March 12, 2005
Judge Rules that Bloggers Not Entitled to Protect Sources Under California Shield Law
Judge James Kleinberg of the Superior Court, Santa Clara County, has ruled in Apple Computer v. Does 1-25, available here, that bloggers Monish Batia, Kasper Jade and Jason O'Grady are not entitled to protections under the existing California shield law, nor under any protection for traditional print and broadcast journalists that might arise under First Amendment law. Kleinberg acknowledged that "[d]efining what is a "journalist" has become more complicated as the variety of media has expanded" but continued that "[e]ven if the movants are journalists, this is not the equivalent of a free pass." In considering whether the information sought could be obtained elsewhere, the judge concluded that Apple had exhausted all other avenues of discovery open to it, and decided that the time had come for the movants to offer up the names of their sources. The judge was particularly critical of the movants' failure to identify the public interest served "by publishing private, proprietary product information that was ostensibly stolen and turned over to those with no business reason for getting it. Movants' response was to again reiterate the self-evident interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity.... Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all...the movants are doing nothing more than feeding the public's insatiable desire for information." The order is stayed for 7 days pending appeal.
March 11, 2005
New York Appellate Decision in Cameras in the Courtroom Case
A defendant has successfully petitioned to prevent a judge from opening his courtroom to television and still cameras in Heckstall v. McGrath. Using New York's Civil Practice Law and Rules section 78, pursuant to CPLR 506 (b)(1) Gregory Heckstall "alleges that respondent ignored a clear statutory bar to cameras in judicial proceedings and the presence of cameras at his trial [that] will result in a public spectacle that [will] adversely affect the testimony of witnesses, the evaluation of the evidence by jurors and the conduct of counsel. Petitioner also contends that since he will be unable to demonstrate sufficient prejudice arising from the subtle effects of the cameras' presence to warrant reversal of any conviction, respondent's decision will escape meaningful review unless this Court addresses it here. We agree.
"While respondent certainly has the right to control the proceedings before him and control his courtroom, that right is not absolute...The act by respondent that exceeded his authority was not making a ruling...but implementing a ruling interpreting Civil Rights Law [section] 52 in such a way that permitted third parties to violate the clear legislative mandate of that statute....As respondent has exceeded his authority, we must determine whether a writ of prohibition should be issued. Prohibition is required here because deprivation of a fair trial is a grave harm and petitioner cannot adequately address this issue on an appeal....It is undisputed that the right to a fair trial is paramount. Unfortunately, the extent to which cameras in the courtroom affect that right--including whether jurors will be unwilling to serve, witnesses reticent to testify, or attorneys prone to grandstanding--is unknown and largely unmeasurable...A criminal defendant cannot be expected to adequately show on appeal that he or she was prejudiced by such unmeasurable conduct. Because respondent's actions implicate petitioner's fundamental right to a fair trial in a way which cannot be adequately addressed on appeal, this Court will exercise its discretion in this action and grant the petition."
The Defamation Derby, Continued
In an unpublished and extremely brief ruling, the 5th Circuit has held that CBS' newsmagazine "60 Minutes" did not defame members of a Mississippi jury shown in an episode called "Jackpot Justice". The plaintiffs had claimed, among other things, that the show libelled them, invaded their privacy, and inflicted emotional distress. In upholding the lower court's dismissal of the plaintiffs' motion to remand for lack of complete diversity and the grant of defendants' motion for judgment on the pleadings, the 5th Circuit "agree[d] with the district court's characterization that: "at best [the statements in the 60 Minutes broadcast] were directed towards Jefferson County jurors in general. Thus, they lack the specificity required to impose liability....We therefore affirm the district court's order for essentially the reasons as well-stated in its memorandum opinion and order." The case is Gales v. CBS Broadcasting, Docket no. No. 04-60710 (decided March 3, 2005).
Meanwhile comes this ruling from the United States District Court for the Northern District of Georgia in the matter of Russ Brock et al., versus Viacom International over an episode of Penn & Teller's controversial series Bullshit!which is broadcast on Showtime. The plaintiffs sued the defendants over taped interviews that made up part of an episode titled "Creationism" aired during the show's first season. The defendants moved to dismiss. "According to the plaintiffs when they met with the defendants to discuss the television series and consider the interviews, the defendants represented that the series had not yet been named and that it was a program about topics that Americans are passionate about. After agreeing to sit for the interviews, the defendants asked the plaintiffs to sign releases. While reviewing the releases, the plaintiffs noticed language indicating that the taped interviews might be used for satirical or humorous purposes. The plaintiffs requested an explanation of this language from the defendants, and the defendants responded by saying that the releases were a standard form that is used for all types of television programs. The defendants told the plaintiffs "not to worry" because the television program was "not that kind of show."...Based on these representations, the plaintiffs agreed to sit for the taped interviews. Plaintiff Russ Brock was paid $300 for the interview...As it turned out, the show was already entitled "Bullshit!" and the content of the Episode was a combination of interviews and film clips from the media's coverage of the public hearings before the Cobb County School Board, together with acerbic commentary by Penn & Teller. Penn & Teller's commentary was highly critical of the plaintiffs' views on the teaching of creationism in public schools....The plaintiffs complain that, instead of being a program about things that Americans are passionate about..."the program was an aggressive, irreverent expose of the beliefs of Christianity and Creationism, and a personal attack on Plaintiffs for their desire to have both Creationism and Evolution taught as alternate theories in the Public School System of Cobb County."
In analyzing the Defendants' motion to dismiss the court applied the Hepps standard and determined that the plaintiffs were private figures. Nevertheless, it found that the speech involved was of public concern, and that under Hepps, the plaintiffs had the burden of showing both falsity and fault. Since the episode showed statements that the plaintiffs themselves made and that they did not dispute, and that the other statements of which they complained were protected opinion, the court granted defendants' motion to dismiss. "The plaintiffs' primary complaint is not that any of the statements made in the Episode were false, but that the show advocated a viewpoint different from theirs, and, in doing so, criticized their position in an "aggressive" and "irreverent" manner....But the Supreme Court has rejected the notion that harsh criticism of a viewpoint can constitute actionable defamation....Because plaintiffs have failed to allege that any of the statements contained in the Episode are false and because the plaintiffs cannot prove the falsity of the complained of statements given that those statements are opinions, the plaintiffs' defamation-type claims fail as a matter of law, and their complaint fails to state a claim under which relief can be granted. For all of these reasons, the court grants the defendants' motion to dismiss." The case is Brock et al., v. Viacom International, et al., (Civil Action) 1:04-CV-1029-CAP (U.S.D.C., Northern District of Ga., Atlanta Division), decided February 28th, 2005(Parnell, J.).
March 10, 2005
New Legislation to Protect Artists' Rights May Be Headed for President's Desk
The Family Entertainment and Copyright Act of 2005 seems to be headed for President Bush's desk. This piece of legislation brings together several bills on related topics. One, the Artists' Rights and Theft Prevention Act of 2005 (ART Act) would provide for protection of copyrighted films by making the practice of using camcorders to film them off commercial movie screens a federal crime. Another part of the act, the Family Movie Act of 2005, allows home users to intercept "limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology" using aftermarket technology such as that marketed by ClearPlay. A likely use would be to prevent the broadcast of indecent, profane or violent material that a parent desired his or her children not to see. The Family Movie Act is controversial since the practice of intercepting objectionable bits of films or other copyrighted material is at issue in the lawsuit between Clear Play, Family Shield Technologies and Trilogy Studios, and the Directors Guild of America and various other parties over allegations of copyright violations. The case, which first began in the U. S. District Court for the District of Colorado, is Huntsman v. Soderbergh. Some of the documents are available here. The EFF's amicus brief is available here. The artists contend that the technology allows individuals to intercept more than just a few objectionable words; it permits wholesale excision of scenes, gutting the meaning of the films in some cases. The manufacturers respond that the machines simply allow the users to change the way they view the films. The technology does not change the original in any way.
The interpretation of the word "imperceptible" may be the key here. Very little in the way of legislative history accompanies the bill. However, here are Senator Hatch's comments from the Congressional Record.
"The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called "ad-skipping" technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to "ad-skipping"' cases, such as in the recent litigation involving ReplayTV. In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent "ad-skipping" litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill. That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the "making imperceptible . . . limited portions of audio or video content of a motion picture. . . ." An advertisement, under the Copyright Act, is itself a "motion picture," and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase "limited portions" is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption." 151 Cong. Rec. S495.
The other parts of the act include provisions dealing with the preservation of films (the National Film Preservation Act of 2005, National Film Preservation Foundation Reauthorization Act of 2005, and the Preservation of Orphan Works Act). S 167 is sponsored by Senator Orrin Hatch and co-sponsored by Senators John Cornyn, Dianne Feinstein and Patrick Leahy. For additional commentary and history see articles in Tech Law Journal and Brooks Boliek's piece in the Hollywood Reporter today.
March 7, 2005
Judge Releases Ruling in Burkle Case
Judge Roy Paul has released his ruling in the Burkle case. Applying strict scrutiny and finding a compelling government interest, the judge nevertheless found that "[t]he statute is not unconstitutional merely because it deprives the court of discretion as to what should be sealed, but because as enacted it seals the entirety of a pleading if any of the specified materials are included in it. Thus, a 100 page pleading filled with legal argument of genuine public interest must be sealed if a party's home address appears even in a footnote. Absent judicial scrutiny prior to such sealing, [section] 2024.6 could indeed become an instrument of gamesmanship. The statute cannot be deemed "narrowly tailored" because it necessarily will seal material in which there is no overriding right to privacy." The judge stayed his order, giving Mr. Burkle the right to appeal, or to seek another sealing order under CRC 243.1. An attorney for Mr. Burkle said he is likely to want to appeal the ruling.
March 6, 2005
When the Media Becomes the Story
The recent ruling in People v. Combest further tests state shield laws, currently under review in cases like Miller/Cooper, since it allows the defendant in that case to request videotape from a legal network (Hybrid TV, filming for Court TV) to aid in the preparation of his retrial.
"Defendant contends that the Shield Law is unconstitutional as applied to criminal cases, arguing that a criminal defendant is entitled to obtain nonconfidential material possessed by a news organization even when he or she cannot meet the three-pronged showing required by the statute. He maintains that his due process rights to a fair trial, presentation of a defense, compulsory process and confrontation entitled him to obtain the nonconfidential videotapes of his own statements that were recorded by Hybrid.
As made clear in O'Neill, when faced with a litigant's request for information in the possession of the media, competing interests must be balanced (see 71 NY2d at 529). In a criminal case, defendant's interest in nonconfidential material weighs heavy. Of course, in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue. When confidential material is at issue, the media may have real reason to fear that their ability to find sources willing to provide information will soon evaporate if their guarantees of confidentiality will not be honored. While we do not question the importance of nonconfidential news gathering, whose significance we recognized in O'Neill, defendant argues that this case involves
"no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request" (Branzburg v Hayes, 408 US 665, 681-682 )."
Thus, he contends, a reporter's privilege in nonconfidential materials does not easily overcome a criminal defendant's fair trial rights. Because in this case we conclude that defendant met his burden under the Shield Law, we need not decide what standard is constitutionally required in order to overcome a criminal defendant's substantial right to obtain relevant evidence. "
But Combest also raises some interesting questions about the extent to which news coverage on legal networks like Court TV as well as the more traditional outlets like CBS, NBC, and ABC, are ever more "part of the story", when they create or air "reality" shows, or shows that purport to tell the story behind the story. Even entertainment shows can get into the act, and become unwitting witnesses in the courtroom. Attorney Todd Melnick used outtakes from the HBO series Curb Your Enthusiasm to prove that his client Juan Catalan was actually at a Dodgers baseball game and not committing murder. He had had to subpoena videotapes from the owners of the team, but apparently Larry David, of Curb Your Enthusiasm, was more, well, enthusiastic about assisting and provided his tapes voluntarily. Those tapes, along with other evidence, meant that Catalan is free today. See Jeffrey Toobin's coverage here. Dr. Park Dietz helped Andrea Yates' lawyers immensely when he asserted that she might have thought up drowning her children based on a Law & Order episode. The highly popular show is one that Yates watched often and the prosecutor pounded that point home to the jury. The problem? As we now know, no such episode exists. Edward Stern comments for the New England Psychologist here. To see what movies and series (but not individual episodes) Dr. Dietz has consulted for, go to www.imdb.com, select "more searches" and enter Park Dietz in the Cast and Characters template. A pending case in Kansas suggests that the CBS series CSI may become part of the defense as well. In that case, Kansas State professor Thomas Murray is accused of killing his ex-wife, lawyer Carmin Ross-Murray, in 2003. Police think materials found on his computer and elsewhere indicate a murder plot. He says it's evidence of a script he was researching and writing for the popular show. The trial is expected to last a month; after it concludes we shouldn't be surprised to see it influence a Law & Order script "ripped from the headlines."
Meanwhile, Jay Leno, who is under a gag order not to discuss the Michael Jackson case, invited Brad Garrett (Everybody Loves Raymond's Robert Barone) to tell his MJ jokes while he waits to see if the court will quash the order.