Friday, May 19, 2006
Director Lou Ye, who premiered his film "Summer Palace" at the Cannes Film Festival before obtaining permission to release it in China, now cannot release it at home, according to the State Administration of Radio, Film and Television. Lou says he will do whatever is necessary to get a homeland premiere, although he doesn't know what may be required. Lack of agency approval may now jeopardize the film's ability to win a prize at the festival, say observers. Chinese members of the jury might be reluctant to vote for the film as a contender for the festival's highest award, the Palme d'Or. Read more here.
Recent trials of Chinese journalists and other writers have raised questions about the extent to which foreign media might be subject to censorship during the upcoming Olympic games. In an attempt to address anxieties, Hein Verbruggen, the head of the International Olympic Committee's inspection team said that the media should expect to be able to report on the games freely. But he told reporters they should also follow China's laws. Read more here.
The Ninth Circuit has upheld a federal magistrate's ruling ordering the unsealing of some Honolulu Police Department records filed as attachments to motions in a whistleblower lawsuit. Intervenor The Honolulu Advertiser, owned by the Gannett Corporation, moved to unseal the records under the common law right of access during the lawsuit. The Police Department and other parties had moved to challenge the magistrate's order to unseal the documents. The case is Kamakana v. U. S., 9th Circ., 04-15241.
According to the Ninth Circuit, the question is whether "the magistrate judge abused her discretion in determining that continued secrecy was no longer warranted for almost all of the dcouments currently under seal." Said the court, "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judical records and documents.'...This right is justified by the interests of citizens in "keep[ing] a watchful eye on the workings of public agencies."...Such vigilance is aided by the efforts of newspapers to "publish information concerning the operationg of government."...Nevertheless, access to judicial records is not absolute. A narrow range of documents is not subject to the right of public access at all....Our case law has identified two categories of documents that fall in this category: grand jury transcripts and warrant materials in the midst of a pre-indictment investigation....Unless a particular court record is one "traditionally kept secret," a "strong presumption in favor of access" is the starting point....A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the "compelling reasons" standard....In general, "compelling reasons" sufficient to outweight the public's interest in disclosure and justify sealing court records exist when such "court files might have become a vehicle for improper purchase," such as the use of record to gratify private spite, promote public schandal, circulate libelous statements, or release trade secrets....The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records...."
The court considered whether the city had "good cause" to request that the records remain sealed. "Under our precedent, the City was required to present "articulable facts" identifying the interests favoring continued secrecy....and to show that these specific interests overcame the presumption of access by outweighing the "public interest..."...Instead the City complains that it had no chance to present compelling reasons....But, in fact, the City did have a chance to show "compelling reasons" and squandered it."
Further, the court notes, "...the magistrate judge did not summarily order the production of the City's documents. Rather, she conducted an "exhausting if not exhaustive" in camera review of the materials. After this review, the magistrate judge noted that "the testimony and documents...do not contain information that could be used for `scandalous or libelous' purposes"....
Read the entire opinion here.
Thursday, May 18, 2006
Majority Leader Bill Frist has joined forces with Senator Sam Brownback to help Brownback's Broadcast Decency Enforcement Act legislation pass the Senate without opposition. Brownback's bill would raise fines ten-fold per infraction per broadcast, from $32,500 to $325,000. Although pressure from lobbyists to increase fines has been increasing, Senator Ted Stevens, chair of the Senate Commerce Committee, seems to want to see if the industry's new committment to educating parents about controlling broadcast content will work out. Read more here.
Wednesday, May 17, 2006
Eva Lievens, Catholic University, Leuven, Jos Dumortier, Catholic University, Leuven, Faculty of Law, and Patrick S. Ryan, University of Colorado, Boulder, Interdisciplinary Telecommunications Program, have published "The Co-Protection of Minors in New Media: A European Approach to Co-Regulation" in the U. C. Davis Journal of Juvenile Law and Policy. Here is the abstract.
European media policymakers have latched onto the term "co-regulation." However, despite the term's frequent use, the underlying concept of "co-regulation" lacks terminological and, more importantly, conceptual clarity. In this article, we will examine the use of the term in the context of measures instituted to protect minors against harmful content in new media. In doing so, we will attempt to sketch a clearer picture of the concept of co-regulation and the current use of media-related co-regulatory measures. Although our analysis is primarily based on the European example, we will show that policies in Europe share a common regulatory context and challenges in the United States. First, we will outline the theoretical state of affairs based on doctrine and on European policy documents and legislation. In reaction to the increasingly obvious shortcomings of traditional legislation in the new, converging media landscape, the European Union searched quite actively for alternative regulatory mechanisms, and we will describe this evolving regulatory quest, first generally and then more specifically with respect to media policy. After outlining the theoretical framework, we will approach the concept of co-regulation in a more pragmatic way by describing concrete co-regulatory practices in different countries and in different media sectors, paying particular attention to the protection of minors against harmful content. Further, we will briefly consider different co-regulatory tools, such as filtering and rating instruments, and draw a tentative picture of the benefits and drawbacks of co-regulation. In short, this article will approach the concept of co-regulation from both a theoretical-descriptive perspective and a practical-illustrative perspective in an attempt to provide a greater degree of clarity to this high-profile regulatory technique.
Download the entire article from SSRN here.
FCC Commissioner Michael Copps released the following statement on May 15, 2006.
"Recent news reports suggest that some--but interestingly not all--of the nation's largest telephone companies have provided the government with their customers' calling records. There is no doubt that protecting the security of the American people is our government's number one responsibility. But in a Digital Age where collecting, distributing, and manipulating consumers' personal information is as easy as a click of a button, the privacy of our citizens must still matter. To get to the bottom of this situation, the FCC should initiate an inquiry into whether the phone companies' involvement violated Section 222 or any other provisions of the Communications Act. We need to be certain that the companies over which the FCC has public interest oversight have not gone--or been asked to go--to a place where they should not be."
The BBC has revealed who blew the whistle on the salaries it pays to some of the hosts (called "presenters") of its most popular shows. It was a young agency temp called Sam Walton, who claims he sold some, but not all, the information that turned up in the press, about wages paid to presenters and broadcasters. Read more here and here.
The film version of The Da Vinci Code, opening at the Cannes Film Festival as well as abroad, has been greeted with objections and demands for censorship in several countries. In Thailand, censors cut ten minutes of the movie. In India, the government has held up the movie's premiere. But in South Korea, a court denied a request for an injunction. In the Philippines the movie has an adult rating. Opus Dei had asked for a disclaimer that the movie was fiction, which the movie's creators refused. Read more here and here.
Verizon has joined Bell South in denying that it gave the National Security Agency customer phone records, contrary to a report in USA Today which appeared last week. However, Verizon's carefully worded denial did not mention its long-distance arm, MCI. AT&T maintains that it cannot comment on the matter. Read more in a New York Times story here. Meanwhile, Republican Senator Orrin Hatch said that at least two FISA judges knew of the NSA's program. Read Lawrence Tribe's discussion of the constitutionality of the program in the Boston Globe here.
Tuesday, May 16, 2006
Cingular Wireless has deleted a ring tone that it calls "blatantly offensive" after receiving complaints, some from the League of United Latin American Citizens, a lobbying group. The ring tone included pseudo-Spanish and references to deportation. As it turned out, the creator of the ring tone is himself Hispanic--he's Paul Saucido, an Austin-based comedian, who says his purpose was satire. He originally created the ring tone, along with others, for a company called Barrio Mobile, which subsequently sold them to Cingular Wireless. The removal of the ring tone has caused comment nation-wide, both pro and con. Read more here, here, here and here.
Rayming Chang, George Washington University Law School, has published "A Work Is a Work Is a Work: There is No Fixation Requirement Inherent in the Terms "Work" Or "Derivative Work" Under the Copyright Act" as a working paper. Here is the abstract.
This working paper argues that there is no fixation requirement inherent in the terms "work" or "derivative work" under the 1976 Copyright Act. The paper analyzes the Copyright Office's assertion that a work by definition must be fixed and refutes that interpretation by analyzing statutory language, case law, and legislative history.
Download the entire working paper from SSRN here.
Randal Picker, University of Chicago Law School, has published "Mistrust-Based Digital Rights Managment" as University of Chicago Law & Economics, Olin Working Paper No. 291. Here is the abstract.
The powerful shift in copying technology over the last thirty years has destabilized how we produce copies and the economic arrangements associated with prior technologies. These technological changes have created a broad shift in the ability to make copies moving control away from producers towards consumers. As a consequence, these technologies have altered the practical enforceability of the rights that law assigns to copyright owners.
Digital rights management technologies are an effort to make meaningful the legal rights of copyright owners. DRM faces severe obstacles. For preexisting products like the music CD, it has proven to be very difficult to add DRM after the fact. CDs need to work in standard CD players, and the limits DRM. The firestorm over Sony BMG's effort to produce CDs subject to DRM suggests that we are unlikely to see meaningful DRM for music CDs soon.
But we are switching how we deliver content from products to services. Music CDs and eventually DVDs will be replaced by online services such as Apple's iTunes and Google Video. Both of these come with DRM built-in and both rely on identity-based DRM. Identity-based DRM ties identity to content. Content can be shared widely, but absent access to identity, the content is worthless.
This is a substantial step forward for DRM, but may still be a step short of where we need to be. Content purchasers still have no reason to protect purchased content. Identity-based DRM coupled with bounty tags will create an incentives wedge between content purchasers and stripping/p2p software and with peers in a p2p network. We should want a system where content purchasers are as careful with content as they would be with identity and mistrust-based DRM may be that system.
Download the entire paper from SSRN here.
Rebecca Tushnet, Georgetown University Law Center, has published "My Library: Copyright and the Role of Institutions in a Peer-to-Peer World" in the UCLA Law Review. Here is the abstract.
Today’s technology turns every computer - every hard drive - into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional libraries are being affected by developments such as filesharing services, the iTunes Music Store, and Google’s massive digitization project, this Article examines the implications of legal and technological changes that are mainly not directed at libraries, but are nonetheless vital to their continued existence.
Download the entire paper from SSRN here.
Ned Snow, University of Arkansas, Fayetteville, has published "The TiVo Question: Does Skipping Commercials Violate Copyright Law?" in the Syracuse Law Review. Here is the abstract.
The digital video recorder (DVR) has introduced the most convenient way of watching television - without commercials. Its popularity has caused television networks to lose advertising revenues. Incentives for creative programming are on the decline. But the policy of copyright law is to provide and protect such incentives. Copyright law should therefore intervene to protect creative incentives that DVR manufacturers are stripping away from television networks. This conclusion is consistent with copyright jurisprudence. Although the Supreme Court decision in Sony v. Universal Studios seems to shield distributors of television-recording devices from liability, a close examination of Sony reveals that its facts are dispositively distinct from the DVR context in three ways. First, in Sony users of the video cassette recorder (“VCR”) did not use it to skip commercials. This fact was necessary for the Court to reach its holding that VCR usage constituted a protected fair use. In contrast to this fact, DVR users skip over 90 percent of recorded commercials. Second, in Sony the VCR manufacturers did not encourage users to reproduce copyrighted broadcasts. DVR manufacturers do. This factual distinction is particularly relevant in light of the recent Supreme Court decision in MGM v. Grokster. The Grokster Court declared that a device's capability to perform noninfringing uses is of no consequence where the distributor encourages infringement. Third, in Sony the VCR was apparently not used to prepare altered versions of copyrighted programming. The DVR, however, is widely used to prepare such altered versions, i.e., commercial-free broadcasts, which are arguably infringing derivative works. Based on these three distinctions, Sony should not prohibit copyright law from protecting the creativity underlying television broadcasts. DVR manufacturers should be contributorily liable.
Download the entire paper here from SSRN.
Jeremy Beck, University of Louisville School of Law, has published "Music Composition, Sound Recordings, and Digital Sampling in the 21st Century: A Legislative and Legal Framework to Balance Competing Interests," in the UCLA Entertainment Law Review. Here is the abstract.
A new bright-line rule in copyright law in the Sixth Circuit digital sampling case of Bridgeport Music v. Dimension Films (decided in 2004 and rearticulated in June 2005) not only misinterprets legislative intent, but also demonstrates little understanding or knowledge of the larger history and methodology of music composition. Digital sampling and issues of copyright infringement continues to spark fervent debate; unfortunately, the literature tends to ignore or misunderstand the practice and precedent of music composition as it has existed in Western practice for over a thousand years. Sampling is merely a newer technique in the continuing development of that practice. This article analyzes and considers sampling within the larger history of music composition in order to provide a better sense of balance and perspective in the continuing discussion.
Additionally, the article argues that a broader middle ground - encompassing the doctrines of de minimis use and fair use as well as a compulsory license scheme in certain situations - would both satisfy competing economic interests and encourage the growth of a healthy creative environment and culture. In contrast to court decisions such as that of the Sixth Circuit, this legislative and legal framework better reflects the spirit and intent of the original purpose behind the copyright provision of the Constitution.
Download the entire paper from SSRN here.