April 21, 2006
California Supreme Court Tosses "Friends" Lawsuit
The California Supreme Court has remanded, with instructions to dismiss, a lawsuit against Warner Brothers Television by a former employee on the set of the "Friends" television show who asserted that "the writers' use of sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences, constituted harassment based on sex within the meaning of the Fair Employment and Housing Act...". Amaani Lyle had charged that she was fired not because her work was subpar, but because she was female. The Court found, however, that "[b]ased on the totality of the undisputed circumstances, particularly the fact that the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were sever enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA."
Warner Brothers had also raised a First Amendment defense, but because the Court resolved the issue on the grounds noted above, it did not address the First Amendment question.
Read the Court's entire opinion here.
April 20, 2006
FCC Begins Payola Inquiry
The FCC has begun an investigation into allegations of pay for play at Clear Channel Communications, CBS Radio, Entercom Communications, and Citadel Broadcasting, after it was unable to reach agreements with the four over fines for their previous practices. The agency has now sent out letters of inquiry, requests for documents that begin the process of formal investigation. The federal process follows on the heels of New York Attorney General Eliot Spitzer's lawsuit against Entercom. Read more here and here.
[Thanks to Craig Aaron for the heads up.]
FBI Wants Access to Jack Anderson's Papers
Claiming that classified documents are somewhere in there, the FBI has requested access to the late Jack Anderson's personal papers. The family has refused. The documents are enroute to the George Washington University and will be eventually be accessible to the public. The government says it is concerned that secret information might then also be accessible to the public, according to FBI spokesperson Bill Carter. Read more here in a CNN account and in Washington Post article. It's unclear how, or whether, the government intends to proceed.
Lott (More Guns, Less Crime) Sues Levitt (Freakonomics) Over Book's Statements, Email
John Lott , the author of More Guns, Less Crime has sued Steven Levitt over statements Levitt made in Freakonomics, the book he wrote with Steven Dubner, as well as an email that Levitt sent last year in which Lott claims Levitt defamed him. Lott's complaint cites this passage from Freakonomics as an example of the type of defamatory statements made in the book concerning Lott and his research: "Then there was the troubling allegation that Lott actually invented some of the survey data that supports his more guns/less crime theory. Regardless of whether the data were faked, Lott's admittedly intriguing hypothesis doesn't seem to be true. When other scholars have tried to replicate his results, they found that right-to-carry laws simply don't bring down crime."
The email of which Lott complains occurred during the following exchange. John McCall, a Texas economist, emailed Levitt concerning the question of replication of Lott's research, saying (according to the complaint):
"... "You also state that others have tried to replicate [Lott's] research and have failed. Please supply me with appropriate citations so that I might check for myself." In a subsequent e-mail, McCall referred to a special issue of The Journal of Law & Economics..., which contains a collection of scholarly articles, including one by Lott...an article that also addresses right-to-carry laws....After discussion with the editors, Lott raised the funds to pay the journal's printing and mailing costs....In his e-mail, McCall stated as follows; I went to the website you recommended--have not gone after the round table proceedings yet--I also found the following citations--have not read any of them yet, but it appears they all replicate Lott's research. The Journal of Law and Economics is not chopped liver....
"Levitt responded by e-mail that same day and stated as follows: It was not a peer referred edition of the Journal. For $15,000 he was able to buy an issue and put in only work that supported him. My best friend was the editor and was outraged the press let Lott do this....
"The foregoing allegations are false and defamatory. The Special Issue was, in fact, peer reviewed. Levitt knew it was peer reviewed because Lott asked to contribute an article and told him that the papers would be peer reviewed....Levitt's statement that "For $15,000 [Lott] was able to buy an issue and put in only work that supported him" is also false and defamatory. Lott did not "buy" the issue not did he "put in only work that supported him"..."
April 19, 2006
Protecting Radio Brands
Christopher S. Reed, Franklin Pierce Law Center, has published "A Trade Dress Approach to the Protection of Radio Brands" in IDEA: The Intellectual Property Law Review. Here is the abstract.
Over the past ten to fifteen years the radio industry has undergone dramatic changes in terms of both programming and the economic model that underlies the industry’s very existence. Despite the widespread industry consolidation that took place after the passage of the Telecommunications Act of 1996, advances in technological innovation have lead to a diversity of new media options that have changed the way that people consume radio programming and the way advertisers reach their target audiences. Broadcasters have responded by creating niche-oriented formats designed to attract more narrowly defined segments of the listening population. As the programming becomes more complex, and secondary markets in the packaging and licensing of such formats begin to develop, there has become a need to articulate a mechanism by which broadcasters may protect radio formats as intellectual assets.
While conventional intellectual property concepts are sufficient to protect various aspects of a radio format, broadcasters have traditionally had difficulty asserting protection for complete formats. This paper articulates a theory by which broadcasters may assert protection on a complete, sufficiently distinctive format. By conceptualizing the role of a radio station as a player in a two-sided market, using programming as merely a mechanism to secure listeners of a specifically defined demographic profile, then “selling” access to those listeners to advertisers, it becomes possible to consider the station’s format as its trade dress, best categorized as a tertium quid, the phantom third category of trade dress (in addition to product packaging and product design) raised by Justice Scalia in Wal-Mart Stores v. Samara Brothers. Using conventional trademark and trade dress principles, this paper then argues that a radio station’s format is analogous to the interior motif of a restaurant or retail store and, provided the format can meet the threshold requirements, should be entitled to protection.
Download the entire paper from SSRN here.
UK Regulator Bans Printed Ads on Gambling
The Advertising Standards Authority has ordered all printed advertisements stopped for ThePool.com, because it has received at least one complaint that such ads target under 18-year-olds. According to the ASA, "ASA Chairman, Lord Borrie QC, has taken the unusual step of exercising his powers to have the ad withdrawn from circulation pending the outcome of the investigation. The advertising code allows the ASA to take interim action and have ads amended or withdrawn pending investigation if it appears necessary to avoid harm."
April 18, 2006
Japanese TV Shows Quiet Down
Japanese broadcasters have dropped formerly highly rated but violent tv shows for more family-friendly fare, according to an article in the Hollywood Reporter. Julian Ryall says that television execs were concerned that Japanese society in general was simply not as interested in such extreme programming. Talk shows, cooking shows, and variety shows are more popular now with the older generation, and the young can get what they want via newer media such as the Internet. Read more here.
Director Pleads Guilty in Wiretap Case
John McTiernan, who directed such films as "Die Hard", "Rollerball," "The Hunt for Red October" and the remake of "The Thomas Crown Affair", has pled guilty in federal court to a charge that he asked investigator Anthony Pellicano to wiretap Charles Roven, who produced "Rollerball." Why McTiernan asked Pellicano to do so is still not clear. Pellicano has also been charged with wiretapping other celebrities including Sylvester Stallone, Kevin Nealon, and Keith Carradine. Read more here. Meanwhile, Paramount Pictures head Brad Grey and former Disney head MIchael Ovitz have also been questioned in the Pellicano affair. Read more here.
Media Warn Proposed EU Regs Will Restrict New Technology
Various media outlets are complaining that a proposed new European Union directive will stifle new media technology before it has a chance to develop. Read more here.
April 17, 2006
Jacqueline Lipton, Case Western Reserve Law School, has published "Solving the Digital Piracy Puzzle: Disaggregating Fair Use From the DMCA's Anti-Device Provisions," in volume 19 of the Harvard Journal of Law and Technology. Here is the abstract.
Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another copyright law ‘balancing act’ involving the regulation of anti-circumvention devices under the Digital Millennium Copyright Act (‘DMCA’). The DMCA aims to prevent digital copyright piracy while at the same time facilitating certain legitimate interests in copyright works. Recent judicial interpretations suggest that these legitimate interests are not well supported under the current legislation. This article advocates developing a better balance by disaggregating questions relating to the protection of legitimate uses of copyright works from the larger battle involving the appropriate regulation of circumvention technologies. The idea is to take certain socially beneficial uses of copyright works outside the scope of the DMCA’s anti-circumvention provisions, and to create a new administrative mechanism that would facilitate those uses by imposing affirmative legal obligations on copyright holders. The system suggested here would also generate useful data about emerging social norms relating to fair use of copyright works in the digital age.
Download the entire paper from SSRN here.