And That's It for 2012...

Tomorrow, Harvard University will shut down for its annual Winter Recess, marking the end of the calendaryear for those of us at the Digital Media Law Project.  It seems like this year has flown by, with somuch that we have done and so much that we still plan to do.

I’ll leave the full summary of ouractivities to the December edition of our newsletter, the Citizen Media LawBrief, but thought it would be worthwhile to highlight some of our major projectsin 2012.

Through our legal referral service for onlinejournalism and publishing ventures, the Online Media Legal Network, we secured legalrepresentation for a number of journalism entities seeking a Section 501(c)(3)tax exemption from the Internal Revenue Service. As a result of this work, the DMLP was one ofthe first organizations to become aware of a pattern of delays in IRS decisionson these applications, with some applicants waiting two years or more for aruling. These delays pose a serious threat to non-profit newsrooms, as Section501(c)(3) status is essential for these organizations to receive tax-deductibledonations, and many foundations require a tax exemption in order to awardsupporting grants. The DMLP responded to this issue in April 2012 by publishingan interactive legal guide forapplicants seeking tax-exempt status, to help them better understand the oftenconvoluted and counterintuitive standards applied by the IRS. Since then, thelogjam at the IRS has started to dislodge, with a few long-delayed applicantsfinally receiving recognition of their tax-exempt status.

We also dug deeply into legal issues related to news coverageof the 2012 presidential elections, publishing two comprehensive resources forprofessional and citizen journalists:

• In August, we launched our guide to covering theRepublican and Democratic National Conventions, which included specificinformation regarding the intersection of First Amendment newsgathering rightswith applicable laws and ordinances in Charlotte and Tampa; special rulesapplicable to events controlled by the U.S. Secret Service; and guidance indealing with police, public officials, and event organizers. The conventionsguide and related materials were complemented by live online chat sessionsproduced in partnership with Free Press in which Andy Sellars, our staffattorney, responded to journalists’ questions about the conventions.

• On November 2, 2012, we launched a state-by-statelegal resource for those wishing to use photography or videography to documentthe 2012 national elections, Documenting the Vote 2012. This guide covered laws in all 50states limiting the ability to use cameras at or near polling places, as wellas laws prohibiting disclosure of the content of a voter’s own ballot. Thisresource was widely used and cited during the elections, with over 115,000unique page views between November 2 and November 7, more than 60 mentions inlocal and national media, and referrals on Twitter by a diverse range ofpopular users – including, believe it or not, MC Hammer. Wewere geekily proudest, however, that we were cited as a reference to help dispel urbanmyths about photographing one’s ballot on Snopes.com.

We were, and remain, very concerned about theabuse of trademark law to chill critical speech and other expression protectedby the First Amendment, and appeared as an amicus curiae in several cases involvingthese issues:

• In Jenzabar, Inc. v. Long Bow Group, Inc., No.2011-P-1533 (Mass. App. Ct. January 18, 2012), defendant-appellee Long BowGroup, a documentary film company, posted speech critical ofplaintiff-appellant Jenzabar on its website, and used Jenzabar's name inmetadata to identify that content for users and search engines. The DMLP argued in its amicus curiae brief that Jenzabar's invocation oftrademark law to prohibit the use of its name in metadata was an effort torender Long Bow's protected speech inaccessible on the Internet and wastherefore barred by the First Amendment and Article 16 of theMassachusetts Declaration of Rights. 

We are pleased that the MassachusettsAppeals Court affirmed summary judgment in favor of Long Bow, butunfortunately the Court persisted in applying the traditional trademark likelihoodof confusion test to Long Bow’s expressive uses of the Jenzabar mark. Thelikelihood of confusion test is ill-suited to expressive speech, as reflectedby the fact that the Appeals Court had to twist the factors of the testbeyond recognition to apply them here. Moreover, the fact-based nature ofthe analysis is not usua