Monday, March 10, 2014
A U. S. District Court judge is allowing Michael Skakel's defamation suit against defendants Nancy Grace, Beth Karas, and Time Warner producers to go forward. Judge Vanessa L. Bryant did not accept the defendants' argument that their statements that Mr. Skakel's DNA found at the scene of Martha Moxley's murder in 1975 were, although technically false, substantially true. She also refused to dismiss the plaintiff's false light claim because it is based on the same facts. She also declined to determine at this point whether Mr. Skakel is a public figure for purposes of the litigation. Read the ruling here. More on the ruling here from the New York Times.
Thursday, March 6, 2014
Ahmed Elsayed, University of Copenhagen, Faculty of Law, has published The Case of Freedom of Expression in Egypt: The Risky Business of Expressing an Opinion. Here is the abstract.
Under the ruling of President Morsi, the attack on freedom of expression in Egypt had become synonymous with the arrest warrant issued against the popular satirist Bassem Yussuf over charges of, inter alia, blasphemy and insulting the president. For many, seeking to silence Yussuf, considering his popularity and scathing criticism of the regime, made perfect sense. Nevertheless a closer look at the situation may reveal another dimension for such assault on freedom of expression. For example, charges of blasphemy had also chased the writer and Islamic researcher Yussuf Zidan for a book that he published in 2009 and, in another case, two Coptic boys (aged nine and ten years). Zidan, due to the technical nature of his writings, can hardly be imagined to have posed any threat to the regime and the age of the Coptic boys cast real doubts that they even knew the meaning of blasphemy let alone committing it. Furthermore, in an unprecedented move against non-Arabic press, it had been reported that the government pressure led to the shutdown of ‘Egypt Independent’ a private newspaper published in English.
Despite that laws related to freedom of expression and media had hardly changed from Mubarak to Morsi, this paper aims to track down the behavioral changes in implementing these laws under both Presidents.
Download the paper from SSRN at the link.
Wednesday, March 5, 2014
From the Constitutional Law Prof Blog: Professor Ruthann Robson notes that the US government has moved to dismiss most of the charges against Barrett Brown, founder of Project PM, and co-author of Flock of Dodos. The federal government objected that Mr. Brown's use of hyperlinks made protected data available. Mr. Brown's defense team pointed out that these hyperlinks were publicly available and that the government was violating Mr. Brown's First Amendment rights. Mr. Brown, who has been in custody since 2012, still faces other federal charges. More here from the Dallas Morning News.
From the Annenberg School for Communication, University of Pennsylvania:
Annenberg-Oxford Media Policy Summer Institute 2014
The Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania and the Programme for Comparative Media Law and Policy at the University of Oxford (PCMLP) are pleased to invite applications to the
16th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, June 30 to Friday, July 11, 2013 at the University of Oxford.
For the past sixteen years, the Annenberg-Oxford Media Policy Summer Institute has brought together graduate students, scholars, lawyers, regulators, and activists from around the world for two weeks to discuss important recent trends in technology and international politics and the influence that these developments have on global media law, policy, and freedom of expression. This year, in addition to our regular curriculum which provides an overview on the fundamentals of comparative media policy, the program will have a special focus on issues related to the global politics of the Internet. Participants and speakers will analyze the evolution of processes that affect both domestic and international internet policies, the relationship between national efforts and international policy formations, and the role of corporations, governments, and civil society in internet policy and governance debates.
Applications are welcomed from students and practitioners working in communications, media, law, policy, regulation, and technology. We are especially interested in applicants with specific research projects focusing on issues surrounding global internet policy. A select number of full and partial scholarships are available.
To learn more about past participants, speakers, and curricula, please click here.
To apply for the institute, click here
Tuesday, March 4, 2014
The FCC has issued a Notice of Apparent Liability against Viacom, ESPN, and NBCUniversal for using the Emergency Alert signal during commercials for the film Olympus Has Fallen. Federal law forbides using real or simulated EAS signals except in an actual emergency situation. The networks face a combined total of nearly $2 million in fines.
Last November, the FCC took enforcement actions against Turner Broadcasting and a Kentucky tv station for misuse of the EAS signals. In both cases, the signals were used during commercials. The agency also issued an advisory on proper and improper uses of EAS signals.
Friday, February 28, 2014
Writing for a majority of the 9th Circuit panel, Judge Alex Kozinski has held that actress Cindy Lee Garcia has made a showing that she has a protectable copyright in the film trailer "Innocence of Muslims," which Google hosted and which she alleges led to threats against her life, and which Google refused to take down after she requested it do so.
Wrote Judge Kozinski in part:
Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question. .... But nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn't qualify as a joint author of the entire work. ... Where, as here, the artistic contribution is fixed, the key question remains whether it's sufficiently creative to be protectible.
Google argues that Garcia didn't make a protectible contribution to the film because Youssef wrote the dialogue she spoke, managed all aspects of the production and later dubbed over a portion of her scene. But an actor does far more than speak words on a page; he must "live his part inwardly, and then . . . give to his experience an external embodiment." Constantin Stanislavski, An Actor Prepares 15, 219 (Elizabeth Reynolds Hapgood trans., 1936). That embodiment includes body language, facial expression and reactions to other actors and elements of a scene.... Otherwise, "every shmuck . . . is an actor because everyone . . . knows how to read." Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987).
An actor's performance, when fixed, is copyrightable if it evinces "some minimal degree of creativity . . . 'no matter how crude, humble or obvious' it might be." ... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. ...Aalmuhammed isn't to the contrary because it does not, as the dissent would have it, "articulate general principles of authorship." Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: "We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution." ... Aalmuhammed plainly contemplates that an individual can make a "copyrightable contribution" and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don't apply to the copyrightability of all creative works, for which only a "minimal creative spark [is] required by the Copyright Act and the Constitution."
The majority also rejected the theory that under the work for hire doctrine Garcia was an employee of the filmmaker and therefore could not assert a copyright in the trailer. The filmmaker did not obtain a written agreement concerning Garcia's participation in the activity and "Youssef has claimed only that he wrote the screenplay."
The majority also considered the question of the implied license that Garcia granted Youssef to use the trailer which contained her performance.
Garcia was told she'd be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn't as she'd imagined, she wouldn't have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn't so broad as to cover the use of her performance in any project. Here, the problem isn't that "Innocence of Muslims" is not an Arabian adventure movie: It's that the film isn't intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can't possibly be authorized by any implied license she granted Youssef. A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef's fraud alone is likely enough to void any agreement he had with Garcia. ... But even if it's not, it's clear evidence that his inclusion of her performance in "Innocence of Muslims" exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.
With regard to Garcia's request for an injunction and takedown of the trailer, Judge Kozinski wrote in part:
Garcia argues that she suffers irreparable harm both because of the ongoing infringement of her copyright and because that infringement subjects her to continuing, credible death threats. Irreparable harm isn't presumed in copyright cases. ... Therefore, Garcia must show that the damage to her reputation and threats against her life constitute irreparable harm. The district court found that Garcia failed to make this required showing, primarily because she didn't bring suit until several months after "Innocence of Muslims" was uploaded to YouTube. It's true that a "long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm." ... But this is so because a preliminary injunction is based "'upon  the theory that there is an urgent need for speedy action'" and by "'sleeping on its rights a plaintiff demonstrates [a] lack of'" urgency. ...There's no dispute that, here, Garcia took legal action as soon as the film received worldwide attention and she began receiving death threats—in other words, as soon as there was a "need for speedy action." Id. Because the need for immediate action didn't arise until she was threatened, Garcia wasn't dilatory in bringing the lawsuit. The harm Garcia complains of is real and immediate. ... She has provided unrefuted evidence that the threats against her are ongoing and serious, she has already been forced to take significant security precautions when traveling and she moved to a new home and relocated her business as a safety measure. Although past injuries aren't sufficient to establish irreparable harm for purposes of an injunction, id. at 103, Garcia has amply demonstrated that, absent an injunction, she'll continue to suffer concrete harms—whether in the form of ongoing security requirements or actual harm to her person. Beyond establishing that she faces an imminent harm, Garcia must show a "sufficient causal connection" between that harm and the conduct she seeks to enjoin such that the injunction would effectively curb the risk of injury. ... Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright. She's made such a showing. Youssef's unauthorized inclusion of her performance in "Innocence of Muslims" undisputedly led to the threats against Garcia. Google argues that any harm arises solely out of Garcia's participation in "Innocence of Muslims" and not out of YouTube's continued hosting of the film. But Garcia has shown that removing the film from YouTube will help disassociate her from the film's anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm.
Thursday, February 27, 2014
A. T. H. Smith, Victoria University of Wellington Faculty of Law, has published Assessing the Public Interest in Cases Affecting the Media - The Prosecution Guidelines at 2013 Criminal Law Reporter 449. Here is the abstract.
This article outlines the various inquiries that have recently been conducted into journalism in England and focuses on the tension between the public interest and the use of illegal methods to acquire information relevant to the public interest. It considers the merits of the two possible responses to that tension which are creation of a general public interest defence and publication of guidelines, the latter option has been followed. An analysis is then provided of the Director of Public Prosecutions’ published guidelines which involve assessment of the public interest served, assessing the overall criminality, and the weighing up of those two considerations. Abstract by Rose Goss.
Download the article from SSRN at the link.
Jennifer Kinsley, Northern Kentucky University College of Law, has published Sexual Privacy in the Internet Age: How Substantive Due Process Protects Online Obscenity at 16 Vanderbilt Journal of Entertainment & Technology Law 103 (2013). Here is the abstract.
Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence’s potential applicability to online obscenity has created tension in lower-court decisions and produced more questions than it has answered.
In an attempt to address these lingering questions, this Article discusses the burgeoning right to sexual privacy and argues that certain sexual decisions fall within the autonomy of personhood protected by the Fourteenth Amendment, even when those decisions involve some public action. Relying on Stanley v. Georgia and Lawrence v. Texas, this Article examines the intersection of public expression and private decision making in the context of the Internet and argues that online obscenity that neither involves children nor unwitting adult viewers is entitled to privacy protection.
Download the article from SSRN at the link.
Wednesday, February 26, 2014
Former News of the World editor Rebekah Brooks has told the jury in her phone hacking trial that she did not know that some of her staff thought young Milly Brooks was still alive, nor that phone hacking was illegal. She noted that she did not tell her staff that the practice was allowed or that it would have been "a particularly useful thing to do." She has denied knowing anything about private investigator Glenn Mulcaire's activities in connection with the hacking of Ms. Dowler's voicemail. She said that even though she had never heard of the Regulation of Investigatory Powers Act, which prohibits voicemail hacking, she would have considered the practice an invasion of privacy, and if her staff had told her what it was doing, she would have told her employees to stop. More here from the Wall Street Journal.
The judge presiding over Ms. Brooks' trial has already instructed the jury to find her not guilty on one charge of unlawfully authorizing payment to a public official with regard to a photo of Prince William. More here from the Guardian.
Tuesday, February 25, 2014
Sandra Gonzalez-Bailon, University of Pennsylvania, Annenberg School for Communication, Gianmarco De Francisci Morales, Yahoo! Research Labs, Marcelo Mendoza, Universidad Tecnica Federico Santa Maria, Nasir Khan, Al Jazeera, and Carlos Castillo Qatar Computing Research Institute, have published Cable News Coverage and Online News Stories: A Large-Scale Comparison of Media Bias. Here is the abstract.
We assess media bias in cable news reporting compared to online news stories. We make use of large-scale data resources to operationalize media bias on three levels: gatekeeping or news selection; coverage or differential attention to news; and the degree of subjectivity in news statements. We analyze the captions of about 140 cable channels in the U.S. and hundreds of online news stories for six months, an observation window that coincides with the 2012 Republican primaries. Our findings suggest that cable channels are more similar to each other than to online news sources, but that similarities vary across the three levels of bias. The comparison between online news and cable channels also suggests that some of the differences are not related to systematic bias but to the amount of diversity that the two media allow (cable being more restricted by space constraints than online media).
Download the paper from SSRN at the link.
Mr. Justice Dustin Mlambo has ruled that part of the murder trial of Oscar Pistorius may be televised live, in order to address the public's questions about celebrity justice. The parts of the trial that may be televised live include audio. The defendant's testimony and that of his witnesses are exempt. Other poritions of the trial may be filmed and later telecast. More here from the BBC.
Monday, February 24, 2014
Ashutosh Avihash, University of California, Davis, School of Law, is publishing Producing Speech in the William & Mary Law Review. Here is the abstract.
In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future – i.e., they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this article address is whether such laws pose serious First Amendment problems.
I conclude that they do. First Amendment protection for conduct associated with producing speech is justified for two distinct reasons: first, because such protection is necessary to make protection for communication meaningful; and second, because the Press Clause provides a textual and historical basis for such protection. However, because speech production involves conduct that can have substantial, negative social consequences, it is also true that First Amendment protection for speech production must be limited, and probably less extensive than protection for actual communication.
In the balance of this article, I propose a doctrinal framework for how restrictions on speech production might be analyzed. The framework draws on broader free-speech principles such as the content-based/content-neutral dichotomy, and the Supreme Court’s repeated statements that the First Amendment accords special importance to speech relevant to the democratic process. However, the framework is distinct from general free-speech analysis, and for the reasons discussed above, generally more tolerant of regulation. I close by applying my proposed doctrinal rules to a number of recent disputes.
Download the text from SSRN at the link.
From the New York Times: Comcast and Netflix have an agreement to provide Netflix's users with quicker access to Internet service, avoiding that dreaded "buffering" notice. What does the deal mean for net neutrality, though? Other Netflix users will remain in their ISP buffers for now.
Thursday, February 20, 2014
I support an open Internet. That is why I am pleased that the D.C. Circuit recognized the Commission’s authority to encourage the deployment of broadband infrastructure. I also support the actions Chairman Wheeler has announced today in light of this court decision. I look forward to working with my colleagues to develop policies that ensure the Internet continues to drive innovation, experimentation, and economic growth.
I applaud Chairman Wheeler for announcing a path forward to ensure a free and open Internet. The Commission must act expeditiously to adopt clear, enforceable rules that protect the openness of the Internet while continuing to promote innovation and investment. I am also pleased that the Chairman announced that the Commission will look for opportunities to enhance broadband competition including examining restrictions on the ability of municipalities to offer broadband -- restrictions that I have long advocated be eliminated. I look forward to working with the Chairman on these important issues.
Catherine R. Gellis, Digital Age Defense, has published 2013 State of the Law Regarding Internet Intermediary Liability for User-Generated Content. Here is the abstract.
Summary of recent case law and legislative efforts regarding Internet intermediaries hosting user-generated content. Covers 47 U.S.C. Section 230 and 17 U.S.C. Section 512, as well as other peripheral issues.
Download the text of the paper from SSRN at the link.
Alexander Tsoutsanis, University of Amsterdam, Institute for Information; DLA Piper, is publishing Why Copyright and Linking Can Tango in the Journal of Intellectual Property Law (2014). Here is the abstract.
This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.
It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed.
This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).
The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.
Download the article from SSRN at the link.
Wednesday, February 19, 2014
U. S. District Court Judge Dale Kimball has granted Fox Broadcasting a preliminary injunction against Aereo, but has issued a stay, because the Supreme Court has granted cert in the case between Aereo and major broadcasters ABC et al. The case raises the issue of whether Aereo infringes the copyright of the broadcasters when it retransmits their programming over the internet without a license to its subscribers. Fox, Sinclair Group, and Local TV had filed a case in Utah in October, 2013, after Aereo began providing service there.
More here from the Hollywood Reporter.