Intellectual Property -Challenges for the Journalist

European Journalism CentreMaastricht

November 2008

Richard Allan HorningFish & Richardson PC

Silicon Valleyrhorning@fr.com

RICHARD ALLAN HORNINGPrincipal, Venture Technology Group, Fish & Richardson P.C.,

Silicon Valley

Practicing Law in Silicon Valley Since 1970. Former Law Clerk, US Court of Appeals (Ninth Circuit)

Clients have included Rolling Stone Magazine, Time-Life, New York Times, Intel, Honeywell, Data General, Piaggio SpA, Hewlett-Packard, Gigabit A/S [sale to Intel], Acer, Celo Communications Ltd [financed by Investor Growth Capital and sold to Gemplus]

Past President, International Technology Law Association

INTELLECTUAL

PROPERTY

PROPERTY

THE OUTPUT OFJOURNALISM IS INTELLECTUAL PROPERTY

• Reportage• Photo Journalism• Commentary• Criticism and Reviews• Editorial

WHO OWNS THE OUTPUT OF REPORTERS

• The Publication / Employer– “Work for Hire”– Contracts as Controlling– Droit Morale

• Free Lance Journalist • “Blogger”

WHO CONTROLS THE OUTPUT OF JOURNALISTS

• The “Boss”• The Government

– Sunshine Laws• Private Industry

– Libel Actions– Trade Secrets– Copyright Infringement

• Fair Use• The News Source

– Privacy Laws• Journalist Privilege

JOURNALISM’S IMPACT ON THEECONOMY AND INNOVATION

• Influences Political Decisions• Spots and Promotes Consumer Trends• Starts Mass Movements• Can Help Shape Public Attitudes

JANUARY 24, 1848

Eureka !

“Gold Mine Found”, The Californian, March 15, 1848

“California, no doubt, is rich in mineral wealth; great chances are here for scientific capitalists”

THE BIG FOURCrocker, Hopkins, Stanford, Huntington

OPENING THE WEST1863 - 1869

THE FARM

CROCKER RESEARCH LAB

WHERE IT ALL STARTEDTV

CLEAN TECH IS ATTRACTING THE BIG BOYS

“Represents the biggest economic opportunity of this century”

- John Doerr, Kleiner Perkins, November 2006

WHO KNEW TONY WAS A CLEAN TECH ENTREPRENEUR

VC INVESTMENTS IN CLEAN TECH

• $263 M invested in 2002• $224 M invested in 2003• $418 M invested in 2004• $497 M invested in 2005• $1,496M invested in 2006• $2,188M invested in 2007• $2,758M invested thru Q3, 2008

WHO IS A JOURNALIST AND WHY DOES IT MATTER

• Preferential Access to News Sources• Invitations to Newsworthy Events• Journalism as “Fair Use”• “Invitations” to Disclose Facts• Prohibitions Against Attendance and

Publication

THE CHALLENGES OF “DOING JOURNALISM”

• Honor and Respect of the Public• Vilification as a “Left Wing” / “Right Wing”

Stooge

GOVERNMENT INTERFERENCE WITH THE PRACTICE OF JOURNALISM

US v Earl Caldwell• Supreme Court in companion case Branzburg v Hayes

(1972) held that there is no First Amendment news gathering privilege

• US v Earl Caldwell held that a journalist, like any other citizen, can be compelled to appear before a secret grand jury

• Outcome was state “shield” laws, allowing journalists to assert privilege against source disclosure under certain circumstances

• Outcome was Dept of Justice guidelines restricting US government requiring journalists to divulge sources unless it’s the last resort

• Note that publications can be sued for breaching obligations of confidentiality (Cohen v Cowles Media,1991)

GOVERNMENT CONTROL OF ACCESS

ANGELA DAVIS

• Without any legal authorization the Marin County Sherriff refused to allow press interviews of Angela Davis following her arrest for conspiracy to commit murder

• Time / Life threatened to sue the Sherriff to gain access

• Suit dropped when Ms. Davis put unacceptable conditions on the jail house interview with Time

GOVERNMENT CONTROL OF ACCESS

GOVERNMENT CAN CONTROL ACCESS BY DENYING ACCESS

• Hunter Thompson, acclaimed “gonzo” journalist and political reporter, denied press credentials by Ron Ziegler and Nixon White House

• Suit threatened by Rolling Stone to force issuance of White House press credentials

• Suit dropped when Thompson went to Mexico instead.

GOVERNMENT CAN CONTROL ACCESS BY DENYING ACCESS

• Obama kicks Fox News reporters off his campaign airplane

• Fight at 2008 Democratic Convention as to who would be given press credentials –issues was “bloggers” as journalists

GOVERNMENT DOES NOT HAVE TO GIVE ACCESS TO SOURCES

• Sunshine laws usually have an exemption for law enforcement

• California law provides an exception, that name of arrested person and the victim may be given to persons who swear that it is to be used for journalistic purpose– Opinion of California Attorney General (2006)

confirms that law enforcement agency may not require evidence in support of sworn declaration

– Requester need not have press “credentials”– Journalist requester need not monitor subsequent use

of the information obtained

GOVERNMENT RETRIBUTIONAGAINST JOURNALISM

US v New York Times

• Established that government cannot, except the most extraordinary circumstances, prevent publication of articles

• This does not mean, of necessity, publication cannot be preliminarily enjoined– MTA vs MIT Students re hacked Charlie

Cards

GOVERNMENT INTERFERENCE WITH JOURNALIST INVESTIGATIONS

“INVITATIONS” TO DISCLOSE FACTS AND SOURCES

• Most recent rejection of special journalist privilege again revelation of sources, whether based on First Amendment or federal “common law”, is US v Miller (2007)

• Investigation into who “outed” Valeria Plame, an alleged CIA agent whose husband Joseph Miller wrote a report denying that Saddam Hussein was buying uranium from Niger.

• Ms. Miller spent 43 days in jail before being released by her source.

“INVITATIONS” TO DISCLOSE FACTS AND SOURCES

PEOPLE V PATTY HEARST, WILLIAM AND EMILY HARRIS

“INVITATIONS” TO DISCLOSE FACTS AND SOURCES

“INVITATIONS” TO DISCLOSE FACTS AND SOURCES

• In prosecution of William and Emily Harris, leaders of the SLA, for murder arising out of Los Angeles “Sporting Good Store Shootout”defendants subpoenaed the two Rolling Stone reporters

• At first they voluntarily testified, but refused to reveal sources

• In face of motion to quash subpoena and protective order based on First Amendment and California shield law, the reporters excused from testifying

PRIVATE ATTEMPTS AT CONTROL OF JOURNALISM

• Apple v Does• MTA v MIT Students• DeCSS vs Bloggers

UNFORSEEN OPPORTUNITIES FOR EXPLOITATION OF IP

• New York Times v Tasini (2001)– Free lance authors licensed print versions– Compilation by NY Times in databases

violated copyright of journalists

UNFORSEEN OPPORTUNITIES FOR EXPLOITATION OF IP

“I NEVER SAW THE COVER”

CONCLUDING POINTS• Journalists create and own intellectual property• Control of use of journalist IP will devolve to contract,

with the decline of “employee” journalists in the wake of declining circulation of main stream press

• Who is a “journalist” will remain an important question• Professional organizations can play an important role in

developing standards for defining what constitutes “doing journalism”

• Opportunities for multiple exploitation of the “work” may exist

• Independent Journalists need financially powerful friends!