January 6, 2006
Appellate Decision in 911 Case
Trial Court Judge Issues Injuction Barring Newspaper From Printing Info About Blood Substitute
A California Superior Court Judge has granted a TRO preventing a San Diego newspaper from printing information it obtained under the California Public Records Act about the experimental drug Polyheme. In an ex parte hearing, the company testing the drug, Northfield Labs of Evanston, Illinois, argued successfully that it would stand to lose trade secrets and competitive advantage if the paper published the information. The FDA has not yet approved the drug, which is currently in clinical trials. The TRO remains in effect through January 13. Why the interest in Polyheme? It's "fake blood" and if it tests successfully, it could save thousands of lives, both at accident sites and in hospitals. Real blood is in short supply, particularly the "universal donor" type. Read more here and here.
Intel Announces What's Inside
At Las Vegas' annual Consumer Electronics Show, Intel has revealed what will make up the content of its Viiv (pronounced "five")PC platform. Included will be such goodies as broadcasts from the upcoming Winter Olympics and classic tv from the 1950s. Read more here at Intel's website and here.
The Cereal Offense...and Other News in IP
Read Christopher Hayes' amusing article about new directions in patent law here.
U. S. District Judge Rejects DOD Claim that Releasing Detainee Names Would Invade Privacy
United States District Judge Jed Rakoff has told attorneys for the Bush administration that revealing the names of Guantanamo Bay detainees would not violate their privacy, taking the government that much closer to identifying more 500 prisoners who have not been charged, some after more than 3 years in detention. In another ruling in the series of proceedings begun in November 2004 to obtain the names of persons detained filed by the Associated Press Rakoff said that the "the Department of Defense produced redacted copies of the transcripts and related documents, removing the names of the detainees and certain other “identifying information,” such as internment serial numbers, names and home locales of the detainees and their families, information tending to reveal the nationalities or countries of origin of the detainees, and names of other persons identified or otherwise referenced by the detainees.... "
"No claim was made, then or thereafter, that these redactions were prompted by considerations of national security or the like. Rather, the sole basis given for the redactions was so-called “Exemption 6,” which exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. [Sec.] 552 (b)(6). Contending that Exemption 6 justified each and all of the redactions, the Department of Defense then moved for summary judgment in its favor. To aid the Court in resolving the motion, the Court, by Memorandum Order dated August 29, 2005, directed the Department of Defense to ask each detainee whether he wished his identifying information to be released to the Associated Press or not. See also Memorandum Order dated September 26, 2005 (denying reconsideration). Specifically, each detainee was provided with a form (suitably translated into the detainee's native tongue) which stated as follows:
You have previously appeared before a United States military tribunal and made statements that were written down in the form of a transcript. The Associated Press, an international news organization, has asked the United States to release copies of those transcripts, so that it can report on the proceedings. The United States has released large portions of those transcripts, but has held back information about your name and identity, believing that the release of such information may be dangerous to you and your family. Before deciding whether this was proper, the Court that is hearing this dispute would like to know your preference.
Therefore, please check one of the two boxes below, indicating whether or not you want to release identifying information about yourself.
- Yes, I want the identifying information about myself released to the Associated Press.
- No, I do not want the identifying information about myself released to the Associated Press.
Of the 317 detainees who received the form, 63 checked “Yes,” 17 checked “No,” 35 returned the form without checking either response, and 202 declined to return the form. See Declaration of Dale T. Vitale, dated Oct. 28, 2005, at ¶ 4; Supplemental Declaration of Dale T. Vitale, dated Dec. 19, 2005, at ¶ 2.
Against this background, the defendant's motion for summary judgment is now ripe for determination. The relevant legal standards are well established.... Applying these standards to the record on the instant motion, the Court concludes that the Department of Defense has failed to carry its burden. The only privacy interest it purports to assert under Exemption 6 is that of the detainees; but of the 317 detainees in issue, only 17 have asserted a desire to have their identifying information kept confidential. Moreover, so far as the record here discloses, none of the detainees-not even these 17-had a reasonable expectation of privacy with respect to the identifying information they provided. Most of the information was provided by them in formal legal proceedings before a tribunal, and nothing in the record before the Court suggests that they were informed that the proceedings would remain confidential in any respect. Thus, this case is starkly different from Ray, supra, in which the Supreme Court, in approving the redactions of certain identifying information under Exemption 6, substantially grounded its decision on the fact that the repatriated Haitian “boat people” who provided the information had expressly been promised confidentiality by the U.S. Government and had plainly relied on that promise. ...Here, by contrast, the record on this motion evidences no such promise, express or implied.
The Department of Defense argues, nonetheless, that Ray supports its position because of language in that decision suggesting that the unidentified Haitians there who had agreed to talk to the U.S. Government after being returned to Haiti had a reasonable fear that they and their families would face embarrassment and retaliation if their identities were made known and their privacy left unprotected. See id. at 176-77. But this “derivative” harm-if cognizable at all under Exemption 6, see id. at 179-83 (Scalia, J., concurring on the ground that the majority opinion's references to such harm are pure dicta)-was premised on fears so well founded that the U.S. Government not only had demanded that Haiti not so retaliate but also had monitored the situation by interviewing the returned Haitians under strict promises of confidentiality. Here, by contrast, the Department of Defense has failed to come forward on this motion with anything but thin and conclusory speculation to support its claims of possible retaliation. Even under the relaxed evidentiary standards that might arguably apply in these unusual circumstances, such a meager and unparticularized showing is inadequate to meet the standards either of Rule 56 or of FOIA. See Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.1999) (to justify application of an exemption under FOIA, government must provide sufficient specificity to permit meaningful judicial review). Even less does it satisfy the heavier burden under Exemption 6 to show that disclosure would in fact constitute a clearly unwarranted invasion of personal privacy. In short, the Department of Defense has failed on this motion to establish, by undisputed admissible evidence, any cognizable privacy interest on the part of the detainees that would warrant the across-the-board application of Exemption 6 the defendant here seeks." Read the entire ruling on Westlaw at 2006 WL 13042 (S.D.N.Y.); it is not yet available today on LEXIS.
Read more in an AP article by Larry Neumeister here.
Oxford Media Convention 2006 Begins January 19
The Oxford Media Convention begins January 19 at the Said Business School at Oxford University.The description of the program is below. Here are links to the speakers, the program, the organizers, and other information.
The 2006 Oxford Media Convention organised by ippr in association with MediaGuardian and PCMLP, Oxford University will focus on the role of public service broadcasting and media regulation in a digital age. Convergence, which has been talked about for so long, is finally upon us, as the internet and mobile phones are gradually becoming viable platforms for consuming and sharing all forms of content. The public contract between media companies and citizens is being rewritten, with fundamental reviews of the BBC and other broadcasters, to bring them in line with the new giants of audiovisual.
But the strategies of the main media players are only now becoming clear, and a successful transition depends above all on them. It is not at all clear what the role of the BBC should be in this environment, nor what model of competition policy-makers should be pursuing. The 2006 Oxford Media Convention will bring together strategists from all the major media players with the key experts from Government and academia, to address these challenges and ask where and how regulators should intervene, to uphold the public interest.
January 5, 2006
Michigan Supreme Court Rules That Statute of Limitations for Defamation Actions Runs From Date Statement is Initially Published
In Mitan v. Campbell, the Michigan Supreme Court has ruled that the statute of limitations begins tolling when the defamatory statement is first made, not when the statement is republished.
"Defendant was the public relations director of the Department of Consumer and Industry Services. On February 22, 2000, she was interviewed by a reporter from WXYZ-TV regarding employment claims made by plaintiff's employees. During the interview, defendant stated that plaintiff was a "bad egg," a statement that plaintiff claims was defamatory. The statement was broadcast by WXYZ-TV on February 25, 2000. Plaintiff filed a defamation complaint on February 26, 2001 (February 25 was a Sunday), more than a year after defendant made her statement but within a year from the date it was republished by WXYZ-TV. The limitations period for a defamation claim is one year. MCL 600.5805(9). The circuit court granted defendant summary disposition based on the statute of limitations, MCR 2.116(C)(7), ruling that defendant's statement to the reporter started the limitations period running, and that defendant could not be held responsible for the republication by WXYZ-TV. The Court of Appeals reversed and remanded. n2 It concluded that defendant could be liable on the basis of the republication because it was plausible that the broadcast was the natural, and possibly intended, result of the interview. The Court found this was a factual issue to be considered on remand....MCL 600.5805(1) and (9) are clear and unambiguous. Our Legislature has clearly provided that a defamation claim must be filed within one year from the date the claim first accrued. The claim first accrued when the defamatory statement was made on February 22, 2000. The statute does not contemplate extending the accrual of the claim on the basis of republication, regardless of whether the republication was intended by the speaker....Because plaintiff filed suit against defendant more than a year after his claim first accrued, his cause of action is barred by the statute of limitations. The plain language of MCL 600.5805 is inconsistent with plaintiff's claim that a third party's expected republication of a defamatory statement affects the running of the limitations period for the initial statement. The statute provides a relatively short limitations period of one year; there is nothing in the statute suggesting that the period can effectively be lengthened where republication is anticipated. Rather than a rule of first accrual, the reasoning of the Court of Appeals changes the statute to a rule of last accrual. Such reasoning undermines the principles of finality and certainty behind a statute of limitations. The judgment of the Court of Appeals is reversed and the circuit court's judgment of summary disposition is reinstated. "
Read the entire (per curiam) ruling here.
France to Overhaul "Colonial History" LawFrench President Jacques Chirac has indicated that the nation's "colonial history" law will be overhauled. It had mandated that the nation's teachers emphasize the positive results of colonialism and de-emphasize the downsides of French occupation of former colonies in Africa, the Western Hemisphere and Asia. Chirac said the law was "divisive" and "needed to be revised" ("Le texte actuel divise les Français. Il doit donc être réécrit"). The BBC and Le Monde (in French) have more.
Here is the original text of Article 4 of the law (in French), passed February 23, 2005 which is particularly contentious.
Loi n°2005-158 du 23 février 2005
Loi portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés (1).
Les programmes scolaires reconnaissent en particulier le rôle positif de la présence française outre-mer, notamment en Afrique du Nord, et accordent à l'histoire et aux sacrifices des combattants de l'armée française issus de ces territoires la place éminente à laquelle ils ont droit.
La coopération permettant la mise en relation des sources orales et écrites disponibles en France et à l'étranger est encouragée.
January 4, 2006
Prof Bounced for Blogging
Meg Spohn, a doctoral candidate at the University of Denver, and a department chair at private, for profit DeVry University, maintains Megablog, where she comments on various things that interest her. DeVry apparently saw something that it objected to in one of her postings and, since Colorado is an employment-at-will state, summarily fired her. Staff escorted her out of the building. Spohn says she still does not know what in her post distressed the university administration, but here is her description of the event. Business Week's Stephen Baker blogged about the firing here.
January 3, 2006
Article on P2P File Sharing in Southern Illinois Law Journal
Michael Botein, Professor of Law, New York Law School, and Visiting Professor, Southern Illinois University Law School, and Edward Samuels, an intellectual property consultant in New York City, are publishing "Compulsory Licenses in Peer-to-Peer File Sharing: A Workable Solution?" in volume 18 of the Southern Illinois University Law Journal. Here is the introduction.
Peer-to-peer sharing of creative works over the Internet poses a particularly thorny issue for copyright law. On the one hand, full copyright liability may seem inappropriate in such an environment, since it might inhibit the broad dissemination of creative works promised by the new technology. On the other hand, carte blanche immunity from copyright liability might erode the commercial value of creative works.
In an effort to chart a course between the two unsatisfactory extremes, some commentators have recently proposed a compulsory license to authorize and regulate the peer-to-peer distribution of copyrighted works, primarily over the Internet.
We are sympathetic with the goals of such a compromise, and believe that the issues need to be fully aired. Nevertheless, we remain skeptical about the feasibility of implementing such a system. To this end, we think it worthwhile to take a brief look at the history of compulsory copyright licenses in a number of different settings. As will be seen, compulsory licenses have been less than successful in implementing public policy goals.
To begin with, compulsory licenses are not new to intellectual property. They have been invoked to resolve several troublesome technological issues, primarily in the past quarter of a century. Some compulsory licenses have been moderately successful, but their general track record is disappointing. At best, these licenses should be viewed as interim arrangements to preserve a balance between the extremes of full and no liability during periods of technological or other change. But such arrangements are not as successful as, and should yield as soon as possible to, private systems of compensation. Even after 210 years of copyright law in this country and in the face of new technologies, private arrangements still best serve the public interest in encouraging both the creation and dissemination of new works.
As a backdrop for considering a new license in the peer-to-peer environment, this paper reviews existing compulsory licenses. We first discuss the audio compulsory licenses: (1) the original compulsory license for mechanical reproduction of phonorecords, established in the Copyright Act of 1909 and preserved in section 115 of the current Act;(2) the jukebox compulsory license, enacted as section 116 of the 1976 Copyright Act, and repealed in 1993; (3) the digital audio home recording royalty, established in 1992 in chapter ten of the Copyright Act; and (4) the digital performance right in sound recordings license, established in 1995, set out in section 114 of the current Act.
Because the technology and the economics of the video market are different from those of the audio market, however, we will review separately the television compulsory licenses, primarily focusing upon (5) the cable compulsory license, adopted as section 111 of the 1976 Act. We also will briefly consider: (6) the public broadcasting license established in section 118; (7) the satellite retransmission license enacted in 1988, as set forth in section 119; and (8) the local-to-local retransmission license enacted in 1999 as section 122 of the current Act. We will conclude by considering other aspects of the copyright system that should be borne in mind as we contemplate the adoption of yet another compulsory licensing system.
Simon & Schuster, Hershey, "Kiss", Make Up Over Use of Images
The Hershey Company and publisher Simon & Schuster have settled a lawsuit over the publisher's use of a picture of the candy's maker distinctive chocolate bar on a book's dust jacket. Michael d'Antonio's Hershey: Milton S. Hershey's Extraordinary Life of Wealth, Empire and Utopian Dreams will now also indicate that it is not authorized by the Hershey company. Hershey had filed a suit in federal district court in mid-December seeking an injunction against use of the company's trademarks. Read more about the settlement here.
New Hampshire Supreme Court Strikes Down Part of Statute Designed to Seal Financial Records
The New Hamphire Supreme Court has struck down part of a 2004 law which seals financial records in divorce cases, suggesting that the legislature overreached in its concern for personal privacy and in its attempt to protect against identity theft. But it left intact other parts of the law, telling the Associated Press and other media organizations which had brought the suit that their claim that the law was an unconstitutional prior restraint on publication did not pass muster.
"We now examine the constitutionality of the procedures for public access provided in RSA 458:15(b), III. As stated above, whenever a member of the public, including the press, seeks access to a document sealed under RSA: 15-b, I, Part I, Articles 8 and 22 of the State Constitution require: (1) that the party opposing disclosure of the document demonstrate that there is a sufficiently compelling reason that would justify preventing public access to that document; and (2) that the court determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved....At the outset, the State argues that the Petition of Keene Sentinel analysis does not apply to legislative enactments designed to further some countervailing interest that the legislature has deemed to be sufficiently compelling to require nondisclosure in all cases. The State relies upon the trial court's interpretation of Petition of Keene Sentinel. In its order, the trial court stated:
The Court in Keene Sentinel realized . . . that in certain circumstances, statutory provisions would grant or require confidentiality, constituting a sufficiently compelling interest to preclude public access to the document at issue....
By enacting RSA 458:15-b, the legislature provided that the individual privacy interest at stake in financial affidavits in domestic relations cases is so great that it constitutes a per se countervailing interest in the Keene Sentinel analysis.
"... We respectfully disagree. The trial court appears to have relied upon our discussion in Petition of Keene Sentinel...of the procedures that the trial court must follow in conducting an in camera hearing on a petition for access to a sealed record in the presence of counsel for the parties and the petitioner. We stated:
There will be instances where the claimed countervailing rights of a party (for example, constitutional rights of a defendant in a criminal case or statutory provisions granting or requiring confidentiality in certain cases)must not be rendered moot pending final resolution of the access issue. When appropriate, the document's subject matter, however, can be described in general terms such that persons objecting to closure can present an adequate argument to the court.
"...In this statement, we provided a safeguard to preserve the status quo during in camera proceedings, recognizing that the proponent of nondisclosure may have certain "countervailing rights," statutory or otherwise, that must not be "rendered moot" by disclosure before the court decides whether to unseal the document. Id. However, we did not state that these countervailing rights automatically rise to the level of a "sufficiently compelling interest to preclude public access."
"The State next argues that RSA 458:15-b, including the procedures contained in paragraph III, is justified by a compelling State interest: the individual's fundamental right to privacy. However, a generalized concern for personal privacy is insufficient to meet the State's burden of demonstrating the existence of a sufficiently compelling reason to prevent public access...."We cannot accept . . . a blanket assertion of the privacy right. Courts . . . are public forums. A private citizen seeking a divorce in this State must unavoidably do so in a public forum . . . ." Id. While we recognize the importance of the right to privacy, "the [public's] right of access to . . . sealed records must be weighed and balanced against privacy interests that are articulated with specificity."....
"The State also argues that RSA 458:15-b is justified by another compelling State interest: the protection of the citizens of the State from identity theft. We acknowledge that identity theft is a growing problem. However, the State has offered no empirical evidence linking identity theft to court documents, nor has the State demonstrated that the shifting of the burden of proof and the new standard established by RSA:15-b will lead to a decrease in the incidence of identity theft in the State.
"Even if we agree that RSA:458:15-b serves a compelling interest...the State has failed to demonstrate that the nondisclosure procedures created by paragraph III of the statute are a narrowly tailored means of protecting litigants from identity theft. Once financial affidavits are made confidential under RSA 458:15-b, I, they may not be viewed by anyone but the parties and other persons specifically identified in paragraph I, except by leave of court....Thus, a member of the press or public must file a petition with the court when seeking access to a sealed affidavit.... We do not see what additional protection from identity theft the procedures contained in paragraph III provide, and even if those procedures provide some additional protection, that protection does not justify the restrictions placed on the public's constitutional right of access.
"The petitioners argue that RSA 458:15-b, III is unconstitutional because it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure...and it requires the showing of some public interest in favor of disclosure that is greater than the public right of access to court records.... We agree.
"As stated, Part I, Articles 8 and 22 of the State Constitution require that a party opposing disclosure of a presumptively open court document bear the burden of demonstrating a sufficiently compelling reason that justifies nondisclosure.... By contrast, RSA 458:15-b, III places the burden upon the party seeking disclosure. The trial court attempted to minimize the importance of this burden-shifting by interpreting the statute to mean that the burden of demonstrating a sufficiently compelling interest is always met when financial affidavits are filed. However, the constitution requires an individualized determination of a sufficiently compelling interest on the facts of each case....For example, much of the information contained in the financial affidavit may already be revealed in other parts of the record which are open to the public, or may already have been otherwise made public....
"We conclude that RSA:15-b, III is unconstitutional for three reasons: it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure... it abrogates entirely the public right of access to a class of court records... and it is not narrowly tailored to serve the allegedly compelling interest of the State in protecting its citizens from identity theft...."
Read the entire opinion here.
Iranian Newspaper Closed Down; No Reason Given
The Guardian reports that the Iranian government has closed down the newspaper Asia, apparently for printing photographs considered improper. Officials also refused permission for the launch of a woman's magazine. The actions are the first taken under the new regime of President Mahmoud Ahmadinejad. Read more here.
Julie Hilden on Britney Spears' Libel-ability
FindLaw's Julie Hilden discusses why she doesn't think singer Britney Spears is necessarily libel-proof. Read more here.