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A Tale of Two Cases: How Photographers Are Being Squeezed From All Sides

November 20th, 2013 by Mickey Osterreicher

Today was a picture perfect example of how photographers are being squeezed from all sides. On the front end photographers are being interfered with and arrested on an almost daily basis nationwide for doing nothing more than trying to do their jobs by photographing and recording matters of public concern on city streets.

In one such case a NYC Criminal Court jury acquitted photographer Jason Nicholas today on a misdemeanor count of Obstructing Governmental Administration. Mr. Nicholas was arrested in 2011 for allegedly interfering with NYNJ Port Authority Police while covering a news story. A previous trial resulted in a hung jury but the district attorney chose to re-try him. Afterwards Mr. Nicholas said, “this is a victory for us and a swift and resounding defeat for the police and prosecution!” “Now maybe we can get this to stop on behalf of all journalists,” he added.

On the back end where photographers works are being used globally without their permission, Daniel Morel was sitting in a federal courtroom a few blocks away from Mr. Nicholas. He is pitted against Agence France Press (AFP) (and Getty Images) in a copyright infringement case. Read about this case along with updates here.

Liability for infringement has already been established. The only remaining defendants in the counterclaim case are AFP and Getty Images, as the other defendants have already settled with Mr. Morel.  All that is left for the jury to decide is how much each of them (AFP & Getty) must pay in damages. Click here for a running blog of the six (6) days of testimony.

Attorneys for both sides are expected to make their closing arguments tomorrow morning in the Southern District of New York Courthouse located at 40 Foley Square in New York City. Judge Nathan’s courtroom is on the 5th floor for those of you able to attend.

So on one day within a few blocks of each other I was able to view some of the major challenges facing photographers around the world and also witness how two of them chose to stand up for their rights and by so doing take a stand against those who would violate our constitutional and copyrights.

 

Posted in Access, AFP v Morel, Agence France-Presse, Assault on Photographers, contracts, copyright, copyright infringement, Daniel Morel, False Arrest, First Amendment, First Amendment rights, Fourth Amendment rights, Getty, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording Police, retaliation for the exercise of First Amendment rights, social networking, Twitpic, Twitter | No Comments »

Judge Dismisses Copyright Challenge to Google’s Digital Books Program

November 14th, 2013 by and tagged , , , , , , ,

Google has dodged a major legal challenge to a controversial but popular feature that makes millions of books available online.  A federal judge today said the Google Books program does not violate the copyright privileges of authors.

Google Books uses high-tech scanning technology to convert books to digital format, and then posts versions of the works online. Most of the time, Google makes a book available without getting permission from or compensating its author.

The case has bounced around the court system since 2005, when the Author’s Guild and others sued Google over its digital text program. The parties came close to settling in 2011, but a judge concerned that it would grant Google a monopoly in the area threw out the deal.

U.S Circuit Court Judge Denny Chin issued his decision rejecting the copyright claim against Google this morning, finding the digital books program was “fair use.”

The fair use defense allows the use of copyrighted works for criticism, news reporting, scholarship, research, and other areas that represent a public benefit rather than a commercial exploitation.  Judge Chin explained that fair use is good public policy because it “provides sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences.”

Judge Chin highlighted several factors he believed warranted granting the defense, including:

1)   Google’s use is transformative, taking physical copies of books and converting them to fully indexed, and searchable digital documents.

2)   The digital books do not supercede or supplant the original works.  The online copies are usually limited “snippets” and do not allow users to read a book cover-to-cover.

3)   Google receives limited commercial benefit from the use.  It does not sell ads or charge a fee to use the feature.

The judge found that overall, Google Books is an important research tool that expands access to knowledge and helps preserve the texts themselves.

The decision paves the way for Google to move forward with its program, with a potential roadblock in the future if Author’s Guild decides to appeal.  However, with 8 years and millions of dollars in legal fees already spent, such a move may not be in order.

Posted in Author's Guild, copyright, copyright infringement, Google, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights | No Comments »

Authors Guild v. Google: Case Dismissed

November 14th, 2013 by Mickey Osterreicher

In a 30 page decision, Circuit Court Judge Denny Chin granted Google’s motion for summary judgment and dismissed the Authors Guild copyright infringement case against Google.

The authors had accused Google of digitally copying millions of books without permission for use in a searchable online library .

Earlier this year the U.S Court if Appeals for the Second Circuit sent the case back to Judge Chin after it held that he incorrectly  certified the  authors “class action” before determining Google’s “fair use” defense which he ultimately agreed with in today’s opinion. Unless another appeal is taken, this ruling will now allow Google to move forward with its plans.

The court adopted the argument that such scanning by Google provides a societal benefit and enhanced access to books while also protecting a “respectful consideration” of the authors’ rights. He also embraced the argument that such digitalization was  “transformative.” Judge Chin wrote, “Google Books provide significant public benefits,” adding, “Indeed, all society benefits” from “snippets” of these books being made available for online searches.

Today’s decision is the latest chapter in the case which was commenced in 2005, when authors and publishers sued Google over its digital books plan. The parties had reached a tentative $125M settlement  in 2011, but Judge Chin rejected it because he believed it raised copyright and antitrust issues by giving Google a “de facto monopoly” to copy books en masse. The publishers settled their claim against Google in 2012.

Posted in Author's Guild, copyright, copyright infringement, Fair Use, Google | No Comments »

Boston Police Backlash Against Recorded Phone Call To Face Test

November 13th, 2013 by and tagged , , , , , , , , ,

Last August a Boston police officer aggressively confronted a man who was recording law enforcement on a public street. Tomorrow, a judge will decide whether to continue the case against a journalism student charged with illegal wiretapping for calling BPD about the incident and recording his conversation.  The judge will also decide whether to drop charges against a blogger who wrote an article supporting the student.

Taylor Hardy called BPD headquarters for comment after he saw a video of officers forcing a man to leave the area of an investigation.  Hardy recorded his call to Boston Police Spokesperson Angelene Richardson, and later posted the recording to YouTube.

Hardy’s curiosity as to why the officers asked the man to leave is hardly surprising, as courts have repeatedly reaffirmed citizens’ right to record police on public property.

Yet Hardy’s call didn’t yield much, as Richardson said she hadn’t heard about the run-in with the cameraman.  Despite this, when police found the recording of the seemingly innocuous call on Hardy’s YouTube channel, they slapped him with an illegal wiretapping charge.  Richardson claimed he hadn’t asked her permission before recording their conversation (it is illegal to record another person without consent under Massachusetts law).  Hardy says he had consent, but could face five years in prison if convicted.

Photography advocate Carlos Miller wasn’t happy when he heard about Hardy’s ordeal.  Hardy first saw the recording of police on Miller’s website, Photography Is Not A Crime, where Hardy works as a part-time employee.  Miller responded by writing an article calling for BPD to drop the charges. He also asked others to join him, and published Richardson’s office email and phone number in the post.  BPD responded to by filing a criminal complaint against Miller for witness intimidation, claiming he had gone too far by posting Richardson’s contact information.

NPPA President Mike Borland said he’s astonished that it has come to this.

“It’s mind boggling that there are still law enforcement officers in major metropolitan departments who don’t know they can be photographed doing their job in public,” Borland said, “It’s downright maddening the steps being taken in Boston as a result of this ignorance. This snowball of a public relations disaster would not be happening if officers were properly trained and then properly disciplined when they break the rules.”

Miller agreed, adding “there are real issues and real crime in Boston that taxpayers would want money spent on rather than prosecuting people who are simply trying to hold the police accountable for their actions.”

In a statement this morning, the Newspaper Guild- Communication Workers of America joined those demanding Boston Police drop all charges.

A magistrate judge will decide Thursday whether there is probable cause to continue the cases against Hardy and Miller.

It isn’t clear that the charges against Hardy will be dropped, as he didn’t capture Richardson’s consent on tape.  However, the state does carry the burden of proof, so it will need to produce evidence that Richardson didn’t know she was being recorded.

The charge against Miller is even more of a stretch.  It’s difficult to see how posting the office contact information of a public employee could qualify as “intimidating a witness”

The NPPA will continue to shed light on instances where police, due to ignorance of the law or otherwise, refuse to respect photographer’s rights.  Borland added “The NPPA offers to help educate the Boston PD so every officer will know the public’s rights to photograph and record police activity.

********* UPDATE 11/14/13 ***********

Carlos Miller reported yesterday that a Boston Police attorney asked for a continuance of the hearing until next Friday 11/22/13.

Posted in First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »

Virginia Supreme Court Upholds Camera Ban In Murder Case

November 5th, 2013 by and tagged , , , , , , ,

The Virginia Supreme Court has upheld a trial court decision refusing to allow cameras in the courtroom during the sentencing phase of a highly publicized murder trial.

In early 2012, a jury found University of Virginia lacrosse player George W. Huguely guilty of murdering his girlfriend, fellow lacrosse player Yeardley Love.

The case garnered national attention from its earliest days, leading a circuit court judge to deny a Virginia broadcaster’s request to have cameras present during the trial.  In its request to have the court open up the sentencing phase, the broadcaster argued that the due process concerns related to the trial itself were no longer a factor.

Whether cameras will unfairly prejudice a defendant’s fair trial rights is a common point of contention, both in specific cases and as a general premise.  In this instance, however, a state statute afforded the judge “sole discretion” to determine whether to allow cameras in court.  Relying on legislative history and the plain language of the statute, the court denied the broadcaster’s claim that the judge had to show “good cause” before banning cameras.

The Virginia Supreme Court found that the trial court judge had not abused his discretion by considering the effect of cameras on witnesses at the sentencing hearing, nor was it an abuse of discretion to consider how additional media coverage might impact potential witnesses at a pending civil trial. “it is very disappointing that in 2013 some judges still adhere to the archaic belief that cameras in the courtroom still have a negative impact on trial proceedings,” said NPPA general counsel Mickey H. Osterreicher. “It is even more unfortunate that this now commonplace medium of communications must still bear the burden of justifying its presence, which is contrary to so many First Amendment presumptions,” Osterreicher added.

Even so, the court also dismissed those First Amendment claims, noting that “neither the Supreme Court of the United States nor this Court have held that a broadcaster has a constitutional right to use cameras in court to gather and report the news.”

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, Photographers' Rights | No Comments »