March 24, 2006
Fourth Circuit Grants In Part, Denies In Part Request for Access to Exhibits, Other Materials In Moussaoui Case
The Associated Press and several other news organizations appealed the district court's order denying access to exhibits entered into evidence "until the trial proceedings are completed, at which time requests for these materials will be considered" (United States v. Moussaoui (E. D. Va. Feb. 14, 2006)) as well as another order of the same date which sealed transcripts of bench conferences.
The 4th Circuit has held that with respect to petitioners' argument that the February 14th orders are "facially invalid because they were issued without prior notice and an opportunity to be heard", "any defects that existed at the time of the February 14 orders have been cured by subsequent proceedings." With respect to the documentary exhibits, the appellate court held, "[w]e have little difficulty concluding that the district court did not abuse its discretion in refusing to provide access to items that have been admitted into evidence but that have not yet been published to the jury, or that have been published only in part. We therefore deny the petition for a writ of mandamus to the extent that Petitioners seek access to any documentary exhibit that falls into this category..."
With regard to documentary exhibits "that have been admitted into evidence and fully published to the jury, we conclude that the district court abused its discretion in denying access....As noted above, the district court identified two concerns in disallowing any contemporaneous access to exhibits: juror taint and administrative difficulties. The concern for juror taint is not well taken regarding exhibits that have been fully published to the jury because it is unlikely that simply seeing the evidence again through a media publication will endanger Moussaoui's right to a fair trial....The administrative concerns of the district court are also insufficient...We do not doubt that the administrative burdens facing the district court are enormous....However...there are ways to ease the incremental administrative burdens that would arise from accommodating...First Amendment right of access, such as providing access to one copy of an exhibit...."
WIth regard to access to transcripts of bench conferences, the Fourth Circuit held that "Petitioners' contention that they are entitled to transcripts...is without merit. The Supreme Court has indicated that the existence of a First Amendment right to observe trial proceedings does not necessarily extend to all parts of a trial....And, bench conferences traditionally are not open to the public....Petitioners maintain, however, that they do have a First Amendment right to review transcripts of bench conferences as part of the proceedings that are published daily....Assuming that there is a constitutional or common law interest in eventual release of transcripts...this right is amply satisfied by prompt post-trial release of transcripts....We therefore deny Petitioners' mandamus petition...."
Read the entire ruling here.
March 23, 2006
Fight Over Program Repeats Continues: Ofcom May Not Settle It Until 2007
Since the rules over re-broadcast of programming changed last year, the UK networks have been unable to agree on when and in what media programs can be repeated. Particularly at issue are when programs can be broadcast on independent channels, the internet and overseas. Ofcom, the UK's media regulatory agency, had set March 21 of this year as the date by which affected parties should propose guidelines but some networks missed that date, including the BBC and ITV. Now, arguments are emerging over whether the viewing public expects free repeats of programming during a specific period ("a catchup window") or whether it understands the concept of some kind of pay-for-view (a download).
New Tax Credits May Soon Be Available for British Film Industry
The UK film industry may soon be eligible for more tax credits under new legislation to be introduced this summer. Lower budget films will get subsidies and up to a 50 percent tax credit if they make money at the box office. Read more in a BBC story here.
March 21, 2006
Closing Statements in Da Vinci Case; Now Over to the Judge
The judge presiding over The Da Vinci Code copyright infringement case has indicated that he may take until just before Easter to hand down his decision now that the lawyers have made their closing statements. Both Dan Brown, who wrote The Da Vinci Code and Michael Baigent, who with Richard Leigh and another man wrote The Holy Blood and the Holy Grail, which Brown is accused of plagiarizing, gave evidence at trial. At risk besides questions of copyright law and the rights of the authors in HBHG is the pending release of the film made from The Da Vinci Code, scheduled to hit theaters in May. Read more here and here.
Brooks Boliek on the FCC's Recent Rulings
Read the Hollywood Reporter's Brook Boliek's "FCC's Indecency Rulings Are Just Plain (S-Word)" here (password may be required).
The Future of the International Telecommunications Union
Patrick Ryan, University of Colorado at Boulder, has published "The Future of the ITU and its Standard-Setting Functions in Spectrum Management" in Standards Edge: Future Generation, edited by Sherrie Bolin, published by Sheridan Books in 2005. Here is the abstract.
One of the most important standard-setting organizations in the world is the International Telecommunications Union (ITU), an arm of the United Nations based in Geneva, Switzerland. This chapter will discuss the role of and process for standardization in the ITU with respect to spectrum and satellite management - two aspects that will become increasingly important for the Future Generation of Information and Communications Technology. In particular, we will focus on the ITU-R, the ITU organization that deals with radio and spectrum management. We will consider the role of the ITU in broader terms through its increasingly prominent role in the standardization of spectrum management matters related to satellites. In conclusion, we will see the ITU's role in spectrum management has been quite effective with regards to satellite and space law. However, we will also see that ITU's future ability to be effective in this area will depend on: (1) the organization's willingness to distance itself from the centralized planning notions that arise from its command-and-control approach to spectrum allocation and allotment and (2) an ensuing increased commitment by the United States to the ITU's processes.
Download the essay here from SSRN.
European Broadcasting Regulation
Natali Helberger, Institute for Information Law, University of Amsterdam, has published "The `Right to Information' and Digital Broadcasting--About Monsters, Invisible Men, and the Future of European Broadcasting Regulation" in volume 17 of the Entertainment Law Review. Here is the abstract.
As a result of modern content management technologies, individualisation, differentiation and conditioned access step into the place of traditional models of broadcasting content. In the light of these developments, the article provides a critical analysis of the proposals that were made to revise the Television Without Frontiers Directive and to protect the right to information of the broadcasting audience. The article will show that instead of modernizing the European broadcasting framework the proposals are focused on maintaining the status quo of an analogue past. It will make an argument in favor of a more viewer-oriented approach.
It is also available from SSRN.
Grokster, KaZaa and Comparative Law
Jane Ginsburg, Columbia University School of Law, and Sam Ricketson, University of Melbourne Faculty of Law, have published "Inducers and Authorisers: A Comparison of the U. S. Supreme Court's Grokster's Decision and the Australian Federal Court's KaZaa Ruling," as the University of Melbourne's Legal Studies Research Paper no. 144 and in volume 11 of Media and Arts Law Review. Here is the abstract.
On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors’ rights and the advent of new technologies, particularly in relation to peer-to-peer networks.
In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular ‘file-sharing’ networks, Grokster and Streamcast (dba Morpheus) should be held liable for facilitating the commission of massive amounts of copyright infringement by the end-users who employed the defendants’ peer-to-peer (P2P) software to copy and redistribute films and sound recordings to each others’ hard drives. The Court reversed the Ninth Circuit’s grant of summary judgment for defendants, holding that the technology entrepreneurs could be held liable for ‘actively inducing’ the end-users’ acts of infringement. A similar decision was reached in Australia with respect to the KaZaa software, albeit in this proceeding the court had the advantage of much greater factual material as to the operation of the KaZaa system than did the US Supreme Court in Grokster. Nonetheless, both cases illustrate the difficulties that arise as consumer-wielded digital media increasingly supplant the traditional intermediaries who made copyrighted works available to the public (and who traditionally were the targets of copyright enforcement) and as courts struggle to balance meaningful protection for works of authorship against the progress of technological innovation. For some, the weakening of copyright control is the necessary price to pay for technological advancement. For others, authors’ ability to maintain exclusive rights remains a cornerstone of any copyright system as it adapts to accommodate new modes of exploitation.
Grokster is the latest, and most important, in a series of US decisions to address that balance by articulating the liability of an enterprise which does not itself commit copyright infringement, but instead makes it possible for others to infringe. To appreciate the Supreme Court’s analysis, it helps to set the case in both domestic and international doctrinal context. Because unauthorized P2P distribution of copyrighted works extends well beyond the US, copyright owners have pursued legal actions in other countries, including the Netherlands and Australia. While the Australian case still awaits full appellate consideration, it provides a useful example of how another common law jurisdiction (Australia) analyses the liability of those who provide goods or services to facilitate infringement. In this regard, it is also useful to consider what obligations, if any, exist at the international level with respect to the liability of infringement-facilitators. We will conclude with some (perhaps foolhardy) forecasts for the post-Grokster/KaZaa future of copyright enforcement.
It is also available through SSRN here.
March 19, 2006
Michael Crichton On the Metabolite Case
Novelist and physician Michael Crichton comments amusingly and pointedly on the Laboratory Corporation of America v. Metabolite Labs case in "This Essay Breaks the Law", in today's New York Times Magazine.