July 20, 2006
An Entertainment Blog To Check Out
Anne Thompson's chatty Risky Biz Blog is informative, and carries a lot of inside info (at least for those of us who are not insiders). Thompson is deputy film editor for the Hollywood Reporter. She provides plenty of links, including one called "Courtroom Drama", film reviews, backstage gossip (let's call it insight), and upfront analysis.
Senate May Vote on New Child Protection Legislation
The Senate may vote this week on new child protection legislation, which includes record-keeping requirements for the movie industry. The Children's Safety and Violent Crime Reduction Act of 2006 would mean that movie makers would have to make certain that the actors involved in sex scenes are over 18. Title 18 USC Sec. 2257A would be inserted: "Whoever produces any book, magazine, periodical, film, videotape, or other matter which-- (1) contains a visual depiction of simulated sexually explicit conduct (except conduct described in section 2256(2)(A)(v)), created after the date of enactment of this section: and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce...shall create and maintain individually indentifiable records pertaining to every performer portrayed in such a visual depiction."
Here is a link to the text of the bill.
Reporter Sues YouTube For Copyright Infringement
Reporter Robert Tur has sued YouTube in federal court for infringing the copyright to the video he filmed of the 1992 assault on Reginald Denny. He claims the video was uploaded to YouTube without his permission. YouTube responded that when it received notice of Tur's complaint it immediately removed the video, just as it promises to do on its pages. An attorney with the Electronic Frontier Foundation commented that YouTube and other service providers are not required to monitor user behavior. YouTube is claiming immunity under the DMCA, so that Tur and other copyright holders would have to track down and sue the posters. Depending on the outcome of Tur's lawsuit, we may see many more such proceedings. In trying to protect his rights, Tur had previously sued Reuters for using his video.
I decided to check out YouTube for myself. I searched for the names of celebrities, and found many copyrighted clips, tagged with the screen names of the folks who uploaded the clips and some information about the clips themselves (sometimes copied from what seems to be publicity from the shows). In my short investigation I found that users routinely uploaded several clips from the same program, for example. It's obvious that many of these people are fans, and think they are simply sharing their favorite moments with Captain Kirk, Criss Angel, and Kenny Chesney. Fair use? I did see at least one angry user comment aimed at YouTube, after he posted only audio tracks and offered video via email and apparently was told to desist. He also claimed that this seemed to be a case of selective enforcement, and threatened whoever "outed" him to YouTube. He may have thought he was getting around the copyright problem by offering to provide other users with copies of the episode of this particular show via mail or on his website or through another service rather than making it freely available on YouTube.
British Judge Plans to Ban Press From Upcoming Trial Over Leaked Documents
The judge presiding over the upcoming trial of two former British government employees charged with leaking the contents of documents detailing President Bush's comments to Prime Minister Tony Blair concerning the Iraq war has decided to exclude the press on the grounds of national security. Bush is alleged to have said that he would like to bomb the headquarters of the TV station al-Jazeera; one of the documents is supposed to support this allegation. Read more here in a Guardian article.
July 19, 2006
California Appellate Court Rules Arbitration Clause In "Extreme Makeover" Contract Unconscionable
The California Court of Appeal, 2nd Appellate District, has agreed with participants on an episode of the show "Extreme Makeover: Home Edition" that the requirement that they engage in arbitration before broadcast is unconscionable and has granted the participants' request for a writ of mandate.
The Higgins family, consisting of five brothers and sisters, took up residence with the Leomiti family after their parents died. "According to Charles Higgins, after moving in with Leomitis, he was advised by members of his church that producers of Extreme Makeover had contacted the church and had asked to speak to him about the production of a show based on the loss of petitioners' parents and that petitioners were now living with the Leomitis." Eventually, both the Higgins children and the Leomiti family agreed to appear on "Extreme Makeover: Home Edition" and participate in a makeover of the Leomiti family's residence. The Higgins children signed the agreement with the producers of "Extreme Makeover" on Mrs. Leomiti's instructions. "According to Charles...Mrs. Leomiti instructed petitioners to `flip through the pages and sign and initial the document where it contained a signature line or box.' Charles stated that from the time Mrs. Leomiti `handed the document to use and the time we signed it, approximately five to ten minutes passed.' The document contained complex legal terms that he did not understand. He did not know what an arbitration agreement was and did not understand its significance or the legal consequences....On February 16, 2005, representatives from the show appeared and started to reconstruct the Leomitis' home. When the new home was completed, it had nine bedrooms, including one for each of the five petitioners. The existing mortgage was also paid off....
"Petitioners allege that, after the show was first broadcast, the Leomitis informed petitioners that the home was theirs (the Leomitis'), and the Leomitis ultimately forced petitioners to leave. Charles contacted Lock and Key's field producer and asked for help. The producer responded that he could not assist petitioners. Sometime thereafter, the Extreme Makeover episode was rebroadcast....According to the record before us, the complaint includes claims for...intentional and ngeligent misreprepresentation, breach of contract, unfair competition...and false advertising....With respect to the television defendants, the complaint appears to allege that those defendants breached promises to provide petitions with a home, exploited petitioners, and protrayed petitioners in a false light (by rebroadcasting the episode when they knew the episode no longer reflected petitioners' living situation). The television defendants petitioned to compel arbitration....The television defendants maintained that all claims against both them and the Leomitis should be arbitrated. The Leomitis joined in the petition."
The trial court considered the petitioners' argument that the Agreement was "substantively unsconscionable because its terms were so one-sided so as to shock the conscience." It granted the petition for arbitration but told the producers of "Extreme Makeover" to pay the costs of arbitration. The lower court also dismissed the claims against the Leomitis and unfair competition and false advertising claims against the show's producers.
The appellate court considered unconscionability generally as a defense to arbitration provisions in such contracts, noting that under the FAA and under California law they are "valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract....One ground is unconscionability...." The court then posed the question: "(1) Does the petition here challenge the enforceability of the Agreement and Release, in toto...? (2)...Is the arbitration provision unconscionable?"
The appellate court found that the trial court determined incorrectly that petitioners were challenging the entire agreement. Instead, the petitioners here were challenging only the arbitration provision. "We begin with whether the parties' agreement was adhesive...In this case, it is undisputed that the lengthy Agreement was drafted by the television defendants. It is a standardized contract...There is no serious doubt that the television defendants had far more bargaining power than petitioners....The remaining question is whether petitions were relegated only to signing or rejecting the Agreement." The court answered this question in the affirmative.
To the questions of procedural and substantive unconscionability, the court similarly answered yes.
The case is Higgins v. Superior Court of Los Angeles County, B187818.
Read the entire ruling here.
July 18, 2006
Sixth Circuit Dismisses Challenge Barring Access to Juvenile Court Proceedings as "Unripe"
The Sixth Circuit has dismissed the Kentucky Press Association's claim that its "First Amendment right of access to court proceedings" were violated by the state of Kentucky pursuant to various state statutes, saying that the KPA must first challenge the statutes in state court.
The statutes, which are part of the Kentucky Uniform Juvenile Code, provide that "[t]he general public shall be excluded" from juvenile hearings, and allow[s] access only to the immediate families of parties before the court, and such other persons as agreed to by the child and his attorney." Other Code sections provide for privacy of court and medical records, sealing of records, and continued confidentiality of records. KPA "maintained in the district court that these provisions, on their face, violate KPA's First Amendment right of access to juvenile proceedings, as first established in Richmond Newspapers...". The district court rejected this argument but accepted that "it was appropriate to address KPA's constitutional claim on its merits...". "[T]he district court found that KPA had failed to establish a right of access to juvenile proceedings under the "experience and logic" test of Richmond Newspapers and its progeny and dismissed the complaint."
The Sixth Circuit proceeded to analyze the case by examining whether it had jurisdiction. It concluded, "...we are convinced that KPA's FIrst Amendment claim is not sufficiently ripe for federal court adjudication. Ripeness is a justificiability doctrine designed "to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.".... We find that KPA's claim that the KUJC denies the media any access...fails to satisfy each of the three prongs of the ripeness inquiry. First, that the Kentucky courts would deny KPA the access it seeks is far from certain....Neither does KPA meet the other two prongs of the test....[T]here is one fact of crucial importance that has yet to be determined: whether Kentucky law, as interpreted by the Kentucky courts, completely closes juvenile proceedings and records to the media....And finally, we perceive little hardship to KPA in our dismissing its case at this time...."
Read the entire opinion here.
Jason Mazzone on Fraudulent Copyright Statements
Jason Mazzone, Brooklyn Law School, has published "Copyfraud", in volume 81 of the New York University Law Review and as part of Brooklyn Law School Legal Studies Paper series. Here is the abstract.
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.
Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.
Download the entire article from SSRN here.
A Blog on the New Media
Check out J. D. Lasica's blog New Media Musings, "charting the rise of open, democratic, grassroots media". Lasica is the author of Darknet: Hollywood's War Against the Digital Generation (NY: Wiley, 2005) and worked for the Sacramento Bee for more than 10 years.
July 17, 2006
Larry Sanger on the "Experts'" Wikipedia
The Guardian's Glyn Moody has a short piece on Larry Sanger, one of the originators of Wikipedia, who is now engaged in a couple of new projects, Digital Universe and Textop. Both look as if they were inspired by the Encyclopedie, and will be compiled by experts. An Encyclopedie for the 21st century? Sanger discusses his reasons for abandoning the "non-elitist" grassroots model that Wikipedia represents. Alice LaPlante of Information Week has an article detailing the arguments for and against controlled access to compiled online references like Digital Universe and Wikipedia, in which she discusses emerging problems with Wikipedia such as hoaxed, unstable, or wildly inaccurate, entries, and Wikipedia creator Jimmy Wales' responses, including more in-place controls and surveillance of problem pages.
C.J., Other Justices On Cameras in the Courtroom
Chief Justice Roberts is lukewarm on cameras in the courtroom. That is the most that one can say, based on the report of his remarks to the 9th Circuit's annual conference. While he understands that video of the arguments would serve an important educational function, he said, "we don't have oral arguments to show the public how we function. We have them to learn about a particular case in a particular way." Other justices, including David Souter and Clarence Thomas, have also expressed reservations. Senator Arlen Specter introduced legislation to allow cameras in the Court in September of 2005.
Professor-Novelist May Face Trial, Prison Over Allegations of "Turkish Insult"
The Chronicle of Higher Education and other media outlets report that Elif Shafak, a faculty member at the University of Arizona, and a Turkish citizen, is facing charges that her latest novel, The Bastard of Istabul, violates Article 301 of the Turkish Penal Code in that it suggests that Turkey committed genocide during the last century. These charges are similar to those writer Orhan Pamuk faced last year, and that those Turkey has brought against journalists and even a member of EU's Parliament. Reactions in the EU and in other countries against such prosecutions threaten Turkey's bid to join the European Union. Read more in an article in the Los Angeles TImes here.