December 15, 2006
Roberto Alagna Says He Plans to Sue Over "Boos"
Roberto Alagna, the tenor whose performance earned him "boos" from a La Scala audience last weekend, announced he plans to sue over the experience. His attorney said the fact that the opera house dismissed Alagna has "damaged his reputation." Read more here.
Will British Ruling End "Kiss and Tell" Writing?
Singer Loreena McKennitt has won an invasion of privacy ruling against writer Neima Ash. A British judge upheld an injunction against Ms. Ash, who was fined five thousand pounds last year by a lower court. Ms. McKennitt had argued that Ms. Ash's book Travels with Loreena McKennitt revealed too much about her personal life, including the death of a fiance. Media lawyers are now discussing whether the ruling means that "kiss and tell" magazines such as Hello and OK will have as much leeway to publish their stock in trade and also whether the ruling was about the right to privacy or whether it was about a betrayal of confidence. Read more here in an article from CBC Arts, here from the Times Online, and here from The Guardian.
District Court Follows Single Publication Rule For Web Defamation
In Atkinson v. McLaughlin, Case No. 1:03-cv-091, the district court judge has ruled that 1) the statute of limitation begins to toll the day that the defamatory statement is published to the web and 2) that the single publication rule applies. Patrick Atkinson, executive director of the God's Child Project, which provides charitable assistance to the poor in Guatemala, had claimed that the McLaughlins had published defamatory statements about him on their website concerning his work at the Covenant House in New York and had "compiled a list of allegations against [him] and, with the assistance of others, filed them with various Guatemalan authorities". The McLaughlins had also sent emails about Atkinson to various persons and had "prepared and caused to be widely distributed an international press release alleging that Atkinson had been arrested on charges of sexually abusing young boys."
The judge did consider the question of updating of websites. "...[E]ven under the single publication rule, the courts have recognized that a website may be republished and create a new cause of action....if the website is substantially modified....Republication triggers the start of a new statute of limitations and occurs upon a separate aggregate publication from the original...." However, the judge ruled that "...[A]s a matter of law, that the defamation claims arising out of the McLaughlins' website are barred by the two-year statute of limitations in North Dakota."
See Atkinson v. McLaughlin, 2006 U.S. Dist. LEXIS 86405; 2006 WL 3409130 (D.N.D.)
December 13, 2006
Commercial Speech and Junk Food Advertising
David Yosifon, Santa Clara University School of Law, has published "Resisting Deep Capture: The Commercial Speech Doctrine and Junk Food Advertising to Children" in the 2006 volume of the Loyola of Los Angeles Law Review. Here is the abstract.
This Article analyzes the childhood obesity epidemic, and junk food advertising to children, from the perspective of “critical realism,” an approach to legal theory that seeks to incorporate important insights from social psychology and other social sciences. Exploring the First Amendment implications of a proposed ban on junk food advertising, the Article argues that the central conception of human agency implicit in the Supreme Court's commercial speech jurisprudence rests on intuitively grounded presumptions that are false, and which threaten to leave consumers vulnerable to manipulation through advertising in ways consumers do not anticipate or appreciate. However, the Article explains that a second, more accurate, conception of human agency, which takes into account non-intuitive realities concerning the sources of human behavior, is also evident in the Court's commercial speech jurisprudence. The Article concludes that by developing and exploiting this second conception in the commercial speech cases, a qualified ban on junk food advertising can be seen as normatively justifiable and constitutionally viable.
Download the entire article from SSRN here.
Philadelphia Papers, Unions Have Reached Agreements
The Philadelphia Inquirer reports that the paper and the Philadelphia Daily News and their unions have reached deals after an extensive bargaining session. Read more here.
December 12, 2006
In a Murder Trial, Rap Lyrics Take the Stand
Prosecutors are attempting to show that rap lyrics constitute a confession in the trial of Ronell Wilson for the murder of officers James V. Nemorin and Rodney J. Andrews over three years ago. It is not a novel argument, as this article from the New York Times shows.
December 11, 2006
Google Book Search and Fair Use
Hannibal Travis, Florida International University College of Law, has published "Google Book Search and Fair Use: iTunes for Authors or Napster for Books?" in the 2006 volume of the University of Miami Law Review. Here is the abstract.
Google plans to digitize the books from five of the world's biggest libraries into a keyword-searchable book-browsing library. Some publishers and authors allege that this constitutes a massive piracy of their copyrights in books not yet in the public domain. But I argue that Google Book Search may be a fair use for two interrelated reasons: it is unlikely to reduce the sales of printed books, and it promises to improve the marketing of books via an innovative book marketing platform featuring short previews. Books are an experience good in economic parlance, or a product that must be consumed before full information about its contents and quality becomes available. This makes new technologies that are capable of rapidly searching and previewing relevant passages from books a development that the law should encourage, not burden or restrain.
After introducing the topic, I describe Google's ambitious plan to scan and index up to 15 million library books by 2010, and provide short previews of a few lines each to help users decide whether to buy the books or check them out from a library. I then argue that the fair use limitation on exclusive rights has historically protected efforts such as Google's to address the economic problem of marketing experience goods like books, albums, movies, or games, which consumers must decide whether to buy without assessing their quality and characteristics beforehand. Fair use partially resolved this problem by permitting the unauthorized dissemination of extracts of another's work in a catalogue, review, abridgement in a periodical, or other work of criticism or commentary.
The bulk of the Article analyzes the copyright and fair use implications of lawsuits challenging Google Book Search, filed by several publishers and a putative class of up to 8,000 published authors. I contend that by reproducing excerpts from scanned books for the purpose of improving access to information about books on the internet, Google is making a transformative use of the books that should qualify as a fair use. Courts have recognized that copyright owners are not entitled to gain a monopoly over the market for information about their works, or to suppress efforts to improve the public's access to information and high-quality research tools. Google Book Search is distinguishable from prior attempts to disseminate complete copies of protected works, from newspaper articles in the Free Republic case to songs in the Napster and MP3.com cases. Insofar as most works being scanned by Google have already been published, and are nonfictional and fact-based, these facts also strongly support Google's fair use arguments.
Most importantly, the evidence so far is that Google Book Search will dramatically improve, rather than detract from, the sales of books that it permits users to find, preview, and purchase. Google Book Search has tripled the sales of many books, and other online previews of books have also markedly increased sales. Total book sales are up substantially in the period after Google began scanning copyrighted books, indicating a fair use under the Sony Betamax case and other precedents.
I conclude by analyzing the antitrust implications of the struggle between copyright owners and technology companies for control over digital marketing and distribution technologies. Joint ventures between major copyright holders may be the only viable alternative for the foreseeable future to technology company search technologies such as Google Book Search, just as MusicNet and Movielink proved to be the only viable alternative for many years to peer-to-peer digital media search technologies. Such joint ventures may facilitate price-fixing and suppression of digital media output, dangers that courts considering the legality of Google Book Search should explore carefully. At the same time, I suggest reasons for courts to be skeptical about publishing industry assertions that by scanning books, Google will seize control over all the content in the world.
Download the entire article from SSRN here.
Julie Hilden On Alternatives For Those Who Believe They've Been Defamed Online
FindLaw's Julie Hilden considers the recourse available to those who believe they've been defamed now that California's Supreme Court has issued its opinion in Barrett v. Rosenthal. Do angry plaintiffs have any remedy at all? Ms. Hilden looks at the website ReputationDefender.com and other self-help approaches here.