Media Law Prof Blog

DC Circuit Rules That CIA May Refuse To Release Bin Laden Photos

The US Appeals Court for the DC Circuit has ruled per curiam that the CIA may refuse to release post mortem photographs of Osama bin Laden which the agency classified as top secret. A group called Judicial Watch filed a FOIA request to obtain copies of the photos. The CIA pled Exemption 1, a national security exemption, alleging that release of the pictures would cause harm to US citizens overseas and that the pictures were properly classified under that exemption. The court agreed. Here is a link to the ruling, Judicial Watch v. U.S. Department of Defense.

Joe Francis Apologizes For Rant Against Jury Members

Joe Francis, famous for his "Girls Gone Wild" empire, has apologized for an "appalling" Hollywood Reporter interview in which he repeatedly insulted members of the jury which convicted him of false imprisonment and assault, saying they should be "shot." He has now issued a statement saying that

I deeply regret the remarks attributed to me in the interview with the Hollywood Reporter. They were hurtful and do not reflect my true feelings. While I disagree with the jury's verdict as I am completely innocent of the charges and intend to appeal, I was afforded a fair trial, and if I lose at the appellate level, I will reluctantly but fully accept the jury's verdict.

 

He also says he was "not being serious" and that his comments were "manipulated by the media."

EU Parliament, Member States Want "Culture Exception" in Upcoming EU/US Trade Talks

The EU Parliament has indicated it wants the area of culture exempted from upcoming trade talks with the United States. France, an EU member states, agrees, and is vocal about backing a cultural exception for French films, for example. More here from EUBusiness.

Word Frequency and Its Meaning

David Brooks discusses whether the frequency of words as revealed in  the printed book means anything at all (here, in the New York Times). Read one of the articles he discusses in his NYT piece here. Try searching the Google database (the Google N-gram Viewer) he talks about in his opinion piece here.

CBS Pulls Final Season "Mike and Molly" Episode From Schedule, Shows Repeat

In order to be responsive to the tragedy in Moore, Oklahoma, CBS pulled the final episode of the season of Mike & Molly, due to air Monday night, in which a tornado hits Chicago.  Instead, the network aired a repeat episode. The season finale will air probably sometime in the future. More here from the Hollywood Reporter.

FCC Acting Chair Mignon Clyburn Releases Statement To Staff

STATEMENT FROM FCC ACTING CHAIRWOMAN MIGNON CLYBURN TO STAFF

“By now you may have heard, that President Obama has asked me to serve as Acting Chair of the FCC, pending the confirmation of Tom Wheeler. I wish to express my deep appreciation for this incredible opportunity, and commend President Obama, for his excellent choice of Tom Wheeler, as our next Chairman. “Because we don’t know how long I will be in this position, with my tenure directly linked to the efficiency of the U.S. Senate, I thought it would be a good idea for us to get together, to assure each other, that we’re on the same page. “Allow me to get straight to the point: I love the FCC, and to lead this agency is one of the greatest honors of my life. For in my view, there are two things that set this agency apart. “The first is its people: all of you. Obviously, this agency is filled with world-class talent, but the staff at the FCC is not just smart and talented, you are caring, and committed to public service. “The last two attributes were immediately made clear to me, when I entered the building, nearly four years ago. So many of you, have made my transition from South Carolina less traumatic, with words of support, kind gestures, and yes, warm hugs just when I needed them. I also want to thank my fellow Commissioners, for their support over the years: more recently Commissioners Rosenworcel and Pai, and of course, Julius Genachowski, Rob McDowell, Mike Copps and Meredith Baker. “The second thing that sets this agency apart from the rest is its mission. I was raised to believe in the value of public service, by a support system, which through hard work and volunteerism, reinforced the importance and rewards, of that motto, “service above self”. And for us, there is no more exciting or critical mission in government, than working to accelerate the communications revolution that’s transforming our economy, and the way we live. “We have an important mission, and this is an important time. “I assume the role of Acting Chair, with a great sense of responsibility, but also great humility. And as we await the confirmation of Tom Wheeler, I see myself as a member of a relay team, running one of the middle legs. My job is to build on forward momentum, give the next teammate a running start, an improved position, and no matter what, my goal is not to drop the baton. “I consider my friend Mike Copps, a model for an outstanding Acting Chair. He approached this job with seriousness, humility, and led this agency through the completion of the DTV transition – a major accomplishment. “So if asked about my goals as I take this new position, I would answer without hesitation – its hallmarks will be continuity and progress. “At 12:01am on Saturday, I actually became the Acting Chair of the Federal Communications Commission. This time gave me an opportunity to reflect a bit over the weekend. “I thought of my swearing-in, in the summer of 2009. It took place in South Carolina, because until then, that was the only place I could ever think about calling home. “Today, however, I see the FCC as home, and you, my regulatory family. Like every other family, we may disagree at times, and yes, frustrate each other, but at the end of the day, we’ve got each other’s back. We’ve got America’s back. “So while we may face many challenges in the days and weeks ahead, by working together, we will continue to do great things. Continuity and progress: the hallmarks, the building blocks, of a great time, great people and a great agency. Thank you for all that you’ve done, and what you will continue to do, to make this nation proud. “Thank you, and Godspeed.”

Professor Arthur Miller To Moderate June 8th Panel on Privacy For Concord Law School

From Sara J. Berman, Assistant Dean for Bar Support Programs & Professor of Law, Concord Law School, an announcement of an upcoming panel on individual privacy in today's environment led by Professor Arthur R. Miller. Other panelists include Joseph Aldaheff, Ian Ballon, Johannes Ernst, Thomas Feledy, Francoise Gilbert, Ann Geyer, Matthew Miller, and Michael Poplack.  Register until June 1st (free), and attend in person or online.

More information is available here.

 

Copyright Protection and Information Flow

Guy Pessach, Hebrew University of Jerusalem, Faculty of Law; Yale University of Law School, is publishing Deconstructing Disintermediation - A Skeptical Copyright Perspective in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

 

This essay attempts to uncover the impacts of disintermediation in copyright law. I argue that contrary to the common view, within the political economy of networked communication platforms and the Internet, disintermediation in copyright law does not necessarily lead to its expected outcomes. Disintermediation may undermine cultural diversity, decentralization and authors’ welfare no less than the traditional corporate media proprietary model. My analysis focuses on the manner in which disintermediation in copyright law tends to stimulate concentrated markets, which channel audience attention to a handful of mega networked intermediaries. The market and media power, which is then held by these intermediaries, has several adverse effects, including: undermining creators’ bargaining position; deflated investment in cultural production and finally, extreme reliance on business models of free — yet commodified — distribution of content. These business models, which are based mostly on advertisement revenues, tend to lean toward narrow, limited and homogenous cultural production. From a broader perspective, I argue that, as opposed to the common view, there is no direct correlation between lessening of copyright protection and the proliferation of content flow and distribution channels. The reason is that among other functions, copyright law is also a mechanism that regulates power relationships between different institutions and actors in media markets. Regarding this capacity, extreme concentration of media power could derive not only from excessive copyright protection, but also from excessive ability to freely utilize content.

 

Download the full text of the article from SSRN at the link.

Salinger's Literary Estate and IP Law

Kate O'Neill, University of Washington, School of Law, is publishing Copyright Law and the Management of J.D. Salinger's Literary Estate in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

J.D. Salinger’s death in 2010 provides an occasion to consider three related questions: (1) does domestic copyright law now protect Salinger’s personal interests; (2) if not, should it be amended or interpreted to do so; and, (3) if it does protect personal interests, should that protection be continuous throughout the full copyright term, or should it diminish or end at the writer’s death? In answer to the first two questions, I argue that domestic copyright law does not and should not protect any author’s personal interests in privacy, publicity, or reputation. In answer to the third question, I recognize that uses of unpublished expression necessarily raises issues of privacy, publicity and reputation interests, as well as copyright, but I argue that protection of personal interests embodied in unpublished work should diminish or cease upon the author’s death. The Article makes two basic points. First, in two copyright infringement cases, Salinger succeeded in establishing judicial precedents that rejected colorable defenses of copyright fair use. In both cases, the courts rejected fair use defenses despite Salinger’s inability to show any economic injury. Arguably, the decisions reflected solicitude for Salinger’s personal interests but, as a result, they blurred an important and valuable legal distinction between personal interests and copyrights. Conflating personal interests with copyright makes a copyright seem more sacrosanct than it should be in our domestic system – less a commercial interest and more an identity right. Conflating also effectively broadens the copyright holder’s exclusive rights because domestic copyrights are expressly limited by the fair use doctrine while personal interests are not. Second, however tempting it may have been to conflate Salinger’s personal interests with his copyright during his life, the temptation should be strenuously resisted and the two precedents should not be followed. The distinction between personal interests and copyrights has important practical consequences for the management of Salinger’s literary estate going forward – and for the estates of other authors. Plainly, Salinger’s estate includes copyrights on published works. With his passing, we can hope that his trustees will distinguish between his personal interests while alive and his copyrights and, if they will not, the courts will be more inclined to permit fair uses. Salinger’s unpublished works may be of even more interest than his published works. Domestic and international copyright laws clearly give Salinger’s trustees the exclusive right to publish or withhold these unpublished works. Precisely because Salinger did not choose to publish these works, and because some of them may contain incomplete or unpolished prose or intimate or embarrassing revelations, the trustees’ temptation to use copyright to protect his or their personal interests may be especially strong. If they refuse to license uses on reasonable terms, the appropriate scope of fair use will be critical to scholars, biographers, and others. The article concludes by examining how the fair use doctrine should apply to various types of unpublished works. In policy terms, I have used the particulars of Salinger’s copyrights to argue against the suggestions of some scholars and many authors that U.S. copyright ought to extend protection to what are loosely called “moral rights.” Put another way, the fundamental question is whether decency requires that Salinger’s literary estate be let alone, as he might have wished. I think not. I don’t think decency requires it anymore, and I’m sure the law should not. In our domestic culture, we do not have the right to dictate what others may find worth writing and learning about us. If we leave copyrighted expression behind after we die, then the expression should be regarded as artifact, not personhood, and the price we and our heirs pay for copyright protection for all of our fixed expression for 70 years after death is the public’s limited right to make fair use of the expression, whether we chose to exploit it or not during life.

Download the full text of the article from SSRN at the link.

AP Says DOJ Seized Journalists' Phone Records

From the New York Times: a report on the sensational news that the Department of Justice has seized two months' worth of phone records of Associated Press journalists. Records seized included not just those pertaining to work phones, but also home phones. The A.P. says it has received no explanation for the seizure. The DOJ's action seems related to AP reports of an action taken by the CIA to stop an al-Qaida plan to blow up a US plane last year. More here from the Guardian. Guardian commentator Harry Enten suggests that this report, coinciding with news that the IRS has targeted conservative political groups, may hurt the President and his party in the 2014 elections.

Science, Ethics, and Research

From The Scientist, a discussion of misconduct in scientific research, in spite of increased emphasis on ethics training for scientists.

The Internet and Conflicting Notions of Privacy

Megan Richardson, Melbourne Law School, Julian Thomas, Swinburne University of Technology, and Marc Trabsky, University of Melbourne, have published The Internet Imaginary and the Problem of Privacy in volume 17 of the Media & Arts Review (2012). Here is the abstract.

In this article we argue that the legal reshaping of public and private cannot at this stage be reconciled with the expectations of online writers who seek to conceal personal identity or to address a private audience. As bloggers, social networkers and other online content creators, we may find ourselves negotiating, sometimes with frustration, a position between our expectations of the internet as a system of places centred largely around ourselves and our imagined audiences, and the architecture of the internet as a limitless space, a 'non-place'. These conflicting notions of the internet constitute an uneven and contradictory 'internet imaginary', and shape our experience online. The law, when confronted with the ambiguities and equivocations of the internet imaginary, so far prefers to fall back on the simple idea of the internet as a public space, a space that is not protected from peering eyes and ears of outside observers, a space where activities cannot be made private (at least without special technological expertise), because accidents inevitably happen. So the law will not underwrite users' expectations of privacy. For now, however, many users of the internet continue to expect from the law a guarantee of privacy in our online experience, at least in some circumstances, even contrary to the assertions of those who insist that architecturally the internet is an open space.

Download the full text of the article from SSRN at the link.

Artist Resolves To Fight Disorderly Conduct Citation Based On Leaving Backpack Unattended

Enrico Miguel Thomas, an artist who uses subway maps as an inspiration for his work, is fighting a summons for disorderly conduct issued because he left his backpack unattended for several minutes in Grand Central Terminal while he spent some time some distance away drawing. The judge in the case offered him a deal (a day of community service). Mr. Thomas's attorney says nothing in the state's penal code makes leaving a backpack (baggage) unattended a crime. The police argue that after 9/11, a fear of bombs in public areas justifies handing out such a summons. Mr. Thomas will go to trial on the disorderly conduct summons later this year. More here from the New York Times.

Hindu Ethical Principles and IP Policy

Shuba Ghosh, University of Wisconsin Law School, has published Duty, Consequences, & Intellectual Property as University of Wisconsin Legal Studies Research Paper No. 1225. Here is the abstract.

Drawing on Amartya Sen's discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The Gita. With respect to intellectual property, the author proposes a consequentialist theory of intellectual property based on the duties owed by an owner to other persons. This ethical theory is illustrated through the legal treatment of patents on medical diagnostics (Prometheus v Mayo) as well as on through the doctrines of fair use and first sale. This paper was prepared for a symposium on IP & Religious Thought at University of St Thomas Law School (Minnesota), held April 5, 2013.

 

Social Media, Privacy, and Free Speech

Lilian Edwards, University of Strathclyde Law School and Adnrea M. Matwyshyn, University of Pennsylvania Legal Studies Department, have published Twitter (R)evolution: Privacy, Free Speech and Disclosure as part of the Proceedings of W3C, Rio, Brazil, May 2013. Here is the abstract.

Using Twitter as a case study, this paper sets forth the legal tensions faced by social networks that seek to defend privacy interests of users. Recent EC and UN initiatives have begun to suggest an increased role for corporations as protectors of human rights. But, as yet, binding rather than voluntary obligations of this kind under international human rights law seem either non-existent or highly conflicted, and structural limitations to such a shift may currently exist under both US and UK law. Companies do not face decisions regarding disclosure in a vacuum, rather they face them constrained by existing obligations under (sometimes conflicting) legal demands. Yet, companies such as Twitter are well-positioned to be advocates for consumers’ interests in these legal debates. Using several recent corporate disclosure decisions regarding user identity as illustration, this paper places questions of privacy, free speech and disclosure in broader legal context. More scholarship is needed on the mechanics of how online intermediaries, especially social media, manage their position as crucial speech platforms in democratic as well as less democratic regimes.

Download the paper from SSRN at the link.

Web Applications and Privacy Law

Sebastian Zimmeck, Columbia University Department of Computer Science, has published The Information Privacy Law of Web Applications and Cloud Computing in volume 2013 of the Santa Clara Computer and High Technology Law Journal. Here is the abstract.

This article surveys and evaluates the privacy law of web applications and cloud computing. Cloud services, and web applications in particular, are subject to many different privacy law requirements. While these requirements are often perceived as ill-fitting, they can be interpreted to provide a structurally sound and coherent privacy regime. The applicable body of law can be separated into two tiers: the primary privacy law and the secondary privacy law. The primary privacy law is created by the providers and users of cloud services through privacy contracts, especially, privacy policies. The secondary privacy law, contained, for example, in statutes and regulations, is for the most part only applicable where no valid privacy contracts exist. This supremacy of privacy contracts over statutory and other secondary privacy law enables individualized privacy protection levels and commercial use of privacy rights according to the contracting parties’ individual wishes.

Download the article froM SSRN at the link.

Public Dissemination of Mug Shots and FOIA

Whitney T. Martin, University of Iowa College of Law, is publishing From the Police Precinct to Your Neighbor's Coffee Table: Limiting Public Dissemination of Mug Shots During an Ongoing Criminal Proceeding Under the Freedom of Information Act in the Iowa Law Review. Here is the abstract.

The Freedom of Information Act provides for public access to government agency records. Agencies have discretion, however, to withhold any information that falls under one of the Act’s exemptions, including, in some instances, private individual records. While the Supreme Court has recognized that criminal detainees have a privacy interest in restricted dissemination of their criminal records, it has yet to rule on whether the same privacy interest exists in mug shots. Currently, there is a circuit split over this issue. This Note analyzes the split in light of the purpose and history of the Freedom of Information Act, and argues that future courts that entertain the issue should adopt the reasoning employed by the Tenth Circuit — namely, recognizing a privacy right in detainees’ mug shots in ongoing criminal proceedings. The Supreme Court has already recognized the detrimental and lasting stigma on the not-yet convicted detainee. In holding that such a privacy interest exists, the Court will maintain consistency in tending towards increased privacy protection under the Act, minimize negative stigma, and still adhere to the Act’s purpose.

Download the article from SSRN at the link.

BBC Appoints New Editorial Director

From the Guardian: the BBC has appointed Roger Mosey as its editorial director, to oversee editorial issues across tv, radio, and news. The BBC has also appointed new directors of news, tv, and radio but has indicated that Mr. Mosey is not their immediate superior. The Mosey appointment is seen as an attempt by the BBC to address the various problems that have come to light at the corporation over the past few years, including the Jimmy Savile scandal, questions that arose over the filming of a documentary of the Queen, and fines levied by Ofcom after the BBC tv show "Blue Peter" engaged in deceptive practices with regard to a contest.

Anonymity Online and Political Specch

Margot E. Kaminski, Yale University, Yale Information Society Project; Yale University Law School, has published Real Masks and Real Name Policies: Applying Anti-Mask Case Law to Anonymous Online Speech, in volume 23 of the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed real-name policies. It closes by returning to the real world of real masks, addressing the significance of physical anonymity in an age of remote biometric identification and drone use.

Download the article from SSRN at the link.

 

Volokh On the Free Speech of UConn Law Student Arrested For Email Rants

University of Connecticut law student Anna Bargh has been arrested, apparently for a couple of emails she sent to a number of people on the subject of the hiring of the next UConn law dean. In one email, she said:

"Let’s celebrate diversity by having the next dean NOT be Jewish”.

 

Ms. Bargh was arrested for breach of the peace and harassment. Eugene Volokh analyzes the issues at the Volokh Conspiracy here. More here from the Hartford Courant.