September 8, 2006
Amazon UnBox Unveiled
Amazon's UnBox, a new service offering video from major studios and television networks, is now available. Universal, Paramount, CBS, Fox, A&E and the Discovery Channel are among the media outlets offering product through UnBox. Read more here.
South Carolina Appeals Court Upholds Lower Court Grant of Summary Judgment in Favor of Newspaper
The South Carolina Court of Appeals has affirmed a lower court's grant of summary judgment in favor of a newspaper in the case of a plaintiff who alleged defamation after a comment (later controverted) appeared in the paper. The court found that the plaintiff's "claim of actual malice in this case hinges on the reporter’s failure to investigate Mims’s story after receiving a document that apparently contradicted Mims’s statement. Newspaper is a small weekly publication, and the evidence reveals the reporter received the list a few hours before the deadline for submitting final articles. We agree with the circuit court that the evidence indicates the reporter failed to investigate due to time constraints and a number of other obligations, including numerous editorial and administrative tasks. Although the reporter’s actions may have been negligent, we cannot say that they constituted an extreme departure from the standards of investigation normally employed by publishers so as to rise to the level of constitutional actual malice."
The case is Metts v. Mims, Opinion no. 4148, 2006 WL 23459889, S. C. App., 2006, Aug. 14, 2006; 2006 S.C. App. LEXIS 160.
"The Path to 9/11"
Newsweek's story about the debate over ABC's upcoming docudrama "The Path to 9/11" is here. Various former Clinton administration officials, whose lives are dramatized, including President Clinton himself, have critized the mini series as inaccurate. ABC has responded variously, touting the series as factual, and saying that it is fictionalized. Here are some early reviews from Michael Barone and Ray Richmond.
Search Engines and Trademarks
F. Gregory Lastowka, Rutgers University School of Law, Camden, has published "Search Engines Under Siege: Do Paid Placement Listings Infringe Trademarks? on SSRN. Here is the abstract.
Consider the following scenario: your client is the purveyor of a soft drink called Gnucola. The Gnucola company has used your law firm to register the Gnucola mark with the United States Patent and Trademark Office, and has also used your law firm to assist it in obtaining the registration of several Internet domain names including the term Gnucola. Your client has built an Internet website at these domains from whence it promotes and sells its flavorful amber beverage. Gnucola's customer base is rapidly expanding and its revenues are strong.
One day, during an idle minute, the president of Gnucola searches for gnucola on a popular Internet search engine, E-Pointer. She finds, much to her surprise and chagrin, that the website for the archrival "MicroCola" is returned on the first page of results. The Gnucola website, on the other hand, is nowhere to be seen. It can only be found after clicking through several pages of results. The Gnucola president calls you for an explanation.
You call the EPointer company, only to have a sales representative politely inform you that if you had paid attention to the fine print on its site, you would have seen that E-Pointer is a paid placement search engine. MicroCola has paid a substantial sum to appear prominently in the listings under the term Gnucola. If Gnucola would like to appear on the first page of listings, E-Pointer tells you, it needs to pay for placement. You convey this to your client, who is outraged. She wants to know: Can Gnucola prevail against E-Pointer and MicroCola on a claim of trademark infringement?
Download the entire paper from SSRN here.
September 7, 2006
California Gov Just Says No to Textbook Bill
California Governor Arnold Schwarzenegger has said he will not sign a newly passed bill that would ban school texts from using anti-gay language. Schwarzenegger says existing statutes already protect against such language. Proponents of the measure are dismayed. Here is the text of the bill. Read more about Schwarzenegger's refusal and political reaction here.
September 5, 2006
Net Neutrality: A Guide From Across the Pond
Paul Ganley and Ben Allgrove, Baker & McKenzie, London, have published "Net Neutrality: A User's Guide" in the Computer, Law & Security Report, 2006. Here is the abstract.
Net neutrality is a complex issue that has generated intense levels of political discussion in the United States, but which has yet to attract significant attention from regulators in the UK.
Nevertheless, the question of whether network operators should be restricted or prevented from blocking network traffic or prioritising certain traffic or traffic from particular sources is a significant one for a wide range of stakeholders in the digital networked economy. Network operators contend that the build costs for the next generation of networks are so high that they must be permitted to monetise their control over this infrastructure as efficiently as possible. Meanwhile, an eclectic mix of interests including content and service providers, free speech and special interest groups and entertainers argue that net neutrality regulation is necessary to guarantee that the internet's core values and social utility are preserved.
This article offers an introduction to the net neutrality from a UK perspective. The authors explain the technical, commercial, political and legal considerations that underpin the issue and suggest that whilst network neutrality regulation in its strongest incarnation is not practical or desirable, a level of regulatory action designed to enhance the choices of end-users is the best way forward.
Download the entire paper from SSRN here.
Anonymous Speech and the First Amendment
Lyrissa Lidsky, University of Florida College of Law, and Thomas Cotter, University of Minnesota School of Law, have published "Authorship, Audiences, and Anonymous Speech" as Minnesota Legal Studies Research Paper no. 06-37. Here is the abstract.
A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw upon intellectual property theory, particularly as it relates to trademarks and copyright, to develop a positive analysis of the private and social costs and benefits of anonymous speech. Traditional First Amendment jurisprudence then supplies the missing normative component by providing two crucial presumptions that suggest how to weigh the relevant costs and benefits. The first is the anti-paternalism presumption. This assumes that audiences are capable of responding to anonymous speech in much the same way they respond to generic, nontrademarked products - by recognizing that the product, in this case speech, lacks an important quality indicator and should be evaluated accordingly. In this manner, audiences can minimize the potential social harm of many forms of anonymous speech. The second presumption, which we refer to as “more is better,” favors more speech over less, and thus places considerable weight on anonymity as a tool for encouraging otherwise reluctant speakers to come forward - even at the risk of simultaneously encouraging more potentially harmful speech. These twin presumptions form the basis for the detailed guidance we supply for legislatures contemplating regulation of anonymous speech, and for courts seeking to balance the rights of anonymous speakers with other important interests.
Download the entire paper from SSRN here.
Canadian Court Moves to Supervise Lord Black's Spending
According to press reports, an Ontario judge has ordered that Conrad Black and his wife must now allow supervision of their finances by the courts and can only spend $25,000 Canadian each per month. Mr. Justice Colin Campbell has also frozen all of Lord Black's assets around the world. The U. S. government has charged Black with fraud and racketeering while he controlled Hollinger International, a media empire based in the U. S. The Canadian-based Hollinger Inc. is suing Black for $700 million. Black's trial, to be held in Chicago, begins in March of 2007. Read more here and here.
September 4, 2006
Press Complaints Commission Dismisses Complaint Against Sunday Times
The Press Complaints Commission, the watchdog agency that hears complaints against British newspapers, has dismissed an allegation brought by Roger Knapman, the head of the UK Independence Party, that journalists from the Sunday Times breached several clauses of the Code during the reporting that that led to its May 7, 2006 article "Anti-migrant UKIP leader hires Poles".
According to the PCC's report, "The complainant complained that subterfuge had been employed by the journalists. One reporter had approached his son – who runs a Polish-registered company that sources East Europeans for jobs in Britain – pretending to be interested in buying a property. Another reporter came to the complainant’s home, claiming to want to use the same builders as he was using. The quotes from the conversation were used in the article. The complainant argued that subterfuge was clearly unnecessary as he had never made any secret of the fact that his house was being renovated by some Polish workers, who were temporarily living there. Had the journalists spoken to him openly, he would have given all the necessary information, and they should at least have given him the opportunity to do so. There was no possible public interest to justify the subterfuge, which related to an activity that was both legal and private.
"The complainant also alleged that the article contained inaccuracies, primarily relating to the length of time of the employment, the pay, and living conditions of the workers. He said that they had not been working for the past 11 months, but on two contracts of 12 and 10 weeks; were not living ‘dormitory-style in [the] attic’ but in an attic guest suite; and were earning nearly double the ‘£50 a day’ figure quoted in the newspaper. In fact, he said, the wages worked out at around £12.50 per hour or £4000 for six weeks per worker. The complainant offered to provide all necessary documentary evidence to prove the point. He added that UKIP was not “anti-migrant” as its policy was to limit immigration to around 150,000 a year and welcome guest workers on a work permit basis. The Polish workers, the complainant made clear, were not immigrants and remained ordinarily resident in Poland. The foundation of the article, and the newspaper’s justification for the subterfuge, was therefore incorrect. Finally, he objected to the claim that he had ‘boasted’ about his ability to help to supply Polish labourers.
"In reply, the newspaper said that the purpose of its enquiries was to determine whether the complainant was guilty of political hypocrisy. UKIP had forthright views on immigration, arguing that ‘the first responsibility of a British government is to its own population, not to those who would like to settle here’. It pointed to a recent party leaflet which contained a cartoon entitled ‘Overcrowded Britain’, showing East Europeans pouring into an entrance labelled ‘Channel Funnell’. The newspaper suggested that a direct approach to the complainant would be bound to fail, as no political leader would be likely to assist in a newspaper exposing his own hypocrisy. The newspaper enclosed examples from a UKIP unofficial forum of those who considered the complainant indeed to be guilty of hypocrisy.
"Similarly, it argued that any claimed intrusion under Clause 3 of the Code was justified by the fact that it was in the public interest to reveal the difference between the complainant’s private behaviour and his public political stance.
"Turning to the complaints of inaccuracy under Clause 1, the newspaper offered to publish a correction on the amount of time for which the workers had been contracted. It provided a transcript of the recorded conversation between the reporter and the complainant’s son that touched upon the amount they were paid. The transcript showed that, while the complainant’s son had initially quoted a figure of £12.50 per person an hour, he had subsequently suggested that two workers would receive £4000 for six weeks work, consisting of six 10-hour days a week. This came to around £50 a day. The newspaper also did not consider it to be a matter of dispute that the workers lived in the complainant’s attic or that UKIP was ‘anti-migrant’. Moreover, the complainant’s effusiveness about the Polish workers justified the article’s claim that he had ‘boasted’ about his ability to help supply such workers. "
After investigating the complaint, the PCC ruled that ..."‘engaging in misrepresentation or subterfuge can generally be justified only in the public interest and then only when the material cannot be obtained by other means’. The Commission noted that it was not in dispute that the reporters had used subterfuge to obtain information about the complainant’s employment of Polish workers.
"The reference in Clause 10 to subterfuge ‘generally’ only being justifiable when the material cannot be obtained by other means allows the Commission to find no breach of the Code in some circumstances when material obtained by subterfuge may otherwise potentially be available. It may take into consideration, for example, the seriousness of the alleged subterfuge and whether or not it was proportionate in terms of the story, or whether there were reasonable grounds for concluding that pursuing other means would jeopardise future enquiries.
"There was no way for the Commission to determine whether a direct approach from the newspaper would indeed have been successful and have removed the need for misrepresentation, although it did note the newspaper’s argument that a politician would be unlikely voluntarily to reveal information that would expose him to charges of hypocrisy. But in any case, the Commission was satisfied that there was an element of public interest in the newspaper’s pursuit of this story, given the perceived difference between the complainant’s political position as leader of UKIP and his practice of employing non-UK workers. The subterfuge used did not strike the Commission as being disproportionate or unnecessarily intrusive in the context of confirming a story of some public interest. It therefore did not conclude that there was a breach of Clause 10.
"Neither did the Commission consider that there were any issues to pursue under Clause 3 of the Code. In stating that he would have been happy to discuss the matter with the newspaper, the complainant had clearly suggested that he did not regard the matter to be private. Indeed, he had said that the details were well known, both locally and to senior members of UKIP. Moreover, the Commission would not normally consider that publicity about renovation works at an individual’s home would amount to an invasion of privacy.
"In terms of the complaint under Clause 1 of the Code, the Commission was satisfied that there was one point of established inaccuracy: the length of time the workers had been employed. The newspaper had rightly offered to correct this point, something the Commission considered to be a proportionate remedy under the Code.
"On the outstanding complaints of inaccuracy, there was no breach of the Code."
Read the PCC's entire ruling here.
Gripe Sites and the First Amendment
Jacqueline Lipton, Case Western Reserve Law School, has published "Commerce vs. Commentary: Parody, Gripe Sites and the First Amendment in Cyberspace" via SSRN. Here is the abstract.
The Global Online Freedom Bill of 2006 emphasizes the importance of freedom of speech on the Internet as a fundamental human right. However, the backbone of the World Wide Web, the Internet domain name system, is a poor example of protecting free speech, particularly in terms of the balance between speech and commercial trademark interests. This is apparent from the manner in which the legislature and the judiciary deal with cases involving Internet gripe sites and parody sites. The lack of a clear consensus on the protection of free speech in these contexts is troubling, and can be found in a number of recent cases including: use of the peta.org domain name for a parody site on the activities of 'People for the Ethical Treatment of Animals'; use of 'bosleymedical.com' for a gripe site about the practices of the Bosley Medical Institute; and, use of a misspelling of the Reverend Jerry Falwell's last name (fallwell.com) for a website critical of the Reverend's viewpoints on homosexuality. This article examines how trademark law has come to trump freedom of expression under the domain name system, and makes recommendations for regulatory reform to ensure a better balance of rights in the future. In particular, it suggests the development of presumptions against trademark infringement in cases clearly involving criticism or parody of a trademark holder in cyberspace.
Download the entire paper here.