May 4, 2007
ABC News and the Client List
Tonight, ABC News will be broadcasting some exclusive information about Debra Jeane (sometimes spelled Deborah Jeane) Palfrey and her "client list." The list has already claimed one victim--the Bush Administration's Randall Tobias of the State Department, who resigned last week, saying he had only paid for massages. Read more about Ms. Palfrey, her list, and the pending charges against her--including those that she runs, not an escort service, but a prostitution ring, here.
Imus Lawyer Says CBS, MSNBC Could Have Prevented Comments From Airing
In an interview on "Good Morning, America," Martin Garbus, the lawyer Don Imus has hired to represent him in his wrongful dismissal lawsuit against CBS says CBS and MSNBC had access to "delay" buttons that could have kept Mr. Imus' objectionable comments about the Rutgers basketball team from hitting the airwaves. CBS and MSNBC either contradict or refuse to comment on Mr. Garbus' statement. Read more here.
May 2, 2007
DC Circuit Rules Congressman Did Not Have First Amendment Right To Leak Phone Call To Media
The DC Circuit has ruled (again) that Congressperson Jim McDermott did not have a First Amendment right to leak a tape recording of a phone call to members of the media. The case was on remand from the U. S. Supreme Court. Alice and John Martin originally intercepted the call, made among several members of the House of Representatives, including then House Speaker Newt Gingrich, recorded it on their police radio scanner, and gave it to a Florida Congressperson's staffers. From there the tape became quite a hot potato, making its way to the Congressperson's Washington office. At that point, since the Martins turned up in Washington, the Washington staff of the Congressional Representative returned the tape to the Martins. They subsequently gave it to Representative McDermott, a Democratic member of the House Ethics Committee.
Because Representative McDermott thought the tape had news value, particularly with regard to Speaker Gingrich's behavior, he released it to the media. When charged with a violation of 18 U.S.C. § 2511(1)(c), Representative McDermott claimed a defense under the First Amendment. Said the court, "All members of the Ethics Committee, including Representative McDermott, were subject to Committee Rule 9,
which stated that “Committee members and staff shall not disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the
Committee.”5 This rule recognizes the unique role of the Ethics Committee and reflects a desire “to protect the rights of individuals accused of misconduct, preserve the integrity of the
investigative process, and cultivate collegiality among Committee members...If the First Amendment does not protect Representative McDermott from House disciplinary proceedings, it is hard to see why it should protect him from liability in this civil suit. Either he had a First Amendment right to disclose the tape to the
media or he did not. If he had the right, neither the House nor the courts could impose sanctions on him for exercising it. If he did not have the right, he has no shield from civil liability or from discipline imposed by the House. In that event, his civil liability would rest not on his breach of some ethical duty, but on his violation of a federal statute for which he had no First Amendment defense...."
The case is Boehner v. McDermott, U.S.C.A. (2007)(No. 98cv00594); 2007 U. S. App. LEXIS 10001; 2007 WL 1246438 (C.A.D.C.).
Virginia Tech Journalism Professor To Write Book About Killings
The Chronicle of Higher Education notes that Ronald Lazenby, a V-Tech professor of journalism, will write a book about the killings at Virginia Tech University for Plume Books. Some of the profits will go to a fund for the victims. The information is via Publishers' Weekly.
District Court Allows Plaintiff's Case to Proceed; Rules PA Recognizes Right of Publicity
The District Court for the Middle District of Pennsylvania is allowing a jockey's case against a feed manufacturer to proceed, ruling that the jockey, Jeremy Rose, has stated claims of invasion of privacy and right of publicity sufficient to overcome the defendant's 12(b)(6) motion to dismiss. The defendant had used a photograph of Mr. Rose taken by a third party "without plaintiff's knowledge or consent and then used it in its advertisements and on its bags of feed." The defendant moved to dismiss the plaintiff's case, claiming that "a plaintiff must allege that there was an intentional intrusion into the seclusion of his or her private concerns which was highly offensive to a reasonable person." With regard to the right of publicity claim, the defendant claimed that "Pennsylvania has not recognized a cause of action for misappropriation of commercial value of his identity." Plaintiff responded that although the Supreme Court of Pennsylvania has not ruled on this issue, at least one lower court had recognized the right of publicity, and the District Court agreed.
The court analyzed the case as follows. "First, we note that although similar, the right of publicity is not identical to invasion of privacy by appropriation of name or likeness. Invasion of privacy by appropriation of name or likeness does not require the appropriation to be done commercially....As just mentioned, the right of publicity protects against commercial loss caused by appropriation of a name or likeness. In other words, the invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Second, we do not find it particularly important that plaintiff labeled the second count of his complaint as “Misappropriation of Plaintiff's Commercial Value of His Identity Commercial Value.” This count clearly alleges the elements required for a right of publicity claim. Furthermore, plaintiff clarified that he was asserting a right of publicity claim in this count in his opposition to defendant's motion to dismiss....Finally, we think it is clear that plaintiff's complaint has alleged a cause of action based on the right of publicity. He has alleged that defendant used his photograph without authorization and for its own commercial advantage."
The case is Rose v. Triple Crown Nutrition Inc., (U.S.D.C., M.D. Pa.); 35 Med.L.Rptr. 1545; 2007 U.S. Dist. LEXIS 14785; 82 U.S.P.Q.2D (BNA) 1222; 2007 WL 707348 (M.D.Pa., 2007).
Head of BP Steps Down Over Fight With Media
Lord Browne, the head of British Petroleum, has decided to step down after a series of rulings went against him in his attempt to prevent publication of stories about his relationship with Jeff Chevalier, his partner of four years. When their relationship ended, Mr. Chevalier decided to tell all to the Mail on Sunday, and Lord Browne went to the courts in an effort to protect his privacy. A problem arose because "Lord Browne's attempts to prevent reporting of these matters, and to maintain his personal privacy, collapsed after the court accepted he had lied to conceal the manner in which he met Mr Chevalier." Read more here in an article in the Guardian. Here's more from The Scotsman.
May 1, 2007
FCC Turns to Congress For Definition of Violence
In a report adopted April 25, the FCC asked Congress to take the lead to providing a definition of "violence" rather than providing one itself. Here is the news release from the agency.
The Federal Communications Commission (FCC) released today a Report on the issue of excessively violent television programming and its impact on children. The FCC found that research indicates exposure to violence in the media can increase aggressive behavior in children, at least in the short term. Given this finding, the FCC recommends that action should be taken to address violent programming.
The Report released today responds to a request from the U.S House of Representatives Committee on Energy and Commerce that the FCC undertake an inquiry on television violence. Specifically, Congress asked the Commission to consider the harm that excessively violent programming has upon children; whether it would be in the public interest for the Commission to formulate a definition of “excessively violent programming that is harmful to children” and to regulate such programming; and if so, what would be the definition and measures for limiting excessively violent programming most likely to be sustained in court.
In its Report, the FCC:
· agrees with the views expressed by the Surgeon General, and finds that, on balance, research provides strong evidence that exposure to violence in the media can increase aggressive behavior in children, at least in the short term.
· notes that while viewer-initiated blocking and mandatory ratings would impose lesser burdens on protected speech, and is skeptical that they will fully serve the government’s interests in promoting parental supervision and protecting the well-being of minors.
· believes that the V-chip is of limited effectiveness in protecting children from violent television content.
· observes that cable operator-provided advanced parental controls do not appear to be available on a sufficient number of cable-connected television sets to be considered an effective solution at this time.
· believes that further action to enable viewer-initiated blocking of violent television content would serve the government’s interests in protecting the well-being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional.
· finds that studies and surveys demonstrate that the voluntary TV ratings system is of limited effectiveness in protecting children from violent television content.
· believes that Congress could develop an appropriate definition of excessively violent programming, but such language needs to be narrowly tailored and in conformance with judicial precedent.
· suggests that industry could on its own initiative commit itself to reducing the amount of excessively violent programming viewed by children (e.g., broadcasters could adopt a family hour at the beginning of prime time, during which they decline to air violent content).
· observes that multichannel video programming providers (MVPDs) could provide consumers greater choice in how they purchase their programming so that they could avoid violent programming. (e.g., an a la carte regime would enable viewers to buy their television channels individually or in smaller bundles).
· finds that Congress could implement a time channeling solution and/or mandate some other form of consumer choice in obtaining video programming, such as the provision by MVPDs of video channels provided on family tiers or on an a la carte basis (e.g., channel blocking and reimbursement).
Japanese Magicians Sue Over Broadcast of Secrets
A group of Japanese magicians have sued two networks for revealing the secrets behind several coin illusions. The magicians claim that such broadcasts deprive them of the benefits of their intellectual property, and they are asking for damages and an apology from the networks. Note that some magicians have tried this kind of lawsuit before, in this country, for example in Rice v. Fox Broadcasting Co.(330 F. 3d 1170 (9th Cir. 2003)), a suit over the "Masked Magician" telecasts on Fox TV. In that case, magician Robert Rice sued for copyright infringement and false advertising. He lost.
Google Responds to Viacom Suit
Today's New York Times has an article about the Google response to the Viacom copyright infringement lawsuit. Google calls Viacom's claims "unfounded" and is apparently relying on the "safe harbor" provisions of the DMCA, according to the Times article. Read more here. Here's more in a Reuters article.
April 30, 2007
Internet Safe Harbors
Mark Lemley, Stanford Law School, has published "Rationalizing Internet Safe Harbors," as Stanford Public Law Working Paper 979836. Here is the abstract.
Internet intermediaries - service providers, Web hosting companies, Internet backbone providers, online marketplaces, and search engines - process hundreds of millions of data transfers every day, and host or link to literally tens of billions of items of third party content.
Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.
While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a “notice and takedown” system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.
Download the entire paper from SSRN here.
Creative Commons Licenses and Copyright
Lydia Pallas Loren, Northwestern Law School of Lewis and Clark College, has published "Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright," at 14 George Mason Law Review 271 (2007). Here is the abstract.
The underlying purpose of the Copyright Act, as stated in the Constitution, is to promote the progress of knowledge and learning. Today, the complexities surrounding copyright law confront millions of users of creative works who find it difficult to determine whether a work is subject to copyright protection, difficult to understand what they can and cannot do with these works, and difficult to locate the copyright owner. These high transaction costs facing users create an impediment to the achievement of copyright's constitutional goal. The Creative Commons offers tools embraced by millions of copyright owners to provide clear public use rights broader than those provided by the Copyright Act. This article posits that by selecting to employ the Creative Commons tools, copyright owners are placing their works into a semicommons status. Property that has a semicommons status embodies both important private rights and important public rights that dynamically interact. Creative works with a semicommons status can facilitate the very progress that copyright law is designed to serve. Thus, this article argues that courts should facilitate the growth of this semicommons of creative works by enhancing the reliability of both the private rights that the copyright owners have retained in these works, as well as the reliability of the public rights that the copyright owners have signaled exist through the use of the Creative Commons tools.
Enforcing the private use rights requires appropriately recognizing both copyright infringement claims and breach of contract claims. Enhancing the reliability of the public use rights requires prohibiting a retraction of those rights by the copyright owner, including any attempt at terminating the grant pursuant to provisions contained in the Copyright Act. This article proposes that courts embrace a doctrine of limited abandonment of copyright to clarify the nature of the public rights in works released under Creative Commons licenses and to enhance the overall reliability, and hence value, of the semicommons of creative works.
Download the entire article from SSRN here.
The SSRN Effect
Paul Ohm, University of Colorado Law School, has published "Do Blogs Influence SSRN Downloads? Empirically Testing the Volokh and Slashdot Effects". Here is the abstract.
SSRN's download statistics are criticized for being biased in favor of bloggers. Just how does the supposed bias work, and how strong is it?
This paper reports the results of a small empirical study undertaken in April, 2007. While guest-blogging at the Volokh Conspiracy, the author used a small computer program to collect SSRN Abstract View and Download statistics every fifteen minutes.
The study took on an unexpected dimension when links to some of the author's blog posts appeared in an article on the Slashdot website, one of the most widely-read technology websites. This allowed the author to compare the Volokh Effect with the better known and more often studied Slashdot Effect.
This is a quickly-compiled draft summarizing and analyzing the results.
The odds are very good that the author is collecting data about this abstract page, as well.
Download the paper from SSRN here if you dare.