April 7, 2006
Judge Dismisses Da Vinci Code Claims
In a 71 page opinion the judge presiding over the "Da Vinci Code" lawsuit has ruled that Michael Baigent and Peter Leigh's claims that Random House infringed their copyright in The Holy Blood and the Holy Grail are meritless and has dismissed them. In his summary Mr. Justice Smith found among things that "Holy Blood Holy Grail does not have a Central Theme as contended by the Claimants: it was an artificial creation for the purposes of the litigation working back from the Da Vinci Code", "Even if the Central Themes were copied they are too general or of too low a level of abstraction to be capable of protection by copyright law", "The Central Themes are merely a selective number of facts and ideas artificially taken out of HBHG for the purpose of the litigation", and "There is no "Architecture" or "Structure" to be found in HBHG or the Central Themes as contended by the Claimants nor has Dan Brown infringed any such Architecture or Structure or substantially copied HBHG when he wrote DVC although it is clear it was used to write the Langdon/Teabing lectures." Said the judge, "The majority of the language copying Claims were established but they are not claimed to be textual infringement of the copyright in HBHG and so do not assist the Claimants...[a] comparison of the language of the Central Themes with the text of HBHG and DVC compared by reference to the VSS shows copying of the text from HBHG into DVC. However this is not alleged to a copyright infringement either so does not assist the Claimants. Such copying cannot amount to substantial copying of the text of HBHG and the Claimants have never said it does...[w]hen Dan Brown wrote the Synopsis for DVC he did not use HBHG but used other sources provided to him by Blythe Brown. However his contention that neither he nor his wife acquired or read HBHG until very late in the writing process is rejected. Blythe Brown probably acquired it no later than November 2000 and was using it for research although Dan Brown either did not know that or did not use the material when writing the Synopsis...."
The judge questioned why Dan Brown's wife and principal researcher Blythe Brown was not called as a witness. "No good reason for not calling Blythe Brown was given. Her evidence could have assisted significantly in explaining how various documents were created and how the text of DVC in respect of the lectures came to be written. Any doubts that could have been explained by her were accordingly to be resolved in favour of the Claimants. However her evidence was not crucial to the primary decision on infringement of copyright."
Finally he noted that "This case has not been about Mr Brown's skill and reputation as a thriller writer and should have no impact on it whatsoever."
Read the text of the judgment here.
April 6, 2006
FOIA Request Filed Over Smithsonian Networks Issue
[Thanks to Carl Malamud for alerting me to this development].
April 5, 2006
Alba Withdraws Lawsuit Threat After Receiving Apology
Actress Jessica Alba has accepted an apology from Playboy's former publisher Hugh Hefner and has apparently decided not to sue the magazine for putting a photo of her on the cover of its March issue. The celebrity was more than miffed when the mag failed to get permission from her or Sony Pictures. Alba says that readers expect that women who grace the magazine's cover will also appear inside, and that since she neither agreed to pose for Playboy, nor agreed to be interviewed, the use of her image was misleading. Playboy will also make some donations to charities in which Alba takes an interest. Read more here. Read an earlier post here.
Supreme Court Justices Seem To "Just Say No" to Cameras
Supreme Court Justices Kennedy and Thomas, testifying before Congress on the Supreme Court's budget, also noted that they continue to believe that cameras in the high Court raise a "sensitive point." Justice Kennedy intimated that he thought Congressional directives on cameras in the courtroom were ill-advised. Justice Thomas delivered the message that he believed that all the justices thought that they, rather than Congress, should decide whether Supreme Court arguments should be televised. Read more here in a New York Times article.
Supreme Court Denies Cert in "Veggie Tales" Lawsuit
The Supreme Court has refused to hear the appeal in Lyrick Studios v. Big Idea Productions (05-932), leaving in place the 5th Circuit opinion handed down in August of last year. The parties had argued over the right to sell and distribute products, including DVDs, from the wildly popular "Veggie Tales", a Christian themed series of shows for children. In its decision, the 5th Circuit found that "no sufficient writing" existed to create a formal contract between the parties, even though they had engaged in negotiations for years.
April 4, 2006
TiVo, Echostar in Court Over Patent
TiVo and EchoStar have gone to court over whether EchoStar infringed on TiVo's patent, crucial to digital video recorders. If TiVo wins, it has the upper hand in licensing its technology to cable companies. If EchoStar (which heads up Dish Satellite TV) wins, it might spell the end of TiVo, which hasn't been able to turn its popularity with customers into profits. Read more here and here (subscription may be required).
April 3, 2006
A New Paper on Telecommunications Regulation
Rob Nicholls, Gilbert & Tobin, has published "Telecommunications Regulation and the Global Digital Divide." Here is the abstract.
The liberal-market model for telecommunications regulation is designed to promote access to voice telecommunications and is unlikely to improve internet access. As such, the liberal-market regulatory model will not enable countries to bridge the digital divide. The application of this model in least developed countries is widening the global digital divide by increasing the inequality of access to the information society in those countries compared with developed countries. The paper quantifies the scope and extent of the global digital divide by way of comparison of access to the internet in member states of the OECD and those states defined by the United Nations to be least developed countries (LDCs). The paper contrasts the statist Posts Telegraphs and Telecommunications regulatory regime with the neoliberal, market-based, privatisation approach for which the International Financial Institutions and the World Trade Organization act as agent of dissemination. The paper examines the dissemination of neoliberal policy frameworks from the wealthy North to the poorer South and sets out the limitations of these frameworks. There is a review of the role of the community of consultants created by the operation of the international financial institutions and their actions as agents. The paper shows that the regulatory policies disseminated improve access to voice telephony services but access to the internet (and the information society) has not increased nearly so significantly in LDCs. The particular kinds of solution imposed by international financial institutions reinforce some of the inequalities that they are intended to reduce. The paper advances some policy alternatives which are designed to remedy some of these problems.
It is available as a download from SSRN.
Canada and the Law of Cyber-Libel
Elizabeth F. Judge has published "Cybertorts in Canada: Trends and Themes in Cyberlibel and Other Online Torts," in Annual Review of Civil Litigation for 2005. Here is the abstract.
The article identifies trends and themes in cybertorts in Canada, examining especially how Canadian courts are approaching online defamation and internet jurisdiction issues. In cyberlibel cases, as communication technologies of online chat groups, websites and email are assimilated, some courts are re-considering traditional notions about communications, especially those that associate a message’s influence with an author’s identity, and concluding that internet communications may be believed more readily than communications in print; anonymous messages may be believed more readily than those by identified speakers; and communications in non-print media, with their correspondingly technologically enhanced features of hyperlinking, cross-referencing, archiving and searching, may be more powerful and memorable. Some of these views, however, are at odds with traditional assumptions about credibility, which historically has been correlated with the speaker’s identifiability, bias, experience, and authority. The paper in particular questions the emerging view in internet defamation cases in Canada that anonymous online speech may be more likely to be believed than the same words published in print. While it is important to pay attention to the internet’s particular features, including speed and interactivity, traditional theories about how credibility is evaluated and what criteria are weighed to assess belief should still be considered in this medium. Technology may widely expand who can be heard, but it does not necessarily follow that it should, or does, widely expand what and who is believed. The paper also considers internet jurisdiction theory in Canada and argues that Canadian courts should apply general internet principles under Canadian law rather than turning to “internet-specific” jurisdiction tests developed in other countries.
Download the full article from SSRN here.