Dirty Amicus

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    Case No. 13-5946

    IN THE

    UNITED STATES COURT OF APPEALS

    FOR THE SIXTH CIRCUIT

    SARAH JONESPlaintiff-Appellee

    v.

    DIRTY-WORLD ENTERTAINMENT RECORDINGS, LLC, dba

    THEDIRTY.COM, HOOMAN KARAMIAN aka NIK RICHIE aka CORBINGRIMES, DIRTY WORLD, LLC dba THEDIRTY.COM, AND DIRTY WORLD

    ENTERTAINMENT, LLC dba THEDIRTY.COMDefendants-Appellants

    On Appeal from the United States District CourtFor the Eastern District of Kentucky at Covington

    Originating Case No. 2:09-cv-00219-WOB

    MOTION FOR LEAVE TO FILE AMICUS BRIEF

    Junis L. BaldonMark A. Flores

    Brandon W. GearhartFROST BROWN TODD LLC

    400 West Market Street, 32nd FloorLouisville, KY 40202

    PH: (502) 589-5400ACLU of Kentucky Cooperating Attorneys

    William E. Sharp*ACLUOF KENTUCKY

    315 Guthrie Street, Suite 300Louisville, KY 40202

    Matthew ZimmermanELECTRONIC FRONTIER FOUNDATION

    815 Eddy StreetSan Francisco, CA 94109

    Lee Rowland

    AMERICAN CIVIL LIBERTIES UNION125 Broad Street, 18th Floor

    New York, NY 10004

    Additional counsel on signature page

    *Lead Counsel of Record

    Case: 13-5946 Document: 006111887702 Filed: 11/19/2013 Page: 1 (1 of

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    INTRODUCTION

    In accordance with Rule 29 of the Federal Rules of Appellate Procedure, the

    American Civil Liberties Union of Kentucky (ACLU-KY), Electronic Frontier

    Foundation (EFF), Center for Democracy & Technology (CDT), Digital

    Media Law Project (DMLP), Public Participation Project (PPP), and Wendy

    Seltzer and Adam Holland of the Berkman Center for Internet & Society at

    Harvard University and affiliates of the Chilling Effects Clearinghouse,

    respectfully move for leave to file the attached brief as amici curiaein support of

    Defendants-Appellants. This motion is accompanied byAmicisproposed brief as

    required by Rule 29(b).1

    REASONS FOR GRANTING LEAVE

    1. Amicus ACLU and ACLU-KY.

    The American Civil Liberties Union (ACLU) is a nationwide, non-

    partisan organization with over 500,000 members and supporters dedicated to the

    principles of liberty and equality embodied in the United States Constitution. The

    ACLU-KY is its state affiliate and has a long history of advocating for the civil

    liberties of Kentuckians in both state and federal courts.

    1Defendants-Appellants seek review of the District Courts denial of their Motionfor Judgment as a Matter of Law, Jones v. Dirty World Entertainment Recordings,

    LLC, 840 F. Supp. 2d 1008 (E.D. Ky. 2012), and their renewed Motion for

    Judgment as a Matter of Law, Jones v. Dirty World Entertainment Recordings,LLC, CIV. A. 09-219-WOB, 2013 WL 4068780, at *1 (E.D. Ky. Aug. 12, 2013).

    Case: 13-5946 Document: 006111887702 Filed: 11/19/2013 Page: 2 (2 of

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    individual liberty. CDT has litigated and participated in a number of free

    expression cases involving the Internet, and works to protect the ability of websites

    and other Internet service providers to offer new opportunities for online speech

    without extensive government regulation or censorship.

    4. AmicusDMLP.

    DMLP is an unincorporated association hosted by the Berkman Center for

    Internet & Society at Harvard University. The DMLP is an academic research

    project that studies obstacles and challenges to online journalism and networked

    communication, and provides publicly accessible tools and legal resources. The

    DMLP frequently appears as amicus curiae in cases where the application of law

    will have a significant effect on the Internet and the use of digital media to inform

    the public.

    5. AmicusPPP.

    PPP is a national non-profit organization dedicated to protecting citizens

    from lawsuits designed to chill their ability to speak out on issues of public

    interest. Because many states still do not provide sufficient protections for speech

    and petitioning activities, PPP is working to pass federal anti-SLAPP legislation

    and monitors SLAPP developments nationwide. Along with anti-SLAPP

    legislation, PPP sees Section 230 as essential to ensuring that free speech rights

    guaranteed by the First Amendment are upheld in the digital age. PPP is extremely

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    concerned about the precedent that the District Courts opinion could set for

    Internet content providers that publish user generated content on their websites.

    6. Amici Wendy Seltzer and Adam Holland.

    Wendy Seltzer is a Fellow with the Berkman Center for Internet & Society

    at Harvard University. She founded and developed the Chilling Effects

    Clearinghouse, a public resource providing a database of cease and desist

    communications sent regarding Internet content. Adam Holland is a Project

    Coordinator at the Berkman Center, and the Project Coordinator for Chilling

    Effects. Chilling Effects gathers submissions from online service providers, users

    of online services, and copyright holders and makes those submissions available

    with annotations and categorization for review and study by scholars and interested

    members of the general public through its website, www.chillingeffects.org.

    The amicus brief presents several arguments for why the District Court

    should be reversed. First, 47 U.S.C. 230 broadly immunizes Internet service

    providers and website operators from common law tort liability for republishing

    content entirely created by others. Second, a broad application of CDA immunity

    is consistent with Congressintent to foster the growth of the Internet as a medium

    of communication and expression. Third, the District Court erred in refusing to

    extend Section 230 immunity to Appellants after it misapplied relevant case law

    and applied incorrect legal standards. And fourth, the District Courts opinion, if

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    affirmed, threatens to chill online discourse by imposing liability on a wide range

    of divergent and valuable speech.

    CONCLUSION

    The interests of amici, the importance of the points presented in their brief,

    and the significance of the questions raised all weigh in favor of granting this

    Motion. For the foregoing reasons,Amici respectfully request that they be allowed

    to submit the attached amicus curiaebrief supporting the reversal of the District

    Courts Memorandum Opinions denying Defendant-Appellants judgment as a

    matter of law.

    Respectfully submitted,

    s/ Junis L. Baldon

    Junis L. Baldon

    Mark A. FloresBrandon W. Gearhart

    FROST BROWN TODD LLC400 West Market Street, 32nd Floor

    Louisville, KY 40202(502) 589-5400

    (502) 581-1087 (FAX)

    [email protected]@fbtlaw.com

    [email protected] of Kentucky Cooperating Attorneys

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    William E. Sharp

    ACLUOF KENTUCKY315 Guthrie Street, Suite 300

    Louisville, KY 40202

    (502) 581-9746(502) 589-9687 (FAX)

    [email protected]

    Attorney for amicus curiaeACLU of Kentucky

    Lead Counsel of Record

    Lee Rowland

    AMERICAN CIVIL LIBERTIES UNION125 Broad Street, 18th Floor

    New York, NY 10004

    (212) 549-2500(212) 549-2654 (FAX)

    [email protected]

    Attorney for amicus curiae ACLU

    Matthew ZimmermanELECTRONIC FRONTIER FOUNDATION

    815 Eddy Street

    San Francisco, CA 94109(415) 436-9333(415) 436-9993 (FAX)

    [email protected]

    Attorney for amicus curiae EFF

    Emma J. LlansCENTER FOR DEMOCRACY &TECHNOLOGY

    1634 I Street NW, Suite 1100

    Washington, DC 20006(202) 637-9800(202) 637-0968 (FAX)

    [email protected]

    Attorney for amicus curiae CDT

    Jeffrey P. HermesAndrew F. Sellars

    DIGITAL MEDIA LAW PROJECT

    BERKMAN CENTER FOR INTERNET &SOCIETYHarvard University

    23 Eerett St., 2nd FloorCambridge, MA 02138

    (617) 495-7547

    (617) 495-7641 (FAX)

    [email protected]

    Christopher T. BavitzCYBERLAW CLINIC

    BERKMAN CENTER FOR INTERNET &

    SOCIETY

    Harvard Law School23 Everett St., 2nd Floor

    Cambridge, MA 02138(617) 495-7547

    (617) 495-7641 (FAX)

    [email protected]

    Attorneys for amicus curiae

    Digital Media Law Project

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    CERTIFICATE OF SERVICE

    I hereby certify that on November 19, 2013, I electronically filed the

    foregoing with the Clerk of the U.S. Court of Appeals for the Sixth Circuit through

    the CM/ECF system, which will send a Notice of Electronic Filing to registeredCM/ECF participants.

    s/ Junis L. BaldonJunis L. Baldon

    Mark A. Flores

    Brandon W. Gearhart

    FROST BROWN TODD LLC

    400 West Market Street, 32nd FloorLouisville, KY 40202(502) 589-5400

    (502) 581-1087 (FAX)[email protected]

    [email protected]@fbtlaw.com

    ACLU of Kentucky Cooperating Attorneys

    1532813

    Case: 13-5946 Document: 006111887702 Filed: 11/19/2013 Page: 8 (8 of

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    Case No. 13-5946

    IN THE

    UNITED STATES COURT OF APPEALS

    FOR THE SIXTH CIRCUIT

    SAR

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