So you’ve got a juicy scoop?
If you worked for a newspaper, it’d get set on the page, printed up and distributed throughout your circulation area. Once it was out, there would be no taking it back.
If you worked for a TV or radio station, you’d sked it for air; put it out… and there would be no taking it back, either.
But let’s say you work online. You get your story and upload it. But unlike in print or broadcast media, online stories can be “taken back.” If your website is hosted by an outside ISP, a letter or e-mail from an angry source might be enough to knock your story off the Web.
That’s what happened to a blogger in Claremont, Calif. this month. The anonymous blogger who posts as “Claremont Insider” had found the salaries and benefits of city employees on the city’s website. He published what he found in a Labor Day post on his blog. (Thanks to Kevin Roderick’s LA Observed for the tip.)
Soon after, according to a follow-up post on the Claremont Insider blog, Google, which hosts the blog through its Blogger service, pulled the post, in response to a note from the city claiming that the salary information was confidential, which would make its publication a violation of Google’s terms of service for Blogger. Claremont Insider followed up, disputing that public employees’ salaries could be confidential information.
The city came back with another argument, according to Claremont Insider. It claimed copyright over the images of employees’ paychecks published on the blog. The blogger accommodated by publishing the data in text form, and Google allowed the edited post to stand.
Attorney Michael S. Overing, who has taught media law at the University of Southern California’s Annenberg School for Communication and written for OJR, questioned the city’s claim.
“This would be a mighty thin copyright. Forms are not copyrightable. So, only the filled-in information would be potentially copyrightable. But, even then, those checks would be public records, subject to FOIA requests, subject to public scrutiny,” he wrote in an e-mail.
Overing cited a 1996 case, Richard E. Lindberg v. Kitsap County, that held a city could only use copyright to withhold documents from public view in very limited circumstances. [Corrects to note that the court did leave some room for very limited circumstances.]
What should you do?
Although the Digital Millenium Copyright Act mandates that online hosts, such as Google, take down infringing content when informed of its presence on their servers, the DMCA also includes protections for online publishers.
Most major online publishers are familiar with the “safe harbor” provisions of the DMCA. Designed for publishers and other online service providers who provide forums for users to publish content online, the procedures for challenging a take-down notice also can help a blogger, such as Claremont Insider, who faces a challenge over the legality of his content.
ChillingEffects.org offers a FAQ about the DMCA’s safe harbor provision on its website. The questions about counter notice and putback procedures are relevant to an incident such as this, put the entire page offers rewarding information for any online journalist.
A well-supported putback request can help you get your story back online, and quickly, if you respond as swiftly as Claremont Insider did. But how can news publishers prevent improper take-down requests?
The DMCA might offer some help with this, as well. In 2004, Diebold, the company behind most of the United States’ electronic voting machines, lost a DMCA case when Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford sued on behalf of publishers whom Diebold had targeted with DMCA copyright takedown notices.
From the post on LinuxElectrons:
“Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold’s e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.”
In Online Policy Group v. Diebold, a U.S. District Court in California ruled that [PDF file] “Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.”
Diebold ultimately agreed to pay damages and legal fees of $125,000, according to the plaintiff.
So even if a source manages to get your ISP to take down your scoop, if your information is appropriate, their action against you could turn out to be a very costly mistake.
About Robert Niles
This happened to an Iranian blogger, too: http://www.parsarts.com/2007/08/14/hoder-shutdown-shakedown/
I had something similar happen to me in 2006. I published an OPED concerning the local District Attorney’s Office and Police dept., failing to protect the innocent. The perpetrator, though not named in the story, googled my name and found it. The individual contacted the DDN where the story was posted and had it removed. It is still available however, in a blog section. I am assuming, though I shouldn’t, that the blogger and anonymous attorney site would not adhere to his request.
Something sort of like that happened to me.
James Taranto had written an op-ed piece on July 26th accusing Barack Obama of “countenancing genocide” that I took exception to from a journalistic standpoint – the accusation seemed to be based solely on AP’s inflammatory headline and none of Obama’s actual quotes – and because Taranto himself had written a column in which he used the same language to deny the Armenian Genocide that Mahmoud Ahmadinejad uses to deny the Holocaust: “We have no opinion on whether the events of 1915 constitute genocide or not …” [Best of the Web Today, October 13, 2006].
To make matters worse, in a Wall Street Journal video, Taranto went even further and accused Obama of thinking genocide was OK as long as Arabs and Muslims were the victims.
So I wrote an article on The Stiletto Blog, “Genocide Denier Shocked By Genocide Denial,” that I cross-posted on Political Mavens, a Web site for political bloggers.
Taranto saw the post and pressured the site’s editor – who was grieving over the death of his father just days earlier – to take the post down. The editor, normally a free-speech champion, was emotionally distraught and apologized to me after taking down the post, saying “I just can’t deal with this right now.”
So it would appear that Taranto believes he has First Amendment rights, but I do not.