Saturday, October 22, 2005
In a memo sent to Times staffers, Executive Editor Bill Keller says, among other things, "I wish that when I learned Judy Miller had been subpoenaed as a witness in the leak investigation, I had sat her down for a thorough debriefing, and followed up with some reporting of my own. It is a natural and proper instinct to defend reporters when the government seeks to interfere in our work. And under other circumstances it might have been fine to entrust the details — the substance of the confidential interviews, the notes — to lawyers who would be handling the case. But in this case I missed what should have been significant alarm bells. Until Fitzgerald came after her, I didn’t know that Judy had been one of the reporters on the receiving end of the anti-Wilson whisper campaign. I should have wondered why I was learning this from the special counsel, a year after the fact."
He indicated that skittishness after the Jayson Blair debacle, which had taken place before he took over as Executive Editor, was a "major trauma", and that "[i]t felt somehow unsavory to begin a tenure by attacking our predecessors. I was trying to get my arms around a huge new job, appoint my team, get the paper fully back to normal, and I feared the WMD issue could become a crippling distraction."
But "[b]y waiting a year to own up to our mistakes, we allowed the anger inside and outside the paper to fester. Worse, we fear, we fostered an impression that The Times put a higher premium on protecting its reporters than on coming clean with its readers. If we had lanced the WMD boil earlier, we might have damped any suspicion that THIS time, the paper was putting the defense of a reporter above the duty to its readers."
Friday, October 21, 2005
The Savannah Morning News requested permission to photograph a murder trial using a still camera. The trial court denied its request and the newspaper filed an appeal. Based on the following findings, the Georgia Supreme Court reversed the trial court's decision.
"First, the trial court did not find that the requested media coverage would jeopardize Griffin's due process rights. Instead, the court stated that Griffin objected to the coverage out of concern for his due process rights. ...Although OCGA [sec]15-1-10.1 (b)(2) permits a trial court to consider the objection of "the parties or witnesses whose testimony will be presented in the proceedings," we conclude that a party's objection must set forth an adequate ground for denying a request for electronic and photographic coverage and that the record must contain some factual basis supporting that ground. Otherwise, a party, by lodging a simple, unsupported objection to open courtroom proceedings, will control the public's right of access to those proceedings. Here, an adverse impact on a defendant's due process rights is an adequate ground for denying a motion for electronic and photographic coverage. However, neither Griffin nor the trial court articulated any basis for a finding that the requested coverage would have an adverse impact on Griffin's right to a fair trial. And, our review of the record does not demonstrate any factual basis for concluding that the use of a still camera would have impacted Griffin's due process rights. Moreover, although the trial court based the denial of the newspaper's motion on the jurors' desire for privacy, specifically, their desire not to be photographed, the newspaper stated at the hearing on its motion that it would not photograph the jurors and would, in this regard, "comply with whatever instructions the court gave us." In addition, the record shows that no juror voiced any concern for his or her privacy. Thus, even assuming that a juror's desire for privacy may sometimes justify a denial of a motion for still photography, there is no support in the record in this case for denying the newspaper's motion due to privacy concerns of the jurors. In addition, there is no factual basis to support the trial court's conclusions that the presence of a still camera would not increase openness of the proceedings. A camera generally will increase the openness of a judicial proceeding, and there is nothing in the record in this case to indicate that the newspaper's camera would not have done so. No party offered any evidence on this point, and the trial court did not explain, either at the hearing or in its order, why the camera would not increase openness. Finally, the trial court stated that, due to the small size of its courthouse, the presence of a camera would impact upon the administration of the court and detract from the ends of justice. The trial court, however, did not offer any explanation regarding how a silent, still camera that could be held by one person would, even in a small courthouse, detract from the administration of the court and the ends of justice....For the foregoing reasons, the trial court erred in denying the newspaper's motion to use a still camera during Griffin's trial." (notes omitted).
Read the entire decision here.
Indiana Tax Court Rules Free Apartment Guides Qualify as Free Distribution Newspapers, Therefore Not Taxable
In Haas Publishing v. Indiana Department of State Revenue, the Indiana Tax Court has ruled that Haas' publications, called Apartment Guides, and displayed in "open racks or newspaper dispensers where members of the general public could take copies free of charge ...located in grocery stores, pharmacies, convenience and other types of stores, banks, colleges, public libraries, major local employers' facilities, airports, and on streets" are exempt from some $78,000 in tax according to Indiana Code Section 6-2.5-5-31 because they are "free distribution newspapers." The Department argued that the Guides were not "newspapers" within the commonly accepted meaning of the term, and additionally that "that the advertisers in the Apartment Guides are related, and that the Apartment Guides do not publish community notices," thus failing to meet three of the criteria required by the statute. The court examined the Department's claims carefully, pointing out first that the Department had never before required that the newspaper exemption be applied to publications meeting only that definition. It also dismissed the Department's suggestion that the Guides be considered "books", concluding that the Guides are serial in nature.
Next it considered the question of the relationship of the advertisers. "...[T]the statute requires that the advertisers be unrelated, not that the advertising itself be unrelated.... Therefore, it is of no consequence that the advertisers in the Apartment Guides are all advertising the same good. Moreover, the other factors cited by the Department are merely a result of the Department's desperate search for any commonalities existing between the advertisers. This approach to determining whether advertisers are related is unworkable, as it would exclude from exemption any publication whose advertisers belong to a common class or group."
With regard to the matter of the publication of community notices, the court found that the Department confused the question of legal notices and community notices. "[T]here is simply nothing in either statute to indicate that the legislature intended to equate community notice with legal notice. If the legislature had intended to restrict the free distribution newspaper exemption to only those publications authorized to carry legal notice, the Court must presume that it would have said so."
Read the entire ruling here.
Thursday, October 20, 2005
The Senate Judiciary Committee heard testimony October 19 on "Reporters' Privilege Legislation: An Additional Investigation of Issues and Implications." Chuck Rosenberg, U. S. Attorney, Southern District of Texas, Judith Miller, Senior Writer, New York Times, David Westin, President, ABC News, Joseph diGenova, Founding Partner, diGenova and Toensing, Anne Gordon, Managing Editor, Philadelphia Inquirer, Dale Davenport, Editorial Page Editor, the Patriot-News, Harrisburg, Pennsylvania, and Steven D. Clymer, Professor of Law, Cornell Law School, gave testimony. Here's a link to the committee webpage.
The Association of American Publishers has filed a lawsuit against Google, claiming that its Print Library Project, which envisages the digital copying and distributing of copyrighted works without the prior permission of the copyright holders, infringes the rights of those holders. The AAP has asked the U. S. District Court, Southern District of New York, to issue a court order preventing Google from further developing its project and declaring that it commits infringement when it scans material under copyright without permission of the rights holder. Read more here in a press release from the AAP. The suit is the second to be filed over Google's Print Library Project.
Wednesday, October 19, 2005
Spanish Magistrate Issues Arrest Warrant For Three U. S. Soldiers in 2003 Death of Spanish Cameraman
Spanish magistrate Santiago Pedraz has issued an international arrest warrant for three Americans in the death of Jose Couso, who perished in the U. S. takeover of Baghdad in April 2003. The three, who were members of the 3d Infantry Division, face little chance of being extradited to Spain for trial. The Spanish prosecutor's office said it would challenge the arrest warrant on the grounds that the judge had no jurisdiction. Read more in a Reuters story here and in a CNN story here.
Soccer star David Beckham and his wife, Victoria, the former Posh Spice, are suing the tabloid News of the World over allegations that their marriage is in trouble. The case goes to trial in December. The Beckhams were recently in court over a case involving their former nanny. Read more here.
An aspiring lawyer gave birth on the Dutch reality show "Big Brother" under the watchful eye of the government's Social Affairs Ministry, pursuant to an agreement reached by the show's producers and the agency. Baby Joscelyn Savanna's on-air time will be strictly limited according to Dutch law. Read more here and in an earlier post here.
In an appearance before the Society of Professional Journalists, meeting in Las Vegas, New York Times reporter Judith Miller came out in support of a federal shield law for reporters, as did another panelist attending, H. Josef Hebert, who covered the Wen Ho Lee case. Read more here.
Tuesday, October 18, 2005
The Entertainment Software Association and the Video Software Dealers Association are suing the Governor and Attorney General of California in federal court over newly enacted legislation that bans the sale of violent video games to persons under 18. The law is a reaction to games such as "Grand Theft Auto." Violent video games ordinances have been tossed out in the 7th Circuit (American Amusement Machine Association v. Kendrick, 244 F.3d 572 (2001)) and in the 8th Circuit (Interactive Digital Software Association v. St. Louis County, Missouri, 329 F3d 954 (2003)) on constitutional grounds but are on the books in other states such as Michigan (MCLS Sec. 722.685 et seq.) Read more here.
Patrick Ryan, Catholic University of Leuven and University of Colorado, Boulder, has published "Questioning the Scarcity of the Spectrum: The Structure of a Spectrum Revolution," in volume 8 of the Journal of Internet Law. Here is the abstract.
In this article, we will analyze the fundamental basis for the regulation of the spectrum as it has been described by numerous scholars in the past few decades. Specifically, we will explore the concept of "scarcity" from economic, sociopolitical, and legal perspectives. As the reader will quickly gather, this article advances a spectrum management philosophy that decries unwarranted centrally planned command-and-control systems and espouses market liberalism. Of course, the world is awash with literature describing the failures of centralized planning. Given that the spectrum continues to be managed under a centralized regime, we will nonetheless take another opportunity to consider some of these failures. In so doing, we will draw numerous analogies and metaphors, some (perhaps many) of them imperfect, that will help us to understand the core principles that we will examine. In fact, we will discuss this topic at length to (1) clarify the reasons that traditional principles no longer applies as it has in the past and (2) impart an alternate concept that embraces modern economic and regulatory principles.
Download the article from SSRN here.
Mark F. Schultz, Southern Illinois University School of Law, has published "Fear and Norms and Rock and Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law," as a working paper. Here is the abstract.
Conventional wisdom says, with ample justification, that we cannot persuade the average individual to comply voluntarily with copyright restrictions on works like popular music. This Article challenges that conventional wisdom with the example of a community of music fans centered on artists known as "jambands." The jamband community has developed social norms that reinforce and respect artists' copyrights. The experience of the jamband community provides a model for the development of pro-copyright social norms in a world where compliance with copyright laws is increasingly a matter of individual choice.
This Article examines the problem of filesharing in light of research regarding what motivates people to obey laws. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms too greatly may be counterproductive. Nevertheless, copyright owners have focused almost exclusively on deterrence rather than fostering social norms that support compliance. They would do well to try to persuade people that obeying copyright law is the right thing to do, rather than merely prudent.
This Article presents a case study, based on extensive first-hand observation, of the social norms of a community that respects copyright. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as "off limits." These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands' attorneys.
The social norms of the jamband community might be a mere curiosity but for the fact that they appear to be based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions - value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Under the right circumstances, reciprocity can foster and sustain pro-social, cooperative social norms. This Article examines the latest laboratory and theoretical research on reciprocity from behavioral and experimental economics and applies it to the social norms of the jamband community.
Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a "carrot" to accompany (or supplant) the "stick" of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.
Download the entire paper from SSRN here.
Kevin Saunders, Michigan State University College of Law, has published "A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice," in the 2005 volume of the Utah Law Review. Here is the abstract.
Modern brain science has discovered a second period of physical development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic overblooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply being unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenile offenders may be more amendable to rehabilitation than adults.
Download the entire article from SSRN here.
Monday, October 17, 2005
If a Senate bill just drafted becomes law, we have until April 7, 2009 to buy new televisions capable of receiving digital signals, or to obtain converter boxes that can bring digital signals into our homes. Senate staff members are circulating a bill that sets that date, conveniently after the NCAA Division I Basketball Tournament ends, to bring the analog era to a close. The bill also proposes auctioning off parts of the spectrum to private users and a government subsidy for consumers to make purchase of those converter boxes less painful. Read more in a Washington Post article here.
Distributors of the film Wolf Creek have agreed to postpone its screening in Australia's Northern Territory until after Bradley John Murdoch's trial ends. Murdoch stands accused of murdering tourist Peter Falconio and assaulting his companion, Joanne Lees. Wolf Creek is based partly on the Falconio killing and government lawyers fear that its release would prejudice jurors. It opens wide across Australia November 3. Read more about the content of the film here.