levy for the privilege. Google told French ministers such a compulsion would “threaten its very existence”.

So now Google is battling challenge to two of its central tenets — that it is not a publisher and only excerpts parts of articles.

Asked why its members don’t just block Google using robots.txt, the Federation of German Newspaper Publishers on Tuesday said via Twitter: “Robots.txt is a standard from the internet stone age. Why doesn’t Google want to use (alternative standard) ASCAP ACAP, that is the question.”

To recap, Twitter suspended Adams’ account several days ago because he posted the email address of an NBC executive as part of a stream of tweets criticizing the broadcast network and its Olympics coverage. According to Twitter, doing so was a breach of its “trust and safety” guidelines because the address was considered to be private (even though it was the executive’s work address). After widespread criticism of Twitter’s decision, Adams’ account was eventually reinstated on Tuesday, and the company’s general counsel Alex MacGillivray later wrote a blog post about the incident, in which he described what happened and apologized for how Twitter handled it.

Twitter doesn’t want to be seen as a publisher

As Matt Buchanan at BuzzFeed noted, however, it’s interesting to look at what Twitter apologized for and what it didn’t: the company didn’t apologize for suspending Adams’ account in the first place, despite the fact that the email address doesn’t really meet most tests of the term “private.” What MacGillivray apologized for was that a Twitter staffer — a member of the media team working with NBC on the official Olympics hub that Twitter runs in partnership with the broadcaster — was the one who alerted the network to the offending tweet, and instructed the company in how to file a complaint and have the account suspended.

This is important because it means that Twitter itself detected the offensive content and took action, rather than waiting for a user to report the message through the usual channels, and MacGillivray’s post goes to great lengths to make it clear that the company does not do this kind of thing on a regular basis, and will never (or should never) do so, saying:

“The Trust and Safety team does not actively monitor users’ content… we do not proactively report or remove content on behalf of other users no matter who they are… we should not and cannot be in the business of proactively monitoring and flagging content, no matter who the user is.”

MacGillivray says that the company doesn’t want to do this because it “undermines the trust that our users have in us” — and there’s no doubt that what Twitter did brings up all kinds of questions about how much of what the network does in such cases will be determined by its corporate partnerships with giant entities like NBC, rather than its commitment to being a distributor of real-time information. That’s a real issue for the company in the future, as I tried to outline in a recent post.

But in addition to all of that, proactively monitoring content and removing it also raises some fundamental issues around Twitter’s potential liability for such behavior (which probably helps explain why the company had its general counsel respond about the Adams case instead of a PR person or even CEO Dick Costolo). To the extent that Twitter is manually curating and filtering content that flows through the network — and possibly flagging offensive messages for corporate partners — it is acting as a publisher rather than just a distributor, and therefore it could be on the hook in a legal sense.

Publishers are treated differently than networks

In the United States, there are laws that protect internet providers of various kinds (what the U.S. Communications Decency Act calls “interactive computer services”) from defamation lawsuits and other forms of legal action based on comments or message posted by third parties. That’s because these kinds of services are defined as “distributors” or carriers of information — much like a phone company — and the idea is that a carrier can’t possibly read or listen to every message and check it for potentially offensive or illegal content.

If the company is filtering and selecting messages, however, and possibly letting certain parties know when a legally questionable one shows up, that is much more like what publishers do — and in many jurisdictions, publishers like newspapers are held to a different standard. Twitter has already been the subject of at least one lawsuit based on that principle: in Australia, a TV personality sued the network earlier this year for publishing allegedly defamatory tweets about her, and at least one lawyer commenting on the case made a direct comparison between what Twitter does and what a newspaper does, saying:

There’s not a lot of difference conceptually between Twitter or other internet publishing and an airmail copy of a newspaper; it’s just quicker.

So far, these kinds of cases have been few and far between. But the Adams case, and MacGillivray’s response to it, makes the point that this could be a significant challenge for Twitter in the future. Not only does it have to find some way to navigate between the demands of its users and the necessity of catering to advertisers and/or corporate partners like NBC — while still upholding its self-declared status as the “free-speech wing of the free-speech party” — but it has to be careful not to become too much of a curator or publisher of content, or face the potential legal liabilities that all publishers face. Welcome to the realities of being a media entity, Twitter.

Post and thumbnail images courtesy of Flickr users Hank Ashby and George Kelly

In a complaint filed in Miami federal court this month, Raanan Katz is demanding an injunction and damages over a photo that shows him court side with his tongue hanging out. The photo is posted on a blog devoted to reporting alleged rip-offs involving Katz’s commercial real estate operations in Miami. The lawsuit shows the photo “partially distorted due to its unflattering nature” :

The unredacted photo is still posted on the blog, RKAssociatesUSA. We are posting it below pursuant to copyright’s fair use law:

This is the second time that Katz has sued the blogger. Last summer, Miami news outlets reported that Katz filed a defamation lawsuit against “John Doe” over critical blog posts. That lawsuit appears to have failed, likely on the grounds that Katz is a public figure and that US law is reluctant to chill free speech.

The copyright lawsuit, therefore, appears to be a backdoor for Katz to go after the blogger all the same.

Katz’s complaint lists the blogger as Irina Chevaldina. It is unclear whether he obtained her identity through a court order or other means. The blog is devoted to outlining Katz’s alleged misdeeds and its author has dedicated a number of the posts to the memory of grandparents who were killed by Nazis.

Google is involved because the search giant reportedly refused to take the photo down after receiving a DMCA copyright takedown notice. Internet companies that host content posted by others can lose their so-called “safe harbor” immunity if they refuse to comply with such notices.

Here’s a copy of the complaint:

Katz Complaint
(Image by Nina Malyna via Shutterstock)

The same has been true of calling someone “gay.” Spreading false rumors that someone is homosexual has long been part of the same small legal category known as “defamation per se.” Defamation refers to reporting or repeating false allegations that harm someone’s reputation in writing (libel) or in speech (slander).

Now, however, a New York state appeals court has followed other courts and rejected that rule, citing “this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual.”

The court’s decision came after a man in Binghamton, New York, sued a woman who repeated a rumor that he was gay in the hopes his girlfriend would break up with him. Mark Yonaty said the rumors destroyed his relationship with his girlfriend.

The issue for the appeals court is whether “gay” should still be considered automatically harmful to someone’s reputation. The New York court said that “gay” should no longer be included alongside the other four categories of per se defamation: saying someone is unchaste or a criminal; that they have a “loathsome disease”; or saying something  injures a person’s business or trade.

In a 1984 case, New York court upheld the defamation rule by citing laws against homosexuals in everything from “immigration to military service.” The new ruling rejects this because:

In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease

Here’s the rest of the ruling:

Yonaty v. Mincolla

(Image by Elenaphotos21 via Shutterstock)

The proposed legislation would force online publications, whether large or small, to amend information on their sites within 48 hours of a complaint — or face fines of €12,000 ($15,700).

The “ammazza blog” amendment was first mooted a few years ago by the government of Silvio Berlusconi, but ended up being crowded out by opponents who said it would be used to punish small publications, bloggers or even social networks.

A brief attempt to turn the proposals into law last year hit the same roadblock, yet this week it was discovered that the clause had been quietly reintroduced into a draft bill on wiretapping and gag laws.

Here’s Il Fatto Quotidiano:

The law provides that each site owner is required to rectify any content on the basis of a simple request from anyone who considers themselves wronged. There is no chance to reply: anyone who does not rectify what they have published within 48 hours will pay up to €12,0000 fine.

An example could be this: a website could publish a story about somebody who had been arrested and was being held in jail, but if the individual’s lawyer wrote to say it was not true, the website would be forced to publish the correction or face the penalty.

Because the law does not seem to discriminate between complaints that have a basis in reality and those that are factually incorrect — or give publishers room to verify the truth, they are concerned that it could effectively gag bloggers, newspapers and magazines from ever publishing anything potentially controversial.

Bloggers worry that if they take a few days off they may end up being slapped with egregious fines, or could end up having to deal with constant queries from troublemakers intended to tie them up for fear of suddenly being hit with a penalty.

Unlike some arguments between bloggers and public officials, however, this is not some minor policy squabble — and has been picked up by the famous politician Antonio Di Pietro, who made his name as part of the anti-corruption investigation known as Mani pulite (“clean hands”) in the 1990s.

According to La Repubblica, Di Pietro came out all guns blazing.

“Hands off the network”, thundered Di Pietro, railing against “the heinous murder of blogging that was previously desired by the Berlusconi government. The web is a bulwark of democracy — one of the few spaces that allows citizens to get information and have their say.”

In an order issued yesterday in San Francisco, US Magistrate Judge Maria-Elena James said the impostors had not used Paul’s name in a commercial fashion — meaning his trademark claims were ineligible.

The Paul campaign first filed the lawsuit in January after a person or group named NHLiberty4Paul put out a YouTube (NSDQ: GOOG) video that suggested formal rival Jon Huntsman was a Chinese agent. Huntsman dropped out of the race after the primary in New Hampshire.

Paul has disavowed any association with NHLiberty4Paul which also put out a series of tweets under the same name. Paul supporters have accused the Huntsman campaign of putting out the video as a dirty trick tactic.

The Paul campaign wants to sue NHLiberty4Paul but must first obtain an order directing YouTube and Twitter to disclose the real people behind the name (the lawsuit for now refers to “John Does”).

In January, Judge James refused to require the companies to disclose then name because Paul’s first complaint had not shown “good cause.” In response to an amended complaint, James this week wrote that the campaign could not use federal trademark law — which is normally used to protects goods and services — because the YouTube video and tweets were not commercial in nature.

In her order, the judge cited an earlier case in which a Utah court refused to let Koch Industries, an influential Republican donor, use trademark law to unveil pranksters who had issued a press release stating that Koch would no longer fund anti-climate change science.

In a footnote at the end of decision, Judge James appears to suggest that Paul’s federal claims are shaky but that he could pursue his related claims for defamation in state court:

Plaintiff’s decision to not pursue this claim in state court and instead assert novel trademark claims that appear to have never previously been addressed by the federal courts requires this Court to first be satisfied that they are viable claims before permitting expedited discovery.

Ron Paul is still in the Republican primary. He has yet to win a state but has reportedly amassed 22 delegates from states that don’t use a winner-take-all system.

The judge’s order is below. Via Professor Eric Goldman’s Technology and Marketing Law Blog.

Ron Paul Order, March

A new report shows the sites’ traditional legal shield is still strong, but that some are trying to use intellectual property laws to crack it.

In “2011 State of the Law Regarding Website Owner Liability for User-Generated Content,” Internet lawyer Catherine Gellis offers a helpful update of websites’ ongoing effort to fight off lawsuits created by their users.

Gellis found that websites’ core legal shield (Section 230 of the Communications Decency Act) continued to gain traction as courts last year again confirmed that businesses like auctioneers and consumer review sites can’t be sued over what their users do.

The legal shield, created in 1996 to ensure that the fledgling Internet economy was not brought down by lawsuits, works by ensuring websites are not responsible for obscene, defamatory or criminal acts of their users. The shield stays up as long as the sites don’t take an active part in their users’ activity — if they do, they lose their immunity and become instead content creators who can sued like anyone else. Overall, Gellis notes the shield may even be getting stronger — recent cases show sites like Yelp and Roommates.com are protected even if they curate content.

While the ongoing strength of Section 512 is good news for Internet companies, the bad news is that plaintiffs are trying even harder to use intellectual property law as a backdoor around it.

What this means in practice is that aggrieved individuals are gussying up libel complaints as copyright or trademark cases. Doctors and dentists, for instance, have been trying to use copyright law to force websites to take down negative reviews.

Such attempts to short-circuit websites’ legal shields are hardly new, of course. In Australia, for instance, a man sued Twitter last week after a media personality reportedly defamed him in a tweet. The lawsuit, which is likely to fail, is part of a long-running effort by companies and individuals to make Internet companies responsible for what appears on their platforms. Here is Gellis’ conclusion:

Parties looking to hold someone accountable for content will always be tempted to “shoot the messenger”; future cases will necessarily continue to explore the bounds of just how bulletproof they are.

The Gellis report credits Professor Eric Goldman’s Technology and Marketing Blog.

A federal judge yesterday refused the campaign’s request for an order that would have forced YouTube (NSDQ: GOOG) and Twitter to disclose details about “NHLiberty4Paul.” That name is associated with a Twitter and YouTube handle, likely from New Hampshire, that issued messages suggesting former Republican candidate Jon Huntsman is a Chinese agent.

The Paul campaign, which has disavowed the allegations, responded with a lawsuit earlier this month. Here is an excerpt:

The Video also questions Mr. Huntsman’s religious faith, refers to Mr. Huntsman as “China Jon” and asks whether his daughters are “even adopted.” The Video ends with a fictitious depiction of Mr. Huntsman in a Mao Zedong uniform and the text “American Values and Liberty – Vote Ron Paul,” thereby falsely implying that Plaintiff created, endorsed or is affiliated in some way with the Video and its content.

The people associated with NHLiberty4Paul also issued a series of tweets that insult Huntsman and claim Paul is the only real conservative in the GOP race.

In a recent filing, the Paul campaign asked US Magistrate Judge Maria-Elena James to grant an order that would have forced Twitter, YouTube and other third parties to provide information about NHLiberty4Paul.

In a two-page order (shown below), James stated that the Paul campaign had not met the “good cause” criteria necessary to obtain the order.

This means that the campaign can’t for now obtain the identities of the defendants who are listed in the lawsuit as “John Doe.”

Jerrold Abeles, an attorney for the Paul campaign, said in a phone interview that the order is not the end of the road for the Paul campaign. Abeles said the campaign still has the option to file an amended request seeking to unmask the John Does.

The lawsuit accuses the defendants of false advertising, trademark infringement and libel. The suit is unusual because free speech principles of American law make it nearly impossible for a national political figure like Paul to win a defamation case.

Ron Paul is a libertarian whose followers rabidly support his philosophy of small government and a non-interventionist foreign policy.

Ron Paul 2012 v. Does, C 12-0240 (N.D. Cal.; Jan 25 2012)

The videos in question bear the name “NHLiberty4Paul” and malign former candidate Jon Huntsman’s religion and ties to China. The Paul campaign has disavowed the videos.

“This is a classic case of dirty politics resulting from the unlawful use in commerce of an underhanded and deceptive advertisement designed to tarnish plaintiff’s reputation,” reads the complaint (posted below) which was filed yesterday in San Francisco federal court.

The lawsuit is a “John Doe” suit in which a plaintiff initiates legal proceedings and then later adds the defendants real names once their identities are obtained (usually by means of a subpoena on an internet service provider).

The lawsuit is unusual from both a legal and political perspective. Ron Paul is a libertarian whose signature issue is individual liberties and freedom from government — the use of a John Doe lawsuit is potentially incongruous with these values.

The defamation claims are also a surprise because under First Amendment laws it is nearly impossible for a high profile politician to file a successful libel suit. The campaign may have similar difficulties with its trademark claim.

Ron Paul Trademark and Defamation claim

The case involves a Canadian man, Peter Paul Biro, who became famous for using fingerprint technology to allegedly revealed undiscovered works by the likes of Jackson Pollack and Leonardo Da Vinci. Biro sued the New Yorker this summer over a 2010 story that cast doubt on the “man who keeps finding famous fingerprints on uncelebrated works of art.”

Last week, Biro expanded his defamation complaint to include a slew of new defendants. They include Gizmodo (a site owned by Gawker), Business Insider and the International Council of Museums. Biro says the new defendants defamed him by writing articles based on the New Yorker story and now he wants money from everyone involved for the “enormous damage” to his reputation, business and health.

The original story, by David Grann, is a meticulous account that describes Biro’s “scientific” authentication technique and how it vaulted him into the elite of the art world. But it also provides a very unflattering account of the traits and behaviors that that have resulted in Biro leaving a decades-long trail of civil lawsuits and outraged acquaintances (one businesswoman says he is “a classic con man”).

New Yorker editor David Remnick responded to Biro’s libel charges by telling AdWeek in July that the case had no merit and that, “We stand with David Grann and behind the story.”

As for the lawsuit, Biro’s chances seem about as good as finding a Botticelli at a yard sale. The law of defamation means that he will have to show that the New Yorker was malicious or, at a minimum, grossly irresponsible in its reporting.

As for Gawker and the other defendants, Biro must show they were at least grossly irresponsible in using the New Yorker magazine as a source (if the story is untrue in the first place, that is).

Biro has just filed a reply to the New Yorker’s request to throw out the case, so this could drag on for a while longer. In the meantime, readers can still enjoy Gizmodo’s account of Biro, titled “Is This Man the Art World’s High-Tech Hero or Villain?” and the original article.

via Courthouse News

Biro revised suit against Gawker et al