High School Blogger Loses Case

Back in June, Avery Doninger - stripped of her class office and forbidden from speaking at graduation - shook hands with her principal Karissa Niehoff, and walked off the stage a Lewis Mills High School graduate.

Everyone smiled. Doninger's head was held high.

This from the Hartford Curant; Photo by Bob MacDonell:

Internet Free Speech Ruling

Favors Burlington School Administrators

In a key ruling on Internet free speech, a federal judge has found that school officials were within their rights when they disciplined a Burlington high school student over an insulting blog post she wrote off school grounds.

Avery Doninger's case has drawn national attention and raised questions about how far schools' power to regulate student speech extends in the Internet age.

Connecticut legal blog, Crime and Federalism, reprinted a Connecticut Law Tribune report from Burlington. Reportedly, the Burlington students organized an annual music festival called the Battle of the Bands.

"They wanted to use the brand-spanking new high school auditorium, but to do so required a technician approved by the school board. The technician was unavailable the day the festival was to be held, thus throwing the date of the event into question."

Avery Doninger, a junior student council member and class secretary, tried to meet with the school administrators to salvage the date for the festival.

It was reported elsewhere that,

The administrators never told her that the show was canceled. She was aware prior to blogging that they were considering postponing it again, but that it would go ahead at some point. She acknowledged that during the school day and she was asked not to get students riled up, because they were working on a solution. She agreed.

Despite that, she chose to represent their position as having canceled the show, which is a strike in my book, and not only called them douchebags, but also asked more students to write to the administrators to "piss them off".

She sent an e-mail to parents and others urging them to contact the school to demand that the festival take place as scheduled.

The principal, Karissa Niehoff, and superintendent, Paula Schwartz, were reportedly not amused. Doninger then went to a private web site and from a home computer wrote a blog entry calling the folks in the school's central office douchebags, and urging more folks to call or write to "piss [the school superintendent] off even more."

This came to the school's attention and as a consequence, she was forbidden to run for reelection to class office. Her fellow students voted for her as a write-in candidate anyway, and she won by a plurality. School officials refused to seat her in office.

The Courant reported,

But in a ruling on several motions for summary judgment Thursday, U.S. District Judge Mark R. Kravitz rejected Doninger's claims that administrators at Lewis S. Mills High School violated her rights to free speech and equal protection and intentionally inflicted emotional distress when they barred her from serving as class secretary because of an Internet post she wrote at home.

Kravitz's ruling relied in part on the ambiguity over whether schools can regulate students' expression on the Internet. He noted that times have changed significantly since 1979, when a landmark student speech case set boundaries for schools regulating off-campus speech.

KSN&C Backstory.

Blogger Protection Act of 2008

This from the Drudge Report:

WASHINGTON, D.C. - The Libertarian Party is hailing a new piece of legislation introduced by Jeb Hensarling (R-TX) that would protect the coterie of Internet "pajamas journalists" known as "bloggers" from FEC restrictions.

H.R. 5699, called the "Blogger Protection Act of 2008," would give bloggers permanent protection from FEC campaign laws when linking to campaign Web sites or editorializing about candidates.

"These guys really don't get the credit they deserve for all the work they've done to create accountability and transparency in American politics," says Andrew Davis, national media coordinator for the Libertarian Party. "Often, bloggers are the first to expose politicians for lying and corruption, and hold all politicians to a new level of accountability that would have been impossible only a few years ago. They fully deserve the same protection from government interference that is given to traditional media outlets."

Bloggers were granted protection two years ago from FEC regulations that would have potentially considered linking to a campaign Web site or editorializing about a candidate a contribution or expenditure when blogging. However, those protections were only regulatory, and could be changed without Congressional approval. H.R. 5699 seeks to make those protections a statute...

Read H.R. 5699.

Hat Tip to the Bluegrass Institute.

Blogging is Not Defamation

There is an interesting post over at the Kentucky Law Review blog. Interesting to bloggers that is.

Turns out the court has looked at trademarks and bloggers but very few suits have been filed against bloggers.

Finis Price at TechnoEsq writes that in BidZirk v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007), the Court held:
1.) Linking to a photograph published on another website is not a publicity rights violation;
2.) Blogger’s remarks are in the context of news reporting or commentary and thus are immune from trademark claims. (Granting the same protection given journalists though not specifically labeling bloggers journalists.)

In the BidZirk case, the court not only granted summary judgment, but sanctions against Plaintiff’s counsel as well.

In New York, a personal injury attorney was "asked" by Avis to cease and desist from using its logo in a blog post that discussed a court ruling against Avis. The attorney,Eric Turkewitz, apparently posted the logo again (see right) to blog a post questioning just where it is the lines are drawn. It seems pretty clear that one may not use a company's logo as a trademark, but this personal injury attorney is clearly not in the rental car business, and it's hard to imagine that anyone might become confused about that; and perhaps ask the attorney if they can borrow his car.

I haven't run into any of this trademark stuff. But I have had my hand slapped when I've gotten lazy....or...in a hurry, is more like it.

There have been two such occassions when I posted too much of an article, even though I linked to and fully attributed the source. Fair use doctrine is still apparently somewhat subjective but the Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

The Electronic Frontier Foundation says the Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107):
The purpose and character of the use.

• Transformative uses are favored over mere copying.
• Non-commercial uses are also more likely fair.

The nature of the copyrighted work.

• Is the original factual in nature or fiction?
• Published or unpublished?
• Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.

The amount and substantiality of the portion used.

• Copying nearly all of a work, or copying its "heart" is less likely to be fair.

The effect on the market or potential market.

• This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair.

Linking to the original may also help to diminish the substitution effect.

Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character.

In other words, if criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law.

So what's a blogger to do?

In my first admonishment came from Tom Eblen, managing editor of the Herald-Leader. Some story was "hot," I was running out the door and I posted the whole thing. But Tom was very cool about it. I asked him if he wanted to take the story down or just behave myself in the future. He suggested that simply behaving would keep me out of the "principal's office." The Herald-Leader's policy is something like not posting more than half of the story. Seems fair to me. After all, H-L shouldn't miss an opportunity that a reader of KSN&C might wish to click over for more. If I post the whole thing, that's less likely.

The second complaint came from Education Week. The "nice lady" said Ed Week's policy was one paragraph. Hardly consistent with the Copyright Act, but I didn't fuss about it. I took it down, and may not link to them again. Unless, I change my mind tomorrow.