Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Monday, January 26, 2015

Media Self-Regulation and Media Freedom

Adeline Hulin, European University Research Centre, has published Statutory Media Self-Regulation: Beneficial or Detrimental for Media Freedom? as Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/127. Here is the abstract.

In the wake of the British phone hacking scandal of the News of the World, which proved some limits to the model of media self-regulation, a growing number of experts have suggested a statutory recognition of this model by law to improve its performance. At first sight a statutory recognition seems an oxymoron, as the model of media self-regulation – a voluntary system of media regulation independent from public authorities – was originally developed by media professionals themselves to limit state interference in the field of media. Hence, the article explores how statutory recognition is compatible with the concept of media self-regulation. After clarifying the relationships between media regulation, self-regulation and media freedom, the article investigates whether statutory recognition is beneficial or detrimental for media freedom. To answer it, this article draws a distinction between democratic countries and countries in democratic transition. It is argued that statutory media self-regulation in non-democratic countries is problematic because of the risks of transforming self-regulation into a compulsory system controlled by political interests. In democratic countries, statutory media self-regulation can make this voluntary system more effective, for instance by limiting the number of media outlets that decide to abstain from it. However, when statutory recognition is used by state authorities not as a reward but as a punishment for media, it leans towards a two-speed protection of media professionals according to their respect for professional standards or a lack thereof, which is not compatible with the universal nature of freedom of expression.

Download the paper from SSRN at the link.

January 26, 2015 | Permalink | TrackBack (0)

Communitarian Free Speech Theories and the First Amendment

Martin Redish, Northwestern University Law School, is publishing Fear, Loathing, and the First Amendment: Optimistic Skepticism and the Theory of Free Expression in the Ohio State Law Journal (forthcoming). This article is Northwestern Public Law Research Paper No. 15-03. Here is the abstract.

Communitarian free speech theories give out a siren call. They naturally appeal to most Americans because they reflect the assumptions of moral unity on a national level normally associated with theories of communitarianism. In reality, however, such theories are both invidious and dangerous, for two reasons. First, they ignore the well-established reality of interest group politics and self-promotion that has long marked our nation’s form of democracy. Second, in so doing these theories, either intentionally or unknowingly, provide an attractive cover for an attempt to impose a particular ideological perspective on a very diverse society.

To understand the proper role of free speech theory in American democracy, once initially needs to grasp — indeed, embrace — the politics of conflict and the clash of self-interests that inherently mark a pluralistic democracy. A constitutionally imposed principle of free expression flows not from some notion of a morally homogeneous society or a universal collaborative commitment to the pursuit of some mythical “common good,” but rather from recognition of the foundational role of liberal individualism in America’s adversary form of democracy. Of course, this does not imply that we live as individuals in a vacuum, rather than as part of a broader society. But that is exactly the point: We guarantee free expression for every member of society, regardless of our agreement with either the substance or motive for their speech, because we recognize from the outset that we all must work together, paradoxically, to make sure that we will still be able to continue competing with each other. The First Amendment, then, does for political battles what the Marquess of Queensberry Rules were intended to do for the sport of boxing: it imposes rules of behavior that temper and control the invidious impulses of the participants in the adversary conflicts. In this way, the First Amendment helps preserve the values of individual worth inherent in a commitment to liberal democratic thought while simultaneously protecting against the dangers of tyranny.

 

Download the article from SSRN at the link.

January 26, 2015 | Permalink | TrackBack (0)

Saturday, January 24, 2015

Freedom of Speech, Blasphemy, and Terrorism After Charlie Hebdo

The Economist discusses whether crackdowns on freedom of speech and freedom of the press around the world are likely, or already happening, after the Charlie Hebdo attack. 

January 24, 2015 | Permalink | TrackBack (0)

Balancing Tests

Friday, January 23, 2015

The FCC and the Open Internet

Arthur H. Neill, New Media Rights & California Western School of Law, has published How the FCC Can Preserve the Open Internet & Net Neutrality Through Title II Reclassification. Here is the abstract.

 

The case for reclassifying broadband internet access under Title II, and adopting rules that protect the Open Internet and ensure net neutrality. 
Introduction & Background: The recent 2014 Notice of Proposed Rulemaking regarding Net Neutrality represents an opportunity for the Federal Communications Commission to choose a communications future of innovation, creative exchange, and consumer choice, rather than one where powerful companies can alter the Internet to support entrenched business models. The Commission was certainly correct when it stated that the Internet is “America’s most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment.”  As a non-profit organization focused on providing free and low-cost legal assistance to independent creators, internet users, and start-up entrepreneurs (such as musicians, artists, filmmakers, mobile app developers, and more), New Media Rights (“NMR”) is reminded daily of the innumerable benefits the Internet can provide to American innovators, creators, and consumers. As the Commission suggests, these benefits largely flow from the open architecture of the Internet and its low barriers to entry.  However, in recent years this openness has been challenged by fixed and mobile broadband internet access providers. We stand at a fork in the road, and if the Commission cannot implement strong, certain, and legally defensible rules to maintain the basic tenants of Net Neutrality (Transparency, No Blocking, No Discrimination), the trend away from an Open Internet is likely to continue to the detriment of not only American consumers and innovators, but American society as a whole.

 

Download the paper from SSRN at the link.

January 23, 2015 | Permalink | TrackBack (0)

Rap Artist Faces Prosecution For Gang Activity; Prosecutors Say His Lyrics Demonstrate Conspiracy

Rapper Tiny Doo (real name Brandon Duncan) is facing prosecution under California's Penal Code Section 182.5 which reads

Notwithstanding subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182. 

At issue are the lyrics to some of Mr. Duncan's songs, which prosecutors allege demonstrate that he promotes and/or benefits from gang activity. Mr. Duncan says that all he is doing is engaging in artistic speech, "painting a picture of urban street life." 

 More from CNN here, here from San Diego's Channel 7.

January 23, 2015 | Permalink | TrackBack (0)

Thursday, January 22, 2015

Government and Videogaming

Daithi MacSithigh, Newcastle University Law School, has published Multiplayer Games: Tax, Copyright, Consumers and the Video Game Industries in volume 5 of the European Journal of Law and Technology (2014). Here is the abstract.

 

The successes of the games industry requires an analysis of the way in which the state is influencing, or attempting to influence, the development of the sector. Drawing from a research project on games, transmedia and the law, including a roundtable with developers and others from the industry, a critical perspective is provided on the impact of three types of law (tax, consumer and intellectual property) on the UK industry. The negotiation and eventual approval of a tax credit for video game development expenditure is reviewed. This is an example of the games industry lobbying for and welcoming the creation of a specific (but film-influenced) legal status for the "video game" – but the passage of the scheme raises troubling questions about the cultural status of games. A significant commercial issue, that of consumer protection, is then discussed. Consumer legislation may prove to constrain certain developments in relation to games; it is argued that there is a special impact on new platforms, because of the (deserved) official attention now being paid to in-app purchases. In relation to intellectual property, the alignment (or misalignment) of copyright law with concepts of value in the sector is considered, with particular reference to "cloning". In conclusion, the particular impact of the three fields on new platforms, and the different degrees to which legislation is contributing to the development of the games sector, is considered. It is argued that the emerging business model of F2P non-console games is not handled as well as it should be, particularly as compared with other business models in the sector.

 

Download the article from SSRN at the link.

January 22, 2015 | Permalink | TrackBack (0)

Wednesday, January 21, 2015

"Rape Culture" Language and the News Media

April Cobos, Old Dominion University, has published 'Rape Culture' Language and the News Media: Contested Versus Non-Contested Cases (Le Language De La Culture Du Viol Et Les Médias D’Information: Cas Non Contestés vs Cas Contestés), in vol. 7 of ESSACHESS Journa for Communication Studies (2014). Here is the abstract.

English Abstract: The American news media has recently reported on several rape and sexual assault cases in various cultural settings, sparking public conversations about rape culture in different cultural contexts. The article is focused as a Critical Discourse Analysis that compares the language use in news articles from The New York Times and The Wall Street Journal over a six months period in order to more clearly understand the way the news media uses language in regards to gender and sexual assault and creates a spectrum of valid versus contested reports of sexual assault in different cultural settings. French Abstract: Les médias d’information américains ont récemment raporté plusieurs cas de viols et d’agressions sexuelles dans divers contextes culturels, suscitant des discussions publiques sur « la culture du viol ». L’article se focalise sur une analyse critique du discours comparant le langage utilisé dans les articles de presse du New York Times et Wall Street Journal sur une période de six mois afin de mieux comprendre la façon dont les médias d’information utilisent le langage lié au sexe et aux agression sexuelles, et comment ils créent des affaires d’agression sexuelles non-contestées et contestées dans differents contextes culturels.

 

Download the essay from SSRN at the link.

January 21, 2015 | Permalink | TrackBack (0)

Tuesday, January 20, 2015

Online Paper Loses Rent Free Space at Loyola New Orleans

The non-profit online media outlet The Lens has lost its rent-free space on the Loyola (New Orleans) University campus. The Lens suspects the university may have terminated the arrangement because the paper published an article investigating the Rev. Kevin Wildes, the university president, and his relationship with other members of the New Orleans Civil Service Commission. The university denies the allegation, saying faculty, students, and staff needed the space that the paper's staff occupied. More here from the AP.  Here's a followup disclosure from the Lens. 

January 20, 2015 | Permalink | TrackBack (0)

A View of the Supreme Court and the Press

RonNell Andersen Jones, Brigham Young University Law School, has published What the Supreme Court Thinks of the Press and Why It Matters in volume 66 of the Alabama Law Review (2014). Here is the abstract.

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging. This Essay explores this trend, setting forth evidence of the Court’s changing view of the media — from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the more skeptical, tepid, or derogatory portrayals in recent years. It considers possible causes of this change in rhetoric and then explores the potential First Amendment consequences of the change. The Essay argues that there is a very real risk that these trends could lead to the impoverishment of a wider array of First Amendment rights. Because the jurisprudential pattern has long suggested that general speakers and press speakers rise and fall together, wider First Amendment values that have been enhanced in U.S. Supreme Court cases brought by the positively characterized media could be diminished as the Court’s view of the media diminishes. The downward trend in press characterizations may therefore be cause for broader concern about the vitality and stability of First Amendment rights.

 

Download the article from SSRN at the link.

January 20, 2015 | Permalink | TrackBack (0)

Saturday, January 17, 2015

Customer Files Lawsuit against Comcast Over Credit inquiry

Chicago resident Keith Santangelo has filed suit against cable company giant Comcast, alleging that it did an unauthorized credit check on him after he specifically asked Comcast customer service not to do so, and after he paid a $50 deposit to ensure that his cable service would begin. Federal law forbids a company to obtain a customer's credit report if the customer has not given consent. More here (including a copy of the complaint) from the International Business Times.

January 17, 2015 | Permalink | TrackBack (0)

Friday, January 16, 2015

Loyola Law School (Los Angeles) Journalist Law School Program Accepting Applications For Summer 2015

The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27-Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.

The fellowship condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.

There is no cost to journalists to attend the fellowship. Instruction, lodging and most meals are included. And the Journalist Law School will cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.

See www.journalistlawschool.org for more information and to apply. Direct questions about the program to Brian Costello at brian.costello@lls.edu or 213-736-1444 (o).

January 16, 2015 | Permalink | TrackBack (0)

Thursday, January 15, 2015

Risen No Longer a Witness in Sterling Case

New York Times reporter James Risen will not be testifying after all in the Jeffrey Sterling trial, according to A. G. Eric Holder.  Mr. Risen has steadfastly maintained he would not reveal the source that disclosed information which he later revealed in his book State of War. The government subpoened him and he took the fight to quash the subpoena all the way to the Supreme Court, a fight which he lost. However, the government has not insisted that he reveal his sources. Now, both sides have dropped him as a witness in the case. More here from the NY Times. 

January 15, 2015 | Permalink | TrackBack (0)

A Possible New Canadian Criminal Offense: "Terrorism Glorification"

Craig Forcese, University of Ottawa, Common Law Section, and Kent Roach, University of Toronto Faculty of Law, have published Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence. Here is the abstract.

Since 2007, the Canadian government has repeatedly expressed interest in a terrorism ‘glorification’ offence, responding to internet materials regarded by officials as terrorist propaganda and as promoting ‘radicalization’. In the wake of the October 2014 attacks, this idea clearly remains on the government’s shortlist of responses. This article addresses the merits of such a criminal offence. It include analyses of: the sociological data concerning ‘radicalization’ and ‘radicalization to violence’; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and, the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment. This is especially true for Charter purposes, given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens or facilitates terrorism. We are also concerned that new glorification offences could have counter-productive practical public safety effects. Instead, we recommend modest amendments to the existing criminal law allowing the government to respond effectively to speech that is already criminal under existing Canadian terrorism or other criminal offences. Specifically, we favour a carefully constructed means of deleting (or at least ‘hiding’) the most dangerous forms of already criminal internet speech.

January 15, 2015 | Permalink | TrackBack (0)

The "Private Open Forum" and Online Speech

Steven R. Morrison, University of North Dakota School of Law, has published Private Open Forums.

Traditional public forums for the exercise of First Amendment rights are vanishing for four reasons: communication has migrated online, where private actors control digital spaces; private actors readily censor their forums, either for profit or at the government’s behest; public forums can be “privatized” for certain events, which permit organizers to engage in viewpoint exclusion; and the list of public forums, which the Supreme Court is loathe to expand, has never been a long one.

This is a problem because the expression of First Amendment rights cannot exist in isolation, but has effect only in a larger system of interacting rights. When an individual speaks, a hearer listens, often at an organization’s event. Local press may be covering the speech, and listeners may be there in person, or tune in by television, radio, or the Internet. The legal status of the forum matters greatly because it facilitates all of these interconnected instances of First Amendment activity.

This Article responds to the constitutional crisis entailed in vanishing traditional public forums and their persistent importance to First Amendment interests. It does so by proposing a “Private Open Forums” doctrine. A Private Open Forum is any space (digital, physical, or otherwise) that is privately owned; substantially open to the public; substantially non-selective/non-discriminatory; functions primarily to facilitate users’ First Amendment activities; and intended to facilitate those activities. I argue that operators of Private Open Forums constitutionally have and normatively should have the free-standing First Amendment right to maintain their forums and facilitate users’ First Amendment activities, as well as standing to defend their users’ First Amendment rights exercised on the forum.

Download the paper from SSRN at the link.

January 15, 2015 | Permalink | TrackBack (0)

Viral Advertising and Copyright Law

Kris Erickson, University of Glasgow, has published Copyright and Viral Advertising in Participatory Culture.

This chapter first offers an introduction to current theory on viral advertising from literature in sociology and communication, exploring the contradictory status of the viral advertisement as a media form. The three principal differentiating characteristics of the viral video compared with other forms of advertising are its aesthetic, its ambiguous authorship, and its distribution logic. Second, the chapter examines each of these characteristics in relation to copyright law, identifying aspects of the viral media form which are in tension with existing intellectual property law. The chapter closes by suggesting that legal scholars pay much greater attention to the status of viral advertisement in debates about the ‘future of copyright’ in the digital age. Viral advertisements represent one potential alignment of commercial interest and the interests of online communities. The development of this relationship has depended on the willingness of copyright owners to tolerate uses of the work beyond their control.

 

Download the paper from SSRN at the link.

January 15, 2015 | Permalink | TrackBack (0)

Tuesday, January 13, 2015

Copyright Law and Performance

Luke McDonah, Cariff University, has published Plays, Performances and Power Struggles - Examining Copyright's 'Integrity' in the Field of Theatre at 77 Modern Law Review 533 (2014). Here is the abstract.

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.

Download the article from SSRN at the link.

January 13, 2015 | Permalink | TrackBack (0)

Mandatory Tariffs In the Canadian Copyright Scheme

Ariel Katz, University of Toronto Faculty of Law, has published Spectre: Canadian Copyright and the Mandatory Tariff. Here is the abstract.

Canadian copyright collectives claim that when the Board certifies collectives’ tariffs (or fixes the royalties in individual cases pursuant to statutory arbitration proceedings), those tariffs become mandatory on users. Users then have no choice whether to deal with the collective or not, and must pay the specified royalties as long as they make a single unauthorized use of a work from the collective’s repertoire. Many users, with very little protest, have also subscribed to this view, despite its extraordinary consequences.

This article argues that this spectre of a mandatory tariff lacks any basis in law. Established case law debunks it, standard principles of statutory interpretation contradict it, and the legislative history discredits it. The statutory scheme is very simple: an approved tariff creates a compulsory licence that interested users can avail themselves of if they wish to obtain a licence, but it cannot force users to become licensees. It is compulsory on copyright owners, not on users. Users who do not wish to obtain licences when they need them may be liable for copyright infringement, and maybe ordered to pay damages or account for their profit, but they cannot be compelled to pay royalties under a licence that they have never taken.

Whether this apparently esoteric copyright question proves to be a spectre or a bluff may determine whether users can in fact exercise their rights under the Copyright Act or must nonetheless still deal with, be monitored by, and pay ever-increasing layers of tariff royalties to, copyright collectives.

 

Download the paper from SSRN at the link.

January 13, 2015 | Permalink | TrackBack (0)

Monday, January 12, 2015

Anonymous Says It Will Attack Terrorist WebSites

Announcing that it is retaliating in cyberspace for the terrorist attacks on CharlieHebdo's officers, the hacker group Anonymous says it has redirected the domain name for the jihadist site  ansar-alhaqq.net to the search engine Duck Duck Go.  The group indicated it plans to continue its attacks on other jihadist websites. More here from CNN, here from Anonymous in a video posted on YouTube.

 

January 12, 2015 | Permalink | TrackBack (0)

Friday, January 9, 2015

Le monde est Charlie

From the Washington Post: cartoonists on the Charlie Hebdo massacre.  Reaction generally from Le Point here and HuffPo Le Bon Lien here.  Musicians express solidarity here.

 

 

January 9, 2015 | Permalink | TrackBack (0)