Ethical and Legal Concerns in a Digital World

Yahoo anti-Nazi Freedom of Speech Case

Posted in legal issues by digitalprof on January 14, 2006

Federal Appeals Court Rules Using Technicality

In what appears to be a ruling slamming freedom of speech involving the largest internet company in the world, Yahoo (based in Sunnyvale, California), it appears that more than meets the casual-eye was involved.

The case, Yahoo v. La Ligue Contre Le Racisme et L’Antisemitisme, involved two French anti-Nazi groups suing the American internet company for offering Adolph Hitler’s book Mein Kampf , as well as other Nazi-era memorabilia, for sale through its website. Further information concerning this appeals court case is available here. Information concerning the initial ruling in 2001 is available here.

The suit appears on the surface to have been based on a technicality…that of the lower court’s original ruling not being enforcable because it was based in a foreign country. But…and here is the ah-ha moment…in actuality it may be that the appeals court was not wishing to put the courts into a diplomatic dilemma.

As Susan Crawford, a law professor at Cardozo School of Law in New York stated,”The facts in this case allowed the court to avoid the difficult diplomatic issues raised by the dispute.” In translation…the appeals court did not want to allow a ruling that would pit the US courts against the French government.

One of the appeals court judges brought that issue to light when he stated in the decision,

To prevent enforcement in the U.S., a foreign judgment must be “repugnant to public policy,” and the case isn’t in any shape to tell if the French orders meet that requirement, Judge William Fletcher wrote.”Yahoo has chosen not to ask the French court” whether unrelated changes in its policies — like prohibiting auction listings that offer items associated with primarily violent or hateful groups — have indirectly satisfied the foreign order, Fletcher wrote. “Instead, it has chosen to come home to ask for a declaratory judgment that the French court’s orders — whatever they may or may not require, and whatever First Amendment questions they may or may not present — are unenforceable in the United States.”

While it’s possible that Yahoo could be forced to restrict its access to its American users, that possibility is, at this point, “highly speculative,” Fletcher wrote, and therefore not urgent enough. See

So now the questions appear to be:

  • what happens if another country passes laws somehow exploiting the decision in this case…how about the new Bolivian president insisting that any internet service based in the United States imposed principles repugnent to the soverign country of Bolivia?
  • how about local hate groups moving “offshore”, just like banks, and then filing such suits? Nuisance? Or legal, by this ruling?

Will freedom of speech suffer longterm? Obviously we will see more on this case in the future.


David and Goliath in the Media World

Posted in ethical issues,general concerns,legal issues by digitalprof on January 6, 2006

A Freelance Photographer Wins A Major Ruling against A Media Giant:Right(s) Win-Out

In light of the current onslaught on author’s rights as evidenced by the GOOGLE Library Project, and the continuing mis-appropriation of photographers work by publications and websites worldwide, a photographer from Tennessee has recently established a groundbreaking precedent in a case against a “flagship” newspaper in Northern California.

Photographer Christopher R. Harris, a professor in the College of Mass Communication at Middle Tennessee State University, Murfreesboro, TN filed suit when he discovered that a photo of Southern author Walker Percy, that he had shot originally while on assignment for Esquire Magazine, was used in a book review by the (San Jose) Mercury News. What was most troubling to Harris was that he had never been contacted by the Mercury News for rights to use the image, and was never paid for any such use. Additionally, the Mercury News had removed his copyright notice from his photo credit when they published the “pirated” photo, thus possibly violating an aspect of the Digital Millenieum Copyright Act under Federal Copyright statutes.

Harris, who still leases stock photos from his collection of images shot over a 25-year career, derives part of income from such leases. Professor Harris is well know for his long-term work with the New York Times, TIME, Newsweek and other national and international publications.

He was one of the first photographers to work with GAMMA/Liaison photo agency, with offices in New York and Paris. Due to the agency’s international scope of representation, the distribution of his many stories, and assignments by GAMMA/Liaison led to his work appearing in literally hundreds of publications worldwide.

Confronted with the legal dilemma of someone “pirating” his work Harris then hired the Silicon Valley law firm Tech & Trial Law Group. Robert Spanner and Susan Kalra , known experts in intellectual property, were attorneys in this suit.

At a hearing on this case in mid-Summer 2005 Judge Breyer hinted that this could be an important case in author/photographer rights. Judge Breyer stated for the record that,

“On the one hand, this case looks like a very small case. I don’t know whether the copyright fee would have been 50 bucks or a hundred bucks, or whatever it is. I don’t know, but it’s not a large amount. So I must believe that what is at stake here is the principle of whether a newspaper writer can take a photograph from a book and publish it without permission of the copyright holder, and I guess there’s sort of a further – there’s some further arguments as to in publishing the photograph, the copyright notice was eliminated, cropped.” (emphasis added)

In its later motion for summary judgment the Mercury News introduced evidence that its practice of accompanying book reviews with copyrighted photographs taken from the book being reviewed was common to other metropolitan newspapers (The Los Angeles Times, The Philadelphia Inquirer and others) throughout the country, and that the practice was legal under the “fair use” defense.

That motion was denied in a ruling by, Northern District of California (9ThDistrict) Judge Charles Breyer on January 2, 2006:

“Defendant argues that use of the photo was the equivalent of a pictorial quotation from the book and similarly falls under the fair use exception. Yet the photograph was obviously marked as a copyrighted photograph in the book, both on the page the photograph appeared and then again in the credits in the back of the book. In other words, the photograph was a copyrighted work within a copyrighted work. … As a result, the Court cannot say as a matter of law that use of a copyrighted photograph in a book review, in which the book clearly states that the photograph is copyrighted, constitutes fair use. Accordingly, defendant’s motion for summary judgment is DENIED. (emphasis added)

In plain English, Judge Breyer ruled that no one could successfully claim “fair use” if the claim contained copying copyrighted photographs. The exclusive rights to those copyrighted photographs resides with the copyright holder,i.e., in most cases the photographer.

According to Robert A. Spanner, lead counsel for the plaintiff,

“a photographer’s right to limit distribution and reproduction of his or her copyrighted photographs is a fundamental tenet of copyright law, and the notion that a newspaper can override that right and freely reproduce and distribute – without a license and for free – photographs which the photographer had licensed to a book publisher for a fee, would obviously be a matter of grave concern to the photographers’ profession. Mr. Harris stood up for the rights of his fellow photographers because he believed it was the right thing to do, and we are gratified that his efforts have been vindicated.”

A Confusing Legal Situation, At Best

Posted in legal issues by digitalprof on December 29, 2005

 Courts Just Can’t Agree

Two groups of photographers whose work frequently appeared in National Geographic magazine have recently had a new legal hurdle thrown their way courtesy of the U.S. Supreme Court.

Douglas Faulkner, Louis Psihoyos and Fred Ward (Faulkner) sued the Geographic in 1997 over the use of their photographs in a CD-ROM collection without their permission, or additional compensation. Jeffrey Greenberg (Greenberg) filed a separate suit against the Geographic in 1998, based on a similar complaint.

Faulkner lost on a summary ruling, and then appealed. The Faulkner appeal was denied. Greenberg won at trial, and then lost in a combined appeal with Faulkner.

The crucial element in both suits was the reuse of the photographers images in a new form…the CD-ROM. What the Supreme Court has ruled is that the reuse of the photographs in the new form was allowable under Copyright Law.

Certainly the cases were not unusual under the auspices of intellectual property as represented by the Copyright Act. The importance of the ruling is that it shows the inability of the current copyright act to address the issues of new technologies.

So, who gave Google the right to publish your copyrighted work?

Posted in ethical issues,legal issues by digitalprof on December 29, 2005

Big Mother Won’t Ask Permission

OK, so here’s the lowdown…Google, the mega-web monster, has started their project to copy every known book in print…and for the kicker…WITHOUT YOUR PERMISSION!!! Yes, even if you have your work registered with the Copyright office .

As illegal as this sounds its a case of David (us) versus Goliath (Google and their money)…so eventhough some leading writer organizations have voiced their opposition to this “piracy,” Google continues to publish the “stolen” product.

One of my books, Dulce’s Revenge, is on their searchable site…I can only conclude that my publisher gave them the data. So much for my rights.

Oh, BTW, Google says I an “opt-out” of giving them the right to publish my work. Sort of like a bank robber stating that if you don’t want them to rob your bank, you should just say-so now!

What happens to good people and good companies that let them think that they can change the world and its laws? Google used to be a leader in the world of “new technology.” now they have become just an abuser of intellectual property holders. So, why does Google copyright all of their work. I’ll just bet they vigorously defend their copyright.

Copyright laws have a rich history of protecting intellectual property rights, but they just don’t seem to have a place in today’s new digital world.

Associated Press–New Ethics Guidelines

Posted in ethical issues,legal issues by digitalprof on December 27, 2005

AP Addresses Digital Issues

The Associated Press has recently released a statement of News Values and Principles.

While the new guidelines are sweeping for any major news organization it still seems to me that they have no “bite.”

So, what are ethical guidelines about? Is there ever any punishment for violating the codes?

From personal experience, I worked for a major newspaper as a freelancer for eleven years and never received a single written guideline concerning what I could/should do concerning ethics, or for that matter, the law. Of course I was just a photojournalist!

The reporters got an inch-thick set of written guidelines, but not the people that give you the images that are trusted so much.

What do you think? Are ethical guidelines worth anything?

There are some organizations that lead the way in discussions involving ethics and the media. The Poynter Institute is a leader in the field. And, in the field of academic journals, the Journal of Mass Media Ethics has published for over twenty years on the subject.