Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, January 16, 2018

Mörä on The Challenge of Internet and Social Media on Shield Law Legislation @helsinkiuni

Tuomo Mörä, University of Helsinki, has published The Challenge of Internet and Social Media on Shield Law Legislation: The Four Dimensions of Reporter's Privilege. Here is the abstract.

Journalists’ right to use confidential information and anonymous sources is considered to be one of the cornerstones of press freedom and democracy. A legislation called shield law or reporter’s privilege protects journalists from being compelled to testify about confidential information, simplifies the situation regarding sources of delicate information, and ultimately advances the free flow of information in society. The rudimentary objectives of shield laws are widely accepted in democratic societies. The goal is to promote open communication about important but sensitive topics. In the absence of a privilege journalists would be more cautious of the consequences of their stories and sources would communicate less openly. If the sources believe that their identities may be disclosed, the future news sources may be hesitant to provide information and public discussion would suffer from so called chilling effect. In spite of rather commonly shared understanding of the benefits of shield laws as a vital part of journalisms watchdog function, there is a great deal of variations on how privilege is regulated in different countries, states, and territories. The scope of shield law, persons covered, interpretation power of judges, and exceptions for the main rule vary considerably among jurisdictions. The differences reflect not only details of stipulation but also fundamental principles behind the objectives of legislature. The balance between encouraging access to information and maintaining effective justice system is the core of the variations between jurisdictions. In order to gather sensitive/delicate news, journalists must sometimes guarantee their sources’ confidentiality. Courts and judges, on the other hand, have a competing interest in obtaining the information they need to prosecute criminal cases. The approach on this balance delineates the special characteristics of journalist’s privilege in each jurisdiction. This paper presents a classification of shield law legislations based on comparisons within and among Australia, Finland, Germany, Norway, Sweden, and the US.

Download the article from SSRN at the link.

January 16, 2018 | Permalink

Frosio on Re-Imagining Digital Copyright Through the Power of Imitation @GCFrosio

Giancarlo Frosio, University of Strasbourgh-CEIPI; Stanford University Law Center for Internet and Society, is publishing Re-Imagining Digital Copyright Through the Power of Imitation: Lessons from Confucius and Plato in volume 5 of the Peking University Transational Law Journal. Here is the abstract.

For millennia, Western and Eastern culture shared a common creative paradigm. From Confucian China, across the Hindu Kush with the Indian Mahābhārata, the Bible, the Koran and the Homeric epics, to Platonic mimēsis and Shakespeare’s “borrowed feathers,” our culture was created under a fully open regime of access to pre-existing expressions and re-use. Creativity used to be propelled by the power of imitation. However, modern policies have largely forgotten the cumulative and collaborative nature of creativity. Actually, the last three decades have witnessed an unprecedented expansion of intellectual property rights in sharp contrast with the open and participatory social norms governing creativity in the networked environment. Against this background, this paper discusses the reaction to traditional copyright policy and the emergence of a social movement re-imagining copyright according to a common tradition focusing on re-use, collaboration, access and cumulative creativity. This reaction builds upon copyright’s growing irrelevance in the public mind, especially among younger generations in the digital environment, because of the emergence of new economics of digital content distribution in the Internet. Along the way, the rise of the users, and the demise of traditional gatekeepers, forced a process of reconsideration of copyright’s rationale and welfare incentives. Scholarly and market alternatives to traditional copyright have been plenty, attempting to reconcile pre-modern, modern and post-modern creative paradigms. Building upon this body of research, proposals and practice, this Article will finally try to chart a roadmap for reform that reconnects Eastern and Western creative experience in light of a common past, looking for a shared future.

Download the article from SSRN at the link.

January 16, 2018 | Permalink

Sunday, January 14, 2018

FCC Chair Pai on the False Alert Issued In Hawaii

Federal Communications Chair Ajit Pai has issued a statement concerning the false alert announcing a missile attack on Hawaii. It says in part:

“The FCC’s investigation into this incident is well underway.  We have been in close contact with federal and state officials, gathering the facts about how this false alert was issued.  Based on the information we have collected so far, it appears that the government of Hawaii did not have reasonable safeguards or process controls in place to prevent the transmission of a false alert.

"Moving forward, we will focus on what steps need to be taken to prevent a similar incident from happening again."

January 14, 2018 | Permalink

Thursday, January 11, 2018

Wasserman on Police Misconduct, Video Recording, and Procedural Barriers To Rights Enforcement

Howard M. Wasserman, Florida International University College of Law, is publishing Police Misconduct, Video Recording, and Procedural Barriers to Rights Enforcement in the North Carolina Law Review (2018). Here is the abstract.

The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak for itself" and the procedural and evidentiary problems flowing from that mistaken belief; 2) the evidentiary advantages video provides police and prosecutors; 3) procedural limits on efforts to enforce a First Amendment right to record, such as qualified immunity and standing; and 4) the effects of video on government decisions to pursue criminal charges against police officers and to settle civil-rights suits alleging police misconduct.

Download the article from SSRN at the link.

January 11, 2018 | Permalink

Schauer on The Hostile Audience Revisited @UVALaw

Frederick Schauer, University of Virginia School of Law, has published The Hostile Audience Revisited in the Knight First Amendment Institute at Columbia University "Emerging Threats" Series (2017).

This essay, commissioned by the Knight First Amendment Institute at Columbia University, addresses the way in which recent events in Charlottesville and elsewhere have raised once again the First Amendment problem of the hostile audience. When speakers, protesters, and demonstrators are met with hostile and violent audience reactions, when, if ever, is it appropriate and constitutional to restrict the speakers in order to prevent or control violence? Most of the relevant Supreme Court cases are decades old, and arguably fail to address what are now perceived as genuine threats to public order and personal safety. Perhaps most significantly, little in the existing doctrinal landscape focuses on the cost question – just how much must a municipality (or university) expend in financial and human resources in order to protect the First Amendment rights of controversial, provocative, or racist speakers? Addressing this question exposes even larger questions about the costs of the First Amendment, and thus about who should bear those costs.

Download the article from SSRN at the link.

January 11, 2018 | Permalink

O'Dell on Comparative Defamation and Privacy Law--Irish Perspectives @cearta

Eoin O'Dell, Trinity College (Dublin), has published Comparative Defamation and Privacy Law - Irish Perspectives at 40 Dublin University Law Journal 236 (2017). Here is the abstract.

This piece is a review article of Andrew T Kenyon (ed) Comparative Defamation and Privacy Law (Cambridge University Press, 2016). In the Preamble to Bunreacht na hÉireann (the Irish Constitution), the People declare that they adopted the Constitution in 1937 so that “that the dignity and freedom of the individual may be assured”. The Supreme Court has regularly drawn on this rubric to give content to the fundamental rights protected by that document. The rights to freedom of expression, good name, and privacy are crucial to the dignity and freedom of the individual; this important book explores these rights in a wide variety of contexts across a broad range of jurisdictions and its conclusions could guide the development of many aspects of the law in Ireland and throughout the common law world. This book is a collection of first class, thought-provoking essays. They will repay careful study by practitioners and academics alike. And they will be of immense comparative value for the bar, the bench, and the academy. In particular, in Ireland, in helping to tease through the challenges of balancing or reconciling the rights to privacy, reputation or good name, and freedom of expression, these essays will help to ensure “that the dignity and freedom of the individual may be assured”, and the great promise of the Preamble to Bunreacht na hÉireann will be kept.

Download the essay from SSRN at the link.

January 11, 2018 | Permalink

Sprigman on Copyright and Creative Incentives: What We Know (and Don't) @CJSprigman

Christopher Jon Sprigman, New York University of Law, is publishing Copyright and Creative Incentives: What We Know (and Don't) in volume 55 of the Houston Law Review (2017). Here is the abstract.

The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place. This is a sensible theory. But is it true? On that question, we have little evidence. This Article examines some of the empirical work examining the link between copyright and the incentive to create new works. The Article introduces readers to a sampling of the existing empirical work, which includes event studies (aka, natural experiments), qualitative studies of creativity undertaken in so-called “low-IP” settings, and laboratory experiments. At this early point in the empirical study of copyright, the link between copyright and creative incentives appears to be considerably less robust than theory may have led us to expect. This Article is adapted from a talk given at the University of Houston Law Center’s Institute for Intellectual Property and Information Law Spring Lecture (presented March 30, 2017).

Download the article from SSRN at the link.

January 11, 2018 | Permalink

Palmedo on The Impact of Copyright Exceptions for Researchers on Scholarly Output @mikepalmedo

Mike Palmedo, American University Program on Information Justice and Intellectual Property, has published The Impact of Copyright Exceptions for Researchers on Scholarly Output. Here is the abstract.

Surveys of scholars in the science and health fields have identified high journal prices to be one of many impediments to the writing and publishing of new works. One possible solution to this problem is the expansion of copyright exceptions that allow unauthorized access to copyrighted works for the purpose of conducting further research. This paper tests the link between copyright exceptions for researchers and the publishing output of health and science scholars at the country-subject level, using data on change in copyright law from the PIJIP Copyright User Rights database. It finds that scientists residing in countries that implement more robust research exceptions to copyright published more papers and books in subsequent years. It further finds that greater access to the internet has expanded scholarly output without diminishing the role of copyright exceptions. This paper hypothesizes that research exceptions should carry greater weight in the Global South, but the data does not support this.

Download the article from SSRN at the link.

January 11, 2018 | Permalink

Saturday, December 23, 2017

Brian Stelter's Top Media News For the Year @brianstelter

Top media news of 2017, from Brian Stelter at Reliable Sources. Included: comings and goings (Marissa Mayer's departure from Yahoo and Campbell Brown's arrival at Facebook, Megyn Kelly's debut at NBC), the death of Roger Ailes, a link to Vox's list of "power brokers" accused of sexual harassment or misconduct, and important mergers and purchases (the Mouse takes a big bite of Fox, Hearst buys Rodale). It's been a momentous year.

December 23, 2017 | Permalink

Thursday, December 21, 2017

Matulionyte on Self-Publishing and Its Legal Challenges @rita_matu

Rita Matulionyte, University of Newcastle (AU), Law School, has published Self-Publishing Boom and Its Legal Challenges at 39 European Intellectual Proeprty Review 754 (2017). Here is the abstract.

Self-publishing is the fastest growing segment in a publishing industry, with ever more self-published titles reaching best-seller lists. Although self-publishing phenomenon has been discussed in literary, communication and economic studies, it has not been addressed in legal doctrine. This article maps the legal challenges that self-publishing raises in relation to traditional copyright law notions.

Download the article from SSRN at the link.

December 21, 2017 | Permalink

Tuesday, December 19, 2017

New Zealand Court Says No To NZME-Fairfax Media Merger

New Zealand's High Court has upheld a ruling by the country's Commerce Commission banning a merger between the media company NZME and Fairfax Media, agreeing with the Commission that such a merger would concentrate media power and threaten the nation's democracy. Justice Robert Dobson noted that "media plurality" is an important value in New Zealand society.  NZME indicated it might appeal.

More here from the Guardian, here from Reuters, here from Stuff (a Fairfa Media publication). 

December 19, 2017 | Permalink

Heald on Copyright Reversion to Authors: An Empirical Study of Reappearing Books

Paul Heald, University of Illinois College of Law, has published Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books. Here is the abstract.

Copyright keeps out-of-print books unavailable to the public, and commentators speculate that statutes transferring rights back to authors would provide incentives for the republication of books from unexploited back catalogs. This study compares the availability of books whose copyrights are eligible for statutory reversion under US law with books whose copyrights are still exercised by the original publisher. It finds that 17 USC § 203, which permits reversion to authors in year 35 after publication, and 17 USC § 304, which permits reversion 56 years after publication, significantly increase in-print status for important classes of books. Several reasons are offered as to why the § 203 effect seems stronger. The 2002 decision in Random House v. Rosetta Books, which worked a one-time de facto reversion of ebook rights to authors, has an even greater effect on in-print status than the statutory schemes.

Download the article from SSRN at the link.

December 19, 2017 | Permalink

Thursday, December 14, 2017

Hoppner on EU Copyright Reform: The Case for a New Publisher's Right

Thomas Hoppner, Technical University Wildau; Hausfeld RA LLP, is publishing EU Copyright Reform: The Case for a New Publisher's Right in Intellectual Property Quarterly (2018). Here is the abstract.

This paper investigates the merits of a new related right press publisher. To this end, the paper investigates the economic and technical background and outlines the potential effects of the European Commission’s current proposal for a publisher’s right. The paper comes to the conclusion that the proposed publisher’s right is both justified and proportionate to address pressing market failures in the area of the online press.

Download the article from SSRN at the link.

December 14, 2017 | Permalink

Disney Buys 21st Century Fox Entertainment Assets For $52.4 Billion

Disney is acquiring 21st Century Fox's movie studio and other entertainment assets, such as FX and National Geographic. The deal is worth over $52 billion in stock, and will allow Disney to compete more effectively with emerging media content creators such as Netflix and Amazon. Regulators must also okay the deal.

More here from CNN, here from the BBC, here from the New York Times.

December 14, 2017 | Permalink

Wednesday, December 13, 2017

Schauer on Free Speech, the Search For Truth, and the Problem of Collective Knowledge @UVALaw

Frederick Schauer, University of Virginia School of Law, has published Free Speech, the Search for Truth, and the Problem of Collective Knowledge 70 SMU Law Review 231 (2017). Here is the abstract.

This article, the written version of the Roy R. Ray Lecture delivered at the Dedman School of Law, Southern Methodist University, explores a neglected aspect of the search-for-truth and marketplace-of-ideas justifications for a Free Speech Principle. Those justifications, of which Chapter 2 of John Stuart Mill’s On Liberty is canonical, maintain that a free speech regime can facilitate the growth of knowledge within a society. That argument, however, its empirical dimensions aside, assumes that a society as a collective can know something. Following recent discussions within social epistemology about the possibility (or not) of group belief, this article attempts to unpack the idea of group belief or collective knowledge, and to explore how we might understand the idea of social epistemic advance in a context in which some members of a collective might come to accept truths that they had previously rejected or ignored, but in which other members of the same collective might come to reject the truths they had previously accepted.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Aistars and Atkins: Amicus Brief in Fox News v. TVEyes @georgemasonlaw

Sandra Aistars and Jennifer Sands Atkins, both of George Mason University Law School, have published Amicus Brief in Fox News v. TVEyes as George Mason Legal Studies Research Paper No. LS 17-20. Here is the abstract.

The district court’s holdings dramatically expanded the fair use doctrine contrary to the express intent of Congress and inconsistent with existing precedent. TVEyes copies thousands of hours of entertainment, news, sports and other television programming twenty-four hours a day, seven days a week without permission or payment to authors and sells it to business subscribers for further copying and distribution at a fee of $500 per month. TVEyes and its amici attempt to excuse this copyright infringement by falsely characterizing the service as “media monitoring.” (Id.) That characterization is wrong and does not justify the holdings below. Congress thrice rejected requests to add media monitoring to the preamble of Section 107 of the Copyright Act. Instead, Congress enacted a limited alternative in Section 108, allowing libraries and nonprofit archives to engage in certain copying and archiving of works. By choosing not to include media monitoring among the enumerated examples in section 107, Congress struck the important balance between copyright holders’ interests and the general public’s interests in section 107. It is not the courts’ role to legislate or bypass Congressional intent. For this reason alone, the district court’s holdings that considered content-delivery features of TVEyes’ service fair use must be reversed. Moreover, any definition of TVEyes as a “media monitor” is a misnomer. TVEyes goes far beyond the media monitoring that was contemplated and rejected by Congress as potentially eligible for the fair use defense. At that time, a media monitoring service would give a client a short analog VHS tape that was hard to reproduce. Now, TVEyes provides subscribers unlimited digital content and encourages further distribution of works by its clients. TVEyes likewise does not qualify for the more limited non-profit archival protections in Section 108 of the Copyright Act. TVEyes is an expensive, for profit, business-to-business service that copies and digitally distributes copyrighted content from every cable channel around the clock and therefore does not meet the either the threshold requirements of Section 108 or the specific requirements of the exceptions contained therein. In addition, TVEyes’ wholesale copying of thousands of hours of television programming does not fall within the contours of the fair use doctrine as consistently applied by this Court and others to media monitoring services. Nor do this Court’s decisions in Author’s Guild v. Google, Inc. (Google Books) and Author’s Guild v. HathiTrust (Hathitrust) support the result reached below. Setting aside amici’s views on those cases, TVEyes’ service is wholly different from the services at issue in those cases. The service at issue in Google Books was a free service provided to the public for research purposes that incorporated measures intended to ensure that users could not obtain the full value from a work (whether that be the entire work or a key portion of a work like a travel guide or recipe book) via the search function. Likewise, Hathitrust involved a service displaying mere word search term results of copyrighted works. By contrast, TVEyes’ service is designed to replace the original source of the work or licensed distributors of the work. The district court erred in determining otherwise and should be reversed.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Brouwer, van der Woude, and van der Leun on Framing Migration and the Process of Crimmigration: A Systematic Analysis of the Media Representation of Unathorized Immgrants in the Netherlands @jelmerbrouwer @UniLeiden @

Jelmer Brouwer and Maartje van der Woude, both of Leiden University, Institute for Criminal Law & Criminology, and Joanne van der Leun, of Leiden University, Leiden Law School have published Framing Migration and the Process of Crimmigration: A Systematic Analysis of the Media Representation of Unauthorized Immigrants in the Netherlands at 14 European Journal of Criminology 100 (2017). Here is the abstract.

In this article we examine whether the proposal to criminalize illegal stay in the Netherlands was preceded by increased negative media attention for unauthorized immigrants. Using a corpus linguistics approach, we carried out a quantitative discourse analysis of all newspaper articles on unauthorized migrants over a period of 15 years. Our results show that the amount of media coverage actually strongly decreased in the years before the proposal, and this coverage was moreover increasingly less negative. This study thus nuances the somewhat popular belief that unauthorized migrants are increasingly portrayed in negative ways and shows that the framing of migrants as criminals is a more diffuse process in which the media seem to follow rather than fuel politics and policy.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Kaminski on Authorship: Disrupted: AI Authors in Copyright and First Amendment Law @MargotKaminski

Margot E. Kaminski, University of Colorado Law School; Yale University Information Society Project; Yale University Law School; University of Colorado, Boulder, Silicon Flatirons Center for Law, Technology, and Entrepreneurship, is publishing Authorship, Disrupted: AI Authors in Copyright and First Amendment Law in volume 51 of the UC Davis Law Review (2017). Here is the abstract.

Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these two areas illustrates the importance of legal context and legal construction to the disruption story.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Tuesday, December 12, 2017

Ginsburg on Intellectual Property As Seen by Barbie and Mickey: The Reciprocal Relationship of Copyright and Trademark Law @ColumbiaLaw @TheCSUSA

Jane C. Ginsburg, Columbia Law School, is publishing Intellectual Property As Seen by Barbie and Mickey: The Reciprocal Relationship of Copyright and Trademark Law in the Journal of the Copyright Society. Here is the abstract.

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense prevailed coupled copyright and trademark claims. Just as copyright law has influenced the development of trademark doctrine in the US, so has trademark law evolved a reciprocal relationship with copyright, potentially extending the protection of certain copyrighted works, notably cartoon characters, beyond the copyright term. This essay will first address how the US copyright fair use doctrine has allowed US federal judges in trademarks cases to connect with their inner comic impulses. Second, I will consider the conflict between trademark law’s potentially eternal duration and copyright’s constitutionally mandated limited times, particularly in the context of visual characters such as Mickey Mouse. Looking to EU law, I will also offer some additional considerations regarding the use of expired copyrighted works as trademarks. While those analyses address trademarks and copyright as potential antagonists where exercise of trademark rights threatens to frustrate copyright policies, there is another side of the coin. To an increasing extent, we are seeing trademark symbols become characters and acquire value not only as source-indicators, but also as artistic (or audiovisual) works. I will conclude by considering the value that copyright protection might add to registered trademarks.

Download the article from SSRN at the link.

December 12, 2017 | Permalink

Monday, December 11, 2017

Abu El-Haj on Liberty and the First Amendment @DrexelLaw

Tabatha Abu El-Haj, Drexel School of Law, is publishing 'Live Free or Die'—Liberty and the First Amendment in the Ohio State Law Journal. Here is the abstract.

In recent years, the Roberts Court has significantly elevated the level of protection for speech in a number of critical areas. As a consequence, legislative choices once understood to be well within the bounds of democratic decision-making are increasingly challenged as violating individual speech rights. This Article argues that we desperately need a compelling alternative theoretical mooring from which to analyze contemporary First Amendment controversies because, despite its undeniable appeal, the libertarian course of the First Amendment is unsustainable in the long run. Toward that end, this Article sets forth a preliminary and provisional case that such an alternative requires committing to a nuanced articulation of the self-governance interest. Disputes at the cutting edge of First Amendment litigation would be recast in the register of separation of powers in recognition of the fact that the First Amendment cordons off certain spaces from government intervention not as an end in itself, but as a means to preserve the possibility of the republican form of government. Its negative liberties are granted in the service of ensuring that the political process by which legislative judgments are made is an open one. Two things follow from this insight. First, the First Amendment rights of individuals cannot be so extensive as to undermine the capacity of legislatures to serve their most basic function—reaching provisional decisions, after deliberation, on contested values. Second, to the degree that the text of the First Amendment protects a range of practices understood to be prerequisites for responsive and accountable governance, the jurisprudence must attend to preserving a balance among these various conditions. Individuals’ free speech rights ought not be so great as to undermine the co-equal rights—freedom of assembly, association, the press and the right of petition—secured by the text of the First Amendment, either directly or indirectly.

Download the article from SSRN at the link.

December 11, 2017 | Permalink