Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Thursday, March 5, 2015

Do the Distinctions Between "Content-Neutral" and "Content-Based" Still Serve Us Well?

R. George Wright, Indiana University School of Law (Indianapolis), has published Content-Neutral and Content-Based Regulations of Speech: A Distinction that is No Longer Worth the Fuss. Here is the abstract.

The popular binary distinction between content-based and content-neutral regulations of speech is widely assumed to be reasonably clear. The respective constitutional tests of content-based and content-neutral regulations of speech are also assumed to be hierarchical in their degrees of stringency. Thus constitutional tests of content-based regulations of speech are assumed to be more stringent, rigorous, demanding, or “strict” than tests of content-neutral regulations of speech. This Article, however, rejects both of these important and popular assumptions. Most crucially, the typical requirement that there remain ample alternative speech channels in the case of content-neutral, but not content-based, restrictions of speech decisively upsets any hierarchy of stringency as between the two tests. The effects of the alternative speech channels requirement, along with several other phenomena, undermine the meaningfulness of the distinction between content-based and content-neutral regulations of speech.

Download the paper from SSRN at the link.

March 5, 2015 | Permalink | TrackBack (0)

Wednesday, March 4, 2015

Requiring An Opt-In To Protect Data Privacy

Joseph A. Tomain, Georgia State University College of Law, has published Online Privacy and the First Amendment: An Opt-In Approach to Data Processing in volume 83 of the University of Cincinnati Law Review (2014). Here is the abstract.

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment and conclude that an opt-in requirement is fully consistent with the First Amendment rights of data processors.

 

Download the article from SSRN at the link.

March 4, 2015 | Permalink | TrackBack (0)

A Survey of State Support For the Film Industry

The Hollywood Reporter covers tax credits, other incentives for film productions state-by-state here.   Questions are arising about the administration of the film tax credit program in at least one state, Louisiana, as the state budget bleeds cash. More here from the Baton Rouge Advocate. The film industry in North Carolina has suffered a blow as that state's legislators have cut back substantially on its film tax credit program.

March 4, 2015 | Permalink | TrackBack (0)

Tuesday, March 3, 2015

Recorded Music and Copyright

Marcel Boyer, CIRANO, Université de Montréal, C. D. Howe Institute, has published The Value of Copyrights in Recorded Music: Terrestrial Radio and Beyond, as C. D. Howe Institute Commentary No. 419. Here is the abstract.

In today’s digital age, copyright regimes everywhere face common piracy threats along with wide dissemination. Meanwhile, rights holders and users contest the market value of copyrights in public forums, legislatures and in the courts. Without agreement on value, there can be no fair copyright regime, leaving unprotected the livelihood of artists. This Commentary discusses one battleground of this copyright battle – recorded music. This sector is particularly important for two reasons. First, recorded music is easily and broadly shared through digitization. Second, new technologies used to resell and distribute music such as Internet radio, webcasting and on-demand streaming raise the possibility of large-scale dissemination and customization, while Internet radio also opens markets to less known artists who may be better able to reach an audience for their works. Whether fought in the media, public policy circles or at regulatory hearings before copyright boards, these conflicts center mainly on the proper compensation for use of copyrighted material. The root of those conflicts is the difficulty of properly valuing the intellectual property rights of authors, composers, performers and makers. This Commentary shows that it is possible to determine the competitive value of recorded music in the terrestrial radio industry from the behaviour and broadcast choices of radio operators. This value can help implement a fair copyright regime. It can also be extended to Internet radio webcasting to assess the payments due to rights holders in this competing sphere. The author’s analysis determines a competitive value of recorded music about 2.5 times greater than the current level of copyright payments. In 2012, this would have meant that royalty payments should have been about $440 million compared to the estimated $178 million.

Download the article from SSRN at the link.

March 3, 2015 | Permalink | TrackBack (0)

A New Podcast On Higher Ed and Law From the University of Pennsylvania

The University of Pennsylvania's new podcast devoted to higher education and the law, Case in Point.

March 3, 2015 | Permalink | TrackBack (0)

NKU Law School's Gaming Law Symposium Set For March 20, 2015

Interested in fantasy sports, online betting, online gaming? Northern Kentucky University Law School is hosting a Gaming Law Symposium, The New Era In Gaming Law, March 20, 2015. Here's a link to the webpage describing the event.

March 3, 2015 | Permalink | TrackBack (0)

An Analysis of the Right To Be Forgotten Ruling

W. Gregory Voss, Toulouse Business School, has published The Right to Be Forgotten in the European Union: Enforcement in the Court of Justice and Amendment to the Proposed General Data Protection Regulation at 18 Journal of Internet Business Law (July 2014). Here is the abstract.

This article analyzes the famous Google Spain case (May 13, 2014) of the Court of Justice of the European Union and its recognition of a form of "the right to be forgotten", allowing individuals to request the delisting of their personal data from search engines if certain conditions are met. In doing so, it puts the right to be forgotten into the context of ongoing discussions on reform of the European Union's data protection Framework and amendments in the European Parliament to the Proposed General Data Protection Regulation.

 

Download the article from SSRN at the link.

March 3, 2015 | Permalink | TrackBack (0)

Friday, February 27, 2015

The FCC Votes Net Neutrality In Effect

The FCC has adopted new rules under Title II of the Communications Act to regulate the Internet. Briefly, in the words of the FCC's Open Internet Order: no blocking, no throttling, no paid prioritization.  Discussion here from the Washington Post,  NPR's The Two Way. There Will Be More. 

Meanwhile, what's going on abroad? The New York Times surveys the Dutch net neutrality regime here.

February 27, 2015 | Permalink | TrackBack (0)

Thursday, February 26, 2015

Blogger Assassinated In Bangladesh

Local media are reporting that blogger Avijit Roy has been hacked to death and his wife severely injured by unknown assailants as they were leaving a book fair near Dhaka University, Bangladesh.  Law enforcement is searching for the attackers. More here from the Dhaka Tribune.

February 26, 2015 | Permalink | TrackBack (0)

ALIS Conference In Nova Scotia February 27-28 2015

ALIS (the Artists' Legal Information Society) is holding its On the Edge of Now: Emerging Trends in Digital, Music, and IP Law conference February 27-28. More here at its website.

February 26, 2015 | Permalink | TrackBack (0)

Valuing Public Domain Photographs and Their Use On Wikipedia

Paul J. Heald, University of Illinois College of Law, and Kris Erikson and Martin Kretschmer, University of Glasgow, have published The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia. Here is the abstract.

What is the value of works in the public domain? We study the biographical Wikipedia pages of a large data set of authors, composers, and lyricists to determine whether the public domain status of available images leads to a higher rate of inclusion of illustrated supplementary material and whether such inclusion increases visitorship to individual pages. We attempt to objectively place a value on the body of public domain photographs and illustrations which are used in this global resource. We find that the most historically remote subjects are more likely to have images on their web pages because their biographical life-spans pre-date the existence of in-copyright imagery. We find that the large majority of photos and illustrations used on subject pages were obtained from the public domain, and we estimate their value in terms of costs saved to Wikipedia page builders and in terms of increased traffic corresponding to the inclusion of an image. Then, extrapolating from the characteristics of a random sample of a further 300 Wikipedia pages, we estimate a total value of public domain photographs on Wikipedia of between $246 to $270 million dollars per year.

 

Download the paper from SSRN at the link.

February 26, 2015 | Permalink | TrackBack (0)

Artists, IP, and Social Justice

Loren Evans Mulraine, Belmont University College of Law, is publishing I Am My Brother's Keeper: How the Crossroads of Entrepreneurship, Intellectual Property and Entertainment Can Be Used to Affect Social Justice in Intellectual Property, Entrepreneurship and Social Justice - From Swords to Ploughshares (Lateef Mtima, ed., Elgar, forthcoming).

 

Here is the abstract. Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us for a transitional period as they adjusted to life in “the States.” My aunt and uncle in Brooklyn had done the same for us, several years earlier. This pattern served to cement the bonds of family, ease the transition to a new country, and unbeknownst to me, plant the first seeds in my mind of what it meant to be my brother’s keeper. It was also a primer on what it means to be an entrepreneur and how it fuels upward mobility.

Unlike my children, who today are driven by car or ride school buses to elementary, middle and high school, virtually all school kids in New York’s five boroughs walked to their elementary schools. I attended P.S. 78 (officially named Anne Hutchinson Elementary School), which sat on Needham Avenue in the Bronx in the Eastchester District. The journey to school generally encompassed the Boston Road neighborhood flanked by Gun Hill Road to the south and Eastchester Road to the north. It was a middle class neighborhood with an assortment of multi-family homes, apartments and townhomes. Our journey would take us past a host of corner stores and family businesses including Pete’s West Indian Bakery, which sat on the west side of Boston Road, just south of Eastchester, where we could satisfy our hunger with a beef patty and cocoa bread. If we had a taste for New York’s most enduring staple food, we would visit Tony’s or Sal’s Pizzeria where the often imitated, but never duplicated New York-style Pizza would be devoured for 50 cents a slice. For that same 50 cents, we could purchase the latest record, a “45” of course, at the RecordRama, which sat on the east side of Boston Road between Fenton and Corsa Avenues. An album could be purchased for $3.99 or $4.99 at that same neighborhood record store. My first album purchase was the 1976 Earth, Wind & Fire album entitled “Spirit.” For a few bucks, we could get a haircut at one of several barbershops on Boston Road. If you needed clothing items, any number of stores between Gun Hill and Eastchester could fit the bill. Not to mention my Mom’s friend Marilyn who essentially ran her own mobile clothing store. I’m convinced that Marilyn would have had a nationwide, or potentially global enterprise if the Internet had existed at that time.

It never occurred to me during my elementary and middle school years, but we were surrounded by entrepreneurs. All of those establishments were family businesses or sole proprietorships, created by entrepreneurs, many of whom were immigrants or first generation U.S. citizens who were pursuing the American dream. The area was quite diverse, with West Indians, Puerto Ricans, Italians, Jews, multi-generational African-Americans, and just about every other ethnic group owning a piece of the neighborhood and serving to educate us in the ultimate melting pot. It was New York, it was the 1970’s, and it was the very best place to get a 360-degree view of small business in its most fertile ground, a multicultural, middle class neighborhood.

Growing up in a neighborhood where I was surrounded by entrepreneurs, it is no surprise that business has always excited me. I had my first job at the age of thirteen, when I took over my friend Steven Mayfield’s paper route and began delivering the New York Daily News and New York Times throughout my neighborhood. It was a great training ground for developing a strong and consistent work ethic – papers had to be delivered by 6:00 a.m. daily and 7:00 a.m. on Sundays – rain, snow, or shine. I even had my first experience as “management” when I hired a friend to make deliveries on my behalf on Saturdays. I was soon loaning money to my sister and other family members whenever they were in need.

I didn’t understand it when I was thirteen, but entrepreneurship has always been the fuel that ignites financial growth and creates generational wealth. In this chapter, I will first look at how this fuel has historically been a powerful accelerant when combined with media, intellectual property, and entertainment. I will then give examples of how artists, specifically in the African American community, have used it to ignite the fires of social justice, and close by revisiting how these tools and energies can be directed to promote communal economic empowerment, i.e., how I can be my brother’s keeper.

February 26, 2015 | Permalink | TrackBack (0)

Wednesday, February 25, 2015

Copyright Licensing, Fair Use, and Innovation

Rebecca Tushnet, Georgetown University Law Center, has published All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing at 28 Berkeley Technology Law Journal 1447 (2014). Here is the abstract.

 

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action — along with the right to claim that unlicensed uses are infringing. In a world where licenses are readily and cheaply available, the argument will go, it is unfair not to get one. This development, copyright owners hope, will combat increasingly fair use — favorable case law.

This article describes three key examples of recent innovations in licensing-like arrangements in the noncommercial or formerly noncommercial spheres — Getty Images’ new free embedding of millions of its photos, YouTube’s Content ID, and Amazon’s Kindle Worlds — and discusses how uses of works under these arrangements differ from their unlicensed alternatives in ways both subtle and profound. These differences change the nature of the communications and communities at issue, illustrating why licensing can never substitute for transformative fair use even when licenses are routinely available. Ultimately, as courts have already recognized, the mere desire of copyright owners to extract value from a market — especially when they desire to extract it from third parties rather than licensees — should not affect the scope of fair use.

 

Download the article from SSRN at the link.

February 25, 2015 | Permalink | TrackBack (0)

Tuesday, February 24, 2015

Canada, the UK, and Revenge Porn

Some discussion here from John Gregory at SLAW of the UK's new revenge porn statute, and whether Canada needs a similar statute, or whether the existing Criminal Code provisions are sufficient to address the issue. 

February 24, 2015 | Permalink | TrackBack (0)

The DMCA and the Remix

Teri Karobonik, New Media Rights, and Arthur H. Neill, New Media Rights & California Western School of Law, have published Remixing Copyright Law: How Copyright Reform Can Empower Remix Creators and Internet Users.  Here is the abstract.

 

When it comes to domestic copyright legislation for the digital age, things really haven’t changed much since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998. While the legislation hasn’t changed, our creative world certainly has. In 1998, how many of us envisioned the world of remixers and independent creators producing content of a quality once reserved for the Hollywood elite? How many of us would have imagined the creation and widespread use of an open content license like Creative Commons that allows users to share their work in unprecedented ways? How many of us thought that ordinary people would be using this new technology to create and share everything from mundane pictures of meals at restaurants to the extraordinary live tweeting of the Arab Spring? The cultural and communications landscape has changed dramatically since 1998. The evolution of our creative culture and the way we communicate deserves a corresponding evolution of copyright law.

At New Media Rights, we help hundreds of independent creators and internet users every day who struggle with digital copyright questions. Specifically we also work with remix creators who arguably face some of the greatest challenges in the area of digital copyright. Their challenges shine a spotlight on the areas that copyright law must be revise to better match the digital age so we can ensure the next generation of creators and remixers are as free to create as the generations that came before them. Because while technology has changed our basic human need to create, analyze and share has not.

This article addresses four of the most common problems we’ve seen in our work with remix creators and proposes potential reforms to copyright law that could solve those problems. First, we will address the lack of meaningful safeguards against overreaching and specious takedowns. Specifically we’ll focus on 17 USC §512(f) failure to act as a viable tool for the average remix creator to fight back against these types of takedowns leaving many remix creators no meaningful recourse when their creations are removed from the internet. Second, we will address the problems created by the anti-circumvention provisions in 17 USC §1201. Specifically we’ll focus on how these overbroad provisions have made access to copyrighted materials for many fair use purposes illegal but for some limited and time bound exemptions. Third, we will address the problems created by the incomplete digitization of copyright office records. Specifically, how it has made reusing works created from 1923-1964 that are in the public domain too expensive for the average remix creator. Fourth, we will address the problem of the extraordinary duration of copyright and how it negatively impacts remix creators. And finally, we will address the potential pitfalls in the proposed Small Claims Copyright Court for small scale creators. Specifically we will highlight crucial safeguards that must be a part of the final iteration of The Court. We hope that by discussing these five problems we’ve observed in the field we will spark discussion and encourage badly needed copyright reform for the digital age.

Download the paper from SSRN at the link.

February 24, 2015 | Permalink | TrackBack (0)

Any Value To "Do Not Cite"?

Lee Anne Fennell, University of Chicago Law School, is publishing Do Not Cite or Circulate in the Green Bag 2d (forthcoming). Here is the abstract.

This short essay ponders why legal scholars attach formulations such as "Do Not Cite or Circulate" to draft works. It argues against the practice in most circumstances, particularly for work posted on the internet.

Download the essay from SSRN at the link.

 

I think it's probably okay to cite and circulate!

February 24, 2015 | Permalink | TrackBack (0)

Net Neutrality Stories

Robert Faris, Hal Roberts, Bruce Etling, Dalia Othman, and Yochai Benkler, all of the Berkman Center for Internet and Society, Harvard University, have published Score Another One for the Internet? The Role of the Networked Public Sphere in the U.S. Net Neutrality Policy Debate as Berkman Center Research Publication No. 2015-4. Here is the abstract.

In this paper we study the public debate over net neutrality in the United States from January through November 2014. We compiled, mapped, and analyzed over 16,000 stories published on net neutrality, augmented by data from Twitter, bit.ly, and Google Trends. Using a mixed-methods approach that combines link analysis with qualitative content analysis, we describe the evolution of the debate over time and assess the role, reach, and influence of different media sources and advocacy groups in setting the agenda, framing the debate, and mobilizing collective action. We conclude that a diverse set of actors working in conjunction through the networked public sphere played a central, arguably decisive, role in turning around the Federal Communications Commission policy on net neutrality.
Download the paper from SSRN at the link.

February 24, 2015 | Permalink | TrackBack (0)

Monday, February 23, 2015

The News and Technology From 1840 To 1970

Richard B. Kielbowicz, University of Washington, has published Regulating Timeliness: Technologies, Laws, and the News, 1840-1970, at 17 Journalism & Communication Monographs 5 (March 2015). Here is the abstract.

The advent of telegraphy shifted news gathering from the public postal system to a private network dominated by telegraph companies and wire services, a nearly simultaneous revolution in journalism’s technology and political economy. Postal news gathering had been open to all newspapers with few costs and constraints, while its telegraphic successor developed amid a web of regulations. A changing configuration of occupational rules, private business arrangements, and public laws regulated each stage in the production of telegraphic news, from source-reporter interactions to post-publication liability. This study analyzes the origins of rules that governed timely news — determining who got it, how fast, and on what terms — from the advent of telecommunication to the eclipse of telegraphic news relays. 


To explore these issues, this Monograph combines an historical approach with the organizational scheme of a law review article. It begins with background and context — a short section on pre-telegraphic newsgathering and the rules that governed it, followed by an overview of telegraph technology and the political economy in which it developed. The core of the analysis consists of six parts, each examining a discrete facet of timeliness and its regulation: (1) Technological constraints initially led to company rules and state statutes establishing priority in transmitting news, though industrial contracts and reporters’ norms later proved more influential in this respect. Capitalizing on the limitations of the new technology, telegraph companies and their journalistic clients regulated timely news to advance business objectives in their own realms while forging cross-industry alliances to bolster one another’s interests. These industrial maneuvers (2) fueled a long-running dispute over the ownership of telegraphic news and (3) fostered anticompetitive practices belatedly addressed by public lawmaking bodies. Firms that vended timely news used regulations to (4) shore up their incumbency advantages by fending off threatening changes in political economy and coping with new communication technologies. Once telegraphic reporting became a mainstay of modern life, (5) reporters’ sources found ways to manage the timing of their news, while (6) the legal system limited tort liability for the parties that produced and delivered it.

 

The full text is not available from SSRN.

February 23, 2015 | Permalink | TrackBack (0)

Thai Court Jails Two For Lese-Majeste

From the BBC: A Thai court has sentenced two student activists to more than two years in prison for participating in a play presented in 2013 that insulted the King of Thailand. The two could have received a sentence of 15 years, but said they pled guilty in order to receive a reduced sentence. Coverage of their arrest and trial has been limited because repetition of the statements is as illegal under Thai law as the statements themselves. More here from the Telegraph.

February 23, 2015 | Permalink | TrackBack (0)

Thursday, February 19, 2015

Serial

The attractions of the podcast Serial (from the New York Times).

February 19, 2015 | Permalink | TrackBack (0)