Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 29, 2016

Wang on Law Enforcement Misappropriation of Press Identities In the Cyber Era

Andy Wang, United States Court of Appeals for the Fifth Circuit, has published Stealing Press Credentials: Law Enforcement Identity Misappropriation of the Press in the Cyber Era at 6 University of Miami National Security & Armed Conflict Law Review 25 (2015-2016). Here is the abstract.

Law enforcement agencies have long resorted to tricks and ruses to catch perpetrators of crimes. But this article examines the rise of a novel, and controversial, form of law enforcement trickery: the misappropriation of media and press identities. Specifically, newly declassified documents revealed that in 2007, undercover FBI agents, posing as employees of the Associated Press, created a fake AP article laced with malware and sent it to a suspect in order to uncover his identity and location. All this was done without the knowledge and consent of the AP. Media and press organizations around the country sounded alarms on the use of this tactic, belying the controversial nature of a government law enforcement agency misappropriating the entity of the so-called "free" press. But what legal standards are applicable to this case? And under such standards, did the FBI break the law while trying to enforce the law? Drawing upon applicable constitutional, statutory, and regulatory materials, this article analyzes the legality and constitutionality of such a tactic, examines its potential for use and abuse, and addresses its overall soundness in the cyber era.

Download the article from SSRN at the link.

April 29, 2016 | Permalink

Thursday, April 28, 2016

Weisbord on Copyright Holders, Publicity Rights Holders, and the First Amendment

Reid K. Weisbord, Rutgers Law School (Newark), is publishing A Copyright Right of Publicity in volume 84 of the Fordham Law Review (2016). Here is the abstract.

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability. Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

Download the article from SSRN at the link.

April 28, 2016 | Permalink

Wednesday, April 27, 2016

Hofhenke on the Fourth Amendment in the Coming Drone Age

Brooke Hofhenke, American University College of Law, is publishing The Fourth Amendment in the Coming Drone Age in the Dartmouth Law Journal. Here is the abstract.

Drones have exploded in popularity over the last few years for both the general public and law enforcement. They are small and affordable -- often flying in close proximity to private homes and property, recording and storing vast amounts of information, and conducting surveillance for extended period of time. While drones have the capacity to facilitate more efficient monitoring of potential suspects and aid in officer safety, they also raise significant privacy concerns that neither statutory law nor Fourth Amendment law is currently equipped to handle. This Article tackles the deficiency in both statutory law and Fourth Amendment jurisprudence as it relates to this advanced technology. Specifically, it examines the unique privacy concerns relating to drone use and the lack of helpful legislation in this area. It argues that, due to the invasive nature of drones, the Fourth Amendment’s protections should apply, and a warrant be required, when officers utilize these machines in criminal investigations -- advocating a technology-focused approach to the Fourth Amendment. Further, this Article provides policy recommendations including clear limitations on what data may be collected, how it should be stored, and its later use.

Download the article from SSRN at the link.

April 27, 2016 | Permalink

Brinton on Racist Language and Censorship in the Media

Hal Brinton, University of Leeds, is publishing Racist Language and Censorship in the Media in the Westlaw Insight Encyclopedia (Sweet & Maxwell, 2015). Here is the abstract.

This article explores the varied regulation across different media which might apply in a scenario where racist language is used. Comprehensive guidance covering statutory, co-regulatory and self-regulatory media platforms.

The full text is not available from SSRN.

April 27, 2016 | Permalink

Steinberg on Sharenting: The Parenting Sharing of Their Children's Online Identity

Stacey Steinberg, University of Florida College of Law, has published Sharenting: Children's Privacy in the Age of Social Media as University of Florida College of Law Research Paper. Here is the abstract.

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age. Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These parents act as both gatekeepers of their children’s personal information and as narrators of their children’s personal stories. This dual role of parents in their children’s online identity gives children little protection as their online identity evolves. A conflict of interest exists as children might one day resent the disclosures made years earlier by their parents. This Article is the first to offer an in-depth legal analysis of the conflict inherent between a parent’s right to share online and a child’s interest in privacy. It considers whether children have a legal or moral right to control their own digital footprint and discusses the unique and novel conflict at the heart of parental sharing in the digital age. The Article explores potential legal solutions to this issue and offers a set of best practices for parents to consider when sharing about children online. It concludes by providing a child-centered, public-health-based model of reform that protects a child’s interest in privacy while also recognizing a parent’s right to share online.

The full text is not available for download.

April 27, 2016 | Permalink

Monday, April 25, 2016

Dyer on The Problem of Media Entrapment

Andrew Dyer, University of Sydney Faculty of Law, has published The Problem of Media Entrapment at 2015 Criminal Law Review 311. Here is the abstract.

This article examines whether any remedy should be available to accused persons who have been entrapped by the media. The argument presented here is that, contrary to the general flavour of the judicial decisions and academic commentary concerning this issue, a stay of proceedings for abuse of process should be available in media entrapment cases. Properly viewed, there is a breach of the accused’s human rights and/or the rule of law in such cases, warranting the provision of this remedy to him/her.
Download the article from SSRN at the link.

April 25, 2016 | Permalink

Friday, April 22, 2016

Foong on Making Copyright Content Available in the Cloud Versus the Making of Copies: Revisiting Optus TV and Aereo

Cheryl Foong, Curtin University Law School, has published Making Copyright Content Available in the Cloud vs the Making of Copies: Revisiting Optus TV and Aereo at 41 Monash University Law Review 583 (2015). Here is the abstract.

In the digital environment, the commercialisation of copyright content is increasingly led by access to content, rather than the provision of copies. Copyright law nevertheless remains fixated on copies, or more specifically, copyright owners’ exclusive reproduction right. This unwavering fixation on copying blinds us to the potential afforded by the right to make works available to the public, a broad right introduced in 1996 by the WIPO Internet Treaties to address the interactive communication channels afforded by the internet. The default approach in cases involving “cloud”-based services is to overlook the “act” of making available, and stretch the reproduction right to encompass the activities of a service provider. As a result, the scope of the making available right remains uncertain and its potential unrealised. Using prominent Australian and US cases — NRL v Singtel Optus and ABC v Aereo — this article illustrates the importance of clearly conceptualising the “act” of making available, which allows courts to allocate responsibility for primary infringement of the making available right in a principled manner, without unduly restricting the development of innovative services in the cloud.

Download the article from SSRN at the link.

April 22, 2016 | Permalink

Oswald, James, and Nottingham on Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media

Marion Oswald, Helen James, and Emma Nottingham, all of the University of Winchester, have published 'The Not-so-Secret Life of Five Year Olds': Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media. Here is the abstract.

Widespread concerns around the privacy impact of online technologies have corresponded with the rise of fly-on-the-wall television documentaries and public-by-default social media forums allowing parallel commentary. Although information about children has traditionally been regarded by society, law and regulation as deserving of particular protection, popular documentaries such as Channel 4’s ‘The Secret Life of 4, 5 and 6 year olds’ raise the question as to whether such protections are being deliberately or inadvertently eroded in this technological ‘always-on’ online age. ‘The Secret Life of 5 Year Olds’ is an example of the public depiction of young children alongside scientific and medical commentary designed for popular appeal and the encouragement of real-time interaction over Twitter by the publication of a hashtag. According to Channel 4, the programme eavesdrops on the children’s ‘secret world’. The paper first describes the series and the results of an analysis of related Twitter interaction. It will consider responses to freedom of information requests sent to the public bodies involved in the series (Channel 4 and the bodies associated with the scientists and clinician providing the commentary) with the aim of establishing the ethical considerations given to the involvement of the children in the series. The paper goes onto explore the privacy law context; the wider child law issues, the position of parents/carers and impact of broadcast codes; and considers if lessons can be learned from how decisions in the medical context have dealt with issues of best interests in decision-making and in disclosure of information concerning the child. Finally, the paper considers whether additional legal and ethical safeguards are needed to ensure that the best interests of children are properly considered when images and information are exposed on broadcast and social media.

Download the article from SSRN at the link.

April 22, 2016 | Permalink

Thursday, April 21, 2016

Carroll on Sharing Research Data and IP Law

Michael W. Carroll, American University College of Law, has published Sharing Research Data and Intellectual Property Law: A Primer in volume 13 of PLOS Biology (Issue 8) (2015). Here is the abstract.

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security laws that regulate sharing certain types of data, this Perspective explains how to work through the general intellectual property and contractual issues for all research data.

Download the article from SSRN at the link.

April 21, 2016 | Permalink

Monday, April 18, 2016

Lidsky and Jones on United States Media Law Update 2016

Lyrissa Barnett Lidsky and Rachael L. Jones, both of the University of Florida College of Law, have published United States Media Law Update at 20 Media & Arts Law Review 461 (2016). Here is the abstract.

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based and thus subject to the highest level of constitutional scrutiny. Meanwhile, lower courts began addressing other important topics ranging from the surveillance practices of the Department of Justice to the proper balance between privacy interests and the free flow of public information.

Download the article from SSRN at the link.

April 18, 2016 | Permalink

Central States Law Schools Scholarship Conference: September 23-24, 2016

 

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

April 18, 2016 | Permalink

Friday, April 15, 2016

Simonson on the Right To Record the Police

Jocelyn Simonson, Brooklyn Law School, is publishing Beyond Body Cameras: Defending a Robust Right to Record the Police in volume 104 of the Georgetown Law School (2016). Here is the abstract.

This symposium essay articulates and defends a robust First Amendment right to record the police, up to the point that the act of filming presents a concrete, physical impediment to a police officer or to public safety. To the extent that courts have identified the constitutional values behind the right to record, they have for the most part relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this essay contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.

Download the article from SSRN at the link.

April 15, 2016 | Permalink

German Comedian Faces Investigation For Criticism of Turkish President

German Chancellor Angela Merkel has okayed an investigation into Jan Boehmermann's use of satire to criticize Turkish President Recep Tayyip Erdogan. Under Germany's penal code, Mr. Boehmermann might be guilty of violating the statute that forbids insulting a foreign head of state in his official capacity. If prosecuted and then found guilty, Mr. Boehmermann could be sentenced to jail or ordered to pay a fine. However, Chancellor Merkel also says the German government plans to push for repeal of the law. More here from Politico.

April 15, 2016 | Permalink

Bair on the Utility of Fairness in Copyright

Stephanie Plamondon Bair, BYU School of Law, is publishing Rational Faith: The Utility of Fairness in Copyright in the Boston University Law Review (2016). Here is the abstract.

The biggest debate in copyright law is also the most fundamental: for what purpose does copyright exist? There are two schools of thought about the appropriate answer to this key question. The first, dominant school focuses on economic efficiency, while the second emphasizes fairness and other moral concerns. As evidenced by scholarly response to the Blurred Lines litigation and Mark Lemley’s recent piece, Faith-Based Intellectual Property, proponents of each school are often at odds with each other. There is little middle ground. This either/or view of efficiency and moral rights is detrimental to a productive scholarly debate about the value of copyright. More importantly, it is wrong. Scholars like Jeanne Fromer, Christopher Buccafusco, and David Fagundes have recently pointed out that moral concerns are not necessarily inconsistent with, and could in some circumstances even promote utilitarian ends. Here, I reframe the debate by suggesting that the dichotomy between moral rights and utility should be abolished altogether. Drawing on insights from neuroscience, psychology, and organizational behavior, I demonstrate that when it comes to creation, fairness — a moral rights concern — often is utility in a very real sense. The evidence suggests that treating creators fairly acts as a powerful motivator for creative work, results in objectively more creative output, and aligns well with public and legal decision-makers’ moral intuitions. In other words, the most efficient copyright system is a fair one. This conclusion has implications for both copyright scholarship and policy. On the scholarship side, it builds a tangible bridge between utilitarian and moral rights camps. Moral rights advocates previously accused of a blind faith in the value of fairly administered rights can now respond that their faith is rational. On the policy side, I explain how novel fairness-enhancing mechanisms like individualized permissive use and an increased focus on distributive concerns in applying the fair use doctrine can increase the overall efficiency of the copyright system — a proposition that should appeal to scholars on both sides of the debate.

Download the article from SSRN at the link.

April 15, 2016 | Permalink

Tuesday, April 12, 2016

Kessler on the Early Years of First Amendment Lochnerism

Jeremy K. Kessler, Columbia University, is publishing The Early Years of First Amendment Lochnerism in the Columbia Law Review. Here is the abstract.

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith – the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First Amendment enforcement repeated the mistakes of the “liberty of contract” jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on “the rights of others.” Jackson’s warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet today’s critics treat recent case law as a novel, economically libertarian cooption of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon’s novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today’s First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.

Download the article from SSRN at the link.

April 12, 2016 | Permalink

Kamatali on The Limits of the First Amendment in the Era of the Internet and the Global Marketplace of Ideas

Jean-Marie Kamatali, Ohio Northern University, is publishing The Limits of the First Amendment: Protecting American Citizens’ Free Speech in the Era of the Internet & the Global Marketplace of Ideas in volume 33 of the Wisconsin International Law Journal (2016). Here is the abstract.

The number of countries that limit speech that would likely be protected under the US First Amendment has recently increased. On the other hand new information technology is making speech made in the United States by an American citizen accessible outside the United States, exposing the speaker to consequences for violating the free speech limitations set in international law or the domestic laws of other countries. These Americans are therefore often forced to make a difficult choice: exercise in the US their free speech as guaranteed by the US First Amendment and potentially expose themselves to prosecution and other legal consequences overseas, or accept those free speech limitations to avoid the consequences of violating them. This Article argues that the US recourse to reservation and refusal to ratify treaties that limit free speech may not be enough in today’s era of globalization, information technology, and free movement of people. This approach may shelter the United States from its international human rights obligations, but it does not provide US citizens protection in countries that have incorporated these treaties into their domestic law. Also the use of diplomacy to free American victims of such limitations is not sustainable. The Article advocates rather for the United States to adopt an international relations free speech strategy that starts from the recognition that free speech is not absolute, rather than focusing on the slippery slope argument of free speech limitation. From this recognition, the United States could lead other countries in developing better standards in defining protected and unprotected speech, and thus ensure her citizens better free speech protection overseas.

Download the article from SSRN at the link.

April 12, 2016 | Permalink

Subotnik on Artistic Control After Death

Eva E. Subotnik, St. John's University School of Law, is publishing Artistic Control After Death in volume 92 of the Washington Law Review (2017). Here is the abstract.
To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music is a fundamentally troubling notion. This article evaluates instructions given with respect to authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this article considers the demands of both state trust laws and federal copyright policy. In the end, the article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used — even if that means overriding artistic control by the dead.
Download the article from SSRN at the link.

April 12, 2016 | Permalink

Monday, April 11, 2016

Daily Mail Parent Company Investigating Possible Acquisition of Yahoo

The Daily Mail and its parent company General Trust are considering a takeover of Internet search/social media company Yahoo. DMGT has been in talks with various privacy equity firms discussing what kind of financial deal it could work out for such a transaction. Other companies, however, are also interested in acquiring Yahoo, including Verizon. More here from the Guardian, here from Reuters.

April 11, 2016 | Permalink

Thursday, April 7, 2016

Snow on Content-Based Copyright Denial

Ned Snow, University of South Carolina, is publishing Content-Based Copyright Denial in volume 90 of the Indiana Law Journal (2015). Here is the abstract.
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of coverage between copyright and free speech law does not suggest a tension between them. To the contrary, the distinction enables copyright to further the purpose of free speech under the marketplace-of-ideas speech theory. Through copyright, Congress may alleviate failures in that marketplace which stem from individuals determining the value of speech for the collective. Furthermore, the possibility of Congress abusing this discriminatory power poses relatively minimal threat to speech because copyright denial does not altogether prevent speakers from realizing profit from their speech. This fact, coupled with viewpoint-neutrality and rational-basis restraints, alleviates the usual risks associated with government influencing content in the marketplace. Additionally, free-speech doctrine leaves room for the sort of discrimination that Congress would exercise in defining copyright eligibility according to content. Doctrines governing limited-public forums and congressional funding allow for content discrimination akin to content-based copyright denial.
Download the article from SSRN at the link.

April 7, 2016 | Permalink

Long on the Lawyer As Public Figure For First Amendment Purposes

Alex B. Long, University of Tennessee College of Law, is publishing The Lawyer as Public Figure for First Amendment Purposes in the Boston College Law Review. Here is the abstract.
Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can also see more clearly some of the complexities the legal profession now faces and the sometimes uncertain nature of its role.
Download the article from SSRN at the link.

April 7, 2016 | Permalink