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  1. Robinson Meyer Jan 21 2014, 3:49 PM ET Tech bloggers—who are also journalists—at an Instagram event last year (Lucas Jackson/Reuters) One of the great questions of our time came closer to resolution last week, when a federal court ruled that bloggers are journalists—at least when it comes to their First Amendment rights. The Ninth Circuit ruled as such on Friday in Obsidian Finance Group v. Crystal Cox, a complicated case first decided in 2011. The court found that even though someone might not write for the “institutional press,” they’re entitled to all the protections the Constitution grants journalists. Background That Is Not About Are Bloggers Journalists In 2010, Crystal Cox—an “investigative blogger”—published a series of angry posts about Obsidian Finance Group and its partners, alleging tax fraud, money laundering, and other crimes. The posts appeared on a set of aptly (and memorably) named websites, including “obsidianfinancesucks.com.” Obsidian and one of its partners, Kevin Padrick, sued Cox, alleging defamation. Only statements of apparent fact can be ruled defamation. When the case went to trial, Oregon district court Judge Marco Hernandez ruled that most of Cox’s entries were too hyperbolic to count as anything but opinion, and thus could not be considered defamation—except for one post, which the Oregon district decided was sufficiently factual. A jury awarded Obsidian and Padrick $2.5 million in damages for the libel. The New York Times’s media reporter David Carr wrote about the case that year, ruling it less about journalism than Right and Wrong: “She didn’t so much report stories,” he said of Cox, “as use blogging, invective and search engine optimization to create an alternative reality.” Other things were going on in the case. Cox claimed that her sources for the tax fraud claim were secret, and that Oregon’s media shield law protected her from revealing them. Hernandez decided that she did not qualify for shield protection under the law, partly because she had offered to take down the offending posts for $2,500 per month. But this new appeal ruling, the one on Friday, turned on something else—the intersection of two pre-existing piece of case law, New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. Both dictate what kinds of speech qualify as defamation. In the landmark 1964 Sullivan, the Supreme Court ruled that public figures can only seek claims for defamation if false information was published with “actual malice.” In 1974’s Gertz, meanwhile, the same court ruled that false information about private individuals qualified as defamation if it was negligently published. Taken together, the two cases establish a meshing precedent: To count as defamation, false information about public figures must be published with malign intent. False information about private figures, meanwhile, must merely be published negligently. Cox claimed that Obsidian and its partners were public figures, an assertion the Ninth Circuit nixed. Writing for the court, Judge Andrew Hurwitz said that her posts, while about private figures, covered a topic of public concern. They fell, he said, under the domain of Gertz. The information contained in them could not be merely wrong: It had to be negligently published. Crucially, the jury in the 2011 trial, Hurwitz said, had never been informed of such a stipulation. The Bloggers and Journalists Part Cox might not qualify for Gertz’s protections if she was not part of a media organization. If Cox is a blogger, not a journalist, and if only journalists are entitled to the protections of negligent publications, then Cox might not qualify for Gertz at all. Was Cox, a self-titled blogger, in fact a journalist? On this, Hurwitz was clear. “Although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers,” he wrote. In one case, he said, “the Court expressly noted that ‘we draw no distinction between the media respondents and’ a non-institutional respondent.” Hurwitz goes on, extending journalistic protections to all those liberated of their institutions: The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” So bloggers—even slimy ones—are, at least legally, journalists. Cox’s case will get a new trial in Oregon’s district court, and the jury will be appropriately informed of the Gertz rule. Perhaps the award of damages will be reduced. And we, those following the case at home, can change into our pajamas, order pizza to our various apartments, and blog away. We will not just be bloggers—we will be, according to the law, journalists. http://www.theatlantic.com/technology/archive/2014/01/us-court-bloggers-are-journalists/283225
  2. Today, the Court of Appeals of The Hague rendered its judgment in the appeal of internet service providers XS4ALL and Ziggo against anti-piracy organization BREIN. In first instance, the District Court allowed Breins claims: an IP-block and DNS-block. Purpose of the block was to prevent the subscribers of the providers to access The Pirate Bay-website. The Court of Appeals overturned the ruling, since the providers could show that the block had not been effective since the first ruling. In applying the case law from the European Court of Justice (ECJ), the Court of Appeal held that an access provider is not under an obligation to take measures that are disproportional and/or ineffective. XS4ALL was represented by Christiaan Alberdingk Thijm and Caroline de Vries of bureau Brandeis. http://bureaubrandeis.com/duly-noted/court-appeals-denies-ip-block
  3. Earlier today, San Diego court commissioner John Blair found there was no evidence supporting the claim that the device was operating at the time of the traffic stop. In addition, Blair dismissed the speeding citation since an expert wasn’t available to testify if the patrolman’s speed detector was properly calibrated prior to the stop. Speaking about the win after the court session, Abadie said “I believe we have to start experimenting with devices like this. As a hands-free device, it is safer than a cell phone.” Interestingly, the ruling does provide a bit of a instructional loophole for Google Glass owners. As long as a driver turns off Google Glass prior to a police officer walking up to the driver’s side window of the vehicle, there’s no way to prove that Google Glass was operating during the drive. The ruling could also help encourage more development of integrated driving applications, perhaps designed by the car manufacturer to display data such as current speed or turn-by-turn directions. That being said, California lawmakers could simply outlaw use of Google Glass while driving and make the device illegal to wear when behind the wheel. Legislators in Illinois, Delaware, New Jersey and West Virginia have already considered similar legislation that would make wearing Google Glass illegal while operating a motor vehicle. Source
  4. By MANNY FERNANDEZJAN. 24, 2014 Erick Munoz, the husband of Marlise Munoz, at the Tarrant County courthouse in Fort Worth on Friday. Larry W. Smith/European Pressphoto Agency FORT WORTH — A Texas judge ruled Friday that a Fort Worth hospital may not keep a brain-dead pregnant woman on life support against her family’s wishes, and ordered doctors to take her off the machines by 5 p.m. on Monday. The ruling gives the family of the woman, Marlise Muñoz, their first legal victory in a two-month battle over the fate of her body that has raised an emotionally charged national debate over end-of-life care, abortion and a Texas law that prohibits medical officials from withdrawing life support from a pregnant patient. The judge, R. H. Wallace Jr. of 96th District Court in Tarrant County, ruled that Ms. Muñoz, 33, who has been on life support at John Peter Smith Hospital since November and is now 22 weeks pregnant, was legally dead, agreeing with the family’s lawyers that the hospital had erred in its decision to keep her on life support. The hospital had said the Texas law addressing life support for pregnant women prevented it from granting the family’s wish, but the judge said the law did not apply to Ms. Muñoz because she is dead. Judge Wallace set the 5 p.m. Monday deadline, saying he wanted to give the hospital time to file an appeal. A spokeswoman for the county-owned hospital, which was represented by the Tarrant County district attorney’s office, said it would be consulting with its lawyers. The hospital appeared to be considering an appeal. Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem. The hospital acknowledged in court documents that the fetus was not viable. The hearing Friday, at a courthouse three miles from the hospital, touched on the larger political issues that have underscored her case. In legal filings and in the courtroom, the lawyer for the hospital, Larry M. Thompson, said that Ms. Muñoz met the clinical criteria for brain death two days after she arrived there. But he argued that the law still applied to her, and that the Texas Legislature’s passage of the law showed that the state had a compelling interest in protecting unborn children. Mr. Thompson wrote in court papers that the Texas Penal Code’s definition of an individual stated that an unborn child was alive at every stage of gestation, from fertilization until birth. And he pointed to a bill backed by Gov. Rick Perry that lawmakers passed last year that banned abortions after 20 weeks of pregnancy, based on the theory that the fetus can feel pain at that stage. “Given the strong interest of the Texas Legislature in protecting the life of unborn children, it is unlikely the Legislature contemplated only the welfare of the mother” when it enacted the law prohibiting the withdrawal of life support for pregnant patients, Mr. Thompson wrote. He added that it was reasonable to infer that the law was meant to “protect the unborn child against the wishes of a decision maker who would terminate the child’s life along with the mother’s.” But a lawyer for Mr. Muñoz said Mr. Thompson’s argument amounted to a sweeping public policy declaration with broad implications. The lawyer, Heather L. King, said that if the state indeed had such an interest, paramedics who arrived at crash scenes would be required to give dying women pregnancy tests to ensure they were following the law. Ms. King apologized in the courtroom for putting it so crudely, but told the judge that pregnant women “die every day,” adding: “When they die, their fetus dies with them. That is the way it’s always been, and the way it should be.” Moments after Judge Wallace made his ruling, Mr. Muñoz, 26, who had been sitting in a bench behind his lawyers, slumped in his seat and began weeping. He was embraced by his relatives. “There’s nothing happy about today,” Ms. King said outside the courtroom. “This was a sad situation all the way around. We are relieved that Erick Muñoz can now move forward with the process of burying his wife.” The hearing dealt largely with the blunt issue of Ms. Muñoz’s death. Brain death — the total loss of all brain functions — amounts to a legal state of death. As part of his ruling, the judge ordered the hospital to pronounce Ms. Muñoz dead. Though Mr. Muñoz did not speak at the hearing, he said in court papers that it has been painful to watch his wife deteriorate from the woman he knew to what he described as a corpse being kept alive against his wishes. “Over these past two months, nothing about my wife indicates she is alive,” he said in an affidavit. “When I bend down to kiss her forehead, her usual scent is gone, replaced instead with what I can only describe as the smell of death. As a paramedic, I am very familiar with this smell, and I now recognize it when I kiss my wife. In addition, Marlise’s hands no longer naturally grip mine for an embrace. Her limbs have become so stiff and rigid due to her deteriorating condition that now, when I move her hands, her bones crack, and her legs are nothing more than dead weight.” Mr. Muñoz’s lawyers had asked the judge to declare the Texas law unconstitutional, arguing that it violated Ms. Muñoz’s rights under the 14th Amendment to make medical decisions about her own body. The judge said since the law did not apply to Ms. Muñoz, he would make no ruling on its constitutionality. Ms. Muñoz, who was trained as a paramedic, lived with her husband and their 15-month-old son, Mateo, in nearby Haltom City. She was at home in the middle of the night on Nov. 26 when she collapsed from an apparent blood clot in her lungs. She had gone to the kitchen to prepare a bottle for Mateo. Her husband later found her on the kitchen floor. She had stopped breathing, but was alive when she arrived at the hospital, according to court documents. Her parents and her husband’s lawyers said she was not breathing for an unknown length of time, possibly as long as an hour or more, which severely harmed the fetus by depriving it of oxygen. http://www.nytimes.com/2014/01/25/us/judge-orders-hospital-to-remove-life-support-from-pregnant-woman.html?hp Comment: Brain dead already occurred, no point keep going, right legal decision as hospital can not remove support by itself w/o court order
  5. FRANKFURT Fri Jan 24, 2014 8:22am EST Surfboards lean against a wall at the Google office in Santa Monica, California, October 11, 2010. Credit: Reuters/Lucy Nicholson (Reuters) - A German court has ordered Google to block search results in Germany linking to photos of a sex party involving former Formula One boss Max Mosley. The court said on Friday that although Google had not taken the pictures it was responsible as a distributor of the images. "The court is of the opinion that the banned pictures of the plaintiff severely violate his private sphere, as they show him active in sexual practices," the court said. The ruling comes more than two months after a French court ordered Google to find a way to remove recurring links to images of Mosley, who was photographed in 2008 at an orgy with prostitutes. The dispute in the Hamburg court relates to photographs of Mosley published by the defunct British tabloid News of the World that were accompanied by an article suggesting he had organized a "sick Nazi orgy". Mosley has acknowledged that he engaged in sado-masochistic activity with the five women and paid them 2,500 sterling ($4,000), but denied the orgy was Nazi-themed. The decision is another setback for Google as it tries to defend a global stance that the search engine is merely a platform that delivers links to content and it should not be responsible for policing them. Although Google can delete images on its website, it cannot prevent others reposting them, resulting in a constant game of catch-up. Google said on Friday it would appeal the ruling. "It could mean that Internet providers are required to monitor even the smallest components of content they transmit or store for their users. We believe this is contrary to European law," a Google spokesman said. In a blog post published in September, Google said it had already removed "hundreds of pages for Mr. Mosley" as part of a process that helps people delete specific pages from Google's search results after they have been shown to violate the law. (Reporting by Harro ten Wolde and Nikola Rotscheroth; Editing by Catherine Evans) http://www.reuters.com/article/2014/01/24/us-google-germany-court-idUSBREA0N0Y420140124
  6. Both Samsung and Apple will appear before Judge Lucy Koh on January 30th. The issue this time, is a request by Samsung for an extension to answer Apple's post-appeal request for a permanent injunction. With word that both sides are working on a settlement, Samsung wanted to have the talks on the record by asking the judge to allow it to conduct discovery relating to these talks. Apple opposed, which you might expect it would, and Judge Koh agreed with them. Late Tuesday, she ordered both sides to appear on the 30th and ruled that Samsung cannot depose an Apple witness on the settlement talks. Obviously, Samsung believes that there is something involved with the settlement talks that would benefit its position in the case. Koh's order does make some sense in that Samsung, as a party to the settlement talks with Apple as they discuss a licensing deal, would seem to already be aware of any "concessions" made by Apple and thus, would not seem to require discovery. Interested in the Patent Issues, You can play legal beagle by downloading a transcript of Koh's order below. 14-01-17 Source
  7. The U.S. National Security Agency has been allowed to continue to collect phone records in bulk of people in the country, while lawmakers consider new legislation that would block the agency from collecting the data. The government's application for reauthorization of the program for a period of 90 days was approved by the Foreign Intelligence Surveillance Court (FISC), according to a joint statement Friday by the Department of Justice and Office of the Director of National Intelligence. The government argued that it was seeking the extension as the relevant legislation has not been enacted yet. The bulk collection of phone metadata in the U.S. by the NSA was first disclosed in June last year by former agency contractor, Edward Snowden, through news outlets. In the wake of criticism of the surveillance program, President Barack Obama proposed in January changes in the program, including requiring that the government should not collect or hold the data in bulk, and deciding that, except in an emergency situation, the FISC will have to approve any queries to the phone records database. Obama also decided that the government should pursue phone calls that are two-steps removed from a number associated with a terrorist group, instead of the three hops previously authorized. In March, Obama said that the data should remain with the telephone companies, but said that Congress would have to pass the appropriate legislation. The U.S. Freedom Act, which was passed in May by the U.S. House of Representatives, addresses issues relating to access to phone records by the NSA. It now awaits consideration by the Senate. The version of the bill that was passed by the House has loopholes that could end with the NSA having the authority to continue to access phone data in bulk, according to civil rights groups. Groups like the Electronic Frontier Foundation are, for example, concerned about the new definition of "specific selection term," which describes and limits who or what the NSA is allowed to monitor. (Originally defined in the legislation as "a term used to uniquely describe a person, entity, or account," the expression is now defined as referring to "a discrete term, such as a term specifically identifying a person, entity, account, address, or device." The broader definition could allow for the use of broad selection terms such as a "zip code, an area code, the physical address of a particular email provider or financial institution, or the IP address of a web hosting service that hosts thousands of web sites," Kevin Bankston, policy director of the New America Foundation's Open Technology Institute, wrote in May. The Obama administration had backed the passing of the bill by the House in its diluted form, though some tech companies said they could not support the legislation as it had loopholes. The groups are now hoping that the Senate will restore the legislation to its previous form, particularly on the selection term for searches. The joint statement by the DOJ and ODNI urged the Senate to swiftly consider the legislation, adding that the administration remains ready to work with Congress to clarify that the bill prohibits bulk collection. The new reauthorization of bulk collection under Section 215 of the Patriot Act expires on Sept. 12. The court has previously reauthorized the program and its decisions were declassified and made public since the Snowden revelations. Source
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