August 12, 2005
Google Makes Policy Changes in Library Book Project
In an answer to criticisms about its library book project, about which some publishers had major objections, Google has announced that it will not add any copyrighted books to the database until November. Google had previously worked on a kind of "opt-out" method in which it scanned copyrighted material and added it to its library database, allowing users to search it. Copyright owners then had to object and Google would remove it. Google claimed that its policy was permissible under the "fair use" doctrine. Under Google's proposed new policy, copyright owners can object before Google adds the material.
Google hopes the three month delay in putting the new policy into effect will allow critics time to evaluate its effects. Read more about Google's project and related issues in the Chronicle of Higher Education here.
August 11, 2005
German Man Wins Five Thousand Euros From Paper For Invasion of Privacy
A German man has won a five thousand Euro judgment against a Munich paper that published photographs of him in connection with a 2002 Wuerzburg gay pride parade. The court that awarded him the judgment stated that the paper had violated the man's "fundamental right to privacy." The plaintiff's name was not released. Read the Media Guardian's account of the case here.
August 10, 2005
Paparazzi Won't Be Charged In Witherspoon Incident
William Hodgman, speaking for the Los Angeles District Attorney's Office, said today that photographers who pursued actress Reese Witherspoon in April from her gym to her Brentwood home will not be charged with any offenses. Witherspoon's account of events and the photographers' version differ. Videotape of the incident apparently did not shed any light on the matter. Read more here.
Jury Convicts "Grand Theft Auto" Defendant
An Alabama jury has convicted the defendant who claimed that hours of playing the video game "Grand Theft Auto" was partially responsible for his actions when he shot three police officers to death. The jury did not hear testimony on that point, and brought back a verdict of guilty for Devin Moore after one hour.
Take-Two Interactive Software, which owns Rockstar Games, manufacturer of "Grand Theft Auto" is also facing a civil lawsuit in the deaths of the officers. It has also been in the news because of the flap over the "Hot Coffee" downloadable patch, which allows users to view a hidden sex scene. Read more about the Moore verdict here.
Fourth Circuit Reverses Dismissal of Defamation Action Against New York Times in Hatfill Case
The Fourth Circuit, in a two to one ruling, has reversed a lower court and is allowing claims for defamation and intentional infliction of emotional distress to proceed against the New York Times and writer Nicholas D. Kristof. Steven J. Hatfill, whom the FBI and other government officials have described as "a person of interest" in the 2001 anthrax mailing attacks, filed the lawsuits after Kristof identified Hatfill as the likely killer in print in the Times in 2002.
In its decision, the Fourth Circuit began by stating, "We review de novo the district court's dismissal of Hatfill's complaint. A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." We must accept as true all well-pleaded allegations and view the complaint in the light most favorable to Hatfill. The district court stated that "this standard is to be applied with particular care" in reviewing defamation claims. To the extent that the district court applied a stricter standard to Hatfill's complaint than the ordinary standards under Rule 12(b)(6), that was error. A defamation complaint, like any other civil complaint in federal court, must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," ufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests,".... While the Federal Rules of Civil Procedure require more specific pleading in certain cases, defamation cases are not among them.... "
The court continued, "Hatfill contends that Kristof's columns defamed him by imputing to him the commission of crimes of moral turpitude, namely, the murders of five people who were exposed to the anthrax letters. If the columns fairly can be read to make such a charge, then they are defamatory per se....Considered in light of Carwile, Schnupp, and Wells, Hatfill's complaint adequately alleges that Kristof's columns, taken together, are capable of defamatory meaning. The columns did not describe any other actual or potential target of investigation, and they recounted detailed information pertaining to Hatfill alone. Once Kristof named Hatfill as Mr. Z (and perhaps even before that time), a reasonable reader of his columns could believe that Hatfill had the motive, means, and opportunity to prepare and send the anthrax letters in the fall of 2001; that he had particular expertise with powder forms of anthrax, the type used in the mailings; that his own anthrax vaccinations were current; that he was the prime suspect of the biodefense community as well as federal investigators; that he had failed numerous polygraph examinations; that specially trained bloodhounds had "responded strongly" to Hatfill, his apartment, and his girlfriend's apartment but not to anyone else or any other location; and that Hatfill was probably involved in similar anthrax episodes in recent years. Based on these assertions, a reasonable reader of Kristof's columns likely would conclude that Hatfill was responsible for the anthrax mailings in 2001."
The 4th Circuit also ruled that the district court also erred when considering the question of the statute of limitations. "Count Two alleges that each of eleven discrete factual assertions contained in Kristof's columns separately defamed Hatfill by incriminating him in the anthrax mailings. The district court dismissed this count on the grounds that (1) the statute of limitations barred any claims other than the claim asserted in Count One and (2) none of the eleven statements is independently capable of defamatory meaning. 1.Hatfill's defamation claims are subject to a one-year statute of limitations....Hatfill's claims accrued when Kristof's columns were published - between May and August 2002....Thus, Hatfill had until August 2003 (at the latest) to assert his defamation claims. Yet he did not file this complaint until July 2004. Under Virginia law, however, a plaintiff who voluntarily withdraws a state-court action and recommences it in federal court within six months may toll the statute of limitations as of the date he filed the initial state-court action. ...Hatfill filed a lawsuit in state court on June 18, 2003; took a nonsuit on March 9, 2004; and commenced this action in federal court on July 13, 2004. Thus, the one-year statute of limitations was tolled as of June 18, 2003."
With regard to the district court's dismissal of the IIED claim, "...[t]he district court's conclusion that "publishing news or commentary on matters of public concern" can never be sufficiently extreme or outrageous to support a claim for intentional infliction of emotional distress sweeps too broadly....Accepting Hatfill's allegations as true, The Times intentionally published false charges accusing him of being responsible for anthrax mailings that resulted in five deaths, without regard for the truth of those charges and without giving Hatfill an opportunity to respond. Given the notoriety of the case, the charge of murder, and the refusal to permit comment by Hatfill's counsel, we conclude that the alleged misconduct is extreme or outrageous under Virginia law."
Read the ruling here.
Michael Ovitz Can Keep His Severance Pay
A Delaware judge has decided that Michael Ovitz can keep his enormous severance package of $140 million, even though the former Walt Disney Company president was terminated after only 14 months in office amid great criticism. The judge did tell Disney CEO Michael Eisner that he should not have committed the company to pay such enormous sums to Ovitz in view of Eisner's failure to keep the board informed of those committments. Angry shareholders had sued in an effort to void the company's obligations under the deal. The case had dragged on for eight years. Read more here (subscription may be required) here and here.
August 9, 2005
FCC Chair, Commissioner Release Statements on Sony BMG Payola Settlement
Emmis Communications Agrees to Pay $300,000 To Settle "SmackFest" Contests Complaints
Recently, New York State Attorney General Eliot Spitzer filed a complaint against station Hot 97, owned by Emmis Communications, which has aired something called "Smackfest" since 2004. In "Smackfest" women slap each other in an attempt to win tickets and money. Spitzer's office charged that the contest violated New York's "combative sports laws" which are defined as "any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents." (See New York State Unconsolidated Laws, S 5-a. Combative sports. 1).
Hot 97 advertised and broadcast clips of the matches on the Internet. Emmis Communications will pay $240,000 to settle the matter, plus an additional $60,000 to a non-profit group which targets violence against women. Read more in the New York Times here.
Andrew Neil Writes About Freedom of the Press
Read Andrew Neil's defense of freedom of the (British) press and why it doesn't threaten the right to a fair trial, in the wake of demands that the media quiet down, in the Media Guardian, here.
Microsoft, Spammer Settle
Scott Richter, the head of OptInRealBig.com, has agreed to pay Microsoft seven million dollars to settle a lawsuit over spam the software giant claims Richter has been spewing into emailboxes. Microsoft plans to use the money to continue to the fight against unwanted email. Read more here and in a story by Greg Levine in Forbes here.
Peter Jennings 1938-2005
Publishing Mogul John Johnson Dies
August 8, 2005
CNN Suspends Robert Novak After He Walks Off "Crossfire" Set
CNN has suspended commentator Robert Novak "for a while" after he and James Carville exchanged words during a segment of the show "Crossfire" on August 4. Ed Henry, who was moderating the show, apparently tried to ameliorate the situation, but too late--Novak swore and walked off the set. Novak has since apologized to CNN and CNN has expressed its regret to the audience, but it appears Novak will be gone for some time, especially since "Crossfire" has been cancelled. Novak denied that his behavior had anything to do with the Valerie Plame case, or Henry's plan to ask him about it on "Crossfire." Here's CNN's coverage of Novak's apology. MSNBC covers the story here.
11th Circuit Rules Sports Illustrated Not Protected by Alabama Shield Law
Sports Illustrated reporter Don Yeager may have to name his anonymous source in a defamation lawsuit brought by former University of Alabama coach Mike Price. In a ruling upholding a district court opinion, the 11th Circuit found that Alabama's shield law means "newspaper" when it says "newspaper", not "newspaper and magazine", and therefore that Sports Illustrated and its reporters are not covered. However, the appeals court told Price he will have to make a "reasonable effort" to identify the source through other means before turning to reporter Yeager. Read more here.
Ban on New York Transit System Photography Dead--At Least for Now
The proposed ban on photography on New York's transit system seems to be abandoned, at least for now, according to the New York Daily News. The Transit Authority had suggested that a ban was necessary to prevent terrorists from photographing sensitive parts of the system, including access to landmarks such as the Statue of Liberty. But after critics of the ban, including the Mayor, suggested that a ban might be difficult to maintain, and would also cause annoyance among the city's millions of tourists, and law enforcement assured the MTA that it didn't need such a measure to guard the system from attack, the MTA dropped the idea. Read more here. The MTA is understably concerned over the need for protecting the city's infrastructure, but sometimes its choices come in for criticism. After the London bombings, New York City officials temporarily cut off cell phone access in the city's tunnels. (see also CNN's story here). They restored it by July 12, 2005. Read a Washington Post story discussing the mix-up here (subscription may be required).
Eric Priest on the Future of Music and Film Piracy in China
Eric A. Priest has published The Future of Music and Film Piracy in China via SSRN. Here is the abstract.
Piracy has decimated the Chinese music and film industries. More than 90 percent of audiovisual products sold in the People's Republic of China are illegitimate copies, causing billions of dollars in losses to foreign and domestic copyright owners. China has modernized and strengthened its copyright laws over the past two decades, but for a variety of historical, political, and economic reasons, enforcement of these laws remains weak. As dire as the present situation is, however, an even greater threat looms. Over the past five years, demand has soared for Internet access in China, which is expected to have 120 million Internet users by the end of 2005, including 25 million broadband subscribers. Online music and movie file sharing through peer-to-peer networks is already rampant, further diluting legitimate sales. This Paper examines the historical and ideological roots of the present piracy problem in China, as well as the current structure of Chinese copyright law and impediments to its effective enforcement. The Paper then considers three general policy approaches from which the Chinese government might choose going forward as it grapples with copyright enforcement in the Internet age: (1) cracking down hard on piracy; (2) staying the present course; and (3) developing an alternative compensation system for audiovisual works shared on the Internet. I first consider the Chinese government's capacity to crack down on piracy, and conclude that it is unrealistic to expect the government to prosecute an effective, sustained crackdown on piracy in the near future due to several extant political and social factors, institutional deficiencies, and the rise of illicit file sharing on the Internet. I next consider the likelihood that China will continue implementing measured and gradual reforms rather than engage in sustained efforts to crack down on piracy. Using Taiwan's experience as a point of reference, I argue that progress in China's intellectual property reforms will likely be measured in decades, not years. In the meantime, I argue, copyright owners will increasingly seek alternative sources of revenue in China that will allow them to capture returns from their creative works without having to rely on copyright law. Lastly, I propose a solution to the piracy problem in China that recognizes the Internet can be utilized as an aid, rather than feared as a threat, in the fight against piracy. The Chinese government could accomplish this by establishing an online alternative compensation system, which would allow users to download unlimited music and movies from the Internet, while at the same time ensure that copyright owners are fairly compensated for their works. Such a system could provide the optimal balance between the objectives of consumers (more entertainment at a lower price), copyright owners (fair compensation), and the Chinese government (social enrichment and reduction of Internet and physical piracy).
FCC Requires Certain Broadband, VoIP Providers to Accommodate Wiretaps
In response to a request from the Department of Justice, the FBI and the Drug Enforcement Agency (DEA) the FCC has decided to require certain ISPs to comply with wiretaps as provided for in the Communications Assistance for Law Enforcement Act (CALEA). After examining both CALEA and the Communications Act for the definition of "telecommunications carrier", the Commission determined that the definition given in CALEA was broad enough to cover service providers that are not otherwise covered under the Communications Act. See the press release here. Affected providers have 18 months to come into compliance. The Commission "also adopted a Further Notice of Proposed Rulemaking that will seek more information about whether certain classes or categories of facilities-based broadband Internet access providers--notably small and rural providers and providers of broadband networks for educational and research institutions--should be exempt from CALEA."
While the FCC was considering this interagency request, it was already being debated. Read comments by John Cimko here, and a 2004 story from the Washington Post. Challenges are likely to pop up now that the ruling is in place.
Reaction to FCC Declassification of DSL
Reaction to the FCC's declassification of DSL lines continues to pour in, with consumer advocacy groups predicting a rise in costs and a drop in choice to consumers, and industry folks hailing the ruling with predictions of more investment in technology, resulting in new products and more options for the very same sector. Writes Christopher Boyd of Knight-Ridder, "Soon you could get TV over your phone lines." (Ventura County Star--subscription required). Read more here from media as diverse as the L. A. Times, Russell Shaw at zdnet, the San Jose Mercury News here and here, Information Week, and the New York Times.