November 12, 2005
Vikram David Amar on "Commander in Chief"
Afghan Poet Dies; Husband Arrested
Afghani writer Nadia Anjuman, 25, whose first book of poetry was published earlier this year to great acclaim, died last weekend after being beaten by her husband. Police arrested him after he admitted to hitting Anjuman during an argument. Read more here.
November 11, 2005
Loews Pulls "Get Rich Or Die Tryin'" Temporarily After Man Shot In Theater Lobby
Rapper "50 Cent"'s new film Get Rich Or Die Tryin' continues to cause controversy. A man was found shot in a theater lobby at which the movie was playing, although it is not clear that the film has any link to the incident. Shelton Flowers of Wilkinsburg, Pennsylvania, died at a local hospital. The movie theater has discontinued showing the film until police complete their investigation of Flowers' death. The Loews theater chain indicates that it is aware that the movie is likely to attract a young male demographic. Read more here.
Meanwhile, a number of communities have objected to advertising for the movie. Activists in Los Angeles protested that billboards for the film glorified violence and urged Paramount to take them down, particularly because they were close to schools. Read more here.
Producer of "Halloween" Films, Daughter, Die in Amman Hotel Bombings
Moustapha Akkad, known for the Halloween films which brought Jamie Lee Curtis to stardom, and his daughter Rima Akkad Monla died at the Radisson Hotel, the site of one of the terrorist bombings in Amman, Jordan, Wednesday, tragedies that took so many other lives. Mr. Akkad was the head of Trancas International Studio. Mr. Akkad also produced other movies such as Mohammed, Messenger of God (1976) and Lion of the Desert (1981) both of which starred Anthony Quinn. Read more here.
DC Circuit Denies Petition for Re-Hearing en Banc in Wen Ho Lee Matter
The DC Circuit, sitting en banc, has denied a petition to re-hear the petition of reporters who refused to identify sources in the matter of Wen Ho Lee v. U. S. Department of Justice. Judges Edwards, Rogers, Tatel and Garland would have granted the motion. Read the statements here.
November 10, 2005
President Nominates FCC Commissioners
President Bush has renominated Michael Copp and nominated Deborah Tate to serve as FCC Commissioners. Read more here. Read statements from FCC Chair Kevin Martin and Commissioner Jonathan Adelstein here.
Bill Keller's Memo To NY Times Staff On Judith Miller's Resignation
Here is the text of Executive Editor Bill Keller's memo to the staff on Judith Miller's resignation from the New York Times.
Porn Back on the Airwaves at UCSan Diego
Even though the student government voted to ban its content, porn is back on the air at Koala TV at the University of California, San Diego. The host of a controversial show, UCSD senior Steve York, says he'll continue to star on the program in spite of the vote. Check out the network's website here.
November 9, 2005
EEOC Files Suit Against Fox
The Equal Employment Opportunity Commission has filed suit against Fox News, alleging that Joe Chillemi, a Fox VP in charge of advertising and promotion, sexually harassed and discriminated against women employed at Fox News to the extent that they were "constructively discharged." The EEOC says that Chillemi repeatedly made a number of derogatory comments about women, including pregnant women, indicating that he would prefer to hire men over women. Read more here.
Diane Leenheer-Zimmerman on Grokster
Diane Leenheer-ZImmerman, New York University School of Law, has published "Daddy, Are We There Yet? Lost in Grokster-Land", forthcoming in the New York University Journal of Legislation and Public Policy. Here is the abstract.
When the Supreme Court decided the Grokster case last June, it pretty much resolved the dispute as to the particular players in the case but it arguably did little to move toward any long-range resolution of the dispute over the downloading of copyrighted works. By adopting an inducement theory, and then reaching for any available shred of evidence to support it, however, the opinion may have added a few more problems to the mix. In particular, by referring disapprovingly to the failure of the defendants to use methods like filtering, and by finding support for inducement in the fact that the defendants' incomes were positively related to the level infringing uses made by their users, the Court introduced the prospect of product producers and distributors being drawn into design wars comparable to those that have long raged in products liability cases, or finding themselves at risk simply for producing a product that is attractive to would-be infringers as well as to wholly legitimate users. The most certain prediction that can be made about Grokster, however, is that it will do nothing to achieve a stable resolution of the problems that animated the litigation. Two likely scenarios are proposed. One is that the decision will quickly be mooted by technological change, and will at most provide a roadmap for future versions of Grokster and StreamCast on how not to induce. The other is that it will invite so much and such confusing litigation over the meaning of inducement that the Sony balance will be indirectly upended and Congress or the Court will be forced to step back into the fray to protect technological innovation.
Download the entire paper from SSRN here.
A Paper on Pay-TV in Europe
Antonio Nicita, University of Siena, Department of Economics, and G. B. Ramello, Catteneo University, have published "Exclusivity and Antitrust in Media Markets: The Case of Pay-TV in Europe". Here is the abstract.
This paper challenges the traditional economic reasons supporting copyright licensing exclusivity in dealership agreements in media markets. It is argued how exclusive dealings in contents distributions acted in Europe as barriers to entry and/or raising rivals' costs strategies against new Pay-TV operators. The removal of exclusive dealing clauses, as recently implemented by the European Commission, can be economically justified when it generates positive impact on technological innovation and on the development of alternative transmission platforms for the delivery of multimedia services. Recent European Antitrust decisions seem to encourage a new 'open access approach' for premium contents distribution in media industry.
The entire paper is available via SSRN here.
Ernst Zuendel On Trial in Germany For Inciting Racial Hatred; Trial Temporarily Halted
Holocaust denier Ernest Zuendel, who is on trial in Germany for inciting racial hatred and publishing neo-Nazi statements, will have to wait a few more days for proceedings to resume. The judge in charge of the case ousted his public defender, Sylvia Stolz, for presenting improper submissions to the court. He also banned another of Zuendel's attorneys, Horst Mahler, from continuing with the case because Mahler has been disbarred for his neo-Nazi views and for a conviction for which he served jail time. Read more here and here. Zuendel is charged with contravening German laws which prohibit denying the existence of the Holocaust and impose criminal penalties. See Sections 130, 185 and 189 of the Strafgesetzbuch (Criminal Code), passed in order to dampen if not eradicate neo-Nazism after the Second World War.
November 8, 2005
More on Legal Advertising
Fred C. Zacharias, University of San Diego School of Law, has published "What DIrection Should Legal Advertising Take?" Here is the abstract.
This article stems from a panel discussion of what lawyers need to do to comply with legal advertising regulation. The topic highlights a "disconnect" between regulation - what we say lawyers may do - and what we, in fact, allow lawyers to do. It also highlights the degree to which current regulation of advertising is a product of history - in part, a product of blindly following old methods of conceptualizing the issues. The article suggests that, for modern advertising regulation to make sense, we need to reevaluate our whole way of looking at the subject.
Two sets of developments have occurred since the early days of legal advertising regulation. The first is that image concerns, as a justification for regulation, are no longer valid. This proposition stems not only from constitutional decisions, but also from the practical reality that regulating legal advertising no longer can have the effect of shoring up the profession's image.
The second development has to do with the specific dangers that modern advertising creates. What society deems inappropriately misleading, and the way consumers view legal advertising, has changed. As a consequence, even the valid traditional justification for advertising regulation - preventing misleading advertisement - is likely to be mis- or over-used. It continues to serve as a guise for implementing invalid "image" concerns. And it sometimes focuses on advertising that encourages litigation (e.g., "we've won many personal injury cases") for the wrong reasons - that the claims encourage clients to think their cases have merit or value, rather than for the reason that the advertising lawyer is less qualified than his communications suggest. The goal of regulating unfair competition, too, can be misused.
These developments suggest that current regulation of legal advertising continues to rely on old tools to regulate phenomena that do not necessarily correspond to the valid reasons why legal advertising might be regulated. The article therefore encourages the rule makers to identify the targets of advertising regulation more precisely and to determine precisely what they are trying to regulate and why. Greater honesty in regulation would help rule makers avoid disconnects the article identifies - between rules and their justifications and between rules and their enforcement.
By way of example, the article considers regulation of advertising on the internet. The internet presents specific issues or potential dangers that differ from the traditional concerns of advertising regulation. The article suggests that these merit direct consideration - both as to whether they should be regulated and whether restriction would be constitutional.
Download the entire paper from SSRN here.
A French View of the Fight Against Illegal File Sharing
Fabrice Rochelandet, Universite de Paris XI (Sud), Faculte Jean Monnet, and Fabrice Le Guel, Universite de Rennes I, have published "P2P Music Sharing Networks: Why Legal Fight Against Copiers May Be Inefficient?" via SSRN. Here is the abstract.
The paper investigates empirically the behavior of copiers over P2P networks based on an ordered Logit model of intensity using a unique dataset collected from more than 2,500 French households. Copying behavior obviously is negatively correlated with the willingness to pay for an original when a copy is available. But individuals take also their decision according to their social neighboring and their learning about copying. Besides, they are motivated by the search for diversified contents whereas they are very concerned for the interests of artists. We consider then the efficiency of anti-copying policies on the copying of music and movies.
Download the entire paper here.
Internet File Sharing: A View From Abroad
Michael Beurskens, Heinrich-Heine-Universitaet (Duesseldorf), School of Law, offers "Clearing the Fog Surrounding Internet File Sharing?" available from SSRN. Here is the abstract.
In its (in)famous decision against Grokster and Streamcast the Supreme Court managed to sidestep the fundamental issues of copyright in the information age and focused on a generic bad faith standard and obscure business models instead.
This short article provides an introduction to fundamental questions of indirect liability for copyright infringement under US law and follows the trail of decisions leading up to the confusing Supreme Court opinion (including Aimster and Napster). It analyzes the arguments made and briefly discusses possible implications for the interest groups involved.
The paper concludes that file sharing is still a dubious, but not illegal business and that all important questions remain open even after the ruling. All parties involved can feel both worried and assured by the decision, but no one can claim a decisive victory (yet). The clear line between the Consumer Electronics (and Software) industry and the Entertainment business divides not only the state of California, but the Supreme Court bench as well.
Download the entire paper here.
South African Pirate Radio Station Shut Down
A pirate radio station in South Africa has finally gone off the air after the South African agency charged with regulating media determined that it had no license to broadcast, Reuters reports. Radio Klub 100 was known was its racist content, but the Independent Communications Authority of South Africa (ICASA), the regulatory agency involved, said the shutdown had to do with licensing, not with its opinions. Read more here and here.
November 7, 2005
Grokster, RIAA Settle; Grokster Agrees to Shut Down
The Hollywood Reporter and other outlets are now reporting that Grokster has agreed to shut down its service, ending a long running battle with the RIAA. The article notes that the settlement includes a permanent injunction against Grokster's distribution of its "client application" and the shut down of its operation. The grokster.com site now carries a notice alerting users that it is no longer in operation. Read more here (subscription may be required) and here.
Actress Kate Hudson Threatens Suit Over "Seriously False and Misleading" Stories
Actress Kate Hudson has retained the London law firm Schillings to represent her in a potential action against several tabloids, including the National Enquirer and Star magazine, which have recently published stories saying that she has a severe eating disorder and is "wasting away". Hudson has given the papers a week to retract the statements--otherwise, it's off to court in England, which is much more plaintiff-friendly in defamation lawsuits than is the U.S. However, England does not recognize a general common law tort of invasion of privacy. See for example Wainwright and another v. Home Office,  UKHL 53,  2 AC 406,  4 All ER 969. Read more here and here.
MPAA Sues Another Grownup Over Child's Movie Downloads
The Motion Picture Association of America has sued Fred Lawrence of Wisconsin over his grandson's illegal downloads of four movies last year. Lawrence says he didn't know the boy engaged in the activity. An MPAA lawyer called twice over the past year with a settlement offer of $4,000. If the case goes to trial, the association is seeking $600,000. The suit is one of several the MPAA has filed over the past few years against parents or family members whose children have allegedly illegally downloaded copyrighted material. Read more here.