Friday, July 14, 2006
The Clean Flicks decision, which Clean Flicks apparently plans to appeal, is garnering a great deal of discussion on the 'net. Nick Gillespie (Reason) considers the decision a Pyrrhic victory for Hollywood. Here's what the Hedgehog Blog has to say. Read comments at the Patry Copyright Blog. Check out the Technology & Marketing Law Blog. John Ottaviani points out that this case may have fall-out for websites that host works that could be considered "derivative works" that also claim First Amendment protection--parodies for example.
Even the normally fairly unshockable British tabloids are reacting with horror at an Italian magazine's publication of a photograph showing Princess Diana receiving medical attention as she lay dying after the 1997 car crash that ultimately ended her life. Chi magazine is defending its decision to publish the photo, along with other material, to herald a book by writer Jean-Michel Caradec'h called Lady Diana: The Criminal Investigation. Read more here.
The Santa Barbara News-Press has lost nearly all its editors over the past week. Problems at the paper predate the current flap, however. Citing continuing disagreements with owner Wendy McCaw, editor Jerry Roberts and others have decamped. McCaw and acting publisher Travis Armstrong have named new staff to replace the departing journalists. Armstrong has accused local celebrities, including the city's mayor, of trying to influence the paper's coverage. Read coverage from the Santa Barbara paper The Independent here.
By a vote of 4 to 1, the FCC has given a go-ahead to a sale of the assets of bankrupt Adelphia Communications Corporation to Time Warner and Comcast. Below is the news release from the FCC website.
Washington, DC – The Federal Communications Commission (FCC) today approved the sale of substantially all of the cable systems and assets of Adelphia Communications Corporation to Time Warner Inc. and Comcast Corporation, the exchange of certain cable systems and assets between affiliates or subsidiaries of Time Warner and Comcast, and the redemption of Comcast’s interests in Time Warner Cable and Time Warner Entertainment Company.
In reaching its decision, the FCC found that the transactions, as conditioned, serve the public interest and comply with all applicable statutes and Commission rules. The Commission also found that the potential public interest harms of the transactions, as conditioned, are outweighed by the potential public interest benefits.
With respect to benefits, the Commission determined that subscribers would benefit from the resolution of the Adelphia bankruptcy proceeding in the form of new investment and upgrades to the network. Additionally, the transactions would accelerate deployment of VoIP and other advanced video services, such as local VOD programming, to subscribers.
With respect to the potential harms, the Commission found that the proposed transactions may increase the likelihood of harm in markets in which Time Warner or Comcast has, or may in the future have, an ownership interest in Regional Sports Networks (“RSNs”). The Commission imposed remedial conditions, the same as those imposed in the News Corp.-Hughes order to address its concerns.
The Commission adopted further conditions to ensure that the transactions will not harm the supply of programming to MVPDs. Specifically, the Commission adopted a condition allowing unaffiliated RSNs unable to reach a carriage agreement with Time Warner or Comcast to seek commercial arbitration. In addition, the Commission adopted a condition allowing unaffiliated programmers unable to reach a leased access agreement with Time Warner or Comcast to seek commercial arbitration.
Read the further conditions here.
Thursday, July 13, 2006
Dima Tahboub, the widow of reporter Tareq Ayyoub, is suing the U. S. government for wrongful death in Ayyoub's 2003 death. The suit was filed in U. S. District Court and is based in a Geneva Convention claim. Read the press release from Tahboub's lawyer below. Read more from Findlaw here.
On July 11, New Jersey attorney Hamdi Rifai will proceed with the start of a lawsuit for the killing of journalist Tareq Ayyoub. At the start of the war in Iraq George Bush as Commander in Chief of the military of the United States ordered particular targets to be bombed. On April 8, 2003, the headquarters of the Al-Jazeera Television Station in Baghdad, Iraq was bombed, resulting in the death of journalist Tariq Ayyoub.
Although previously believed to be an unfortunate consequence of the war, on Nov. 22, 2005 it was reported by the British newspaper the Mirror that, in fact, Commander in Chief George Bush had desired such a result and had suggested such a cooperative effort with British Prime Minister Tony Blair. The truth as we now know it is that the Bush White House has falsely initiated the war in Iraq and falsely claimed the bombing of Al- Jazeera to be an accident. The Bush administration has used the Administration's false claims as both a "sword and a shield" to justify conduct in violation of both the Federal Tort Claims Act and International protocols for the protection of victims of International Armed Disputes. Specifically, by falsely claiming National Security concerns and creating Orwellian designations that contradict existing law the administration has prevented the truth from being disclosed to the American public. In this case the administration has decided that since admissions of guilt had been made in the meeting between Bush and Blair that any record of such discussion had to be sealed because of national security concerns. The No. 10 memo as it has now come to be known clearly discloses the truth of Bush's vindictive personal agenda to act contrary to accepted standards and law.
Hamdi Rifai, as attorney for the estate of Tareq Ayyoub, shall seek to remedy the injustice done on behalf of the deceased's widow Dima and daughter Fatima.
For background and full text of the notice of claim visit: http://www.rifailaw.com.
WHAT: News Conference
WHEN: Tuesday, July 11, 9:30 a.m.
WHERE: National Press Club, 529 14th Street, NW, Washington, DC 20045
CONTACT: Hamdi Rifai, 973-773-7377, firstname.lastname@example.org
Hamdi Rifai is a trial attorney and expert on issues touching upon the American Muslim and Arab American communities in the areas of law and politics.
They May Not Be Ready For Their Close-Ups: L. A. Sheriff's Department Holds Off on Participating in Reality TV
Two new reality TV shows may be on hold while the Los Angeles County sheriff's department tries to decide whether it should take part in them. Part of the department's concern is with its public relations image should it participate in 44 Blue's proposed series, tentatively called The Assignment and The Academy. Other concerns include the privacy of those taking part. Read more here.
Tuesday, July 11, 2006
District Court Rules Against Clean Flicks; Orders Company To Turn Over Edited Versions of Movies To Copyright Holders
U. S. District Court Judge Richard Matsch has granted summary judgment to the Directors Guild of America and others suing Clean Flicks of Colorado, Family Flix and several other companies which make available edited versions of films for "family viewing." The DGA had claimed that such sanitized versions of movies violated copyright and Matsch agreed, saying "The right to control the content of the copyrighted work ... is the essence of the law of copyright." Clean Flicks claimed it had a First Amendment right to provide edited works because it was also providing unedited versions of the works in a "one-on-one" ratio. Matsch rejected both that justification and the "fair use" defense, saying,
Under the purpose and character of use factor, the counterclaim defendants concede that their use of the copyrighted works is for commercial gain, but argue, correctly, that under Campbell, that fact is not determinative. They seek to establish a public policy test that they are criticizing the objectionable content commonly found in current movies and that they are providing more socially acceptable alternatives to enable families to view the films together, without exposing children to the presumed harmful effects emanating from the objectionable content.
They seek some comfort in language appearing in the opinion deciding Chicago Bd. of Education v. Substance, Inc., 354 F.3d 624 (7th Cir.2003) that the privilege protects public criticism and may justify substantial copying of that which is being criticized. The holding in that case was an affirmance of the denial of the fair use defense under summary judgment standards. Ironically, Judge Posner wrote that a teacher does not have the right to publish the criticized tests indiscriminately “any more than a person who dislikes Michelangelo's statue of David has a right to take a sledgehammer to it.” ... Or, as maybe more aptly said in this case, to put a fig leaf on it to make it more acceptable for viewing by parents with young children.
The accused parties make much of their public policy argument and have submitted many communications from viewers expressing their appreciation for the opportunity to view movies in the setting of the family home without concern for any harmful effects on their children. This argument is inconsequential to copyright law and is addressed in the wrong forum. This Court is not free to determine the social value of copyrighted works. What is protected are the creator's rights to protect its creation in the form in which it was created.
During the pendency of this case Congress enacted the Family Movie Act of 2005, Pub.L. No. 109-9, 119 Stat. 218, 223-224, amending § 110 to provide an exemption for the editing of motion pictures by a member of a private household if no fixed copy of the altered version of the motion picture is created. That statute eliminated from this case those parties selling technology enabling such private editing. The legislative history shows that the amendment was not intended to exempt actions resulting in fixed copies of altered works which the House Committee believed illegal. Thus, the appropriate branch of government had the opportunity to make the policy choice now urged and rejected it.
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
This raises the question of whether these DVD-Rs are “transformative.” That same question arises under the fair use defense. The parties take inconsistent positions on this question. The counterclaim defendants argue that they are making a transformative use of the copyrighted works for purposes of the first factor under § 107(1)-that the purpose and character of their use are for criticism of the objectionable content of the movies, and then deny that their edited versions are derivative works because they are not recasting or revising the copyrighted material in a manner that can be characterized as a work of authorship within the statutory definition. On the other hand, the Studios say that the edited versions meet the definition of derivative works but deny that the character of the use is transformative within the scope of the fair use defense.
The transformative nature of the use of copyrighted material requires such a contribution of originality as may be of such public benefit as would serve the underlying purpose of providing copyright protection, as identified in Article 1, § 8 of the Constitution: “... to Promote the Progress of Science and useful Arts.”
In Campbell, the Supreme Court said that a use is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” ... The counterclaim defendants add nothing new to these movies. They delete scenes and dialogue from them.
Since oral argument in this case the Second Circuit Court of Appeals decided Bill Graham Archives v. Dorling Kindersley Ltd., 498 F.3d 605 (2d Cir.2006). It held that the publisher of a “coffee table book,” telling the story of the Grateful Dead, made fair use of that music group's artistic images on its event posters and tickets. In so doing, the opinion addressed all of the statutory factors and emphasized that these images were not exploitative and their appearance was only incidental to the commercial value of the historical/biographical book. Therefore, the use of the copyrighted images was “transformatively different from the images' original expressive purpose and [the publisher] does not seek to exploit the images' expressive value for commercial gain.” Id.at 612. That is in sharp contrast to the counterclaim defendants' use of the copyrighted works in this case. It is undisputed that the edits are a small percentage of most of the films copied and the use is clearly for commercial gain. There is nothing transformative about the edited copies. Therefore, the first statutory factor in the fair use defense does not support the infringers.
The non-transformative nature of the edited copies coupled with the creative expressions of the movies weigh heavily in favor of the Studios under the second factor, the nature of the copyrighted work.
The third factor requires an examination of the quantitative and qualitative nature of the copyrighted material taken. Campbell, supra at 586-587; Bill Graham Archives, supra at 613. This factor also weighs against fair use as the amount used is substantial for the movies are copied in almost their entirety for non-transformative use.
The primary argument on the fair use defense is the fourth statutory factor. The counterclaim defendants contend that there is no adverse effect from their use of the movies on the value of the copyrighted work to the Studios. They suggest that the Studios benefit because they are selling more copies of their movies as a result of the editing parties' practice of maintaining a one-to-one ratio of the original and edited versions. It is assumed that the consumers of the edited versions would not have themselves purchased the authorized versions because of the objectionable content and the Studios do not compete in this alternative market.
The argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.
The case is Clean Flicks of Colorado v. Soderburgh, 2006 WL 1876624 (LEXIS cite not yet available).
Australia has banned two books written by Sheikh Abdullah Azzam, saying that they "specifically promote martyrdom operations which include suicide bombings.” The decision was made by the Classification Review Board, which is part of the Federal Attorney General's Office. Consequently, Australians can no longer purchase these books from abroad. Read more in a Globe and Mail story here.
Read more about Australia's censorship laws and the Classification Review Board at libertus.net.
Aljazeera.Net reports on the new law just passed by the Egyptian Parliament that modifies to some extent the law of libel that has been used against journalists who criticize official conduct. But the press and some opposition leaders complain that the new law is still harsh, saying reporters can still be sent to jail for "insulting" the president and other members of the government. Read more here. Here's another article from the BBC.
Monday, July 10, 2006
Emily Hill discusses why politicans and other public figures have nowhere to hide from the blogosphere in "The Guilty Should Beware the Black Arts of the Bloggers" in today's Guardian.
Peter Barron of BBC2's Newsnight and his staff decided to enliven their program by creating a "happening"--offering potential Scottish supporters of a World Cup team a chance to destroy a car covered with English signage and tempingly parked in a Glasgow street. Within a short time, Newsnight staff using surveillance video caught some young people doing just that. The result? Cries of "foul" both from BBC2 viewers and from Members of Parliament, and a police investigation. The BBC2 defends its staff, saying "the item followed guidelines." The story is reminiscent of debate over undercover journalism here in the States, particularly since the charges include allegations of a "set-up" and "incitement". Read more here.
A number of Egyptian papers refused to go to press Sunday, protesting what they say are overly restrictive laws preventing them from publishing critiques of the government. In particular, they cite last month's verdict against an Egyptian editor and journalist for defaming the country's president. The nation's legislature is currently considering new laws on press freedom. Read more here and here.