April 8, 2005
11th Circuit Holds Newspaper's Failure to Publish Notices Covered by Insurance Policy
In the matter of Westport Insurance Corporation v. Tuskegee Newspapers, Inc., Tuskegee Newspapers negligently failed to publish an announcement of a foreclosure notice requested by a local bank. The bank filed a complaint and the newspaper asked its insurer, Westport Insurance to defend it against the complaint pursuant to its policy. Westpost did so "under reservation of rights" and in 2003 filed an action for a declaratory judgment claiming that that "it owed Tuskegee neither a defense nor indemnification."
At the center of Westport's argument was the Errors and Omissions Endorsement, which read "[t]he coverage afforded by the Communications Liability portion of Section I, COVERAGE, is extended to include any negligent error, omission, misstatement or misleading statement by or with the permission of the NAMED INSURED or its subsidiary in matter which is uttered or disseminated..." Westport argued that coverage applied to materials actually printed in the paper and not to materials omitted. The trial court agreed and granted summary judgment to the insurance company. The newspaper, however, argued that "the word `matter', which is not defined in the Policy, should be read to refer to the newspaper in its entirety, thereby affording coverage to the wholesale omission of the legal notice, which is an `omission...in matter which is uttered or disseminated.'"
The appeals court went on to consider the appropriate manner of interpretation of such language under Alabama contract law. "When the contract at issue is an insurance policy, any ambiguity is `to be resolved in favor of coverage.'...Westport says that the language of the Errors and Omissions Endorsement is susceptible of only one reasonable interpretation, and under that interpretation, the Tuskegee Newspapers' omission of the foreclosure notice is not covered. This argument is based on the ideas that (1) the word `matter' must take identical meaning in both the communications liability provision and the errors and omissions provision; and that (2) `matter' means content actually printed in the Tuskegee News. We are persuaded by neither. As to the first, Westport's argument that simply because a contract must be read as a whole means that a particular word must be read identically wherever it is used in the contract is unsupported by Alabama law. Alabama law requires simply that an agreement `must be construed in its entirety...'[E]ven if we accepted Westport's argument that we must construe `matter' identically in each section... we would remain unpersuaded...For one thing, the word `matter' is an inherently flexible and imprecise term...Significantly, the word is nowhere defined in the Policy. Without definitions, we must give the words of the Policy `their customary and normal meaning.'...Because Westport's definition of `matter' is not the only meaning that term can reasonably be read to take, and because the Policy is still susceptible of more than one reasonable reading even if we give `matter' Westport's preferred meaning, we are constrained to conclude that th Policy is susceptible to the interpretations of both parties and therefore ambiguous. Under Alabama law, any ambiguity in an insurance policy is `to be resolved in favor of coverage.'..."
After further consideration of Westport's arguments the 11th Circuit "REVERSE[D] and REMAND[ED] with instructions to enter summary judgment for Tuskegee Newspapers." Read the entire opinion here.
April 7, 2005
Writer Loses Case for Copyright Infringement in 9th Circuit
In a learned and closely watched decision, Silvers v. Sony Pictures Entertainment, the 9th Circuit has held that a writer who holds "an accrued claim for copyright infringement, but has no legal or beneficial interest in the copyright itself" may not "institute an action for infringement." In Silvers, the plaintiff had written a work for hire, the script for "The Other Woman," which had become a made for television movie. Some three years later Sony Pictures released the Julia Roberts vehicle "Stepmom." The makers of "The Other Woman" turned over some of their rights in "The Other Woman", but not the underlying copyright, to Silvers and she began an action against Sony Pictures. The District Court dismissed the action, and she appealed. A panel of the 9th Circuit affirmed, she requested a rehearing, and the 9th circuit voted to rehear the case (370 F. 3d. 1252 (9th circ. 2004)).
In order to determine whether Silvers had the right to bring the action, the majority engaged in a lengthy examination of the legislative history of the relevant sections of the Copyright Act, as well as the decisions in other circuits. "The Supreme Court has noted "Congress' paramount goal in revising the 1976 Act of enhacing predictability and certainty of copyright ownership."...As we have phrased it, "[c]ongressional intent to have national uniformity in copyright laws is clear."...That admonition makes sense, given the nature of intellectual property. Inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide. The bare assignment of an accrued cause of action is impermissible under 17 U. S. C. [section] 501(b). Because that is all Frank & Bob Films conveyed to Silvers, Silvers was not entitled to institute and may not maintain this action against Sony for alleged infringement of the copyright in "The Other Woman."
Read the entire decision here.
Signposts in Cyberspace Now Available...And Only a Few Years Late
Signposts In Cyberspace, the study Congress commissioned in 1998 and expected some years ago, is finally available. Read it here in pre-publication format.
Minnesota Court of Appeals Upholds Lower Court Ruling; University Not Liable for Defamatory Statements
A former dean at Minnesota's St. Cloud State University may not hold the university liable for allegedly defamatory statements published in SCSU's student-run newspaper, the Chronicle, the Minnesota Court of Appeals has ruled in a March 22, 2005 opinion. Said the court, "Because the parties presented materials outside of the pleadings, the district court treated the motion as one for summary judgment and granted judgment to respondents. The district court concluded that because respondents have no editorial control over the Chronicle, they cannot be held liable for defamatory statement published in the Chronicle. This appeal followed." The Court of Appeals quoted from the Board of Trustees Policy, which states that "[s]tudent-funded publications shall be free to develop their own editorial and news coverage policies." Interpreting this language, the Court determined that "[t]he policy is binding on SCSU." Therefore, the district court was correct in ruling that the university had no control over the newspaper, and "[a] significantly differently relationship...from a private publisher's relationship with its newspapers. Respondents, unlike a private publisher, have no control over the content of the Chronicle. Despite the "plethora of connections" between The Chronicle and SCSU asserted by appellant and accepted by the district court for purposes of summary judgment, it cannot be disputed that respondents' policy prohibits SCSU from exercising any control over the content of the Chronicle." (footnote omitted).
The court also examined case law from other jurisdictions that concerned financial and editorial control of student newspapers on university campuses. The court noted that "[a]ppellant points out that the cases relied on by the district court are lower-level court opinions from foreign jurisdictions that do not reflect any broad or widespread pattern. We disagree with this assertion; the cases relied on by the district court simply follow the firmly established policy of giving students on college campus (sic) as many first amendment rights protections as the community at large." The case is Lewis v. St. Cloud State University. Read the full opinion here.
For one of the stories (since retracted) about Lewis published in the Chronicle, see here.
April 6, 2005
Washington Supreme Court Rules in Favor of Spokane TV Station in Defamation Lawsuit
In what some have labeled a "libel by omission" lawsuit, the Washington Supreme Court has reversed the Washington Court of Appeals and reinstated the trial court's grant of a motion for summary judgment in a case in which a store owner sued a local tv station for defamation. In 1998, Spokane's KXLY Television aired a story about 40-year-old Glen Burson, who had wanted to wash the windows of Kitchen Interiors Showcase, a local business, in exchange for some candy. Mr. Glen Burson, who suffers from Down's Syndrome, was told to leave by the store's proprietor. Eventually, the owner called police, who arrested Mr. Burson. The situation escalated until Burson found himself charged "with criminal trespass and harassment, charges that Glen really doesn't understand." The owner received angry calls from KXLY viewers who watched the segment and followup newscasts. Finally, he filed a lawsuit against the station, charging that KXLY had defamed him since the newscasts "contained false statements and omitted material facts. The complaint alleged: Grant [a reporter for the station], while acting in the course and scope of his employment as a KXLY employee and KXLY were negligent and acted recklessly when they failed to describe as part of these telecasts the previous incidents and threats that had been made by Burson. Said negligence and reckless conduct constitute defamation, the omission of material facts and is libel by implication by KXLY and Grant regarding the reason Glen Burson was arrested." The Supreme Court disagreed, holding that "[t]o survive a defendant's motion for summary judgment, a plaintiff must make a prima facie showing as to all the defamation element. In a defamation by omission case, the plaintiff must show with respect to the element of falsity that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability....Here, the omitted information would not have negated the asserted defamatory implication in its entirety....Mohr has not made a prima facie showing that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Furthermore, the Court of Appeals' standard of "less arbitrary and insensitive" is not the correct test by which to measure defamation by implication caused by omitted facts." Read the entire opinion here.
Eleventh Circuit Rules in Favor of Key West Newspaper
The Eleventh Circuit has ruled in favor of Key West publisher Dennis Reeves Cooper, allowing his suit against the city and a police officer to proceed. Cooper had published several articles charging, among other things, that officer Robert Christensen had failed to investigate allegations of perjury against another member of the force. Christensen then sought to arrest Cooper under a Florida law that prohibits leaking information about an ongoing investigation. A federal district court judge dismissed Cooper's lawsuit and Cooper appealed. The Eleventh Circuit held that "the statute is content-based because the purpose of the statute is to stifle speech of a particular content, namely speech regarding pending investigations of law enforcement officers....While the district court focused on the fact that the statute only proscribed the dissemination of information on the basis of how it was obtained (i.e. pursuant to an investigation), it failed to analyze the statute's "purpose" to determine whether it was content-based vel non...." Read the Eleventh Circuit's decision here.
April 5, 2005
New York Times Gets Access to Some City Fire Department Records
New York's highest court has determined that the New York Times may have access to some of the tapes and transcripts pertaining to September 11, 2001, pursuant to Freedom of Information Law requests filed by Times reporter Jim Dwyer under CPLR article 78 in early 2002. Some of the family members of victims later joined the action. The lower court "ordered disclosure of tapes and transcripts containing: (1) the 911 calls, to the extent that the words recorded are those of public employees and of the eight men whose survivors sought disclosure, but redacted to delete the words of other people who called 911; (2)the dispatch call, redacted to delete opinions and recommendations of Fire Department employees; and (3) the oral histories, redacted to delete opinions and recommendations and the "personal expressions of feelings" of the interviewees. The Appellate Devision affirmed these ruling, except that it ordered the "ersonal expressions of feelings" in the oral histories disclosed. We granted both sides' motions for leave to appeal...We now affirm the Appellate Division's order with two modifications: (1) we direct that the entire oral histories be disclosed, except for specifically-identified portions that can be shown likely to cause serious pain or embarrassment to an interviewee; and (2) we direct that the Department of Justice be given a chance to demonstrate that disclosure of the six potential exhibits would interfere with the Moussaoui case would deprive either the United States Government or Moussaoui of a fair trial." Read the entire ruling here.
Pennsylvania Court Rejects Newspaper's Request to Publish Juror Information
The Superior Court of Pennsylvania has affirmed a trial court's determination that the Tribune Review Publishing Company may not publish the names and other information about empanelled jurors in the murder case of podiatrist Karl Long, convicted of homicide in August, 2003. The newspaper had argued that after the jurors were dismissed, it should be able to interview them in order to provide further information to the public about their deliberations. The court found "no case law addressing whether a list containing empanelled jurors' names and addresses is a public judicial document subject to a common law rights of access. However, we are guided by the clear policy of protection for jurors' privacy expressed by the Pennsylvania Supreme Court in Pennsylvania Rule of Criminal Procedure 632, which requires that "the information provided by the jurors on the [juror] questionnaires shall be confidential and limited to use for the purpose of jury selection only."...The only exception to this rule that the Supreme Court has created is "disclosures made during voir dire."" An attorney for the paper says he plans to appeal. Read the court's decision here.