Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, December 19, 2014

Scots Wha' Hae!

From across the pond, news that a tuxedo cat is striking a blow for feline rights. Jordan, a media-savvy (read his thoughts on life, the Universe and everything here on his Facebook page here) and intellectually curious kitty who lives at the nearby Catholic chaplaincy, has been hanging out at the Edinburgh University library for years. Now he has finally scored a library card.  Why not? Why should the library only be open to those formally enrolled? Democracy holds that the pleasures of learning should be available to all! University staff and students say Big Cat on Campus Jordan is very popular, and helps to de-stress the atmosphere around exam time. He still goes home for meals, however. 

December 19, 2014 | Permalink | TrackBack (0)

Thursday, December 18, 2014

Keep Watching the Skies!

Timothy M. Ravich, University of Central Florida, College of Health and Public Affairs, is publishing Commercial Drones and the Phantom Menace in the Journal of International Media and Entertainmental Law. Here is the abstract.

Unmanned aerial vehicles (“UAVs”) — commonly referred to as “drones” — get a lot of bad press. Their operations are portrayed as a clear and present danger to privacy and property rights — the constitutional equivalent of falsely shouting “fire” in a crowded theater for First Amendment purposes. In regular conversation, the pejorative “drone” is used instead of the proper “UAV” to connote danger, imminent and otherwise. This is understandable given the technology’s military origins. “Drones” are hunter-killer robots with scary names like “Predator” and “Reaper.” They are scary “smart” with robust intelligence, reconnaissance, and surveillance capabilities. In the “war on terror,” they stalk human beings with indefatigable persistence and kill them with “Hellfire” missiles. Unfortunately, this context overshadows the many civil and commercial uses of UAVs, including natural gas pipeline monitoring, agriculture remote sensing, and aerial cinematography.  This article is the first to examine the current UAV regulatory environment as applied to the media and entertainment industry.

Download the article from SSRN at the link.

December 18, 2014 | Permalink | TrackBack (0)

Thursday, December 11, 2014

A Non-Fiction List of "Must Reads"

From the Guardian, a compilation of non-fiction titles "everyone should read."  

December 11, 2014 | Permalink | TrackBack (0)

THR: Sony Didn't Plan To Release "The Interview" Even Before Hack

A source has told The Hollywood Reporter that Sony Pictures didn't plan to release the James Franco/Seth Rogan picture "The Interview" even before the recent major hack. That attack on Sony's network resulted in leaks of personal information about Sony executives and talent, including salary info, and emails between Sony execs that have already resulted in apologies.

December 11, 2014 | Permalink | TrackBack (0)

Wednesday, December 10, 2014

Loyola (L.A.) Journalist Law Program Now Accepting Applications For Summer 2015

Loyola (Los Angeles)'s Journalist Law School is now accepting applications for its summer 2015 session. More here at its website.

December 10, 2014 | Permalink | TrackBack (0)

Learning Law Via Videos

Reblogged from LegalED, via TaxProfBlog: Ted Style Videos on Law Teaching

December 10, 2014 | Permalink | TrackBack (0)

Justice Must Not Only Be Done...

Leonie Van Lent, Utrecht University School of Law, has published Procedural Justice Seen to Be Done: The Judiciary's Press Guidelines in the Light of Publicity and Procedural Justice at 10 Utrecht Law Review 131 (2014). Here is the abstract.

As in other jurisdictions, the Dutch judiciary has been confronted with public unease about criminal justice and is trying to enhance its legitimacy. System and culture however contain hardly any opening for public involvement in criminal justice, and this implication of the publicity principle traditionally encounters disapproval. In its aim of (re)gaining confidence in the criminal justice system, publicity intertwines procedural fairness and public influence: it requires that the (perception of the) lay public is taken into account when conducting proceedings and phrasing the judgment, thereby ensuring visible conformity with publicly-held fairness standards and thus a perception of legitimacy by participants and the public alike. Procedural justice research confirms these notions in finding that the perception of proceedings as fair legitimizes the judiciary and the justice system. The judiciary’s wish to enhance transparency – of which the press guidelines (2013) are the most important expression – is therefore essential. Both publicity and the procedural justice concept refer to the procedure as central in legitimization and therefore provide important arguments for allowing the audiovisual registration of criminal proceedings. As system and culture do not change easily, this may lead to more public-minded proceedings and to a shift in the public debate towards procedure.

 

Download the article from SSRN at the link.

December 10, 2014 | Permalink | TrackBack (0)

Friday, December 5, 2014

Russian Regulation of the Web

Andrey Tselikov has published The Tightening Web of Russian Internet Regulation as Berkman Center Research Publication No. 2014-15. Here is the abstract.

Over the past two years, systematic Internet regulation has increased more in Russia than anywhere else in the world. A series of progressively more restrictive legislative developments between the summer of 2012 and the summer of 2014 have increased the power of the Russian Prosecutor General’s Office and federal agency Roskomnadzor to block or take down websites for a wide range of alleged infractions. New legislation has also mandated the registration of bloggers with the federal government and greatly increased Russian law enforcement access to user data, among other changes. This paper examines this growing web of regulations and explores how Russian Internet users and freedom of information advocates are responding through online and offline protests, circumvention, and a range of other tactics.

 

Download the paper from SSRN at the link.

December 5, 2014 | Permalink | TrackBack (0)

Rolling Stone Retreats From Story On UVa Gang Rape

From CNN: Rolling Stone magazine is pulling back on its coverage of the University of Virginia fraternity gang rape story, citing "discrepancies" in the interviewee's story, including problems with her account of a party at the fraternity the night she alleges the rape occurred and the identities of the men she claims attacked her and. More here from NPR, here from Salon.com.

A link to Rolling Stone's "note to readers" here. A link to the original story here.

December 5, 2014 | Permalink | TrackBack (0)

Thursday, December 4, 2014

Even More Stories About Bill Cosy, Now Questioning Whether NBC Execs Knew Of Allegations When "Cosby Show" Was On Air

From the Hollywood Reporter, a story discussing whether NBC execs knew anything, and if so, how much, concerning allegations that actor/comedian Bill Cosby had sexually assaulted women during the years The Cosby Show was on the air. The stories concerning Mr. Cosby have been in the headlines for years, but have picked up steam in recent weeks.  More coverage here from such varied outlets as The New Yorker,  Philly,  CNN,  the Chicago Tribune, and  Rolling Stone.

December 4, 2014 | Permalink | TrackBack (0)

Wednesday, December 3, 2014

The Public Performance Right After the Aereo Decision

Matthew Sag, Loyola University Chicago School of Law, has published The Uncertain Scope of the Public Performance Right after Aereo. Here is the abstract.

The Supreme Court’s recent majority decision in American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498 (2014) holds that a service allowing consumers to watch broadcast television programs over the Internet virtually simultaneously with the original over the air broadcast directly infringes the copyright owners the exclusive rights to 'perform the copyrighted work publicly.' The majority overrules the Second Circuit ruling in the same case, and throws into doubt one of the central holdings in the Second Circuit’s Cablevision decision.

The majority’s 'looks like a cable system' approach makes the public performance right almost incomprehensible. This Article considers a number of questions left open by the Aereo decision relating to specific technologies, including remote DVRs, devices that allow the consumer to pause and rewind live television, and cloud computing generally. It also considers whether the Court's decision in Aereo portends the use an effects-based approach to expand other exclusive rights under the Copyright Act in future cases. Finally, this Article concludes with a concise explanation as to why Aereo would not have prevailed under a fair use analysis. Judge Chin’s intuition that Aereo’s design was a mere 'Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act,' was spot on; however this technological contrivance should not have been the foundation for the Supreme Court's legal contrivance.

Download the paper from SSRN at the link.

December 3, 2014 | Permalink | TrackBack (0)

Tuesday, December 2, 2014

Working With the ECJ's Ruling In the Google "Right To Be Forgotten" Case

Alessandro Mantelero, Polytechnic University of Turin, Department of Production Systems and Business Economics; Nexa Center for Internet & Society, has published Finding a Solution to the Google’s Dilemma on the 'Right to Be Forgotten', after the 'Political' ECJ Decision. Here is the abstract.

The decision of the European Court of Justice on the Google case has re-opened the debate on the importance of remembering and forgetting in the digital age. For this reason, the decision induces to reconsider the provisions of the Article 17 of the EU Proposal for a General Data Protection Regulation. 


The future EU regulation should consider the peculiar nature of search engines and introduce an "ad hoc" legal provision, which excludes the direct enforcement of the right to erasure carried out by data controllers and requires a complaint direct to a court or data protection authority (DPA).

At the same time, this provision should also impose to data controllers the temporary removal (e.g. 20-30 days) of the links in dispute, which will be reactivated if the data subject does not take legal action within this time.

These Remarks were adapted from my contribution to the 58th Congress of the Union Internationale des Avocats, held on October 29-November 02, 2014, in Florence, Italy.

 

Download the paper from SSRN at the link.

December 2, 2014 | Permalink | TrackBack (0)

Alternatives To the "Right To Be Forgotten"

Martha Garcia-Murillo and Ian MacInnes, both of Syracuse University, have published The Right to Be Forgotten: Its Weaknesses and Alternatives. Here is the abstract.

In this article we argue that the European Union directive on “the right to be forgotten” is unrealistic and suggest instead a series of principles that can protect us from the potentially harmful publication of private information. The dissemination of personal information through public and private databases as well as social media is gradually educating humanity about reality: humans are weak; everyone misbehaves; and we need to learn to accept public knowledge of the imperfections of ourselves and others.

Download the paper from SSRN at the link.

 

December 2, 2014 | Permalink | TrackBack (0)

Monday, December 1, 2014

John Stuart Mill and Sexually Explicit Speech

Clare McGlynn, Durham University Law School, and Ian Ward, University of Newcastle Faculty of Law, have published Would John Stuart Mill Have Regulated Pornography? at 41 Journal of Law and Society 500 (2014). Here is the abstract.

John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an authoritative defence against regulation. This article, by contrast, argues that a broader understanding of Mill's ethical liberalism, his utilitarianism, and his feminism casts doubt over such an assumption. New insights into Mill's approach to sex, sexual activity, and the regulation of prostitution reveal an altogether more nuanced and activist approach. We conclude that John Stuart Mill would almost certainly have accepted certain forms of pornography regulation and, in this light, we argue that Mill can provide the foundation for new, liberal justifications of some forms of pornography regulation.

 

The full text is not available from SSRN.

December 1, 2014 | Permalink | TrackBack (0)

Looking For the Meaning of "Speech": A Waste of Time?

Larry Alexander, University of San Diego School of Law, has published The Misconceived Search for the Meaning of 'Speech' in Freedom of Speech as San Diego Legal Studies Paper No. 14-173. Here is the abstract.

In this (very) short essay, I establish these points: All speech is symbolic; any conduct can be used to communicate a message (i.e., symbolically); government’s purpose in regulating, and not a speaker’s intention to communicate, defines the realm of freedom of expression; and determining the value of speech has a denominator problem.

Download the paper from SSRN at the link.

December 1, 2014 | Permalink | TrackBack (0)

Tuesday, November 25, 2014

The Meaning of "Parody" Under the "InfoSoc" Directive

Eleonora Rosati, University of Southampton School of Law, is publishing Just a Matter of Laugh? Why the CJEU Decision in Deckmyn is Broader than Parody in the Common Market Law Review (2015). Here is the abstract.

On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Case C-201/13 Johan Deckmyn and Another v Helena Vandersteen and Others (‘Deckmyn’). This was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of Directive 2001/29 (the ‘InfoSoc Directive’). This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.

Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.

This decision is topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law. Thus, the relevance of the Deckmyn decision is not confined to the sole topic of parody. Similarly to what has happened in relation to other aspects of copyright, e.g. the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.

The present contribution is structured as follows. The first part explains the background to this reference, and summarizes the Opinion of Advocate General (‘AG’) Cruz Villalón on 22 May 2014 and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.

 

Download the article from SSRN at the link.

 

 

 

November 25, 2014 | Permalink | TrackBack (0)

Online Content Distribution and Unfair Trading

Katri Havu, University of Helsinki, is publishing Unfair Commercial Contracts and Online Content Distribution: Insights into Problems, Regulation and Potential of European Harmonization in Tidskrift utgiven av Juridiska Föreningen i Finland, 6/2014 (forthcoming). Here is the abstract.

Commercial online content (e. g. music, video, e-books), distribution is growing in economic significance and consuming online content plays a remarkable role in the everyday life of many. The characteristics of online content distribution markets appear to underline concerns about unfair trading. The European Commission has expressed willingness to establish European business-to-business unfair trading rules. While the business fields that the Commission intends as subjects of possibly rather generally applicable rules remain open, and while inclusion of digital content products in the scope of applicability is unclear, the initiative serves as a useful basis for discussion of justifications for and challenges to addressing business-to-business unfair trading matters in online content distribution by means of EU legislation. This article highlights issues where discussion and particular care in possible harmonization are advisable. These matters include aspects of the interface between potential European rules on the one hand and national contractual and procedural law and enforcement systems on the other.

 

Download the article from SSRN at the link.

November 25, 2014 | Permalink | TrackBack (0)

The European Data Protection Directive and Media Expression

David Erdos, University of Cambridge Faculty of Law, has published Fundamentally Off Balance: European Union Data Protection Law and Media Expression as University of Cambridge Faculty of Law Research Paper No. 42/2014. Here is the abstract.

The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.
 
 
Download the paper from SSRN at the link.

November 25, 2014 | Permalink | TrackBack (0)

Monday, November 24, 2014

Re-Analyzing Copyright and Creators' Interests Using Bourdieu's Analytical Framework

Martin Senftleben, VU University Amsterdam Faculty of Law, has published Copyright and Creators' Interests – Rights and Remuneration in the Light of Bourdieu's Analysis of the Field of Literary and Artistic Production. Here is the abstract.

The present copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument). These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries. The basis of all these lines of reasoning, however, is the individual creator. Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry. A focus on the position of the individual creator also ensures the acceptance of copyright law in society. It adds social legitimacy. Who would be against remunerating authors for the time and effort spent on the creation of a new work?

Given the core rationale to encourage and reward creators, the question arises whether the present copyright system is sufficiently aligned with creators’ interests. To lay theoretical groundwork for this inquiry, Pierre Bourdieu’s sociological analysis of the field of literary and artistic production will be taken as a starting point. This sociological analysis yields important insights into the interests of different groups of creators. On this basis, the various arguments for copyright protection will be revisited before embarking on a critical analysis of the present system of authors’ exclusive rights and copyright’s remuneration mechanisms. The analysis will finally trace the conceptual contours of a copyright system in which creators’ interests feature more prominently than in the present system.

Download the paper from SSRN at the link.

 

 

November 24, 2014 | Permalink | TrackBack (0)

The European Court of Human Rights and Violent Advocacy Jurisprudence

Andrew Dyer, University of Sydney, Faculty of Law, is publishing Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt? in the Netherlands Quarterly of Human Rights (2015). Here is the abstract.

This article examines the European Court of Human Rights’ violent advocacy jurisprudence. It observes that, since the decision in Leroy v France was delivered in October 2008, there has emerged some confusion concerning what the applicable test is in cases where it is alleged that a member state’s proscription of such speech amounts to a breach of Article 10 of the European Convention on Human Rights. In particular, there has been growing support in the Strasbourg case law for tests that are similar to the U.S. Supreme Court’s ‘clear and present danger’ standard. The argument presented here is that the European Court should adopt a test under which there is but one enquiry: ‘did the impugned speech create a real risk of violence?’ However, in answering that question, the Court, in every such case, should consider five further matters: ‘did the speech create an imminent risk of harm?’; ‘did the applicant intend to cause violence or foresee the possibility that his/her speech would cause violence?’; ‘did he/she occupy a position of influence in society?’; ‘was the advocacy disseminated widely?’; and (where applicable) ‘did the speech occur close to the ‘centre of violence’?’ If faithfully applied, this test would achieve a proper balance between, on one hand, protecting the community from violence, and, on the other, preventing states from placing unnecessary restrictions on those who impart and receive information relevant to political and other decision-making. That is, it would ensure that the Court upholds only those restrictions on violent advocacy that fulfill a ‘pressing social need.’

Download the article from SSRN at the link.

 

 

November 24, 2014 | Permalink | TrackBack (0)