March 17, 2006
Libby Subpoenas New York Times, Judith Miller
Lewis Libby's lawyers have subpoenaed the New York Times and its former reporter Judith Miller, seeking information that could be helpful in Libby's defense against charges that he lied to a federal grand jury. Miller, who served 85 days in jail last year for contempt of court for refusing to give up Libby's name to a grand jury, is likely to try to resist giving up this requested information as well, says her lawyer, Robert Bennett. Libby's attorneys have also served a subpoena on NBC's Tim Russert. Read more here and here.
March 16, 2006
Austrian Publisher Loses Bid To Trademark White Pages
The European Union's Court of First Instance has upheld the EU's design and trademark office's decision to deny the Austrian publisher Telefon & Buch Verlagsgesellschaft the right to trademark the phrase "Weisse Seiten" (White Pages), saying it no longer has a specific enough meaning. The Court said "White Pages" now generally connotes residential directories. Read more here.
FCC's NALs and Memoranda
In an effort to clean up a backlog of viewer complaints, the FCC has issued numerous decisions this week. It has posted additional Notices of Apparent Liability and Memoranda Opinions and Orders here. Among the broadcasts which violated FCC rules are the "Pool Party" episode of "The Surreal Life 2" and "Con el corazon en la mano".
The FCC found that performer Cher's use of the "f" word during the December 9, 2002 broadcast of the Billboard Music Awards on Fox was "explicit and shocking and gratuitous" the broadcast itself was "patently offensive under contemporary community standards for the broadcast medium and thus apparently indecent. Technological advances have made it possible to block the broadcast of offensive words without disproportionately disrupting a speaker's message. Fox could have avoided the indecency violation here by delaying the broadcast for a period of time sufficient to ensure that all offending words were blocked....By broadcasting this material, the station apparently violated the prohibitions...and the Commission's rules against broadcast indecency....The "F-Word" is a vulgar sexual term so grossly offensive to members of the public that it amounts to a nuisance and is presumptively profane. The "F-Word" is one of the offensive words in the English language, the broadcast of which is likely to shock the viewer and disturb the peace and quiet of the home. Consistent with our decisions in the Golden Globe Awards Order, we find here that the use of the "F-Word" in the program at issue here apparently violated 18 U.S.C. [sec] 1464's prohibition's of the broadcast of "profane" language....In the instant case, we find that the Fox Network affiliate...consciously...broadcast the program....The gratuitous use of indecent and profane language...ordinarily would warrant a forfeiture order....Nonetheless, we recognize that our precedent at the time...indicated that the Commission would not take enforcement action against isolated use of expletives. Accordingly, we find that no forfeiture is warranted...."
The agency analyzed complaints against Nicole Ritchie's use of expletives during the broadcast of the 2003 Billboard Music Awards similarly.
The agency also ruled on many other viewer complaints of indecency or profanity on the airwaves, among them that episodes of "Will and Grace," "Two and a Half Men," "The Oprah Winfrey Show," "The Today Show," "8 Simple Rules," "The Simpsons," and the Green Bay Packers v. Minnesota Vikings game (January 9, 2005) depicted lewdness or obscenity. It found no violation of FCC regulations in any of these cases.
FCC Issues NAL in Case of "Without a Trace"
The FCC has responded to viewer complaints of indecency in the case of an episode of the CBS series "Without a Trace". The agency found that the CBS broadcast of the December 2004 episode of "Our Sons and Daughters" was the broadcast of "material graphically depicting teenage boys and girls participating in a sexual orgy. Based upon our review of the facts and circumstances of this case, we conclude the the licensees...are apparently liable for a monetary forfeiture in the amount of $32,500 per station for broadcasting indecent material...."
The FCC went on to complete its analysis, and discussed the content of the programming at length, explaining that "while no nudity is shown, it is clear...that the scene depicts numerous sexual activities...We also find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium.....[t]he scene is explicit and graphic. The material contains numerous depictions of sexual conduct among teenagers that are portrayed in such a manner that a child watching the program could easily discern that the teenagers shown...were engaging in sexual activities, including apparent intercourse. The background sounds, which include moaning, add to the graphic and explicit sexual nature....The scene is not shot as clinical or educational material....Next, although not dispositive, we find it relevant that the broadcast dwells on and repeatedly depicts the sexual material, the second principal factor in our analysis....As for the third factor, we find that the complained-of material is pandering, titillating, and shocking to the audience. The explicit and length nature of the depictions...goes well beyond what the story line could reasonably be said to require....In sum, because the scene is explicit, dwells upon sexual material, and is shocking and titillating, we conclude that the broadcast of the material...is patently offensive under contemporary community standards...." The total fine imposed on CBS and its licensees will amount to $3.6 million.
Read the FCC's entire notice here.
March 15, 2006
Daily Illini Editor Loses Post Over Publication of Danish Cartoons
The Daily Illini's board of directors has fired its student editor, Acton H. Gorton, for violating "Daily Illini policies about thoughtful discussion of and preparation for the publication of inflammatory material" in deciding to publish those now infamous Danish cartoons of the Prophet Muhammad. Gorton and another of the paper's editors were originally suspended for their actions in publishing the cartoons. Gorton defended his decision by saying the publication was "newsworthy" and that he asked others for advice before choosing to republish the cartoons. Gorton says he plans to sue over the firing. Read more on the suspension here and the firing here. Read Gorton's February 9, 2006 editorial about the cartoons here.
March 14, 2006
Assessing the Archives: How Heirs Use Copyright
Olufunmilayo Arewa, Case Western Reserve Law School, has written "Copyright on Catfish Row: Control and Compensation in Porgy and Bess," available through the SSRN. Here is the abstract.
Current debates about the duration and scope of copyright protection such as those associated with passage of the Copyright Term Extension Act and recent Eldred v. Ashcroft decision, tend to be based on a general assessment of the implications and role of copyright rules as well as the cumulative impact of copyright on the public domain. Although underlying rules and their general impact are important, also important are the uses of copyright in particular instances as may be reflected in the behavior of individual copyright holders and the ways in which such holders actually exploit their copyrights. Looking at the operation and uses of copyright in the specific instance of George Gershwin's musical practice reflects uses of copyright in the musical arena and demonstrates the extent to which current copyright rules may not adequately contemplate actual practices of music copyright holders. George Gershwin worked extensively with technical collaborators throughout his career and immersed himself in African American musical traditions. Gershwin was also quite attuned to the importance of copyright. Following his premature death in 1937 at age 38, however, the Gershwin family came to control his copyrights, highlighting the role that heirs now play in the actual use of copyright given the fact that copyright duration now extends to 70 years beyond the life of individual creators. Copyright structures to this point have been based on combining of rights of control and compensation within copyright frameworks. Through various mechanisms, heirs in particular tend to exert control over uses of copyright in ways that have little to do with the creation of musical works that is the major rationale for copyright. In fact, the exercise of control over copyright in such instances may actually hinder the creation of later works. Uses of copyright by creators such as Gershwin and his heirs suggest that it would be prudent in some instances to separate the control and compensation aspects of copyright. The division of control from compensation will not only help keep the public domain strong, but may limit the opportunities for strategic and other behaviors that are becoming increasingly characteristic of the operation of copyright and intellectual property rights more generally.
March 13, 2006
Hell's Angels Sue Disney For Trademark Infringement Over Film
The Hell's Angels Motorcycle Corporation is suing the Walt Disney Corporation for trademark infringement and dilution over the film Wild Hogs in U. S. District Court. Read the complaint here.
International Tribunal Finds Two Journalists Guilty of Contempt in Disclosure of Witness Name, Imposes Fines
The International Criminal Tribunal for the Former Yugoslavia has found two journalists guilty of contempt for publishing the name and testimony of a witness in a proceeding before the tribunal. It decided to fine the journalists fifteen thousand Euros each instead of sentencing them to prison terms. Read more here. Read the ruling here. The case of four other journalists is still pending.
Moussaoui Judge Denies Media Motion For Access to Parts of Record While Trial Carries On
Judge Leonie M. Brinkema, the judge presiding over the Zacarias Moussaoui case, has denied various news media access to parts of the record of the trial while it continues. Citing concerns about "the integrity of the proceedings...unreasonably burdening court and attorney resources while the trial is in progress" the judge held that "the potential for underming the integrity of the proceeding is significant. Although the jury has to date been able to avoid media coverage, as previously explained, if information not yet shown to the jury is publicly available and seen by a juror, the potential for jury taint arises. For example, Exhibit ST-01 is a thick set of stipulations. Although this exhibit has been admitted into evidence, only a few of the stipulations have yet been read to the jury. If that exhibit had been publicly disseminated when introduced, the government's case would be unfolded in public before the jury received it. Moreover, as often happens in a long, complex case, counsel sometimes change their use of exhibits. Again, Exhibit ST-01 presents a good example of an exhibit not all of which may be used. If a copy of that exhibit were made publicly available and not all the stipulations within it actually used, the media would be presenting an inaccurate representation of the evidence actually admitted..."
The judge also considered the intervenors' request for an alternative. "The intervenors have suggested...that the Court employ a default system similar to what was used for electronic posting of pleadings....Although that procedure worked adequately in the pretrial setting, to expect either the Court or counsel in the midset of an extremely complicated case to review transcripts..to decide if they can be publicly disclosed presents an unreasonable and inappropriate burden." Read the entire ruing here.
Various news organizations, including the Associated Press, CNN, the New York Times, and the Washington Post, are appealing Judge Brinkema's decision. Read more here.
Michael Carrier on Verizon Communications v. Trinko
In "Of Trinko, Tea Leaves, and Intellectual Property," Michael Carrier, Rutgers University School of Law (Camden), examines the Verizon Communications v. Trinko decision in depth. Download it here from SSRN or read it in the Journal of Corporation Law, volume 31. Here is the abstract.
In Verizon Communications v. Trinko, 540 U.S. 398 (2004), the Supreme Court held that a telephone company’s refusal to share its network with rivals did not constitute monopolization. Although many aspects of the Court’s holding are a defensible application or extension of existing case law, its language stretches far beyond the facts of the case to call into question the role of antitrust itself. The Court lauded the benefits of monopoly power; lamented antitrust’s “considerable disadvantages,” false positives, and negative investment effects; and bemoaned courts’ supervision of decrees and “carte blanche” to force monopolists to “alter [their] way of doing business.”
In this symposium article, I parse the Trinko opinion in close detail. In particular, I examine nine aspects of the opinion, which address (1) antitrust immunity, (2) monopoly power and incentives, (3) sharing, (4) refusals to deal, (5) essential facilities, (6) the existence of a regulatory regime, (7) antitrust’s costs, (8) monopoly leveraging, and (9) the Court’s conclusion. My analysis sheds light on the persuasiveness of the Court’s reasoning and its likely application to future cases, especially refusals to license intellectual property.
Some Analysis of the Digital Broadcast Flag
Cuong Lam Nguyen has published a Comment in volume 22 of the Houston Law Review titled "A Postmortem of the Digital Television Broadcast Flag". It's also available as a working paper from the University of Houston Law Center and from SSRN. Here is the abstract.
This Comment explores flaws in the FCC’s broadcast flag rules and examines how future television broadcast piracy solutions should address the broadcast flag’s shortcomings. Part II begins with a brief history of television and the circumstances that brought the broadcast flag into existence and then proceeds to map out the evolution of broadcast flag regulation. Following this history, Part III examines the fair use doctrine in the context of broadcast television. Part IV proposes that the best way for future DRM schemes to preserve fair use is to adopt competition and innovation-friendly policies that provide consumers with a variety of options that will collectively restore the scope of their fair use activities. Part IV also critiques the FCC’s policy choices and explains why these policy decisions fall short of establishing the competitive and innovative climate necessary to preserve fair use. Part V concludes that the broadcast flag policies will provide important lessons in this ever-evolving debate of fair use.