December 2, 2005
University of Georgia Press Yanks Prize, Grinds Books Into Dust
The University of Georgia Press has rescinded its Flannery O'Connor Award and recalled all copies of The Bear Bryant Funeral Train after determining that author Brad Vice had copied substantial portions of the short story "Tuscaloosa Knights" from Carl Carmer's Stars Fell On Alabama and failed to acknowledge the use of Carmer's work. A staffer at the Tuscaloosa Public Library alerted the Press to the possibility after reading Vice's book and then pulling Carmer's book from the shelf. The Press decided to destroy all copies it could find. Here's a story from the Clarion-Ledger, the local paper. But Vice has his defenders. See here, here, and here.
Anonymous Blawgger, Threatened With Having Her Identity Revealed, May Decide to Reveal It Herself
The anonymous blogger who publishes at Opinionistas, known only as an associate at a New York City law firm, may finally reveal her identity herself, according to this piece in the ABA Journal's ereport. The woman says that while her blog has gotten a lot of positive comments, some remarks have been harsh, and some folks have threatened to reveal her identity. Here are links to blogposts discussing her situation:
Another Article on File Sharing
Deborah S. Tussey, Oklahoma City University School of Law, is publishing "Music at the Edge of Chaos: A Complex Systems Perspective on File Sharing," in the 2005 volume of the Loyola University (Chicago) School of Law Journal. Here is the abstract.
Peer-to-peer file sharing arose in the context of a system for production and distribution of music recordings. This article applies complexity theory and systems analysis to that system. It describes the music system as a complex system displaying universal characteristics of such systems, including nonlinearity, emergence, and unpredictability. P2P is an emergent phenomenon, which has fed back into the system and produced emergent responses, notably the iTunes business model and moderate digital rights management. These responses suggest that the music system is successfully adapting to the digital environment and has positioned itself "at the edge of chaos" where complex systems are most sustainable. Nonetheless, numerous proposals for legislative responses to file sharing are on the table. This article suggests several guidelines for successful regulation of complex systems such as the music system and applies those guidelines to current copyright reform proposals. I conclude that such proposals are premature and suggest that the current regulatory structure be left essentially intact for several years to allow the system reasonable time to adapt. During that period, Congress should monitor system conditions to ensure open competition and utilize independent observers to perform a thorough system analysis which could guide legislative intervention if it later proves necessary.
Download the article from SSRN here.
Robert Smith on Blog Networks
Hear NPR's Robert Smith on bloggers creating networks here. Glenn Reynolds of the University of Tennessee Law School and instapundit.com is interviewed.
Black Pleads Not Guilty
Conrad Black, who formerly controlled a number of media outlets including the Chicago Sun-Times through Hollinger International, pled not guilty in federal court yesterday to charges brought by U. S. Attorney Patrick Fitzgerald. Read more here and here.
December 1, 2005
The Ick Factor
The ick factor is on the rise in this season's holiday games. Video games such as "F.E.A.R." and "Stubbs the Zombie in Rebel Without a Pulse" offer now cannibalism along with the usual blood and gore. Also on the increase--sex and objectionable language, according to media critics, who also complain that these products are too easily accesible to impressionable youngsters. The games' manufacturers say the material is clearly labelled with the "M" rating, not for purchase by those under 17 and that retailers are catching and turning away more potential underage buyers now than in previous years. Read more here.
Eric Sinrod on the Sony Case
Nepal's High Court Orders Temporary Halt to Ban on Media Reporting
Nepal's Supreme Court has ordered the Nepalese government to rescind its media ban, issued October 9th, on private radio stations which had reported news and other information, at least until the Court can consider a final adjudication. The government had argued that it needed sweeping restrictions on independent reporting of information, including its handling of rebel activities. Many journalists had been arrested and some are believed to be still in jail. Read more here.
November 30, 2005
Free Speech, Higher Ed and Lawsuits
Oregon Refuses to Pay Legal Fees of Law Prof Threatened with Lawsuit Over Law Review Article
Interesting story in this morning's Inside Higher Ed: Twisting in the Wind.
Merle Weiner (Oregon) published Strengthening Article 20, 38 U.S.F. L. Rev. 701 (2004), which argues that Article 20 of the Hague Convention on the Civil Aspects of International Child Abduction should be strengthened to offer more protection for domestic violence victims who flee transnationally with their children as part of their effort to escape from domestic violence. The article made two brief references to a court dispute in one such case and one of the parties to that dispute threatened to sue.
Inside Higher Ed reports that Oregon refused to pay the legal fees of Prof. Weiner in defending against the threatened lawsuit:
Weiner found out this year that even if the university expects her to publish, she was on her own when she faced a threatened suit over one of her articles, even though the university never contested the quality of the article and even though she had obtained legal opinions that she would prevail in court — if only someone had agreed to pay the bills necessary to fight....
When no one would commit to paying the anticipated legal bills, the journal that published Weiner — also unable to pay for a defense — removed from its electronic archive the reference that led to the threatened lawsuit. While the University of Oregon’s lawyer had urged her to have the journal do just that as a way of avoiding a suit, Weiner opposed this action as giving in to a threat and denying her the right to publish her work in full.
She said that the incident has hurt her ability to do her work on domestic violence and raises issues for any scholar who may publish on works that might lead someone to want to sue them. “Any time any alleged batterer wants to threaten suit, I’m going to have to defend myself, no matter how unmeritorious the suit is,” Weiner said. “If my institution wants me to be doing my job, they need to be standing behind me.”
“I never imagined in my wildest dreams that my university would leave me hanging, that any of this would have transpired,” she said. As both Oregon and San Francisco wavered on defending her, she wanted an outside expert to verify that she would win in court. Rodney A. Smolla, dean of the law school at the University of Richmond, reviewed all the materials and provided an analysis that Weiner had a strong defense. He also wrote in his analysis that the case raised academic freedom issues and urged those involved to consider that when deciding how to proceed.
The University of Oregon, however, viewed the matter in a different way. In a statement released by the university, it said that — as was “customary” — Weiner had agreed to indemnify the University of San Francisco against actions arising from the article. While the university was happy to advise Weiner on the case, it did not feel any obligation to defend her, the statement said.
[Courtesy of Paul Caron's TaxProf Blog]
November 29, 2005
FCC Chair's Remarks to Senate Committee on Broadcast Indecency
In a statement today before the Senate Committee on Commerce, Science, and Transportation, FCC Chair Kevin Martin said that "television today...contains some of the coarsest programming ever aired. Indeed, the networks appear to be increasing the amount of programs designed to "push the envelope"--and too often the bounds of decency. For instance, the use of profanity during the "Family Hour" increased 95% from 1998 to 2002. Another recent study found that 70 percent of television shows in the 2004-2005 season had some sexual content, and the number of sexual scenes had nearly doubled since 1998." [footnotes omitted]
Martin called for the cable industry and networks to address consumer concerns, including perhaps offering programming packages that would allow customers to purchase "family friendly" packages "as an alternative to the "expanded basic" tier on calbe or the intial tier on DBS. This alternative would enable parents to enjoy the increased options and high-quality programming available through cable and satellite without having to purchase programming unsuitable for children. Parents could get Nickelodeon and Discovery without having to buy other adult-oriented fare." In the alternative Martin proposed that cable channels be "subject to the same indecency regulations that currently apply only to broadcast. This standard would apply only to channels that consumers are required to purchase as part of the expanded basic package, not premium channels. This solution would respond to the many people calling for the same rules to apply to everyone--for a level playing field."
Read Commissioner Martin's remarks in their entirety here.
Administrators Seize Copies of High School Paper
Administrators at Oak Ridge High School in Oak Ridge, Tennessee seized all the copies of the Oak Leaf, the high school's paper, that they could find, because the paper's staff published articles on birth control and tattoos and body piercing in the latest issue. The student who wrote the birth control article said she wrote it because she was worried about the rising rate of teen pregnancy at the school. Administrators are concerned because students as young as fourteen read the paper, and because photographs of some students' tattoos accompany the body piercing/tattoo article, and those teens were below the age of consent to get the work done. The paper's advisor, teacher Wanda Grooms, is attempting to broker a compromise. Meanwhile, the Student Press Law Center is assisting the students. Read more here and here.
Washington Post on Viveca Novak's Testimony
Jim VanderHei's article in today's Washington Post discusses what Viveca Novak, a reporter for Time magazine, is likely to tell a second federal grand jury investigating the Valerie Plame leak case, about her discussions with Karl Rove's lawyer Robert Luskin. According to the article, Luskin believes that Novak's testimony is crucial to deflecting an indictment against Rove. Novak is not protecting any sources and she is testifying voluntarily. Read more here.
Is P2P File Sharing Protected Under the European Convention On Human Rights?
Robert Jacob Dannay, Department of Justice, Government of Canada, considers whether P2P (peer to peer) file sharing is protected under the European Convention on Human Rights (ECHR) and incorporated into English domestic law by the Human RIghts Act 1998. The article is forthcoming in volume 10 of the International Journal of Communications Law and Policy, 2005. Here is the abstract.
This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being "necessary in a democratic society" under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPA's restriction on free expression may not be "necessary in a democratic society" under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the "public interest" defence or to make a declaration of incompatibility under the HRA.
Download the complete article from SSRN here.
November 28, 2005
Seventh Circuit Reverses Trial Court; Rules Teen's Sex Tape Might Violate Federal Law
The U. S. Court of Appeals for the Seventh Circuit has reversed a lower court in an invasion of privacy case by an anonymous minor plaintiff, saying that the defendant may have violated 18 U. S. C. Sec. 2510, the Federal Wiretap Statute, and has sent the case back to the lower court. Jason Smith had videotaped himself and his girlfriend, then underage, having sex, and had given copies to friends. Of course the tape surfaced on the 'net. The by now former girlfriend, identified only as Jane Doe, sued for invasion of privacy and, under the Federal Wiretap Statute, for an unauthorized interception and disclosure. The statute creates a private right of action for damages (section 2520).
The lower court had originally dismissed the action in Doe v. Smith on a 12(b)(6) motion,"ruling that Doe's complaint is defective because it does not allege in so many words that the recording was an "interception" within the meaning of §2510(4)." However, the appellate court opined that "pleadings in federal court need not allege facts corresponding to each "element" of a statute. It is enough to state a claim for relief -- and Fed. R. Civ. P. 8 departs from the old code-pleading practice by enabling plaintiffs to dispense with the need to identify, and plead specifically to, each ingredient of a sound legal theory....Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. Doe has done that; it is easy to tell what she is complaining about. Any district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain. . ." should stop and think: What rule of law requires a complaint to contain that allegation? Rule 9(b) has a short list of things that plaintiffs must plead with particularity, but "interception" is not on that list."
The court remanded to the district court to consider the question of anonymity, saying, "That question should be explored in the district court--and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name."
Read the entire ruling here.
The Dog Ate It, and Other Reasons Some British Folks Don't Have Their TV Licenses Handy
According to a November 26th article in the Guardian, the British regulatory agency charged with making certain that tv owners in the country have paid for licenses has caught nearly 350,000 people without that important piece of paper. Excuses range from the tv is for the dog only (and apparently he's responsible for his own debts) to one tv watcher who claimed that since the set was used only for catching Australian shows and since as far as s/he knew Australia doesn't require a license s/he wasn't breaking the law. Sanctions can reach a fine of one thousand pounds. Read more here.