May 18, 2007
Britain Considers Extending Copyright Protection
The British Parliament may extend copyright protection to correspond to what is available in the United States if it follows the recommendation of a legislative committee. The current law allows rights holders to collect royalties for only 50 years, but the House of Commons committee recommends that that period be nearly doubled, to 95 years. Read more here.
FindLaw's Julie Hilden on Blogger Use of Video Excerpts and Photos
Julie Hilden discusses the fair use exception for blogger use of video and photos, something that is becoming more and more common across the web. See her thoughtful analysis here.
May 17, 2007
There's Something About John Stuart Mill
David O. Brink, University of San Diego, School of Law, has published "Mill's Liberal Principles and Freedom of Expression," to be published in Mill's On Liberty: A Critical Guide (C. L. Ten, ed.; Cambridge University University Press). Here is the abstract.
John Stuart Mill's defense of freedom of expression has proved extremely influential and finds important echoes in First Amendment jurisprudence. Though important in its own right, Mill's defense of freedom of expression also plays an important, though sometimes overlooked, role in his more general defense of individual liberties. Mill turns to freedom of expression in the belief that there is general agreement on the importance of freedom of expression and that, once the grounds for expressive liberties are understood, this agreement can be exploited to support a more general defense of individual liberties. This means that a proper understanding of the significance of Mill's defense of freedom of expression requires not only reconstructing his arguments on behalf of expressive liberties and exploring their bearing on issues of freedom of expression but also seeing how these arguments generalize to other kinds of liberties. In this regard, it is especially instructive to consider how his claims about freedom of expression inform his liberal principles, especially what his discussion of the best grounds for expressive liberties can tell us about the best grounds for opposing paternalism. But it is also worth exploring whether philosophical pressure runs in the other direction as well - whether Mill's discussions of liberalism, in general, and paternalism, in particular, have implications for the proper articulation of principles governing expressive liberties. This perspective requires viewing Mill's defense of freedom of expression in the context of his liberalism.
Download the entire paper from SSRN here .
A Comparison of International and Domestic Copyright Regimes
Graeme W. Austin, University of Arizona College of Law, has published "International Copyright Law & Domestic Constitutional Doctrines" in the Columbia Journal of Law & the Arts for 2007. Here is the abstract.
This paper examines emerging constitutional doctrines that emphasize the relevance of international copyright relations to the constitutionality of domestic copyright law. One line of judicial reasoning suggests that legislation that protects the interests of foreign authors is consistent with copyright's quid pro quo bargain. Another suggests that rational basis scrutiny can be satisfied by a sufficient showing that the challenged legislation advances the bargaining position of the United States in negotiations over the content of foreign copyright laws. To put these developments in context, this paper briefly summarizes the doctrine that has been distilled by recent challenges to the constitutionality of various aspects of U.S. copyright law. It then explores the contours of this new "internationalized" approach to constitutional analysis of copyright law in the domestic context.
Download the entire article from SSRN here.
May 16, 2007
MySpace Says It Won't Comply With Request To Hand Over Info About Sex Offenders
NewsCorp's MySpace, the popular networking site, has told attorneys general in eight states that federal and state laws forbid it to turn over information about sex offenders that might be using its site, but it says it has been removing such users for nearly two weeks. Read more here. MySpace and other social networking sites have been under fire for some time because of "meet-ups" between underage users and sex offenders that some claim are facilitated by the site. In response, MySpace has instituted a policy of prohibiting those younger than 14 from using the site. In February, a federal judge tossed out a lawsuit against MySpace for failure to protect a young MySpace user from assault by another user, saying, "If anyone had a duty to protect Julie Doe, it was her parents, not MySpace." Read more here.
History of U. S. Telecommunications Regulation
Tim Wu, Columbia University Law School, is publishing "A Brief History of American Telecommunications Regulation," in the Oxford Encyclopedia of Legal History (forthcoming).
While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of public infrastructure - similar to other laws governing "regulated industries," yet also influenced by the U.S. First Amendment and antitrust law.
Download the entire essay here.
May 15, 2007
Why Should Reporters Interview By Phone?
Is the telephone interview going the way of the dinosaur? Jeff Jarvis opines here on the power of the blogosphere to set alternative rules to the traditional methods of gathering info for an article.
More on Copyright and Fair Use
Tom Bell, Chapman University Law School, has published "Codifying Copyright's Misuse Defense," in the Utah Law Review for 2007. Here is the abstract.
Although courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b): "It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section." The present paper documents § 107(b)'s codification of the judicial precedents, offers legislative history explaining the proposed statute, and discusses how the new law would work in the real world. Although the proposed codification of copyright misuse would in large part simply rationalize what courts have already said, it would also promote the salutary policy goal of encouraging the owners of expressive works to forego copyright rights in lieu of common law ones.
Download the entire article from SSRN here.
Defamation Law and Google Bombing
Steven J. Horowitz, Harvard Law School, has published the working paper, "Defusing a Google Bomb". Here is the abstract.
Anonymous internet defamation is nothing new, but the recent Autoadmit controversy highlights one particularly difficult aspect of this problem: Google bombing. As private individuals are defamed on popular anonymous message boards, searches on Google and other engines return the defamatory posts as top hits for those individuals. This short essay suggests a notice and takedown solution modeled after the DMCA's similar provisions. I argue that such a solution is much more effective for the Google bomb problem than for copyright infringement because the parties involved are much more likely to have similar legal resources than in copyright disputes.
Download the paper from SSRN here.
May 14, 2007
Tenth Circuit Grants Summary Judgment to Magazine, Photographer for Publication of Photo of Deceased Soldier In Open Casket
The Tenth Circuit has affirmed a lower court decision granting summary judgment on the following claims: "Intentional Infliction of Emotional Distress (Count 1); Invasion of Privacy (Count II)...Violation of Okla. Stat. tit. 21, § 839.1 (Count III); Fraudulent /False Misrepresentation (Count IV); Constructive Fraud, Fraud and Deceit (Count V); Unjust Enrichment (Count VI); and Negligent Hiring, Retention, and Supervision (Count VII)"against defendants Harper's Magazine Foundation and photographer Peter Turnley for publication of a deceased soldier in his casket.
The family had allowed media to attend the funeral but "did not want anyone taking pictures of Sgt. Brinlee's open casket, and they did not want to be interviewed." Nevertheless Mr. Turnley, a renowned photographer, attended the service, took photographs, and later published one along with similar ones as part of a photo-essay entitled "The Bereaved, Mourning the Dead, in America and Iraq" in Harper's Magazine in August 2004. The family sued.
With regard to the IIED claim, the 10th circuit found that "neither the photograph, nor the alleged breach of an agreement by Mr. Turnley constituted conduct that was so extreme and outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."...The fact that the photograph was of a deceased's body is not, standing alone, outrageous, even if it was unauthorized....Further, it is undisputed that the photograph accurately reflects the image of Sgt. Brinlee's funeral and open casket, as seen by the 1200 people in attendance."
With regard to the invasion of privacy claim, "[p]laintiffs assert three of the four branches of the tort of invasion of privacy: (1) appropriation; (2) publication of private facts; and (3) intrusion upon seclusion....For these claims, Plaintiffs rely generally on the Supreme Court's decision in National Archives & Records Administration v. Favish....Favish is inapplicable to this analysis because it relies on a statutory privacy right under the FOIA, not a cause of action for invasion of privacy....Moreover, the Supreme Court's discussion in Favish about the cultural history of burial rights of the deceased and surviving family members is inapposite....This type of intrusion and exploitation of the family's grief has traditionally been considered a violation of the family's privacy rights....Indeed, all of the cases cited by the Court in support of its acknowledgment that the common law has recognized a family's right to control the death images of the deceased, involve death images that are gruesome and none involve images displayed at a public funeral....Courts that have found an invasion of privacy have done so when the case involves death-scene images such as crime scene or autopsy photographs. The photographs here are not death-scene photographs, but images of Sgt. Brinlee in his military uniform that accurately depict the image seen by those who attended his funeral to pay their respects. Coupled with the public nature of this funeral, the photographs are distinguishable from those at issue in Favish."
The court also found the plaintiffs' other statutory claims of no merit. WIth regard to the publication of private facts claim, "We agree with Defendants that Plaintiffs opened up the funeral scene to the public eye and can not, therefore, establish that Defendants disclosed private facts by publishing the Turnley Photo. The local newspaper notified the public in advance of the time and place of Sgt. Brinlee's funeral, and it was held in a high school gymnasium to accommodate the large crowd expected to attend."
With regard to the intrusion claims, "We agree with the district court that there was no genuine issue of material fact about whether Mr. Turnley intruded into the private affairs of Plaintiffs for the same reasons that summary judgment is appropriate on the other privacy claims. Even if the Court assumes Plaintiffs can meet their burden of establishing a genuine issue of material fact that an intrusion occurred, there is no evidence upon which a reasonable jury could conclude that the intrusion was highly offensive to a reasonable person. As already discussed, the photographs accurately depicted a funeral that Plaintiffs held out to the public."
With regard to the fraud claim, "Plaintiffs do not allege a contract existed between the parties, but instead base these claims on an unkept promise. Oklahoma law requires the following elements to establish a claim for a false or fraudulent misrepresentation: (1) the defendant made a material misrepresentation; (2) that was false; (3) the defendant made the misrepresentation knowing it was false, or in reckless disregard of the truth; (4) the defendant made the representation with the intention that it should be acted upon by the plaintiff; (5) the plaintiff acted in reliance upon it; and (6) plaintiff thereby suffered injury....Even if Plaintiffs are correct that the district court misapplied agency principles when it granted summary judgment on the fraud claims, Plaintiffs are unable to establish that when Mr. Turnley allegedly promised Mr. Stephens that he would not photograph the open casket, he did not intend to perform that promise. Under Oklahoma law, the general rule is that when a false representation is the basis of the fraud, that representation must relate to existing facts or previously existing facts, and not to promises of some future act....
"Plaintiffs are unable to point the Court to evidence of Mr. Turnley's intent at the time he spoke to Mr. Stephens on the phone prior to the funeral. Instead, they argue that the issue is one of credibility, which should be made by a jury. Yet Plaintiffs produce no evidence refuting Mr. Turnley's stated lack of intent, nor any evidence disputing the credibility of Mr. Turnley's statement that he lacked such intent."
The case is Showler v. Harper's Magazine Foundation, 35 Med. L. Rptr 1577 (2007), decided March 23, 2007. Read the entire ruling here.
BBC, Scientologists, On the Internet
The Beeb and the Church of Scientology dispute over a BBC reporter's use of the word "cult" in a documentary due to be broadcast tonight and his subsequent explosion over the ramping up of the dispute (caught on videotape) is on the 'net. Read more about the situation here and here.
Extreme Makeover: Home Edition Lawsuit Goes To Court
That Extreme Makeover: Home Edition lawsuit is proceeding to court. Read more here. It's not the first complaint ABC has received about such shows. A woman who thought she had been accepted as a contestant on a sister show but was turned away claims the producers' ill-treatment of her and her family eventually led to her sister's suicide. Read more here.
May 13, 2007
Polish Constitutional Court Rules on Lustration Law
Poland's Constitutional Court has ruled that the country's new lustration law, a statute which requires as many as 700,000 individuals to reveal whether they cooperated with the former Communist regime, is unconstitutional. The senior judge announced that the law might be applied to senior officials, but not to the many politicians, businesspeople, and journalists, among others, who were targeted. The current President, angered by the ruling, indicated that his government might make the contents of currently secret police files public. Read more here. Read about the feared consequences of the law here.