Have you seen this letter sent to local blogger Random Pixels by GT attorney Ian Ballon on behalf of his client the Miami Herald?

I guess the Herald is upset over whether or not photos from their website are reproduced on blogs in thumbnail or "full-size"?

As if that determines whether or not the photos fall within the protections of the fair use doctrine?

Here is Ian's contention:

"Because fair use looks to the amount and substantiality of the portion taken (both in terms of quality and quantity), reproducing entire articles, large excerpts of articles or large-size photos is not permitted."

This sweeping generalization -- with no context and zero case citation -- is almost certainly wrong.

This is one of those examples where, as a lawyer, you have to talk to your client. Is it in your best interests to go after some local blogger for posting a picture? Is that really what you want your resources and attention focused on? Even if you had a colorable argument, is it a fight that is in your best interests to pursue?

(Though I appreciate that Ian's letter is somewhat restrained and not as dickwaddy as it could have been, I still would have advised against it).

My advice here would be, for the most part, to ignore Ian's letter. If there are "copies of entire articles" on his blog (which I understand are simply historical in nature and not lifted from the Herald online archives), I would edit them slightly so you are in compliance with Ian's demand.

The balance of the letter is wishy-washy and doesn't really require any further action, so I wouldn't take any.

Ian, I just gotta know something -- did Glenn Garvin put you up to this?

What other major American newspaper would publish this:

Liberals believe that yelling at someone is torture.

Miami Herald editors, thank you for applying your intellect to advancing the discussion!

Oh, and also, Happy Mother's Day!!

Glenn Garvin's column today presents a case study in what is wrong with op-eds in local newspapers.

First, he's picked a topic with no local angle -- the trial of KSM in New York.

Being a national story, this topic has been discussed at length in newspapers and blogs and on TV ever since Attorney General Holder made the announcement two weeks ago.

Indeed, I covered it a week back on November 24.

So, if you are going to approach a topic that is several media-cycles old and which has already been the subject of tremendous debate and analysis by every major national columnist in this country, you need to bring something new to the table.

Needless to say, Garvin fails.

Instead, Garvin offers a deeply flawed and inaccurate understanding of how the criminal justice system works, with absolutely no reference to the successful terrorist prosecutions that have occured in this country, such as John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla -- all tried under the Bush Administration btw.

Garvin's gloom and doom and fear-based arguments are too silly to get into, and have already been addressed dozens of times by knowledgeable lawyers such as former Bush AGs Jim Comey and Jack Goldsmith.

The larger point has to do with the newspaper business. If you are that late to a story, you have to approach it like Time Magazine, The Nation, or National Review -- deliver some analysis, synthesis, commentary that reflects a point of view or which has been lacking in the day-to-day coverage thus far.

Can anyone reading Garvin's column today -- including his editors -- say with a straight face that Garvin has added something (anything?) meaningful to the discussion?

Ok ok, several of you have asked for my thoughts on this Business Monday look at local law firms and how they are faring during these tough economic times.

Here's what I took away from the story:

1. Emily Blunt is cute as a button and really shines in The Great Buck Howard; and

2. The article doesn't really break any new ground.

Wait a minute -- I take that back.

I also learned:

3. There is or used to be a real legal specialty involving "legal review of car dealer ads" and that Hollywood attorney Fred Hochszstein was apparently its resident guru.

Seriously, I know this is the work of intrepid reporter Julie Kay, but to me it was mostly a recap of stories already reported elsewhere by Julie and reframed for a more general audience.

Julie -- stay away from the Herald! They plainly left all your really juicy stuff on the cutting room floor. Then again, how else to make room for Glenn Garvin's tough, unflinching expose of Bill O?

Here's another reason the otherwise great Julie should stay away from the Herald -- take a look at the comments to Julie's piece. It makes the Herald letters page seem simply erudite and sophisticated by comparison.

Sorry, had a brief Pink Floyd moment there for a second.

Well it's Monday, time to get back on the wheel and run rabbit run.....

Sheesh, I'm tired already.

I see the Herald's owner plans to cut another 1600 jobs. Can I make a few suggestions?

Meanwhile, all your anonymous posters got a slight victory as the Maryland Supreme Court imposed some reasonable limitations on a plaintiff's ability to obtain poster information in the defamation context (thanks to a friend for the link!):

The New Jersey appellate court in Dendrite, Int’l. v. Doe took a more moderate approach. That court held that a plaintiff seeking the identification of an anonymous internet speaker must establish facts sufficient to maintain a prima facie case.

The Maryland court in the present case joined in the more moderate Dendrite approach, holding that when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should:

• require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
• withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
• require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
• determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
• if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The Independent Newspapers case is an important case not necessarily because of any groundbreaking jurisprudence that it establishes, but because of the comprehensive way it treats the issue of unmasking unknown internet speakers. The opinion is a nearly exhaustive look at the current state of this question of law.

If you all are interested in this stuff, the opinion and Mr. Brown's write-up is well worth a look.

Whoa -- Francis Carter on the move again -- wasn't it only a few years ago that he joined Akerman?

Regardless, congrats to all on the new gig.

And how was your weekend?

We all know the Miami Herald publishes old WP opinion columns long after they have been widely circulated and debunked on the tubes, I guess because they figure some old lady in Westchester doesn't have online access and therefore cannot learn what David Broder thinks about bipartisanship in real-time.

I kid, I kid.

Anyhoo, I suppose it's just a matter of days before the Herald winds up publishing this atrociously bizarre Richard Cohen column on torture. Hmm, maybe Richard really does know funny!

So to get you ready for tomorrow, or next week, or whenever the syndicate gets around to releasing the column to the Herald for publication, you can read Wonkette's actually funny (and stunned) reaction to it here.