Friday, October 17, 2014
John D. Moore, Brooklyn Law School, has published In the Same Boat: Leaks, the Press, and the First Amendment at 18 Holy Cross journal of Law and Public Policy 137 (2014). Here is the abstract.
In the Same Boat offers a distinctive perspective on the timely topic of national security leaks. Historically, the government has prosecuted the individuals who leak national security information while allowing the press who publish that leaked information to act without consequence. This article shows that the laws that criminalize leaking apply with equal force to those in the press who receive leaked information. In short, when it comes to leaked information, journalists and their sources are in the same boat and only government forbearance prevents journalists from facing prosecution. This is an upsetting prospect for those who value public access to information the government would prefer to keep secret. Thus, this article proposes a novel First Amendment defense for both leakers and the press who publish those leaks. The defense balances the government’s often-legitimate interest in maintaining the secrecy of national defense information against the public’s equally legitimate need to know information of public concern.
Download the article from SSRN at the link.
Thursday, October 16, 2014
Eldar Haber, Tel Aviv University, Buchmann Faculty of Law, has published Copyrighted Crimes: The Copyrightability of Illegal Works at 16 Yale Journal of Law & Technology 454 (2014). Here is the abstract.
Copyright law does not explicitly impose content-based restrictions on the copyrightability of works. As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration, regardless of its content. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable. Such work can be highly profitable for its makers even though society does not necessarily benefit from, and might even be harmed by, the work. Along with revenue from sales, the author of an illegal work may also be able to collect damages for infringement. This scheme does not benefit society and should be revised.
After examining how the current copyright regime deals with works involving illegal activity, this article suggests a new framework. First, I review the elements of copyright and consider existing content-based restrictions in copyright, trademark, and patent law. After evaluating whether copyright law should impose content-based restrictions on illegal works, and whether such impositions would be constitutional, I conclude that creators should not benefit from works that are linked to harmful criminal activities. I propose a new framework for the copyright of such works that de-incentives their creation by eliminating profits from the works themselves and reducing profits from the felon’s other works due to his or her notoriety, while also compensating victims.Download the article from SSRN at the link.
Wednesday, October 15, 2014
Anthony Lester, Blackstone Chambers, has published Free Speech Today at 33 Polish Yearbook of International Law 129 (2013). Here is the abstract.
The article is an amended version of the Marek Nowicki Memorial Lecture presented at Warsaw University in 2014. It discusses the contemporary meaning of the right to free expression, concentrating on the basic principles of free speech as well as the limits of the right. In this context, the article pays special attention to British, Polish and European practice (particularly with respect to cases that are relevant for Poland). The specific topics tackled by the author include: free speech and the problem of criminalization of certain acts (e.g. the offence of defamation of public officials), hate speech, freedom of expression and the right of an individual to protect his or her good reputation (including the issue of libel laws), freedom of expression and the right to privacy (including the right to prior restraint on publication), free speech and internet, and the right to privacy versus national security.
Download the article from SSRN at the link.
Robert Post, Yale Law School, is publishing Compelled Commercial Speech in the West Virginia Law Review. Here is the abstract.
This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings.
Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary.
The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI.
Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.
Download the article from SSRN at the link.
Tuesday, October 14, 2014
Tomas Gomez-Arostegui, Lewis & Clark Law School, has published Copyright at Common Law in 1774 at 47 Connecticut Law Review 1 (2014). Here is the abstract.
As we approach Congress’s upcoming reexamination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century -- Millar v. Taylor and Donaldson v. Becket. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.
The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this Article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.
This Article also discusses the procedures of the House of Lords in appeals and the reporting of appeals in newspapers and periodicals.
Download the article from SSRN at the link.
Viva Moffat, University of Denver Sturm College of Law has published Borrowed Fiction and the Rightful Copyright Position at 32 Cardozo Arts & Entertainment Law Journal 389 (2014). Here is the abstract.
Works of “borrowed fiction” — unauthorized sequels or retellings of literary works — have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the “original” author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the conflicting interests at stake. This Article proposes that a better accommodation between and among these interests can be achieved at the remedial stage. By taking seriously both the “rightful position” notion in remedies law and the Supreme Court’s admonition against presumptive injunctive relief, courts can reach a more nuanced result in borrowed fiction cases. Under this approach, the full panoply of remedies would remain available, but rarely would anything more than compensatory damages be necessary to put the plaintiff in her rightful copyright position.
Download the article from SSRN at the link.
Genevieve Lakier, University of Chicago Law School, is publishing The Invention of Low-Value Speech in the Harvard Law Review. Here is the abstract.
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.
This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.
By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.
Download the article from SSRN at the link.
Marc Rohr, Shepard Broad Law Center (Nova Law School) has published 'Threatening' Speech: The Challenge of Murderous Exhortations as NSU Shepard Broad Law Center Research Paper No. 14-002. Here is the abstract.
Advocacy of murder of identifiable individuals, which might be protected under the Brandenburg test, has too often been treated by courts (particularly in some recent federal appellate cases) as unprotected threats or solicitation, thus making First Amendment analysis confused and unpredictable. The appropriate solution, I argue, is to modify the Brandenburg test so as to deny First Amendment protection to advocacy of harm to identified targets, because (a) such speech has no value worthy of First Amendment protection and (b) the emotional consequences of such advocacy suffered by the object thereof is no different from that caused by true threats.
Download the paper from SSRN at the link.
Monday, October 13, 2014
President Barack Obama has nominated FCC Commissioner Michael O'Rielly to a full term as a Commissioner. Here is FCC Chair Tom Wheeler's statement on that news.
Mike O’Rielly and I were confirmed together for his first short term and I look forward to continuing to work with him in his new longer term. Commissioner O’Rielly is deeply committed to the goal of improving the lives of the American people though communications technology, and his intellect and work ethic have made him a tremendous asset to the agency.
Here is Commissioner Clyburn's statement.
I want to congratulate my friend and colleague, Commissioner Mike O’Rielly, on his re-nomination to the FCC. During his short time here, Commissioner O’Rielly has proven to be a focused, thoughtful and dedicated voice on the important issues we review. His insights garnered from years of Congressional service have brought a welcome context to the work of this Commission. I look forward to continuing our work together on behalf of the public interest and the American people.
Here is Commissioner Rosenworcel's statement.
I have had the privilege of working in public service with Commissioner O’Rielly for some time. I have always respected his dedication and concern for the issues before the Commission and his commitment to public service. I look forward to continuing to work with him and I congratulate him on President Obama announcing his intent to renominate him for the position of FCC Commissioner.
Here is Commissioner Pai's statement.
I am delighted that President Obama has decided to nominate Commissioner O’Rielly for a new term at the FCC. During his time at the Commission, he has been a strong advocate for economic freedom and modernizing our regulations to keep pace with today’s marketplace. Mike has also been a trusted friend and colleague. I look forward to continuing to work with him in the months and years to come.
Here is Commissioner O'Rielly's statement.
I am extremely humbled and appreciative of the action by President Obama to consider and approve my nomination to a new term as a Commissioner at the Federal Communications Commission. In my tenure at the Commission, I have appreciated the opportunity to work with my colleagues and the great people at this institution on the dynamic communications policy issues before us.
The announcement by the President is an important step in the process, and I respect and honor the role that the U.S. Senate will undertake to consider my nomination as it determines appropriate.
Thursday, October 9, 2014
Steven J. Heyman, Illinois Institute of Technology Chicago-Kent College of Law, is publishing The Conservative-Libertarian Turn in First Amendment Jurisprudence in volume 117 of the West Virginia Law Review (2014). Here is the abstract.
Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak can also be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious speech within public schools and universities, and held that the right to free association takes precedence over state civil rights laws that bar discrimination based on sexual orientation. This article, which was presented as the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, explores this trend in First Amendment jurisprudence. After providing an overview of the conservative-libertarian approach to the Constitution, the article describes how this approach has been applied in cases on free speech and association. The article then criticizes this First Amendment approach on several grounds. First, it draws too close a connection between free speech and property rights. In this way, it represents a partial revival of Lochner-era jurisprudence – a development that Baker strongly criticized throughout his career. Second, the conservative-libertarian view affords too much protection to speech that injures, abuses, or degrades other people. Third, the judges who hold this view tend to be social conservatives as well as libertarians, and deep problems arise in situations where these two aspects of conservative thought conflict with one another. Fourth, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. And finally, by granting the government broad authority to restrict speech within public institutions, that approach tends to deny protection to those individuals who are most vulnerable to state control, including prisoners, public employees, and those who serve in the military. The root problem is that the conservative-libertarian approach is based on an excessively narrow and one-sided conception of the self – a view that stresses the ways in which we are separate and independent individuals, but that fails to fully recognize that we are also social beings who find an important part of our identity and value in social relationships and participation in community. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional liberty. The article concludes by outlining such an approach, which it calls a liberal humanist theory of the First Amendment. On this view, the law should be allowed to impose reasonable restrictions on hate speech and pornography, as well as on the ability of wealthy individuals and corporations to influence elections. Freedom of association should not necessarily permit groups to exclude individuals on invidious grounds such as sexual orientation. The Justices have been right, however, to hold that public educational institutions generally must accord equal treatment to religious speakers.
Wednesday, October 8, 2014
Tuesday, October 7, 2014
Remarks of FCC Chairman Tom Wheeler As Prepared for Delivery 32 nd Annual Everett C. Parker Ethics in Telecommunications Lecture
Ira Steven Nathenson, St. Thomas University School of Law, is publishing Airing Aereo's Errors: Why the Supreme Court's Internet Television Decision Should Be ‘Cancelled’ in volume 2 of the Journal of International and Comparative Law (2014). Here is the abstract.
This article scrutinizes the United States Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereo’s streaming television service allowed subscribers to watch broadcast television on a computer, tablet, or smartphone without requiring them to be directly connected to cable, satellite, or a local antenna. Aereo’s system was designed to comply with existing copyright law by using thousands of antennas, each of which was designated for only one subscriber at a time. Aereo was sued for copyright infringement by a number of leading television broadcasters. The United States Supreme Court, over a heated Scalia dissent, concluded that Aereo was ‘highly similar’ to a cable company, and that it therefore made ‘public performances’ falling within the plaintiffs’ exclusive rights. Because the Aereo decision was unnecessary, unsound, and unwise, this article proposes steps that should be taken in order to avoid frustrating the development of beneficial ‘cloud’ computing services.
Download the full text of the Article from SSRN at the link.
Monday, October 6, 2014
Emily MacKinnon, Emira Tufo, and Simon V. Potter, all of McCarthy Tétrault LLP, have published Lawyers and the Media. Here is the abstract.
There has been a steady shift in the permissibility of lawyers’ communications with the media. Whereas in 1983 Chief Justice Laskin suggested that a lawyer was “very close to contempt” for speaking to reporters about a case on the steps of the Supreme Court of Canada, that court now permits reporters to interview parties and their counsel in the foyer of the court building.
This shift has been reflected in the codes of conduct applicable throughout Canada, which now provide that it is not only permissible for lawyers to speak to the media but that, depending on the circumstance, lawyers may have an obligation to do so. It is now in any event unthinkable that a lawyer can properly represent all clients’ interests in all cases by being always silent outside the courtroom.
This paper discusses the ethical rules in each Canadian jurisdiction concerning a lawyer’s communications with the media, as well as the themes that emerge from the rules and case law.
Hannibal Travis, Florida International University College of Law, has published Myths of the Internet as the Death of Old Media in volume 42 of the Florida International University College of Law 42 American Intellectual Property Law Association Quarterly Journal (2014). Here is the abstract.
This article analyzes claims that the Internet is destroying the book publishing, music, and movie industries, and that it needs to be strictly regulated by civil and criminal copyright laws to save companies and jobs. I survey empirical evidence that copyright industry sales and profits have increased, that economic trends other than infringement on the Internet drive fluctuations in music sales, and that the incentives to produce copyrighted work do not respond directly to minor variations in copyright doctrine or to significant new copyright enforcement laws.
The article analyzes ten fundamental myths used to justify Internet censorship and draconian copyright reforms. Four of these myths concern the allegedly negative relationship between Internet usage of various kinds and declining profitability or sales at old media firms. Three of the myths are designed to motivate Congress or the courts to endorse restrictions on Internet content using the justification that old media will benefit from such restrictions, thereby creating jobs and economic growth. The final three myths involve false assumptions that criminalizing Internet activity will save old media firms. Among other evidence that is useful to dispel these myths, this article examines: book and audiovisual media consumption in the aggregate; the continued growth of old-media entertainment sales such as books, music transactions, and entertainment subscriptions or admissions despite massive growth in Internet use since 1994; the findings of regression analyses exploring the relationship between Internet file-sharing software use and the music industry’s retail sales; socioeconomic trends other than Internet use that may explain changes in the level of music sales in the United States; an empirical disconnect between the level of Internet-based infringement of recording industry copyrights and the level of U.S. record labels’ sales; the sales, total employment, profits, and market capitalization of firms in the U.S. film and television sectors in an environment of large-scale Internet-based copyright infringement; survey results suggesting that musicians may not see music file-sharing as having a severe impact on their livelihoods; the effects of copyright term extension on the number of feature films released and the aggregate investment in creating and marketing them in the United States, as well as on the number of films released in Europe; the lack of a correlation between copyright criminalization and subsequent reductions in Internet-based infringement in the United States; and the benefits, if any, of a draconian new copyright-enforcement regime in France from the standpoint of film and music production and sales.
Download the article from SSRN at the link.
Wednesday, October 1, 2014
Stefan Kulk, Utrecht University, Centre for Intellectual Property Law; Utrecht University School of Law; and Frederik J. Zuiderveen Borgesius, University of Amsterdam, Institute for Information Law, have published Google Spain v. González: Did the Court Forget About Freedom of Expression? in the European Journal of Risk Regulation (2014). Here is the abstract.
In this note we discuss the controversial judgment in Google Spain v. González of the Court of Justice of the European Union (CJEU). Our focus is on the judgment’s implications for freedom of expression. First, the facts of the case and the CJEU’s judgment are summarised. We then argue that the CJEU did not give enough attention to the right to freedom of expression. By seeing a search engine operator as a controller regarding the processing of personal data on third party web pages, the CJEU assigns the operator the delicate task of balancing the fundamental rights at stake. However, such an operator may not be the most appropriate party to balance the rights of all involved parties, in particular in cases where such a balance is hard to strike. Furthermore, it is a departure from human rights doctrine that according to the CJEU privacy and data protection rights override, “as a rule”, the public’s right to receive information. In addition, after the judgement it has become unclear whether search engine operators have a legal basis for indexing websites that contain special categories of data. We also discuss steps taken by Google to comply with the judgment.Download the article from SSRN at the link.