May 27, 2006
Judge in Libby Case Orders Time to Turn Over Documents
Using the standard set out in Nixon (1974), Judge Reggie B. Walton, who is hearing the case against Lewis Libby, has ordered Time Magazine and Matthew Cooper to turn over documents the defense has requested. But he granted a motion by Judith Miller to quash the subpoena against her, and he granted in part the motions by the other parties in the case--the New York Times, NBC, and Andrea Mitchell, whom Libby had also subpoenaed, alleging that they had materials vital to his case.
Miller, Cooper and Mitchell had also claimed a First Amendment and common law privilege against disclosure. After limiting the documents to be turned over, Judge Walton noted that the reporters were "personally involved in the conversations with the defendant that form the predicate for the charges in the indictment. Their testimony is critical to the government's case and challenging it will likely be critical to the defense. Thus, the Court is only concerned here with whether a reporters' privilege exists to shield from disclosure documents relating to these three news reporters." Judge Walton concluded that the journalists do not have, under Branzburg, a First Amendment privilege in this case, and he believes that Libby would be able to overcome any common law privilege the journalists might assert.
May 26, 2006
New "Shock Mag" Enters the Marketplace
A new magazine, intended to shock its readers, in the male, 18-34 demographic, will hit Canadian and US newsstands next week. Actually called "Shock", it will be published by Hachette Filipacchi Medias SA and it will feature "blood, pain and natural disasters". It is the English-language version of the French magazine Choc, a hit with since its inception three years ago. Read more here.
Ludacris, Kanye West Sued for Infringement
The group I.O.F. (It's Only Family) is getting its day in court against hip-hop artist Ludacris (Christopher Bridges) and his producer Kanye West. I.O.F. says the artists copied parts of the group's song "Straight Like That" for Ludacris' hit "Stand Up." In Tuesday's courtroom proceeding, Ludacris' attorney said any similarities are simply the result of the culture out of which the songs arose. Wednesday, the judge questioned Mr. West and got an education in hip-hop. The trial should last another week.
House Committee Okays Sensenbrenner "Net Neutrality" Bill
The House Judiciary Committee has approved its chair's, Representative James Sensenbrenner's, "Internet Freedom and Nondiscrimination Act" (H.R. 5417) and sent it on by a 20-13 vote, with all Democrats on the committee voting in favor and most Republicans voting against. The legislation would ensure that broadband providers give competitors the same type of access to the Internet that they have themselves, thus avoiding a "two-tiered" net. Here's a link to Representative Sensenbrenner's bill. Read more about the fight over network neutrality here (subscription may be required) and here.
May 25, 2006
Is a Tiered Internet On the Way?
Will we have to ante up more to get access to streaming video and all that lovely stuff we're so used to searching on the 'net? Unless Congress acts to regulate the costs, it's likely that we will. Read more in an article by Popular Science's Tim Folger here. The bill Rep. Markey introduced, and Folger refers to in his article, is called the Network Neutrality Act of 2006. Here's a link.
May 24, 2006
FCC Says It Won't Inquire Into Turnover of Records
Replying to a request by Representative Edward Markey of Massachusetts, FCC head Kevin Martin said that the agency does not have the authority to investigate whether Verizon, AT&T and BellSouth may have violated the law by turning over customer phone records to the National Security Agency. Read more here. Here is Representative Markey's original letter. Here is FCC Chair Martin's response.
Ron Burgundy Redux: Comedy Central Apologizes for "Fake News Crew"
According to the Chronicle of Higher Education, Comedy Central has finally apologized for the shenanigans of a fake news crew sent out to get real reactions for a series called "Dog Bites Man." Over the past few months the news crew has tried to infiltrate a panel discussion in Orange County and called the Spokane (Washington) Regional Convention and Visitors Bureau to try to rent a space to disguise as a studio (see the May 10, 2006 Spokane Spokesman Review). The O.C. incident upset some people so much that they threatened a lawsuit. The Chronicle indicates that management at Comedy Central has decided to issue an apology on behalf of Tony Fox, an executive v.p. at Comedy Central, saying the fake reporters had "mishandled" the situation, once confronted, by continuing to deny that they were in fact not media at all. The actors had also apparently impersonated reporters at Portland State University and infiltrated the classroom of an instructor in communications studies. (Chronicle of Higher Education, May 24, 2006: Registration required). For more about the Orange County incident read an article in the Orange County Weekly here.
May 23, 2006
David Berkowitz In Court Once Again
David Berkowitz, the "Son of Sam", is in court to try to stop former attormey Hugo Harmatz from using materials Berkowitz said he gave Harmatz years ago to keep for me. He says Harmatz now plans to write about him; to stop him, Berkowitz is suing under the "Son of Sam" law that New York has in place. Read more here. The original New York statute was ruled unconstitutional in Simon & Schuster, Inc. vs. New York Crime Victims Board, 502 U. S. 105 (1991); as a result the state legislature redrafted the law. Read more here. Jessica Yager has an article about New York's Son of Sam law in the 2004 New York Law School Law Review. Note that the Nevada "Son of Sam" law was ruled unconstitutional in December 2004.
EU Directives and the Radio Spectrum
Robert Horvitz discusses possible alternatives for opening up the radio spectrum under current EU directives in a talk he gave recently in Brussels. Read it here.
Wired News "Whistle Blower's Evidence: Uncut"
Here is a link to the Wired News article citing former AT&T employee Mark Klein's statement and documents which he gave the Electronic Frontier Foundation. The EFF is suing AT&T over its alleged cooperation with the National Security Agency in domestic wire-tapping. Last week the judge in charge of the case ruled that the EFF could use proprietary documents in its case against AT&T, although the documents must be kept under seal.
Julie Hilden on the Marketplace of Ideas and TV: Part Two
May 22, 2006
Fixated on Harry Potter
Yvette Joy Liebesman has published "Harry Potter and the Fixation Requirement: An Attempt at Applying the U. S. Copyright Act of 1976 to J. K. Rowling's World of Witchcraft and Wizardry" as a Georgetown Public Law Research Paper. Here is the abstract.
In the Harry Potter universe, images in photographs and paintings are magically animated. Supposing these items exist, one could posit whether they qualify for copyright protection under current United States law; that is, whether works such as the paintings that hang at Hogwarts meet the subject matter and fixation requirements under the Copyright Act of 1976. The qualifications for protection of works created with such a new technology may already be adequately addressed under the current law. If so, we should question whether legislation should be created to regulate a technology, or protect associated rights, that is either in its infancy or does not yet exist, without a strong public policy reason.
Download the entire paper from SSRN here.
[Cross-posted to The Seamless Web.]
Copyright in Primary Legal Materials
Noel S. Cox, Auckland University of Technology, Faculty of Law, is publishing "Copyright in Primary Legal Materials in Common Law Jurisdiction" in the Australian Intellectual Property Journal. Here is the abstract.
This paper examines the underlying policy considerations regarding the ownership of copyright in statutes, regulations, and also law reports. It compares and contrasts the positions in New Zealand, Australia, Canada, the United Kingdom, and the United States of America. It looks particularly at the implications of electronic publication, and the role of private publishers. In essence, it asks whether the strict legal principle, that the Crown (or in the American system, the State) owns the copyright in statutes and judicial decisions, is less important than the principle of encouraging public access to the law.
Download the entire paper from SSRN here.
The Anti-Cybersquatting Act and Constitutionality
Ned Snow, University of Arkansas, Fayetteville, has published "The Constitutional Failing of the Anti-Cybersquatting Act" in the Willamette Law Review. Here is the abstract.
Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own use. The property transfer is thus not based on existing property rights that a trademark holder has in the domain name. Instead, the ACPA facilitates the property transfer based on the thoughts of a domain-name owner. The ACPA requires only (1) that a domain-name owner have acquired a domain name through trafficking, where traffic is defined to include any means of acquisition; and (2) that a domain-name owner have a bad-faith intent, where bad faith is determined by unfettered judicial discretion and where the actionable intent may exist at any time (not merely the time of acquisition). In short, if a domain-name owner has somehow acquired a domain name, or in other words, is in possession of it, and if that owner then thinks bad-faith thoughts, the government may appropriate the domain name for a third party's use. This basis for transferring property -- thought and the expression thereof -- violates basic tenants of First Amendment law. The transfer is without permissible justification. The government controls thought through eminent domain.
Download the entire paper from SSRN here.