Friday, March 16, 2007
In In re Napster Copyright Litigation,the Ninth Circuit Court of Appeals has reversed a lower court ruling that "ordered the disclosure of privileged attorney-client communications under the crime-fraud exception." Said the court, "We hold that in a civil case the district court must allow both the party seeking discovery of the communications and the party asserting the privilege to present evidence relevant to the privilege and the exception, and must weigh that evidence before ordering outright disclosure. We further hold that in a civil case, when the district court is asked to order outright disclosure, the burden of proof on the party seeking to vitiate the privilege is preponderance of the evidence. We conclude the appellees in this case have failed to make the requisite evidentiary showing to support a finding that the crime-fraud exception applies. We reverse and remand for further proceedings consistent with this opinion."
The case arose out of arguments over whether funds loaned to Napster by Bertelsmann were actually used to further copyright infringements by Napster, and if so, whether Bertelsmann was "vicariously and contributorily liable for copyright infringement by Napster and/or Napster's users. Appellees charged that by lending Napster millions of dollars Bertelsmann assumed control over Napster's file-sharing service, or prolonged its allegedly infringing operations, in order to avoid dispersion of Napster's estimated 40 million users before the anticipated new licensed digital music distribution system was functional."
Read the entire ruling here.
Read a background article on that tragic shooting in Greenwich Village. The New York Times reports that the gunman was a former Marine, had tried to break into the movie business with small acting roles and had done some producing, and had worked at the Wall Street Journal.
Thursday, March 15, 2007
The Media Guardian is running a story about the Spectator's recent story concerning the Director of Public Prosecutions, Sir Ken Macdonald, and the "cash for honours" investigations. The Spectator had implicated the Director in the scandal in spite of his repeated denials. Now the paper has retracted its allegations. See the front page of the Spectator here.
Wednesday, March 14, 2007
Tuesday, March 13, 2007
Viacom has hit YouTube for copyright infringement, demanding one billion dollars and an injunction against the popular online site. Other content providers have alleged copyright infringement against YouTube but have then come to terms with the company, signing licensing agreements, obviously seeing an advantage in having their products available online. Read more here in an article on CNNMoney.com and here in an AP article carried in the Toronto Star.
Peter K. Yu, Michigan State University College of Law, has published "New Media at the Turn of the Century" in volume 8 of the Minnesota Journal of Law, Science, & Technology. Here is the abstract.
In recent cases, the United States Supreme Court has shown great care and vigilance in protecting free speech on the Internet. It is therefore common to take for granted the Court's protective stance on protecting free speech on the Internet. After all, the Internet is the new, new thing; it deserves the Court's utmost attention and protection. However, when these cases are juxtaposed with the Court's earlier cases concerning free speech and free press protections in the motion picture - the new, new thing of the past century - the two lines of cases reveal that the Court has taken a dramatic different approach in its treatment of new technologies. The study of these earlier cases not only enables one to gain a greater appreciation of the Court's current protective stance toward the Internet, but also leads one to wonder whether the Court's different approaches could be attributed to the complex interplay of law, technology, and society.
As part of the Symposium on a general theory of law and technology, this article begins by tracing the development of free speech and free press protections of motion pictures. Although the article recounts the painful history of movie censorship in the first half of the twentieth century, it does not seek to rehash the many arguments made by First Amendment scholars elsewhere. Rather, it offers a thick description to show that legal, technological, and social factors have both shaped and been shaped by each other and how a confluence of these factors affected the free speech and free press protections of motion pictures.
The article then offers three deterministic accounts to explain the Court's different treatment of the Internet: technological determinism, legal determinism, and social determinism. Showing that none of these accounts fully explains the Court's differing approach in the recent Internet cases, the article underscores the need for a holistic and integrated approach to the study of law, technology, and society. This Article concludes by offering some preliminary observations on what a general theory of law, technology, and society should and should not be about. It also explains the importance of the development of such a theory.
Download the entire Article here from SSRN.
Peter S. Menell, University of California, Berkeley, Boalt Hall, and David Nimmer, Irell & Manella, have published "Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise." Here is the abstract.
The Supreme Court's indirect copyright liability standard, derived in Sony Corporation of America v. Universal City Studios from patent law and reasserted in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual use technologies. Yet, when one looks to cases decided since Sony, legislative enactments, and the decisions of technology companies in the marketplace, a very different reality emerges. This article explores and explains the broad gulf between the idealized (and idolized) Sony safe harbor and the practical reality. It shows that the law in many respects reflects the tort principles that undergird copyright liability more generally.
Download the entire paper from SSRN here.
Sponsored by The Bookseller, it's time to vote for the oddest book title of the year. Last year's winner was a book called People Who Don't Know They're Dead: How They Attach Themselves to Unsuspecting Bystanders and What to do About It. This year's contenders are:
- Tattooed Mountain Women and Spoon Boxes of Daghestan
- How Green Were the Nazis?
- D. Di Mascio?s Delicious Ice Cream: D. Di Mascio of Coventry?An Ice Cream Company of Repute, with an Interesting and Varied Fleet of Ice Cream Vans
- The Stray Shopping Carts of Eastern North America: A Guide to Field Identification
- Proceedings of the Eighteenth International Seaweed Symposium
- Better Never To Have Been: The Harm of Coming Into Existence
Hat tip to Jim Hart. [JH]
In keeping with that sentiment Law Librarian Blogger Joe Hocknicki is now running a contest for "Oddest Law Book Title of the Year". See below.
I received so many emails identifying odd law book titles in response to yesterday's post about Bookseller's poll for the oddest book title of the year that I have decided it would be fun to run a contest to identify the oddest law book title.
Nominations Due by March 23. To submit a title, please identify the work in a comment to this post. Nominations will be accepted until COB Friday, March 23. There is no limit to the number of nominations one may make or when the work was published, but the submitted title must be verifiable.
Don't worry if you don't see your comment displayed immediately. This blog is configured so that all comments have to be approved before publication in order to eliminate comment-spam.
Voting Starts on April 2. I will create an online poll that will be published on this blog on Monday, April 2.
Titles I have already received by email will be included in this poll. Joe Hodnicki
Monday, March 12, 2007
"The Band" drummer Levon Helm is suing over the use of the song "The Weight" in an ad for Cingular cell phone service. Although Mr. Helm receives royalties, his attorney said he "does not feel he has been adequately compensated." Read more here in an International Herald Tribune article.
The British Press Complaints Commission has told Peter Coonan, who used to be known as Peter Sutcliffe, the convicted murderer known as the "Yorkshire Ripper", that his privacy was not invaded when News of the World published a transcript of a telephone conversation between him and another man. Mr. Coonan said the conversation was private. The PCC said the information was either already in the public domain or was "anodyne." The case was one of first impression, because the information was published on the News of the World website. Read more here in a Media Guardian article.