February 17, 2006
The Pirates of London?
Read how Ofcom's regulators track down pirate broadcasters and take them off the air here.
Elton John Wins Libel Case Against Sunday Times
Rock singer Elton John has won damages and an admission from the Sunday Times of London that the story it printed in 2005 that he demanded that guests at his charity ball not speak to him unless he spoke to them first was untrue. The Times originally obtained the story from another paper. John's attorney Hanna Basha said that such an allegation would hamper John's efforts to raise money for his charity, the Elton John AIDS Foundation. Read more here.
February 16, 2006
Fourth Circuit Rules Maryland Governor Within His Rights to Tell State Employees Not to Speak to Newspaper Reporters
The U. S. Court of Appeals for the Fourth Circuit has upheld a district court's ruling that Maryland Governor Robert Ehrlich Jr. did not violate a newspaper's First Amendment rights when he issued a directive prohibiting state employees from communicating with two of its reporters. The Baltimore Sun and two of its reporters, David Nitkin and Michael Olesker, had alleged that the governor had issued his directive "for the express purpose of punishing and retaliating against The Sun for the exercise of its First Amendment rights..." and that it "was intended to have and has had an impermissible chilling effect on The Sun's right to free expression." The lower court ruled that the directive did not result in more limited access for the Sun in general to the Governor's office than for other newspapers, nor that it resulted in less state government reportage in the Sun's pages. "The Sun has not maintained--and so confirmed at oral argument--that the Governor's directive actually chilled its reporting on state government matters."
In its decision, the appellate court said in part:
"The Sun contents that the district court erred in straying from the issue presented by the motions and that the Governor's brief continues its "effort to mislead this Court" about the case. The Sun asks us to decide: "Did [The Sun] state a cause of action by alleging that a public official retaliated and discriminated against [it] because he did not like [its] point of view?"...Because government retaliation tends to chill an individual's exercise of his First Amendment rights, public officials may not, as a general rule, respond to an individual's protected activity with conduct or speech even though that conduct or speech would otherwise be a lawful exercise of public authority...A retaliation claim under 42 U.S.C. sec. 1983 must establish that the government responded to the plaintiff's constitutionally protected activity with conduct or speech that would chill or adversely affect his protected activity....Because our analysis of the adverse impact is objective, it can be resolved as a matter of law...In this case, the Governor does not dispute that Nitkin and Olesker engaged in constitutionally protected speech and that he issued the November 18, 2004 directive in response to their speech. The directive itself states that the Governor and his Press Office believed that Nitkin and Olesker had failed to be objective in their reporting. The issues not conceded by the Governor center on the remaining elements of a retaliation claim....On these issues, The Sun contends that the directive was not an everyday interchange but specifically targeted two reporters, denying them rights given to all other reporters....Although the reporters would not concede at oral argument that their speech has actually been chilled, they argue that as a matter of law the speech of a reasonable reporter of ordinary firmness would be chilled....
"It is common knowledge -- and the parties so concede -- that reporting is highly competitive, and reporters cultivate access -- sometimes exclusive access -- to sources, including government officials. Public officials routinely select among reporters when granting interviews or providing access to nonpublic information. They evaluate reporters and choose to communicate with those who they believe will deliver their desired messages to the public. By giving one reporter or a small group of reporters information or access, the official simultaneously makes other reporters, who do not receive discretionary access, worse off. These other reporters are sometimes denied access because an official believes them to be unobjective. At oral argument, The Sun conceded that a public official's selective preferential communication to his favorite reporter or reporters would not give the much larger class of unrewarded reporters retaliation claims. This concession acknowledges that government officials frequently and without liability evaluate reporters and reward them with advantages of access--i.e., that government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters' expression. The Sun nonetheless claims that this concession is not incompatible with affording it the relief requested in this case of enjoining the enforcement of the Governor's November 18, 2004 directive.
"We, however, find the scenario conceded by The Sun and the facts of this case to be materially indistinguishable. Both the hypothetical and this case are merely two different ways of describing the same pervasive and everyday relationship between government officials and the press, and retaliation liability cannot hinge on the conclusory statements with which a plaintiff frames a complaint about a single example of how that relationship has played out. Both the hypothetical and the facts of this case present instances in which government officials disadvantage some reporters because of their reporting and simultaneously advantage others by granting them unequal access to nonpublic information. Thus, whether the disfavored reporters number two or two million, they are still denied access to discretionarily afforded information on account of their reporting. The facts of this case and the hypothetical stand or fall together, so The Sun's concession forecloses its requested relief."
February 15, 2006
California Supreme Court Hears Arguments in "Friends" Case
Amaani Lyle, a former assistant on the hit NBC show "Friends", has taken her sexual harassment suit against Warner Brothers television to California's highest court. In oral arguments her attorney argued that she has the right to try to show that writers for the program, which left the air in 2004, engaged in "sexually explicit talk" that produced an atmosphere that may have violated California's laws on workplace harassment. Warners Brothers countered that Lyle lost her job for legitimate, work-related reasons. It admitted that some sexually charged speech went on but claimed that the First Amendment protected the writers' discussions, which were in any case necessary to the "creative process."
In its opinion the lower court stated that "[d]efendants, producers and writers of a popular television show raise a unique defense to plaintiff's claim of sexual harassment. Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show. For the reasons we explain in Part IV (C) of our opinion we conclude "creative necessity" is not an affirmative defense to a cause of action for sexual harassment but it is a factor a jury can consider along with other factors in determining whether defendants' conduct created a hostile work environment for the plaintiff.
"We further hold the trial court erred in granting summary adjudication to some of the defendants on plaintiff's causes of action for sexual and racial harassment but correctly granted summary adjudication as to all defendants on her causes of action for termination and retaliation in violation of the Fair Employment and Housing Act ...and common law. Finally, we reverse the order awarding attorney fees and vacate the award of costs for redetermination by the trial court.
"...IV. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER THE CONDUCT HERE WAS SUFFICIENTLY SEVERE AND PERVASIVE TO CREATE A SEXUALLY HOSTILE WORKING ENVIRONMENT.
Defendants contend Lyle cannot produce evidence from which a reasonable trier of fact could find "the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." ...Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances....The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.
"The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works ... ; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.... Defendants do not dispute Lyle's contention that if she can establish at least one of the foregoing acts occurred within the limitations period for DFEH complaints, see discussion in Part II ante, all of the acts would be admissible to prove sexual harassment under the continuing violations doctrine....We conclude there is sufficient evidence from which a reasonable jury could find the writers' room on "Friends" was a hostile or offensive work environment for a woman....In addition, numerous court decisions have held evidence of misogynous, demeaning, offensive, obscene, sexually explicit and degrading words and conduct in the workplace is relevant to prove environmental sexual harassment. A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience. She had to be in the writers' room where most of the offensive conduct took place because her job required her to take notes on the writers' ideas for jokes, dialogue and story lines which Chase, Malins and Reich intermixed with their personal sex-related jokes, comments, remarks and gestures."
Read the full California Court of Appeal decision here.
Read more about the case here.
Ruti Teitel on the Danish Cartoons and Free Speech Doctrines in European Countries
Ruti Teitel discusses the controversy over the Danish cartoons and contrasts approaches to free speech law in Europe and the US here.
February 14, 2006
Julie Hilden on the Cartoon Controversy, Part I
Read Findlaw's Julie Hilden on the cartoon controversy and government speech here.
"Mafia Wife" Says "Sopranos" Creator, HBO Used Her Story
As if the Gandolfini standoff, Italian-American "indignity" lawsuit, and Baer v. Chase proceedings weren't enough, now the popular HBO series "The Sopranos" is facing a suit from Lynda Milito, author of "Mafia Wife" (published 2003), who claims that the creators of the show based it on her experiences. And Ms. Milito, the widow of Louie Milito, who was associated with the Gambino family, says she wants "fair compensation." Read more here.
A Call for a New "Digital Age Communications Act"
Randolph May, Progress and Freedom Foundation, has published "Why Stovepipe Regulation No Longer Works: An Essay on the Need for a New Market-Oriented Communications Policy" in volume 58 of the Federal Communication Law Journal. Here is the abstract.
In the ten years since enactment of the Telecommunications Act of 1996, the telecommunications industry has undergone profound technological and marketplace changes. In this article, I argue that the current statute regulates communications services, variously demoninated as telecommunications, information services, cable, mobile, or the like, differently, even though these services increasingly compete against each other in the marketplace. This differential treatment occurs because the existing statutory service classifications are based almost entirely on outdated techno-functional constructs that force regulators to make metaphysical regulatory distinctions. Competition and convergence in the marketplace have undermined this so-called "stovepipe" regulatory scheme of the 1996 Act.
It is time for the existing "stovepipe" model of regulation to be confined to the dustbin of communications policy history. In its place, Congress should adopt what I call a new Digital Age Communications Act, a market-oriented regime that would employ antitrust-like principles focusing on marketplace competition and the enhancement of consumer welfare to determine whether there is a need for regulatory intervention.
Download the entire article here.
Another Way of Dealing With Digital Music Distribution
Jeremy F. Debeer, University of Ottawa Faculty of Law, has published "The Role of Levies in Canada's Digital Music Market" in volume 4 of the Canadian Journal of Law & Technology. Here is the abstract.
Parties not directly involved in the use of copyright-protected music have increasingly become the targets of established or proposed schemes to provide revenues for the music industry. It has been suggested that rather than obtaining payments directly from consumers or distributors of digital music in exchange for licenses to use or transmit that music, levies should be imposed on the goods and services of third parties, such as recording media, digital devices and/or Internet access. This paper considers whether levies are an appropriate way to deal with the challenges and opportunities that are arising in Canada's digital music market.
Traditional business models in the music industry have been built mostly upon the voluntary exchange of rights in a free market. Arguably, however, exclusive copyrights are pragmatically difficult to monitor and enforce. Enforcement may also be objectionable for privacy reasons. Copyright markets might be relatively inefficient, and can lead to a concentration of revenue and market power in the hands of foreign corporations at the expense of Canadian artists. In light of all these concerns, it is not surprising that both copyright-holders and consumers sometimes advocate a greater role for levies.
I argue that tariffs or levies on the goods and services of third parties are not the best method to support the Canadian music industry in the digital environment. Although copyright markets are far from perfect, the appropriate response is to simplify market exchanges rather than undermine them through an expanded exemption/levy scheme. The concept of substituting third party liabilities for free-market transactions suffers from numerous flaws. This paper canvasses possible philosophical objections, constitutional constraints, international treaty issues, cross-subsidization concerns and outdated assumptions, all of which must be dealt with before a broad exemption/levy scheme would be viable in Canada. On balance, I argue that the downside of levies outweighs any benefits.
In the long term, the whole idea of exclusive copyrights may require some fundamental rethinking. But in the near term, proposals for radical reform will likely lead to compromise solutions and half-measures, which are neither conceptually justifiable nor practically workable. Therefore, it is best to simply tweak the existing system of exclusive copyrights and free markets by promoting and streamlining voluntary collective licensing models, where necessary. These should be supplemented with stable and generous public funding programs targeted directly at Canadian artists and music consumers.
Download the entire article from SSRN here.
Is It Infringement? Inspiration?
Olufunmilayo Arewa, Case Western Reserve Law School, has published "From J. C. Bach to Hip Hop: Musical Borrowing, Copyright, and Cultural Context" in volume 84 of the North Carolina Law Review. It is also Case Legal Studies Research Paper 04-21. Here is the abstract.
Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.
Download the entire paper from SSRN here.
Press Complaints Commission Receives Requests Not to Change Code
The British Press Complaints Commission has reported receiving numerous requests not to change its standards, after members of a new Muslim lobbying group met to discuss changes that would increase pressure on the UK media not to republish the controversial cartoons which originally appeared in a Danish newspaper last September. At issue is clause 12. So far papers in the UK have not reprinted the cartoons themselves although they have discussed the controversy at length. Read more here.
Britons Watching TV Over Cell Phones Still Need Licenses
TV Licensing, the agency that issues permits in the UK to allow legal use of television, is reminding Britons that if they watch television over their cell phones they still need a license. Read more here.
February 13, 2006
Craigslist Sued for Publishing Ads That Violate Fair Housing Act
The Chicago Lawyers' Committee for Civil Rights Under Law has sued Craigslist for "publishing notices, statements, or advertisements with respect to the sale or rental of dwellings that indicate (1) a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin; and (2) an intention to make a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status or national origin." See the complaint here. Read more here.