Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Wednesday, August 27, 2014

ACLU, Guardian, Oklahoma Observer File Lawsuit To Gain Access To Executions

The ACLU and ACLU of Oklahoma, the Guardian US, and the Oklahoma Observer have filed suit in the Western District of Oklahoma to obtain access to executions on the grounds that (in part) the public has the right to full information about such events to determine for itself whether executions are carried out properly and so that it may have confidence in the justice system. The organizations also assert that press has the right under the First Amendment to attend such executions to investigate and bring such information to the public. More here from the ACLU of Oklahoma, here from the Oklahoma Observer, here from the Washington Post.

August 27, 2014 | Permalink | TrackBack (0)

Time Warner Cable Service Down Nationwide In Early Morning Hours

Time Warner Cable says service to customers is well on the way to being restored after a large outage early this morning. The company said the outage affected markets nationwide. TWC, which is in the process of being acquired by Comcast, already suffers from customer complaints over its service. More here from CNN Money.

August 27, 2014 | Permalink | TrackBack (0)

Tuesday, August 26, 2014

Testimony of Annemarie Bridy Before the House Subcommittee On Courts, Intellectual Property, and the Internet, March 13, 2014

Annemarie Bridy, Professor of Law at the University of Idaho College of Law, has published her testimony before the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet, which she gave on March 13, 2014. Here is the abstract.

This written testimony was prepared for presentation to the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet at its March 13, 2014 hearing on the safe harbor provisions in Section 512 of Title 17 of the Copyright Act. The hearing was held in the context of a comprehensive legislative review of the United States copyright system, which was announced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) in April of 2013. Included with the text of the testimony are written responses to Questions for the Record (QFRs) posed after the hearing by Representatives Collins and Jeffries. The recorded hearing can be streamed from the website of the House Judiciary Committee.
 
Download the text from SSRN here.  Listen to the hearing here.

August 26, 2014 | Permalink | TrackBack (0)

US Fair Use Principles and the Australian IP Regime

Dan Hunter, Queensland University of Technology, Faculty of Law, and New York Law School, has published American Lessons: Implementing Fair Use in Australia at 24 Australian Intellectual Property Journal 192 (2014). Here is the abstract.

This article discusses the recent Australian Law Reform Commission report proposing a fair use defense to copyright infringement in Australia. It examines the experience of fair use cases in the United States and draws three lessons from the jurisprudential history. First, it suggests that decisions in fair use can only really be understood within a theoretical framework, and that unless we import that framework into Australia any fair use defense will not work as expected. Secondly, the article argues that the area where fair use jurisprudence appears to be most helpful, in dealing with “transformative” works, is actually much more limited than outsiders to the US would expect. And finally, it suggests that any implementation of a factor related to market substitution should take account of the gaming of the system that has gone on in the US.

Download the article from SSRN at the link.

August 26, 2014 | Permalink | TrackBack (0)

Network Neutrality and Tomorrow's Internet

Luca Belli, Independent, and Primavera De Filippi, Université Paris II - Panthéon-Assas  2013, have published The Value of Network Neutrality for the Internet of Tomorrow. Here is the abstract.

The report explores some of the most crucial facets of Network Neutrality, underscoring its close relationship with the full enjoyment of end-users fundamental rights. The report also includes a proposal for a Model Framework on Network Neutrality that has been elaborated by the Dynamic Coalition through an open, inclusive and multi-stakeholder effort, in order to promote an efficient safeguard of the Net Neutrality principle in accordance with international human rights standards.

 

Download the paper from SSRN at the link.

August 26, 2014 | Permalink | TrackBack (0)

Ancillary Copyright For News Publishers In the German Legal Regime

Christian Kersting and Sebastian Dworschak, both of Heinrich-Hein University, Duesseldorf Faculty of Law, have published Ancillary Copyright for News Publishers: Would Google Really Have to Pay? – A Competition Law Analysis in volume 46 of NZKart - Neue Zeitschrift für Kartellrecht (New Journal of Competition Law) (2013). Here is the abstract.

This paper is a translation of an earlier paper published in German: http://ssrn.com/abstract= 2206868.
At the time the first paper was published, the ancillary copyright for news publishers had not yet been adopted by the German legislator. However, the conclusions drawn in both papers are still valid.
The introduction of an ancillary copyright for news publishers was intended to allow news publishers to prohibit search engines to display snippets of their content, which until then did not enjoy copyright protection. Even though the ancillary copyright for news publishers was adopted in 2013, it is uncertain whether the snippets displayed by search engines enjoy copyright protection. A well-founded opinion argues that snippets still do not enjoy copyright protection. If, however, snippets enjoyed copyright protection, search engines would need to either stop displaying such snippets or license them from the publishers. Using Google as an example, this article discusses the plausibility of a potential competition law obligation to index publishers' content and pay publishers if snippets appear on a search results page. We conclude this is not the case: Google can avoid paying for snippets by refraining from indexing and displaying this content.

 

Download the article from SSRN at the link.

 

 

August 26, 2014 | Permalink | TrackBack (0)

Monday, August 25, 2014

Copyright Interpretative Practices

Zahr Said, University of Washington School of Law, has published Reforming Copyright Interpretation. Here is the abstract.

This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the parties, such as whether an issue is a matter of law or fact; whether an issue may be decided at summary judgment; whether expert testimony is allowed; and whether a use is fair or not (among multiple other doctrinal issues). Currently, the lack of transparency that characterizes copyright’s interpretive practices creates unpredictability and unfairness for the parties, because method selection often matters to outcomes. As a function of interpretive choice, works of art may escape destruction if found non-infringing (Cariou v. Prince); movies may get made, or languish as legal disputes get ironed out (Sheldon v. Metro-Goldwyn Pictures; Effie v. Murphy); novels may get banned, or declared a fair use (Salinger v. Colting; Suntrust v. Houghton-Mifflin); fan works may be threatened (RDR v. Warner Bros). Ultimately, understanding interpretive choice helps evaluate the proper allocation and scope of decisional authority, assist in the proper characterization of issues, and identify the best tools to use in copyright’s interpretive work. The Article concludes with a call for greater methodological transparency, and it offers a few modest prescriptions about which interpretive methods might be best adopted, by whom, when, and why. It proposes a rule-based, two-tiered approach to copyright adjudication, a process-based formalism that would constrain judicial discretion and could produce greater consistency and fairness.
 
Download the paper from SSRN at the link.

August 25, 2014 | Permalink | TrackBack (0)

Justice Stewart's Interpretation of the Press Clause

Keith J. Bybeee, Syracuse University College of Law, has published Justice Stewart Meets the Press. Here is the abstract.

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues on the Supreme Court. His thinking is also in tension with recent changes in the news media landscape. With the decline of newspapers and the rise of the blogosphere, the United States faces the prospect of enjoying a great deal of free speech and yet losing its free press, as Stewart understood the term.

 

Download the paper from SSRN at the link.

August 25, 2014 | Permalink | TrackBack (0)

Thursday, August 21, 2014

Scotland Yard, The ISIS Video, and Terrorism

The UK's Metropolitan Police is warning individuals and social media users that sharing or even viewing the video of reporter James Foley's brutal execution could be grounds for prosecution under the UK's terrorism statute. However, while disseminating the video might be grounds for prosecution under the Terrorism Act of 2006, David Allen Green points out in a blog post that it's not so clear why viewing the video is grounds for prosecution. 

Below is the text defining "encouragement of terrorism."

(1)This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.

(2)A person commits an offence if—

(a)he publishes a statement to which this section applies or causes another to publish such a statement; and

(b)at the time he publishes it or causes it to be published, he—

(i)intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or

(ii)is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.

Note that the text refers to statements that an individual publishes or causes to be published. It doesn't discuss viewing or reading (a text, for example).

Here is the text defining "dissemination of terrorist publications."

(1)A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so—

(a)he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism;

(b)he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or

(c)he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).

(2)For the purposes of this section a person engages in conduct falling within this subsection if he—

(a)distributes or circulates a terrorist publication;

(b)gives, sells or lends such a publication;

(c)offers such a publication for sale or loan;

(d)provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan;

(e)transmits the contents of such a publication electronically; or

(f)has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).

 Again, nothing about "viewing" the material, only about distributing, circulating or making available the material, for profit or for free.

Meanwile, YouTube and Twitter are busy removing uploads of the video. 

More here from the Guardian. 

August 21, 2014 | Permalink | TrackBack (0)

More Writers Object To Amazon Policies

A number of German writers have now joined the chorus protesting Amazon's policy promoting e-books, alleging that the online retailing giant delays or fails to promote the products of those authors whose publishers do not agree to Amazon's pricing policies. In an open letter released Monday, the writers, whose numbers include Nobel Prize for Literature winner Elfriede Jelinek, say that "`Amazon uses authors and their books as a bargaining chip to exact deeper discounts,'" and that Amazon misrepresents the availability of books to customers. More here from the New York Times.

August 21, 2014 | Permalink | TrackBack (0)

Wednesday, August 20, 2014

ISIS Kills US Journalist, Threatens Another Reporter

The U.S. government has confirmed that ISIS militants have murdered reporter James Foley, who disappeared in Syria nearly two years ago. President Barack Obama addressed the nation, saying that both the U.S. and the world are horrified at this event. ISIS forces claim that they also hold journalist Steven Sotloff, and say they will execute him as well if US forces do not cease their airstrikes against ISIS positions in northern Iraq. More here from the Huffington Post.

August 20, 2014 | Permalink | TrackBack (0)

Tuesday, August 19, 2014

Ofcom Investigates the (UK) Gold Channel Over Live Monty Python Show

Ofcom, the UK broadcasting agency, is investigating complaints on two fronts about the recent live Monty Python show, which aired on the Gold Channel. Some viewers objected to the swearing broadcast before the watershed, saying there was too much of it. And some viewers objected to the paucity of swearing, saying there was too little, and howling about censorship. You can't please all of the people all of the time. More here from the Guardian.

August 19, 2014 | Permalink | TrackBack (0)

British Police Officer Sentenced For Selling Info To Tabloid

The Guardian reports that Thomas Ridgeway, a Scotland Yard police officer, has been sentenced to one year in prison for for selling stories to the UK tabloid the Sun. The stories involved information about an actor who attempted suicide and police involved in sexual activity. Mr. Ridgeway's mother Sandra, who was involved in aiding and abetting, received an 18 week prison sentence and 26 weeks of probation. Mrs. Ridgeway received a payment of 1600 pounds and split the proceeds with her son. More here. Coverage here from the BBC.

August 19, 2014 | Permalink | TrackBack (0)

Monday, August 18, 2014

FCC Extends Date To File Comments On Open Internet Rulemaking

The FCC has extended the opportunity to file comments on its proposed rulemaking on the Open Internet until September 15. More here.

August 18, 2014 | Permalink | TrackBack (0)

FCC Chair Wheeler On OMB Collection of Data To Evaluate Marketplace Competition

FCC Chair Tom Wheeler issued this statement concerning the Office of Management and Budget plan to collect data in order to evaluate competition in the marketplace.

“Special access service has become increasingly important in the digital economy, enabling businesses large and small to connect to their customers around the globe.  Consistent with the terms of OMB’s approval, we will move forward with data collection and fact-based analysis that will help the Commission better understand competition in this marketplace, and the impact on consumers as we pursue the Commission’s statutory mandate to ensure special access services are provided at reasonable rates and on reasonable terms and conditions.”

August 18, 2014 | Permalink | TrackBack (0)

Friday, August 15, 2014

New Issue of Journal of Media Law Now Available

The new issue (volume 6, issue 1) of the Journal of Media Law is out.

Here is the table of contents.

 

CONTENTS

COMMENT AND ANALYSIS

Observations on the House of Lords Select Committee on Communications Report on Plurality

Alison Harcourt

Abstract: This article provides an overview of the chapters in the House of Lords Select Committee on Communications’ report on Media Plurality. It considers the House of Lords’ proposals in light of the existing regulatory/market environment and the proposals of other stakeholders, including the recommendations from Leveson. The conclusion is that the approach put forward in the House of Lords’ report represents a middle ground between different stakeholders; a weaker approach than the proposals in the Leveson report but more radical than those that are expected to be put forward by the current government. The article also assesses the legal feasibility of the proposals in light of existing statutes, EU law and the political chain of delegation as well as what would need to occur for the proposals to come to fruition.

Copyright Reform in Australia: Asking the Right Questions

Isabella Alexander and Michael Fraser

Abstract: In February 2014, the Australian Government released the Report of the Australian Law Reform Commission (ARLC), Copyright and the Digital Economy. In accordance with its Terms of Reference, the ALRC carried out a comprehensive review of the existing exceptions to copyright law, considering whether they were still appropriate in the digital age, and whether new exceptions should be enacted. The Inquiry stimulated strong opinions from members of the wider copyright community, which were expressed both in submissions to the Inquiry and in other fora. As was widely anticipated, the ALRC recommended that the current fair dealing provisions be replaced by a more general and flexible fair use provision. However, it also made a number of other recommendations and comments in respect of related areas such as orphan works and broadcasting.

ARTICLES

 

Protecting Speech in Defamation Law: Beyond Reynolds-Style Defences

Andrew T Kenyon

Abstract: Communication practices have changed dramatically in recent years, allowing wider participation in public debate. This means those who are subject to defamatory speech can more easily consider ‘speaking back’ as their preferred response. It also suggests there could be value in a defamation defence that itself supported a discursive response to defamatory publication. In the context of England and Wales, the defence in s 4 of the Defamation Act 2013 is an attempt to develop a stronger defence for public interest speech, but one that does not take a response-based form. It is an example of developments in a wide range of common law jurisdictions, broadly parallel to Reynolds, which recognise the value in public speech. However, the history of both qualified privilege and fair report privilege suggests a slightly different model of defence is worth exploration. Indeed, parliamentary debates preceding the 2013 Act raised the possibility of making the defence in s 4 subject to publication of a form of response. That type of requirement has existed since the nineteenth century in some fair report privileges. It is a longstanding element of defamation law and offers interesting ideas for a discursive defence for contemporary conditions.

Procedural Controls and the Proper Balance between Public and Private Interests in Defamation Claims

Richard Hyde

Abstract: Claims in defamation involve courts in balancing of a number of interests. The Claimant’s interest in their reputation must be balanced with the Defendant’s interest in free expression. The Court’s interest in fair, efficient and proportionate adjudication must be balanced against the Claimant’s interest in vindicating their reputation. Much of the literature examining this balance has focused on the substantive law. This article seeks to consider how these interests have been balanced through procedural control mechanisms, such as summary judgment and strike out. In particular, the development of the court’s ability to strike out a claim as an abuse of process is been considered. It is argued that the ability to strike out in such cases performs an important role, but should not be used to prevent reputational vindication where this is worthwhile. Further, it is argued that whilst substantive and procedural changes may reduce the need for strike out, the courts should not remove this important tool from their toolbox.

Exemplary Damages for Invasions of Privacy?

Normann Witzleb

Abstract:As part of the government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK's obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK's obligations under the Convention.

Who Needs the Sub Judice Rule? Israel as a Test Case in the Relationship between Law and Media

Yuval Karniel

Abstract:Recent coverage of criminal trials of senior government officials in Israel have served to underline the fact that the Israeli media has effectively rendered the statutory sub judice rule, prohibiting coverage of criminal trials, obsolete. The decline in the influence traditionally held by the Israeli political institutions in general and Israel's legislative body, the Knesset, and the Israeli Government in particular, has led to an upsurge in media confidence in covering and commenting on affairs normally monopolized by the courts. The position of the enforcement and prosecutorial bodies in Israel in allowing blatant media coverage of current and upcoming criminal trials, despite concerns about maintaining the integrity of judicial proceedings and the prejudicial influence that individual reports may have on such proceedings, demonstrates their inherent belief that such concerns are not enough to justify the greater disproportionate harm to the right of the public to freedom of information. Shown through the prism of actual trials of well known political figures in Israel, this article explores media influence on the trials themselves, at the same time that courts scramble to understand and deal with this new type of media intrusion.

Regulatory Gaming, Myopia and Ineptitude? Ofcom’s Intervention in the UK Pay–TV Market

Michael Harker

Abstract:This article concerns the regulation of the UK pay-TV market, and the key lessons to be learnt from the media regulator's attempt to prise open access to premium content. The case represents a useful study on regulation more generally, and the need for regulators to exercise caution before intervening in markets, especially ones which are fast-moving in technological terms. It is also a lesson that regulators need to be wary of rivals who may engage in regulatory gaming. In such a situation the presence of the regulator may prevent the incumbent and rivals from reaching commercial deals, the latter preferring instead the prospect of imposed regulatory terms.

BOOK REVIEWS

 

Petros Iosifidis, Global Media and Communication Policy: An International Perspective

A review by Peggy Valcke and Jeroen Verschakelen

Lee A Bygrave, Data Privacy Law: An International Perspective

A review by Daithí Mac Síthigh

Kari Karppinen, Rethinking Media Pluralism

A review by Rachael Craufurd Smith

 

August 15, 2014 | Permalink | TrackBack (0)

Thursday, August 14, 2014

Journalists Arrested In Ferguson, Missouri, While Covering Unrest In Wake of Teen's Death

Washington Post reporter Wesley Lowery, arrested while covering the violence in Ferguson, Missouri, which has broken out after the shooting death of young Michael Brown. Mr. Lowery discusses being part of the story here for WaPo.  More coverage here from the Washington Post. Another reporter, Ryan Reilly of the Huffington Post, was also arrested. Coverage here  from HuffPo. Neither journalist was charged, and both have since been released. President Obama has spoken out against the arrests of Mr. Lowery and Mr. Reilly, saying, "Here in the United States of America, police should not be bullying and arresting reporters who are just doing their jobs. The local authorities, including police, have a responsibility to be transparent and open."

August 14, 2014 | Permalink | TrackBack (0)

Another Look at Brown v. Entertainment Merchants Association

Martin Guggenheim, New York University School of Law, has published Violent Video Games and the Rights of Children and Parents: A Critique of Brown V. Entertainment Merchants Association in volume 41 of the Hastings Constitutional Law Quarterly (2014). Here is the abstract.

This Article closely examines the 2011 Supreme Court decision in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), which held that California’s effort to restrict children’s access to violent video games violated the First Amendment. The Article will show that the Supreme Court widely missed the mark in applying well-established First Amendment law to strike down California’s effort to limit a minor’s access to material reasonably deemed inappropriate by parents. The Court’s principal error was to mischaracterize the statute as a ban on the distribution of material deemed inappropriate by the Legislature. This allowed it to announce simplistically that the case was controlled by United States v. Stevens, 559 U.S. 460 (2010) which rejected “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” 559 U.S. at 472, in declaring unconstitutional a federal statute that made it a crime to possess a depiction of animal cruelty if done “for commercial gain.” 


Brown contains numerous flaws. If taken literally, it would broadly expand children’s First Amendment rights. But Brown is not really about children’s rights, it is more about allowing a wealthy corporate enterprise – the violent video industry, to continue sales to an important constituency, young males. In this Article, I demonstrate the many flaws in the majority’s opinion, including the irony that Justice Scalia gets to become a champion of children’s rights (for an extreme change). But my greatest criticism of Brown is the extent to which the Court ignores, even mocks, the plight of conservative parents who struggle with ways to keep material from their children that American law insists may not be generally banned but that reasonable parents may believe is nonetheless inappropriate for their children. I ultimately argue that a well-worded law (which the California statute was not) should be upheld as constitutional if its purpose was merely to prevent children from purchasing certain material themselves, without making it unlawful for children to have access to the materials with their parents’ permission (in much the same way minors currently may not access movie theatres).
 
 

Download the article from SSRN at the link.

August 14, 2014 | Permalink | TrackBack (0)

Wednesday, August 13, 2014

Regulating Speech: The Defamation of Public Figures in Europe

András Koltay, Peter Pazmany Catholic University and the Hungarian Academy of Sciences, has published The Regulation of the Defamation of Public Figures in Europe, with Special Emphasis on the Hungarian Legal System in Media Freedom and Regulation in the new Media World (A. Koltay, ed., Budapest, Wolters Kluwer, 2014 (Forthcoming)). Here is the abstract.

This study presents the international background of the defamation of public figures. Then it provides a brief overview of the solutions applied in specific European countries, broken down by the most important problems. Later sections take a closer look at the Hungarian regulations and the jurisprudence of the Constitutional Court (CC) and ordinary courts, and examine the Strasbourg cases relating to Hungary, but with lessons for those outside the country too.

Download the essay from SSRN at the link.

August 13, 2014 | Permalink | TrackBack (0)

Monday, August 11, 2014

Privacy, Non-Publication Orders, and the Media in the Australian Legal Regime

Miiko A. Kumar and David Rolph, both of the University of Sydney Faculty of Law, have published An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy in Perspectives on Privacy: Increasing Regulation in the USA, Canada, Australia and European Countries (Dieter Dorr and Russell L. Weaver, eds.; de Gruyter, 2014). Here is the abstract.

The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.

 

Download the essay from SSRN at the link.

August 11, 2014 | Permalink | TrackBack (0)