Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, September 21, 2018

Does the Tort of Defamation By Implication Exist in Idaho?

The Idaho Supreme Court hears a case today that presents the issue of whether the tort of defamation by implication exists in Idaho law. The case is Verity v. USA Today and John/Jane Does. 

Here's a link to the Court's livestream.

 

More here from the Bonner Daily Bee.com.

September 21, 2018 | Permalink

Thursday, September 20, 2018

Lemley on Fame, Parody, and Policing in Trademark Law @marklemley

Mark A. Lemley, Stanford Law School, has published Fame, Parody, and Policing in Trademark Law as a Stanford Public Law Working Paper.

Trademark owners regularly overreach. They often threaten or sue people they have no business suing, including satirists, parodists, non-commercial users, and gripe sites. When they do, they often justify their aggressive legal conduct by pointing to the need to protect their trademarks by policing infringement. Courts have in fact indicated at various points that policing is, if not strictly necessary, at least a way to strengthen a mark. But courts have never held that efforts to block speech-related uses are necessary or even helpful in obtaining a strong mark. Several scholars have accordingly argued that overzealous policing is unnecessary, that it has harmful effects, and that we ought to punish it. But trademark owners continue to do it, in part because it is largely (though not completely) costless and because if there is even a chance a failure to police will cost you your trademark you won’t want to take the chance. So trademark law currently not only doesn’t prevent overreaching; it affirmatively encourages it. In this article, I suggest a way that we can align trademark owner enforcement incentives with good public policy. The presence of unauthorized parodies, satires, and complaint sites involving a mark should be evidence of the fame of the mark, and perhaps even a requirement for status as a famous mark. Taking this approach would be consistent with what we know about how society interacts with trademarks. Famous marks become part of a social conversation in a way that ordinary marks don’t. My approach has empirical support: the best-known brands draw more parodies and criticism sites than non-famous marks, and those parodies don’t interfere with the fame of the mark. And it would give trademark owners an affirmative reason to leave critics, satirists, and parodists alone.

Download the article from SSRN at the link.

September 20, 2018 | Permalink

Wednesday, September 12, 2018

Steinberg on Morphed Child Pornography and the First Amendment @sgsteinberg

Stacey Steinberg, University of Florida College of Law, is publishing Changing Faces: Morphed Child Pornography and the First Amendment in the Emory Law Journal (2019). Here is the abstract.

Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today’s images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are “morphed images.” Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually of an adult. The children depicted in these images were not harmed in the creation of the image, as they were not photographed while engaging in a sexual or obscene act. Nevertheless, the circulation of these images harms children. The distribution, or potential distribution, is damaging to the depicted child’s emotional well-being and reputation. Furthermore, these morphed images could cause additional harm to other children, as pedophiles use child pornography to groom future victims. In response to the changing face of child pornography and the harms associated with it, Congress enacted the PROTECT Act, which bans morphed images like the ones described above. However, there is still much to be done to protect children’s images online. First, the Supreme Court must uphold the PROTECT Act, finding that morphed child pornography is outside the scope of the First Amendment. Second, to respond to the harms morphed child pornography causes, states must amend their statutory definitions of child pornography to include in its definition any image that is “created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” Lastly, parents must be cognizant of the risk associated with over-sharing pictures as these images can be stolen and then used for illicit purposes. This proposal balances a defendant’s First Amendment right to free speech against the harms caused by the circulation of morphed images depicting child pornography.

Download the article from SSRN at the link.

September 12, 2018 | Permalink

Monday, September 10, 2018

Aviel on Rule 8.4(g) and the First Amendment: Distinguishing Between Discrimination and Free Speech @SturmCOL

Rebecca Aviel, University of Denver College of Law, is publishing Rule 8.4(g) and the First Amendment: Distinguishing between Discrimination and Free Speech in volume 31 of the Georgetown Journal of Legal Ethics (2018). Here is the abstract.

The ABA’s recent adoption of Model Rule 8.4(g), making it sanctionable for lawyers to engage in discrimination or harassment, has garnered a great deal of attention, much of it focused on whether the rule violates an attorney’s right to free speech. This article attempts to bring clarity to the discussion. It emphasizes the significance of claiming, as some have done, that the rule is facially invalid because it is overbroad, and then engages in the close textual analysis necessary to evaluate claims of overbreadth. This analysis yields important insight about how the rule might be revised to better reflect the crucial distinction between discrimination and harassment on the one hand and the expression of controversial viewpoints on the other. It then explains why the rule’s coverage of all conduct “related to the practice of law” is neither unprecedented nor particularly troubling against the existing back-drop of lawyer regulation and concludes with a few thoughts about the values most central to professional identity.

Download the article from SSRN at the link.

September 10, 2018 | Permalink

U.S. Prisons and Restriction of Freedom of Expression on Security Grounds @PENAmerican

From the Guardian: reporting on surveillance, investigation, and censorship of inmate participants and some others (not inmates) in PEN America's Prison Writing Program, based on security concerns.  The Guardian article begins:

 

Did or did not the prisoner turn into a bird and fly away? That’s what the officials want to know in Matthew Mendoza’s Freedom Feather, a short dialogue-driven work of magical realism. The play was originally censored by the Texas Department of Corrections for the use of the word escape. It’s hard to imagine a single word in a dramatic work constituting a safety risk – especially in a context so exaggeratedly fictional it becomes fantastical. But that was the only articulated official justification.

 

Here's a link to PEN America's press release on federal prison policy on the issue.

September 10, 2018 | Permalink

Thursday, September 6, 2018

Vandenbussche on Rethinking Non-Pecuniary Remedies for Defamation @WVandenbussche

Wannes Vandenbussche, Institute for the Law of Obligations, KU Leuven, has published Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies. Here is the abstract.

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.

Download the article from SSRN at the link.

September 6, 2018 | Permalink

Wednesday, September 5, 2018

Shepard and Culver on Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times @jasonmshepard

Jason M. Shepard, California State University, Fullerton, and Kathleen Bartzen Culver, University of Wisconsin, Madison, Center for Journalism Ethics, and University of Wisconsin, Madison, School of Journalism & Mass Communication, have published Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times at 55 San Diego Law Review 87 (2018). Here is the abstract.

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements “viral” through partisan media, and the role of colleges and universities in culture wars, this paper finds deep divisions in views of rights and responsibilities of faculty, students, and institutions in campus free-expression controversies.

Download the article from SSRN at the link.

September 5, 2018 | Permalink

Snow on Denying Trademark for Scandalous Speech

Ned Snow, University of South Carolina, is published Denying Trademark for Scandalous Speech in volume 51 of the UC Davis Law Review (2018). Here is the abstract.

Recently in Matal v. Tam, the Supreme Court held that the disparagement clause of the Lanham Act was unconstitutional. The disparagement clause prevented registration of disparaging trademarks — i.e., marks that were offensively disparaging toward individuals — such that the clause could have induced mark owners to refrain from speaking offensive views. The potential for self-censorship led the Court to recognize a First Amendment violation. Importantly, the Justices unanimously agreed that the clause was viewpoint discriminatory. Viewpoint discrimination was damning. This central point of Tam calls into question another clause in the Lanham Act — the scandalous clause — which prevents registration of marks that are offensive to the public’s sense of decency and propriety. Simply put, does Tam suggest the unconstitutionality of the scandalous clause? The Federal Circuit recently answered this question in In re Brunetti, holding that in view of Tam, the scandalous clause violated the First Amendment. This Essay concludes otherwise. The Essay argues that the scandalous clause does not violate the First Amendment if the clause is interpreted as restricting only sexually-explicit and vulgar content. In particular, this interpretation implies that the clause is viewpoint neutral because viewpoint discrimination entails the government targeting content that communicates an opposable view — i.e., an opinion or assertion. Content that is sexually explicit or vulgar does not communicate an opposable view: sexually-explicit content exists to stimulate a sexual response; vulgar content exists to evoke emotive force. Neither represents an opinion that may be disagreed with. Indeed, unlike in Tam, the offensiveness of such content does not stem from any idea that the content proposes. Rather, the offensiveness derives from the public display and social effects of the content. And that matters in the viewpoint analysis. Furthermore, the proper framework for evaluating the scandalous clause’s restriction of speech must be the limited public forum. Under that framework, various reasons justify the content-based restriction of the scandalous clause. Thus, as a viewpoint-neutral restriction that is justified under the limited-public-forum doctrine, the scandalous clause is constitutional.

Download the article from SSRN at the link.

September 5, 2018 | Permalink

Tuesday, September 4, 2018

Wang on Whether IP is "Disrupted" By the Algorithm That Feeds You Information in an Era of Fake News

Celeste Tien-hsin Wang, Max Planck Institute for Innovation and Competition, has published Is Intellectual Property ‘Disrupted’ by the Algorithm That Feeds You Information in an Era of Fake News? at 15 The Sciencs Po Law Review / La Revue des Juristes de Sciences Po 231 (2018). Here is the abstract.

In April, 2018, Facebook CEO Mark Zuckerberg was grilled by members of Congress in the United States Capitol in Washington, D.C. in a series of questions about the company’s best effort to protect privacy and act against Russian interference in the 2016 election. For the reason that Facebook merely considers itself as “a technology company—one that has built a ‘platform for all ideas’,” it allows the News Feed Algorithm to respond to what the company deems the most important “kind” of information for the users. However, those contents in the information flow are sometimes cheaply generated by what we called “content farms” and can be intentionally manipulated by data analytics firms, such as Cambridge Analytica. Everyone is asking: everyone thinks Cambridge Analytica is dangerous, but no one can describe in great detail what it has done. Just the same as what we are facing now: everyone thinks Big Data is an ever-changing and far-reaching technology, but no one exactly knows why intellectual property (IP) laws should play an important part in regulating Big Data. Here, in a downright way, the issue is: is the function of IP laws “disrupted” or “undisrupted” by the News Feed Algorithm? The insight to answer this question may be obtained from the classical debate, “law of the horse,” between Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit and Professor Lawrence Lessig: do we have a special need to adjust IP laws specially for Big Data, or we should go back to the basics: what is IP law in general and what kind of role does IP play in the society and cyber-society? Significantly, the News Feed Algorithm is targeting the mass who read the information, while IP laws are about the protection of Big Data companies’ valuable IP assets, such as patent protection for the algorithm. All the issues have the same concern: does public law have the supremacy to “disrupt” private property protection?

Download the article from SSRN at the link.

September 4, 2018 | Permalink

Wednesday, August 29, 2018

Lee on Fair Use Avoidance in Music Cases

Edward Lee, Chicago-Kent College of Law, is publishing Fair Use Avoidance in Music Cases in volume 59 of the Boston College Law Review (2018). Here is the abstract.

This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even considered fair use. This Article attempts to explain this fair use avoidance and to evaluate its costs and benefits. Whether the lack of a clear precedent recognizing music fair use has harmed the creation of music is inconclusive. A potential problem of “copyright clutter” may arise, however, from the buildup of copyrights to older, unutilized, and underutilized musical works. This copyright clutter may subject short combinations of notes contained in older songs to copyright assertions, particularly after the U.S. Supreme Court’s rejection of laches as a defense to copyright infringement. Such a prospect of copyright clutter makes the need for a clear fair use precedent for musical works more pressing.

Download the article from SSRN at the link.

August 29, 2018 | Permalink

Friday, August 24, 2018

Special Master's Report on Leaks in Starr Investigation of Clinton Unsealed

Via the National Law Journal:  U.S. District Court Judge Royce C. Lambeth has ordered the Special Master's Report  on leaks concerning the Ken Starr investigation of the Clinton White House, unsealed.  The Honorable John W. Kern, III, was the Special Master in the case. Notes the NLJ, "Kern examined 24 news accounts in which Holloway Johnson found potential grand jury leaks. In his report, Kern said most of the unnamed sources in those news reports could be attributed to persons outside of Starr’s office." The report does not mention Supreme Court nominee Brett Kavanaugh, who worked for Kenneth Starr at the time, by name.

 

More about the report here from CNN.

August 24, 2018 | Permalink

Wednesday, August 22, 2018

Ginsburg and Budiardjo on Authors and Machines @ColumbiaLaw

Jane C. Ginsburg and Luke Ali Budiardjo, both of Columbia Law School, have published Authors and Machines as Columbia Public Law Research Paper No. 14-597. Here is the abstract.

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine — the “artificially intelligent” system apparently endowed with “computational creativity” — that introduces challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents of those works? Does the user of the program become the (or an) author of an output whose content the user has at least in part defined? This article frames these and similar questionsthat generative machines provoke as an opportunity to revisit the concept of copyright authorship in general and to illuminate its murkier corners. This article examines several fundamental relationships (between author and amanuensis, between author and tool, and between author and co-author) as well as several authorship anomalies (including the problem of “accidental” or “indeterminate” authorship) to unearth the basic principles and latent ambiguities which have nourished debates over the meaning of the “author” in copyright. We present an overarching and internally consistent model of authorship based on two basic pillars: a mental step (the conception of a work) and a physical step (the execution of a work), and define the contours of these basic pillars to arrive at a cohesive definition of authorship. We then apply the conception-and-execution theory of authorship to reach a series of conclusions about the question of machine “authorship.” We contend that even the most technologically advanced machines of our era are little more than faithful agents of the humans who design or use them. Asking whether a computer can be an author therefore is the “wrong” question; the “right” question addresses how to evaluate the authorial claims of the humans involved in either preparing or using the machines that “create.” We argue that in many cases, either the upstream human being who programs and trains a machine to produce an output, or the downstream human being who requests the output, is sufficiently involved in the conception and execution of the resulting work to claim authorship. But in some instances, the contributions of the human designer and user will be too attenuated from the work’s creation for either to qualify as “authors” — leaving the work “authorless.”

Download the article from SSRN at the link.

August 22, 2018 | Permalink

Hsin on Theory and Doctrine in the Problem of Provocative Speech

JD Hsin, U. S. Department of Labor, is publishing Defending the Public's Forum: Theory and Doctrine in the Problem of Provocative Speech in volume 69 of the Hastings Law Journal (2018). Here is the abstract.

For more than half a century the heckler’s veto has been a source of provocation. On the one hand, there now appears to be widespread consensus among courts and commentators that allowing police to shut down a provocative speaker in a public space over threats from hostile listeners is simply beyond the constitutional pale. Taking that constitutional intuition as their guide, the lower courts have generally approached the problem through a speaker-focused model, in which the government is seen siding with the majority’s mob over the minority speaker, in violation of the principle requiring neutrality among speakers and views. But what happens when the usual roles reverse--when the provocative speaker is not representative of a minority opinion but is arguably representative of a larger majority? Relying on the important recent decision from the Sixth Circuit in Bible Believers v. Wayne County, this Article argues that this reversal of roles shows us not just the limits of the speaker-focused model in solving the heckler’s veto problem, but also how it can and should be broadened to address the increasingly complex protests that have come to dominate our constitutional focus today. We should therefore take Bible Believers as the occasion to reconsider the familiar speaker-focused approach to the heckler’s veto, by reframing it around the different problem that that case represents: not as the familiar drama of the soapbox orator faced with a hostile audience but as an example of a public forum faced with hostile takeover. In these increasingly common cases, the problem of the heckler’s veto should accordingly take on a new conceptual and doctrinal form: as an attack on a public forum that the police must do everything in their power to prevent by defending the forum first.

Download the article from SSRN at the link.

August 22, 2018 | Permalink

Monday, August 20, 2018

Snow on Denying Trademark for Scandalous Speech @UCDavisLawRev

Ned Snow, University of South Carolina, is publishing Denying Trademark for Scandalous Speech in volume 51 of the the UC Davis Law Review (2018). Here is the abstract.

Recently in Matal v. Tam, the Supreme Court held that the disparagement clause of the Lanham Act was unconstitutional. The disparagement clause prevented registration of disparaging trademarks — i.e., marks that were offensively disparaging toward individuals — such that the clause could have induced mark owners to refrain from speaking offensive views. The potential for self-censorship led the Court to recognize a First Amendment violation. Importantly, the Justices unanimously agreed that the clause was viewpoint discriminatory. Viewpoint discrimination was damning. This central point of Tam calls into question another clause in the Lanham Act — the scandalous clause — which prevents registration of marks that are offensive to the public’s sense of decency and propriety. Simply put, does Tam suggest the unconstitutionality of the scandalous clause? The Federal Circuit recently answered this question in In re Brunetti, holding that in view of Tam, the scandalous clause violated the First Amendment. This Essay concludes otherwise. The Essay argues that the scandalous clause does not violate the First Amendment if the clause is interpreted as restricting only sexually-explicit and vulgar content. In particular, this interpretation implies that the clause is viewpoint neutral because viewpoint discrimination entails the government targeting content that communicates an opposable view — i.e., an opinion or assertion. Content that is sexually explicit or vulgar does not communicate an opposable view: sexually-explicit content exists to stimulate a sexual response; vulgar content exists to evoke emotive force. Neither represents an opinion that may be disagreed with. Indeed, unlike in Tam, the offensiveness of such content does not stem from any idea that the content proposes. Rather, the offensiveness derives from the public display and social effects of the content. And that matters in the viewpoint analysis. Furthermore, the proper framework for evaluating the scandalous clause’s restriction of speech must be the limited public forum. Under that framework, various reasons justify the content-based restriction of the scandalous clause. Thus, as a viewpoint-neutral restriction that is justified under the limited-public-forum doctrine, the scandalous clause is constitutional.

Download the article from SSRN at the link.

August 20, 2018 | Permalink

Biber on Broadcasting the Oscar Pistorius Trial

Katherine Biber, University of Technology Sydney, Faculty of Law, is publishing Dignity in the Digital Age: Broadcasting the Oscar Pistorius Trial in Crime, Media, Culture 2018. Here is the abstract.

Oscar Pistorius was tried for the murder of Reeva Steenkamp in South Africa in 2014. His trial was broadcast live, after media agencies applied to the court for comprehensive access to the courtroom. The decision to broadcast the trial followed a careful and deliberative court ruling about the constitutional principles of human dignity, freedom and equality. South Africa’s post-apartheid Constitution provides a framework for achieving social transformation, and open justice plays an important role in it. Despite concerns about sensationalism and voyeurism, the broadcast of the Pistorius trial functioned as a constitutional experiment. This article evaluates the principles and practices of open justice in South Africa through the broadcast of the Pistorius trial, and the roles played by the media, the courts and the public. It identifies significant events during the trial, including its reporting, which had the effect of testing the compatibility of open justice, on the one hand, and the proper administration of justice, on the other. The right of an accused to a fair trial, at times, confronted the sensitivities of the victim’s family, the rights of the media and the demands of the public to witness justice being done. This article examines the tangled relationship between dignity and justice, compounded by the technologies of digital media, in the unique context of post-apartheid South Africa.

Download the article from SSRN at the link.

August 20, 2018 | Permalink

Thursday, August 16, 2018

Media Publish Responses To Trump's War on the Press

From CNN: The Topeka Capital-Journal joins other media in publishing an editorial condemning Trump's anti-press messages.

More about the coordinated messages here from CNBC,  CNN,  the Guardian.

 

August 16, 2018 | Permalink

Wednesday, August 15, 2018

Pashler and Heriot on Perceptions of Newsworthiness and Political Usefulness Biases @hpashler @GailHeriot

Hal Pashler, University of California, San Diego, Department of Psychology, and Gail L. Heriot, University of San Diego School of Law, have published Perceptions of Newsworthiness are Contaminated by a Political Usefulness Bias as San Diego Legal Studies Paper No. 18-355. Here is the abstract.

 

Are people’s perceptions of the newsworthiness of events biased by a tendency to rate as more important any news story that seems likely to lead others to share their own political attitudes? To assess this, we created six pairs of hypothetical news stories, each describing an event that seemed likely to encourage people to adopt attitudes on the opposite side of a particular controversial issue (e.g. affirmative action and gay marriage). In total, 569 subjects were asked to evaluate the importance of these stories ‘to the readership of a generalcirculation newspaper’, disregarding how interesting they happened to find the event. Subjects later indicated their own personal attitudes to the underlying political issues. Predicted crossover interactions were confirmed for all six issues. All the interactions took the form of subjects rating stories offering ‘ammunition’ for their own side of the controversial issue as possessing greater intrinsic news importance.

 

Download the article from SSRN at the link.

August 15, 2018 | Permalink

Thursday, August 9, 2018

Smith on Fake Facts, Copyright Law, and the Factual Estoppel Doctrine @CathaySmith

Cathay Smith, University of Montana School of Law, has published Fake Facts, Copyright Law, and the Factual Estoppel Doctrine. Here is the abstract.

Fake news may be trending, but fake news is not a new phenomenon, nor is it the only source of fake facts that pervade our society. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than authored, fake facts are created and can often be as original and creative as fiction. This Article is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts, the increasing relevance of this discussion today, and courts’ inconsistent treatment of fake facts under copyright law in historic and modern case law. While fake facts may technically be protected under copyright law, public interest justifies excluding them from protection. This Article advocates for courts to apply copyright law’s factual estoppel doctrine to preclude authors from claiming their works to be fiction and, therefore, entitled to higher copyright protections where those authors previously held out fake facts as facts, with the intent that the public rely on their works as factual, if a more than de minimis portion of the public could believe that their works were factual.

Download the article from SSRN at the link.

August 9, 2018 | Permalink

Tuesday, August 7, 2018

Lemley on Privacy, Property, and Publicity

Mark A. Lemley, Stanford Law School, has published Privacy, Property, and Publicity as a Stanford Public Law Working Paper. Here is the abstract.

In Jennifer Rothman’s new book The Right of Publicity: Privacy Reimagined for a Public Age, she argues that we have wrongly reconceived the right of publicity as an intellectual property (IP) right rather than as a privacy-like right of “self-ownership,” and that in doing so we have let it grow unchecked in ways that serve no good purpose. She endorses returning to the historical core of the right of publicity as a privacy right that primarily protects human dignity, and argues that doing so will enable us to limit the growth of the doctrine and apply the First Amendment to effectively protect speech threatened by the current, mutant right of publicity. Rothman’s book is a compelling read, and her explication of the history and how we got here is fascinating and largely persuasive. And I agree with her both about the problems with the current broad form of the right of publicity and about many of the specific doctrinal changes we should make to cut it back to a manageable size. But I think there is a disconnect between the history she has uncovered and the theoretical and legal framework she proposes. The history of the right of publicity as a privacy rather than an IP right is not encouraging for those who would limit the scope of the right or apply robust First Amendment principles to counterbalance it. The right of privacy that grew into the right of publicity was, from the start, capacious, unruly, poorly cabined, and intolerant of free speech. While dropping the idea of the right of publicity as IP might solve particular problems such as its transferability, it is unlikely to give us the limits she wants on the substantive scope of the right itself. To get there, we would need to challenge the nature of the use of one’s identity as a privacy harm in and of itself. Ironically, understanding the right of publicity as a specific form of IP right—a trademark-like right against deception—may point the way towards a more reasonable doctrine.

Download the essay from SSRN at the link.

August 7, 2018 | Permalink

Saturday, August 4, 2018

Baltimore Sun Website Fundraiser For Capital Gazette Families

At the Baltimore Sun's website: items to support a fundraiser for the Capital Gazette familes. More here.

The Baltimore Sun will donate 100% of the net proceeds from Free Speech Collection sales through 10/31/18 to The Capital Gazette Families Fund, with a minimum donation of $10 per shirt and $3 per mug.  

August 4, 2018 | Permalink