The Online News Association (ONA) Conference hosted the Law School For Digital Journalists on September 20, 2012. Of the full program of courses covering legal issues in digital media, CREATE Legal attended sessions on copyright law, newsroom law, and the legal risks associated with running a digital news business. The event concluded with a panel of legal and journalism experts discussing current issues relating to freedom of speech and digital journalists’ rights.
The workshops were moderated by Jon Hart, partner at Dow Lohnes and General Counsel at ONA, and included panelists from The Washington Post, The New York Times, The Los Angeles Times, UNC Center for Media Law & Policy, Stanford Law School Center for Internet & Society, and UC Berkeley Graduate School of Journalism.
Session 1: Copyright Law
In the first session, taught by Jon Hart, attendees learned about copyright protection with specific discussions on copyright holders’ rights,exclusive rights agreements, fair use, and DMCA Safe Harbor provisions. The course was also filled with practical tips to help journalists better understand these issues and avoid legal pitfalls.
Hart explained that copyright does not protect ideas, facts, procedures, and discoveries; rather, copyright protects the tangible expression of ideas, facts, procedures, and discoveries.He made this clear because copyright and plagiarism are two frequent misconceptions. Copyright is a legal concept while plagiarism is an academic one. When discussing fair use, Hart’s key point was that the goal of fair use is to broaden and encourage creativity. In the four-factor test to determine fair use under US Copyright Law, the courts mostly look at Factor 1, the purpose and character of the use, and Factor 4, the effect of the use on the potential market for the copyrighted work. Courts are more likely to find fair use if the borrower uses the copyrighted material in a way that is transformative, i.e. altering the original work with a new expression, meaning or message. However, Hart asserted that attribution does not excuse infringement. Attribution may help with the fair use argument, but only if the user does not take more than necessary.
Hart concluded the session with a discussion on the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA). In general, online service providers are protected in the U.S. from liability for infringing content posted by users if the providers remove the infringing content or disable the infringing user’s access in response to a complaint by the copyright holder.
Session 2: Newsroom Law
Taught by David Ardia, assistant professor at UNC School of Law, and Karelene Goller, Vice President and Deputy Counsel at The Los Angeles Times, the next course focused on the legal risks associated with newsgathering and publishing and discussed how to legally handle comments and submissions on online news sites and blogs.
In the first part of the course, Goller covered legal issues associated with newsgathering. Goller stated that “newsgathering liability does not depend on what you publish or whether you publish anything at all,” but rather on when and where you can gather news. You can gather news on some public (government-owned) properties without permission and you can enter private property only with the consent of the property owner or person authorized to give consent. When discussing the issue of “implied consent,” Goller noted that the idea of automatic access assumed by some reporters no longer stands as a right to enter private property. Goller then touched on the subject of undercover reporting and warned the audience that if they must do undercover reporting, they must do their research because “the courts don’t like it, and jurors hate it even more.” Closing the first part of the course, Goller discussed legal risks associated with confidentiality. When dealing with confidential sources, promises to a source are a legally binding contract, so you must “be clear in what you are agreeing to and keep your promise.”
In second half of the course, Ardia discussed legal issues in publishing, particularly in the areas of defamation. He stated, “defamation must be a false statement of facts and depends on the context and reasonable implications of what is said.” Even blogs can be held liable for libel even if it is just “opinion or editorial.” When in doubt, consider the context. Ardia briefly covered legal issues associated with managing and moderating online comments and other user submissions. Section 230 of the Communications Decency Act grants providers of interactive online services,such as blogs, forums, listserves and Twitter, broad immunity from liability for defamation as long as the information is provided by a third party.
Session 3: Running a Digital News Business
Sullivan’s half of the presentation dealt with using trademarks and domain names. A key consideration in evaluating trademark infringement is the “likelihood of confusion.” According to Sullivan, “it is not infringement to use a trademark to identify the true owner’s goods or services, even if it is unflattering to the trademark holder.”
Dailard’s half of the presentation covered privacy implications of running a website. There is no comprehensive federal law on privacy;rather, the extent of the Federal Trade Commission (FTC) coverage on privacy is narrowly focused on unfair and deceptive trade practices. Companies should promote consumer privacy throughout their organizations and at every stage of development of their products and services. As a final caveat, Dailard warned that companies should always be transparent and when using disclaimers: “Be clear and conspicuous. And in most cases, less is more.”
For the plenary session, Tony Falzone, Deputy General Counsel at Pinterest and Fellow at Stanford Law School Center for Internet & Society,moderated a panel on law and journalism Stuart Karle, Mark Stephens, Pam Samuelson, David Ardia, Deidre Sullivan, and Tony Falzone discussed the lack of resources devoted to journalism, and the changing assumptions that millennials make in terms of privacy in the digital world. The panel agreed that the First Amendment is seemingly less relevant today and that the control of speech is moving towards private online platforms such as Google, Facebook and Twitter.