October 1, 2005
California Gets Anti-Paparazzi Law
Arnold Schwarnegger has signed an anti-paparazzi bill into law in California. It amends the Civil Code in order to provide for, among other things, "physically invad[ing] the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person..."; "...constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used..."
Read the entire statute here.
Liptak Article In Today's NY Times Discusses Confusion Over Whether Miller Had "Unequivocal" Waiver From Libby--And When
In today's New York Times, Adam Liptak delves into the question of whether Judith Miller had an "unequivocal waiver" from her source, Lewis Libby, last year, or whether that waiver came about only recently. Mr. Libby claims he told Ms. Miller clearly in 2004 she was free to talk to the grand jury, as does Mr. Libby's lawyer in a letter to Patrick Fitzgerald, a letter that Liptak discusses. But Ms. Miller's lawyer Floyd Abrams says Mr. Libby's lawyer also says that waiver was coerced. "He said, she said" continues. Read more in the Liptak article here, in the lawyers' correspondence here, and in Judith Miller's statement outside the courtroom here.
September 30, 2005
Should Conditional Fee Arrangements Be Allowed to Continue in the UK? Read Edgar Forbes' Discussion in the Media Guardian
Edgar Forbes discusses the public policy implications of the Conditional Fee Arrangement, a recent(2000) innovation in UK law, which allows plaintiffs to pursue defamation cases that would otherwise look like no-win situations. Says Forbes, "What CFAs are doing is distorting the rules of engagement. While one would not want to deprive altruistic lawyers from receiving remuneration for their goodwill if their client's claim, or defence, is successful, the levels of such "success fees" have caused much consternation among media lawyers. The Law Society provides a sliding scale of fees but no accompanying method for measuring how these should be applied. So it may come as no surprise that lawyers operating under these agreements go for the full 100% uplift. Apply this to fee and success fee and to solicitor and counsel and you soon get a bill that bears disproportionate resemblance to the risk it is meant to be compensating for." Read more here.
War Zones Dangerous for Reporters, Tribunal Hears
Attorneys for Richard Gizbert told a UK employment tribunal that war zones are immensely more dangerous for war correspondents than they were two decades ago. Gizbert is suing ABC for wrongful dismissal. Read more here.
Out of Jail, Judith Miller Appears Before Grand Jury--Was All This Necessary?
A New York Times story published today begins to reveal the extent to which missed communications may be responsible for the 85 days that reporter Judith Miller spent in a Virginia jail rather than testify before a federal grand jury regarding her discussions with Lewis Libby. According to the article, Libby believed that he had clearly told Miller's lawyers last year she had a waiver regarding their discussions; Miller seems not to have so understood. Read more here. Read the Times' statement concerning Miller's release here.
September 29, 2005
Judith Miller Out of Jail--Her Confidential Source Was Lewis Libby
Judith Miller is out of jail and her source is reported to be Lewis "Scooter" Libby, who apparently released her from her pledge of confidentiality. She is likely to testify before the grand jury tomorrow. Read more here at MSNBC and at CNN here. Read New York Times coverage here.
Authors Guild v. Google Complaint
Complaint in the Extreme Makeover Case
Joan Baez Uses A Four-Letter Word on PBS
Joan Baez used the "f" word in an interview during this week's American Masters episode on Bob Dylan. PBS provided its affiliates with versions that included and suppressed the offending the language. Read more here in an article by David Bauder.
U. S. District Court Orders Release of Abu Gharib Material
U. S. District Court Judge Alvin K. Hellerstein has released more photographs and videotapes of Abu Gharib prisoners requested by the American Civil Liberties Union, rejecting arguments by the federal government that the release would impair the war against terrorism. Judge Hellerstein said in part, "Our nation does not surrender to blackmail, and fear is not a legally sufficient argument to prevent us from performing a statutory command. Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed.” Read the ruling here. Read an article here and a previous post here.
FCC Statements To Congress Available
FCC Chair Kevin Martin has provided a statement to the House Subcommittee on Telecommunications and the Internet Committee on Energy and Commerce on "Public Safety Communications from 9/11 to Hurricane Katrina: Critical Public Policy Lessons." Mr. Martin's statement is available here. Kenneth P. Moran, DIrector of Homeland Security, Enforcement Bureau, FCC, has provided a statement to the Senate Committee on Commerce, Science and Transportation on Hurricane Katrina and Communications Interoperability. Mr. Moran's statement is available here.
US Continues to Reject Suggestions That It Give Up Control of Internet
At the last planning meeting before this fall's World Summit on the Information Society, set for Tunis in November, the United States again rejected any notion that it should give up control of the Internet in favor of an international body such as the United Nations, or a decentralized model. David Gross, the U.S. representative to the meeting, indicated that such a suggestion was completely contrary to U. S. policy. Read more here in a Business Week article and here in an International Herald Tribune article.
"Kolchak: The Night Stalker" Returns to TV
Do you remember Carl Kolchak, the champion of the First Amendment, who worked for that fictional newspaper (and that cranky editor) in Chicago? Forever on the trail of the weird, and stymied because he could never publish the hot stories he uncovered, Kolchak nevertheless persevered, at least through two made for tv movies and one season on ABC. Tonight, a new Kolchak makes his debut, still on ABC, at 9 p.m. but now working out of L.A. If you, like me, remember with fondness the original Kolchak, played with the appropriate world-weariness, but a certain eagerness for the chase, and for any clash with the authorities, by Darrin McGavin, note that DVDs of the series will be available for sale October 4.
Eight Charged in Copyright Infringement Involving Star Wars "Episode III"
FBI agents have charged eight persons with illegally copying and distributing the film Star Wars Episode III: Revenge of the Sith and one with uploading it to the Internet for distribution. The charges continue a pattern in the FBI's aggressive pursuit of video and music pirates, begun when the Family Entertaiment Copyright Act was signed in the early summer of 2005. Agents also arrested a SAG (Screen Actors Guild) member who allowed another person access to his "screener", a post-production copy of the film Million Dollar Baby. That copy found its way to the Internet, when it was illegally downloaded. Because SAG members are responsible by contract for the use of their screeners, that individual is still civilly as well as criminally liable. Read more here in a Variety article (subscription may be required, also available through LEXIS). Visit the SAG website here.
New Article on Grokster in Santa Clara Computer and High Technology Law Journal
Jay Dratler (University of Akron) has a new piece on the Grokster decision in volume 22 of the Santa Clara Computer and High Technology Law Journal. Here is the abstract from SSRN.
The Supreme Court astonished copyright and music-industry lawyers by deciding the Grokster file-sharing case unanimously in the industry's favor. The parties and some 61 distinguished amici (including the United States, two Senators and one State) had argued the case largely on the basis of modifying or clarifying the Court's 1984 decision in Sony. Yet the Supreme Court sidestepped that issue almost entirely, deciding the case as a matter of federal common law. It ruled unanimously that secondary liability can exist for inducing infringement of copyright and hinted strongly that the facts of the case would support an inducement claim on remand, regardless of the rule of Sony.
This article examines the causes and consequences of that unanimous decision. The principal causes were a mistake in civil procedure (cross motions for summary judgment based on facts, rather than claims or causes of action) and confusion between statutory interpretation and common-law analysis. The article analyzes how quasi-statutory prescriptions like the "rule" in Sony have led litigants to forget that secondary liability for copyright infringement (unlike patent infringement) is solely a matter of federal common law. If then explores how easy (in retrospect) it would have been to decide Grokster on a multi-dimensional common-law basis through factual analogy and distinction to and from precedent. It shows how much simpler and more accessible to the bar and laypeople common-law analysis is than decisions based on incomprehensible statutory amendments badly drafted by lobbyists for special interests and rubber-stamped by Congress, providing several examples from the last fifteen years. It concludes with a plea for industry and the bar to let the courts do their jobs and the (federal) common-law process work, as it did so well in Grokster.
Download the piece here.
Specter Introduces Bill To Allow Cameras in Supreme Court
Senator Arlen Specter (Pa.), joined by several other colleagues, has introduced legislation to allow the televising of Supreme Court proceedings. Here is the text of the bill.
Mr. SPECTER (for himself, Mr. LEAHY, Mr. CORNYN, Mr. ALLEN, Mr. GRASSLEY, Mr. SCHUMER, and Mr. FEINGOLD) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. AMENDMENT TO TITLE 28.
(a) In General- Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:
`Sec. 678. Televising Supreme Court proceedings
`The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court .'.
(b) Clerical Amendment- The chapter analysis for chapter 45 of title 28, United States Code, is amended by inserting at the end the following:
`678. Televising Supreme Court proceedings.'.
Read more in a Post-Gazette article here.
September 28, 2005
Julie Hilden on the Google Print Suit
Sacramento Bee Editorial on China's Laws Against Free Speech, US Corporate Complicity
The Sacramento Bee has an editorial in today's edition criticizing Yahoo! and other US firms, as well as the Bush administration, that provide the government of the People's Republic of China with information and support it needs to prosecute those that critique the PRC.
U. S. Attorney's Office Gets First Guilty Plea Under Family Entertainment Copyright Act
The U. S. Attorney for the Northern District of California has announced that Curtis Salisbury, a nineteen-year-old movie theater employee, has pled guilty to copying and assisting others in copying newly released films in violation of the Family Entertainment Copyright Act. The plea is the first under the statute, newly passed this year. Salisbury will be sentenced February 27, 2006. Read more in a DOJ press release here.
September 27, 2005
Motion Picture Association Announces Shutdown of Swedish Piracy Site
According to the Sydney (Australia) Herald and the Hollywood Reporter, the Motion Picture Association has announced the successful shutdown of a Swedish piracy website specializing in the storage and swapping of films and television episodes. The owner of the site, someone going by the name of Swemike", had named his site "Blue Crap", and had maintained more than 15,000 titles there. His system permitted a film to be downloaded in fewer than ten seconds. After the Swedish agency in charge of enforcement, Svenska Antipiratbyran, contacted him, "Swemike" agreed to the shutdown. Read more here and here (subscription required).