August 25, 2006
Federal Judge Enjoins Louisiana Video Game Law
U. S. District Court Judge James Brady has enjoined the new Louisiana law banning the sale of violent video games to minors, saying that "[d]epictions of violence are entitled to full constitutional protection" contrary to the language in LRS 14:91.14. The law is similar to statutes that have been blocked in other states including California, Illinois and Michigan. Judge Brady wrote in part that
"...the plaintiffs have sufficiently asserted potential harm to give them standing...." Further the judge found that "Section 91.14(A) of the Louisiana Revised Statutes criminalizes the sale or rental of certain "interactive video or computer games"...to anyone under the age of 18 in Louisiana....The video games proscribed...are those that meet all of the following criteria: (1) The average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor's morbid interest in violence. (2) The game depicts violence in a manner patently offensive to prevailing standards in the adult community with respect to what is suitable for minors. (3) The game, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
The judge measured the likelihood that the plaintiffs would succeed on the merits of their First Amendment claim that the statute was impermissibly burdening speech. In response the state maintained that "the Statute regulate[d] conduct, rather than speech, comparing the Statute's restrictions to laws restricting sales of tobacco or alcohol to minors." Wrote Judge Brady, "The State's argument overlooks a line of cases holding that video games are protected free speech....Indeed, it is the "expressive element" of video games that led to enactment of the Statute....The fact that the Statute applies to video games that "depict violence" makes no difference as a matter of First Amendment scrutiny. Depictions of violence are entitled to full constitutional protection....Indeed, the Supreme Court...has stated that violent expression is "as much entitled to the protection of free speech as the best of literature."...For the reasons stated above, the court concludes that the Statute regulates protected free speech."
The court examined the statute using the strict scrutiny standard and evaluated the state's proffered compelling state interests: preventing physical and psychological harm to minors. "Under Brandenburg, the government must prove that the targeted expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."...Thus, the government may not punish speakers based solely on a prediction or suspicion that their words will tend, in the aggregate, to encourage undesirable behavior....The government may not limit minors' exposure to creative works based on a general belief that they may be "psychologically harmful."...Therefore, the State may not restrict video game expression merely because it dislikes the way that expression shapes an individual's thoughts and attitudes....The evidence that was submitted to the Legislature in connection with the bill that became the Statute is sparse and could hardly be called in any sense reliable. Much of the "evidence" presented consisted of newspaper articles on the evils of video games....None of these are conclusive...."
Read the entire ruling here. The case is Entertainment Software Association v. Foti, Civil Action No. 06-431-JJB-CN (U.S.D.C., Middle District of Louisiana)(decided August 24, 2005).
FCC Denies Petition for Reconsideration Filed by Licensee
The FCC has denied a petition for reconsideration filed by former licensee Paulino Bernal Evangelism, which broadcast as AM Radio KBRN in Boerne, Texas. The FCC had issued a Forfeiture Order on October 19, 2004 after "willful and repeated violation of Sections 73.1125, 11.35(a) and 73.3527(c)(10) of the Commission's Rules....The noted rule violations involve Evangelism's failure to maintain a main studio in its community of license, failure to install and maintain operational Emergency Alert System ("EAS") equipment during the hours of station operation, and failure to make the station's public inspection file available."
In its memorandum opinion and order the FCC notes that in 2003 "an agent from the Commission's Dallas...office inspected [the]station....The agent could find no local or toll free telephone number for station KBRN and was unable to locate its main studio. The agent did locate KBRN's transmitter tower and the shed containing its transmitting equipment but found that they were situated on private property behind locked fences and were inaccessible....[T]he only person working for KBRN in Boerne was an unpaid volunteer who would make KBRN's public inspection file available upon request. The agent contacted the unpaid volunteer and stated he wanted to inspect KBRN's public inspection file. The volunteer provided access to KBRN's transmitted shed, but when asked to provide the station's public inspection file, produced transmitter information and technical manuals, and stated that no other documentation for station KBRN was available.
"On December 19, 2003, the Dallas Office issued a Notice of Apparent Liability for Forfeiture ("NAL", to Evangelism proposing a monetary forfeiture of $25,000.... In its reponse..., Evangelism argued that it did not violated the public inspection file requirement and that the proposed forfeiture should be reduced or cancelled on the basis of its inability to pay and history of overall compliance. In the Bureau Forfeiture Order, we rejected these arguments and imposed a monetary forfeiture order of $25,000 for willful and repeated violation....In its petition for reconsideration, Evangelism argues that it did not violate the main studio and public inspection file requirements; that, if it violated the Rules, there is no evidence that the violations were repeated; that it has a history of overall compliance; that imposition of a forfeiture...would be "contrary to Commission policy" because donors would be the ultimate source of payment; and that payment of a forfeiture would limit its "ability to generate programming in the public interest."
In its memorandum and order, the FCC reexamined the reasons for the Rules, noting the justification for the public file requirement ("important purpose of facilitating citizen monitoring of a station's operations and public interest performance...") and the main studio requirement ("[a]lthough management personnel need not be "chained to their desks" during normal business hours, they must "report at the main studio on a daily basis, spend a substantial amount of time there and ...use the studio as a home base"). It rejected Evangelism's argument that the "unpaid volunteer...had limited facility in speaking and understanding English, and was nervous and did not understand that the agent had requested the public file...and would have provided KBRN's public file if the FCC agent remained at the...studio "for a more reasonable period of time" or explained his request..."in a more reasonable fashion." It also rejected the argument that the unpaid volunteer represented a meaningful presence at the studio.
The FCC also considered the claim that Evangelism had an overall record of compliance, and that the forfeiture would be an undue burden on those who must pay it, and rejected both arguments. "First, the ownership report on file...indicates Paulino Bernal owned 100 percent of Evangelism. Second, although SM and Evangelism are legally distinct entities, we find that, having the same owner at the time of the violations, they were so closely related that it is appropriate to consider SM's violation in determining whether Evangelism has a history of overall compliance. Third, offenses need not be "prior" to be considered in determining whether there is a history of overall compliance. Finally, we can consider violations occurring in cases where there has been no final determination....
"Evangelism asserts that its revenues consist of donations by listeners, who would be the ultimate source of any forfeiture payment, and that imposition of a forfeiture...would, therefore, be "contrary to Commission policy." Evangelism provides nothing to support this claim and, in fact, that Commission has no such policy."
Read the entire text of the Memorandum and Order here. The case is In the Matter of Paulino Bernal Evangelism, File No. EB-03-DL-229, adopted August 23, 2006.
August 24, 2006
Christopher Buccafusco, University of Chicago Law School, has made "On the Legal Consequences of Sauces: Should Thomas Keller's Sauces Be Per Se Copyrightable?" available through SSRN. Here is the abstract.
The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the “dish” is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.
Since there are no doctrinal limitations to recipes' copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts.
In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs' willingness to experiment with other chefs' dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time.
Download the entire paper from SSRN here.
Nanjing Massacre Survivor Wins Defamation Lawsuit Against Japanese Historians
A woman who survived the infamous Nanjing Massacre has won a defamation lawsuit against two Japanese historians who wrote in two books about the incident that her account, as well as other eyewitness accounts, were fabricated. Xia Shuqin prevailed in her suit over Shudo Higashinakano and Toshio Matsumura and their Japanese publisher, who have been ordered by a Chinese court to stop publishing the two volumes and to recall copies already distributed. The court awarded her about $200,000 U.S. The defendants claim the ruling is not binding since a Japanese court has not heard the case and that the Chinese courts have no jurisdiction. Read more here in an AP story. According to local press coverage, the Japanese defendants have 30 days to appeal. Read more here in a story from the Xinhua News Agency.
August 23, 2006
The "Wrong Man" May Have the "Right Stuff" For Movie Deal
Guy Goma, the man who turned up for a job interview at the BBC but was mistaken for an IT expert and interviewed on air, is in talks for a movie deal with Hollywood. Who might play the now famous job seeker on the big screen? Speculation is rampant, but Will Smith, Ving Rhames, and Jamie Foxx have been mentioned. And if the film's a hit, Mr. Goma might not need that position he was looking for at the Beeb, after all.
Toledo Blade Editorial on Lockout
Here is the text of the Toledo Blade's editorial addressing the lockout of its employees.
August 22, 2006
District Court Rules Statements Not Actionable in Kerry Lawsuit
A federal district judge has granted defendants John Kerry and Anthony Podesta's motions to dismiss the complaints of journalist Carlton Sherwood and others that Kerry and Podesta engaged in "defamation, business disparagement, interference with prospective and existing contractual relations, and civil conspiracy". The case stemmed from Sherwood's desire to show a film, "Stolen Honor", during the month of October 2004 in Abington, Pennsylvania. "Senator Kerry's supporters learned of these plans. Umbrage was taken. The Demoncratic National Committee issued press releases. A group of 17 Democratic senators made their displeasure known to Sinclair Broadcasting [a network planning to show the film as well]. Sinclair thereupon decided not to broadcast the entire film...and the owner of the Abington movie theater decided not to permit plaintiffs to show the film there."
The judge determined that in terms of the defamation allegation, "there are several problems. The only specific allegations are that...the Democratic National Committee issued an "action alert" stating that plaintiffs' film "Stolen Honor" was "written, produced and funded by extreme right-wing activists" and was "false." The same press release suggested that Sinclair Broadcasting would be compromising "journalistic integrity" if it showed the film, thus implying that Mr. Sherwood's film fell below the standard....I do not believe that any of these statements are actionable since they constitute expressions of opinion, and must be viewed in the context of a hard-fought political campaign. More importantly, I am not aware of any basis for holding a political candidate personally responsible for statements made in press releases issued by his party's national committee."
"As explained by Judge Bork in his concurring opinion in Ollman v. Evans....the test for determining whether a statement is capable of defamatory meaning "is whether the person alleging defamation has in some real sense placed himself in an arena where he should expect to be jostled and bumped in a way that a private person need not expect. Where politics and ideas about politics contend, there is a First Amendment arena...." There are, of course, limits upon what can be said, even in a political campaign, without risking liability for defamation. Thus, a newspaper article reasonably construed as stating that a public official is in fact a rapist and an obstructor of justice is actionable....None of the statements attributable to the defendant Podesta can reasonably be interpreted as factual assertions of that magnitude.
"To summarize, I conclude that plaintiffs cannot prevail on their defamation claims against either of the defendants....I conclude, further, that plaintiffs cannot prevail on their remaining claims....In the first place, defendants' statuts as targets...does not make them responsible for what their sympathizers may have done to discourage dissemination of the film. The notion that either of the defendants can be rendered liable because of actions taken by a group of United States senators seems farfetched. But, more importantly...it is clear that the defendants had an absolute right to protect their own interests....Finally, because the statements complained of were not defamatory, and because defendants had a right to protect their own interests, neither defendant can be held liable for conspiracy."
August 21, 2006
Strike Imminent at Toledo Blade?
EchoStar Gets Temporary Stay of Injunction Order
EchoStar, which lost a patent infringement lawsuit earlier this year over DVR technology to the much smaller TiVo Inc., has succeeded in winning a temporary stay of the injunction that TiVo won only a few days ago. TiVo had won a massive jury verdict against the much bigger company in a case closely watched by cable and satellite TV service providers. EchoStar appealed the order late last week.