Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Monday, September 29, 2014

Notice, Assent, Form, and Tweeting

 

Juliet M. Moringiello, Widener University School of Law, is publishing Notice, Assent, and Form in a 140 Character World in the Southwestern Law Review. Here is the abstract.

 

This essay is a contribution to a symposium on Professor Nancy Kim’s terrific book, Wrap Contracts: Foundations and Ramifications. In the book, Prof. Kim examines this explosion in volume of online contract terms and offers some suggestions for improving the judicial approach to these terms. Despite the ease of presenting online terms in a visually appealing format, today’s electronically presented terms are even less comprehensible than those of fifteen years ago. At the same time that individuals have become accustomed to receiving information in small doses due to the proliferation of social media platforms such as Twitter, Instagram, Facebook and the practice of text messaging, online terms have become more voluminous. Rather than using the online format to make their terms more appealing to the reader, purveyors of online terms are offering terms that are not only less readable because of their volume, but that include provisions that few people would expect to be contained in contracts of the sort being offered.

Professor Kim’s emphasis on the importance of form may be the most significant contribution of her book. Although she makes many important observations in her book, this essay focuses on three related observations. The first relates to the voluminous nature of online terms. Unhindered by the limitations of the paper form, websites engage in what Professor Kim dubs “contracting mania,” which leads them to “stuff their online contracts with many pages of terms.” She then explains that these extra terms include those that are different from terms offered in physically limited paper forms, and include “crook” terms that purport to appropriate “benefits ancillary or unrelated to the transaction.” Both of these characteristics render online terms less readable than paper terms, yet courts, in finding that an individual has notice of online contract terms, have substituted “notice of notice” for notice of the purported contract terms.

In this essay, I will briefly discuss the role of the relationship between notice and assent in standard form contracting and then turn to some of the recent cases addressing the enforceability of online terms. This discussion will illustrate that although courts have wisely avoided making entirely new law for online contracts, they have largely ignored the “term creep” that has made online terms less, rather than more, readable.

 

 

 

Download the essay from SSRN at the link.

September 29, 2014 | Permalink | TrackBack (0)

The FCC Chair and Net Neutrality

From the New York Times, a piece on FCC Chair Tom Wheeler and both sides of the net neutrality debate.

September 29, 2014 | Permalink | TrackBack (0)

Friday, September 26, 2014

FAA Okays Movie Industry's Limited Use of Drones

The FAA has okayed limited use of drones in the entertainment industry by a few companies--specifically on closed sets, by licensed pilots, who keep the drones within their line of sight. More here from Variety, here from the FAA's own press release. Check out the regs here.

September 26, 2014 | Permalink | TrackBack (0)

Thursday, September 25, 2014

ESPN Puts Sports Commentator Bill Simmons On Three Week Suspension For Comments About Roger Goodell

ESPN has placed popular sports commentator Bill Simmons on leave for three weeks after Mr. Simmons made controversial remarks concerning what NFL Commissioner Roger Goodell may or may not have known concerning Baltimore Ravens football player Ray Rice's violent actions toward his then fiancee, now wife, Janay Palmer. Mr. Simmons said in part, "I really hope somebody calls me or emails me and says I'm in trouble for anything say about Roger Goodell, because if one person says that to me, I'm going public." Mr. Simmons then went on to allege that Mr. Goodell was not truthful about his statement that he did not know the extent of Mr. Rice's behavior prior to viewing the video taken in the elevator, which was released earlier this month. ESPN released the following statement:

"Every employee must be accountable to ESPN, and those engaged in our editorial operations must also operate within ESPN's journalistic standards. We have worked hard to ensure that our recent NFL coverage has met that criteria. Bill Simmons did not meet those obligations in a recent podcast, and as a result we have suspended him for three weeks."

According to NPR, ESPN has removed Mr. Simmons' podcast from its site.

More here from the Hollywood Reporter.

September 25, 2014 | Permalink | TrackBack (0)

Wednesday, September 24, 2014

The White House and the Press

From the Washington Post, an article concerning the amount of involvement the Obama White House has in press-pool reports. Post reporter Paul Farhi gives a number of examples that reporters in the pool say demonstrate the ways in which WH staffers have obtained changes in the reports after objecting to press pool coverage of some activities. More here. More commentary here from IJR's Caroline Schaeffer.

September 24, 2014 | Permalink | TrackBack (0)

Tuesday, September 23, 2014

And So, Goodbye

The story of Charlo Greene, the Alaskan reporter who quit so dramatically on air after reporting on her own story (four letter word and all), that of the fight for the legalization of marijuana, has gone global. The Guardian covers it here (with the four letter word spelled out), 20minutes.fr (vingtminutes.fr) has the story here (with an idiomatic translation of the offending word), the local media site Noticias de Navarro covers the story here (cleaned up for family hour), and the Australian has the story here (again with the offending word redacted).

September 23, 2014 | Permalink | TrackBack (0)

Is the Press "Different"?

Sonja West, University of Georgia School of Law, has published The Stealth Press Clause  at 48 Georgia Law Review 729 (2014). Here is the abstract.

 

When it comes to the cases that most affect the press, the Supreme Court seems to be taking a one-for-all-and-all-for-one stance. The reasons for this approach are varied. One suggestion is that the Court is adopting a reading of the Press Clause that protects the technology of mass communication and not particular speakers. Another sees it as in keeping with a view of the Press Clause that simply protects an individual right for everyone — not just a select group — to publish his or her speech.  A third view is that it is a practical necessity to lump all speakers together in order to avoid a messy definitional problem of who does and who does not receive certain rights or protections.    In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this “Stealth Press Clause” has been hard at work carving out special protections for the press, guiding the Court’s analysis and offering valuable insights into how we should view the contributions of the press.

 

Download the article from SSRN at the link.

September 23, 2014 | Permalink | TrackBack (0)

Monday, September 22, 2014

FTC Fines Two Companies For Violating COPPA

The Federal Trade Commission has sanctioned app maker Tiny Co. and Yelp for improperly collecting private information about children in violation of the Children's Online Privacy Protection Act (COPPA). Tiny Co. will pay $300,000 and Yelp will pay $450,000 to settle the charges. Read the press release from the FTC here, the original FTC complaint against Tiny Co. here, against Yelp here.

More here from the New York Times.

September 22, 2014 | Permalink | TrackBack (0)

Thursday, September 18, 2014

Videogame Technology and Personal Privacy

Joe Newman & Joseph Jerome, Future of Privacy Forum, and Christopher Hazard, Hazardous Software, Inc., are publishing Press Start to Track?: Privacy and the New Questions Posed by Modern Videogame Technology in the American Intellectual Property Law Association Quaterly Journal (2014) (forthcoming).  Here is the abstract.

 

Advances in technology – particularly in the field of online communications – have revolutionized the way modern videogames are made and experienced. The evolution of many games from standalone products to constantly updating online services has all but upended the industry, creating new game features, new types of interactivity, and new monetization strategies. Mining player data has incredible potential to benefit both developers and players alike. Nevertheless, the shift to games as a service also means that players must put their faith in developers to consistently respect their personal privacy.


Today, videogames collect and generate enormous amounts of information about their players, much of which may be considered highly sensitive. This data includes information relating to the real world, ranging from a player’s voice or physical appearance to his location or social network. It also includes detailed information from the player’s actions within the game world, which may be analyzed to create in-depth profiles of a player’s cognitive abilities and personality. Information collected within a game has many uses both within and outside the gaming ecosystem. Among other things, a player’s psychographic information can be used to create personalized gaming experiences, drive educational games, and dynamically adjust a game’s difficulty or mechanics to keep players engaged (and spending money). This paper surveys some of these applications, revealing the potential for both major innovations in the games industry as well as major risks for player privacy and trust.
The game industry must confront and address the privacy issues raised by player data collection, lest it becomes the latest scandal to draw the ire of policymakers, parents, and players. This paper briefly surveys the many laws, agreements, and regulations that affect data collection and use by games, such as the Children’s Online Privacy Protection Act (COPPA), the Fair Credit Reporting Act (FCRA), intellectual property laws, international privacy law, the Federal Trade Commission’s Section 5 authority, and other relevant frameworks. Privacy guidelines for developers remain underdeveloped when it comes to fully capturing player’s privacy expectations. Rather than proposing strict rules or attempting to balance benefits to players versus harms, this paper simply aims to show where users are most likely to be unpleasantly surprised by data use. By better understanding player’s privacy expectations, developers will be better able to reduce surprise and foster player trust.

September 18, 2014 | Permalink | TrackBack (0)

Wednesday, September 17, 2014

ASA Bans "Lookalike" Government Websites

The UK's Advertising Standards Authority has banned several websites from operating after they deceived users into paying for government documents such as health cards, passports, and birth and death certificates. The websites, which used URLS that closely resembled official government URLS, charged fees for applications, whereas government websites do not, or did not include fees that government offices normally charge. More here from the Guardian.  Read the ASA's rulings below.

ASA Adjudication on Europe EHIC Services Ltd

ASA Adjudication on TADServices Ltd

ASA Adjudication on UK Services & Support Ltd

September 17, 2014 | Permalink | TrackBack (0)

Tuesday, September 16, 2014

Netflix and the European Market

Re-Thinking IP Infringement

Irina D. Manta, Maurice A. Deane School of Law, and Robert E. Wagner, CUNY Baruch College Zicklin School of Business, Department of Law, are publishing Intellectual Property Infringement as Vandalism in the Stanford Technology Law Review. Here is the abstract.

Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.

In addition to analyzing the natures of the various offenses, this Essay investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, they are usually also higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually surprisingly result in a lowering of sanctions.

 

Download the text of the Article from SSRN at the link.

September 16, 2014 | Permalink | TrackBack (0)

Monday, September 15, 2014

Let Them Go?

Claire Enders (the Guardian) anticipates a host of changes for the media if Scottish voters opt to leave the UK and set up on their own. Among them: no access to the BBC--Scots will have to subscribe to SkyTV, Virgin Media or an online service. Channel 4 will change over time, also. And costs of broadcasting in what remains of the UK will go up for viewers. More here.  Ms. Enders provides a link to the Scottish government's broadcasting policy for an independent Scotland.

September 15, 2014 | Permalink | TrackBack (0)

Friday, September 12, 2014

CATegorically Speaking

Thursday, September 11, 2014

The Good, the Bad, and the Rest

Jo Becker examines the journalist genre of non-fiction for the New York Times here.

September 11, 2014 | Permalink | TrackBack (0)

Restricting Speech About Tobacco

Micah L. Berman, Ohio State University, has published The Commercial Speech Doctrine in the United States: False Promise and Promising Approaches for Protecting Public Health as Ohio State Public Law Working Paper No. 269. Here is the abstract.

This article reviews the U.S. Supreme Court’s approach to the regulation of commercial speech, with a focus on the doctrine’s application to the regulation of tobacco products. Although the Supreme Court has at various times signaled a willingness to restrict speech that threatens public health, its decisions have more often been motivated by an overriding concern that restrictions on commercial speech constitute unwarranted governmental paternalism. This anti-paternalism concern has become the dominant feature of the Court’s commercial speech jurisprudence, and as a result, the United States is now falling further and further behind other counties in the regulation of tobacco marketing and the prevention of other public health threats. Nonetheless, there are promising alternative doctrinal approaches that tobacco control advocates have not yet pursued. Instead of pursuing broad-based limits on tobacco advertising, advocates could more narrowly target tobacco industry marketing practices that are misleading, manipulative, or appealing to minors. A strong case can be made that restrictions on these types of tobacco marketing are fully consistent with the Supreme Court’s First Amendment doctrine, even after the Sorrell decision.
 
Download the paper from SSRN at the link.

September 11, 2014 | Permalink | TrackBack (0)

Wednesday, September 10, 2014

Oh, Those Fees!

Want to check out what the regulatory fees for cable are? Here you go.  Fees for commercial wireless services? Right here. International and satellite services? Here. Interstate telecommunications service provider fees? Here. All fact sheets provided by the FCC.

September 10, 2014 | Permalink | TrackBack (0)

Tuesday, September 9, 2014

Happy Birthday, Leo!

Today's Google Doodle honors novelist Leo Tolstoy on his birthday. The Guardian discusses it, and him, here.

September 9, 2014 | Permalink | TrackBack (0)

UK Culture Minister Questions Effect of Criminal Sanctions On Non-Payors of Annual Licensing Fees

UK Culture Minister  Sajid Javid says he questions whether the current policy of making non-payment of the licensing fee a criminal matter is wise, and he intends to question an investigation into whether it should be changed. He says pursuing non-payors takes up law enforcement and court time that could better be spent elsewhere. The BBC, however, uses such fees to fund its operations and questions whether time spent pursuing those who don't pay really is that burdensome. The network also points out that the criminal penalty has a deterrent effect. More here from The Guardian.

September 9, 2014 | Permalink | TrackBack (0)

Lawyers and the Media

Peter A. Joy, Washington University (St. Louis) School of Law, and Kevin C. McMunigal, Case Western Reserve School of Law, are publishing The Ethics of Talking to the Media in volume 28 of Criminal Justice (Winter 2014). Here is the abstract.

Prosecutors and defense lawyers often seek to use the media to shape public opinion and to help their client’s causes. Even the alleged victim may retain counsel for advice and help in dealing with the media. Each lawyer attempting to advance a client’s position must work within ethical constraints when speaking with and using the media. Courts may also step in and impose legal constraints on the lawyers’ use of the media. Both ethics rules and court orders regulating publicity balance the competing values of a fair trial against free speech and the public’s right to be informed. Before answering a reporter’s questions, calling a press conference, or having other dealings with the media, a lawyer should know the ethical boundaries as well as the potential risks and benefits to the client. In this article, we review both the ethical and practical considerations for the prosecution and the defense when talking with the media.

Download the article from SSRN at the link.

September 9, 2014 | Permalink | TrackBack (0)