March 15, 2008
Channel 4 Says It Will Show Fewer American Shows
In order to make a pitch for more public funding, Britain's Channel 4 says it will cut back on US shows like Ugly Betty and Desperate Housewives.
Ritter Family Loses Lawsuit Against Physicians
A jury has found, 9-3, that two physicians who treated actor John Ritter were not negligent as his family alleged. In its verdict it decided that the cardiologist was not negligent for failing to find a torn aorta. Mr. Ritter was diagnosed with a heart attack. The radiologist had advised Mr. Ritter two years earlier to consult other physicians about his health; the actor had not done so. Mr. Ritter's widow, the actress Amy Yasbeck, said, ""I disagree with the jury's decision but I believe in the system and I respect it." She has set up a foundation to study the condition that caused her husband's death. Read more here.
Former Police Officers Sentenced in Murder of Ukrainian Journalist
Three former police officers have been found guilty and sentenced to prison for the murder of Ukrainian journalist Georgiy Gongadze, who was found dead in 2000. But suspicion remains that others involved in the crime may still be at large, including former President Leonid Kuchma, of whose administration Mr. Gongadze was a critic. Read more here in a BBC story and here in an Agence France Press story.
March 13, 2008
Eighth Circuit Reverses Decision of Trial Court As To Publisher in Steinbuch v. Cutler
The Eighth Circuit Court of Appeals has granted Robert Steinbuch's request for discovery on the issue of whether Hyperion Books, the publisher of Jessica Cutler's "sexually explicit novel", has sufficient minimum contacts with Arkansas to allow it to be sued in that state. Mr. Steinbuch is suing for invasion of privacy and intentional infliction of emotional distress. The court affirmed dismissal of Mr. Steinbuch's lawsuit against the other defendants in the case. Read the ruling here.
The Wireless Spectrum and Regulation
Phil Weiser, University of Colorado Law School, and Dale Hatfield, University of Colorado at Boulder, have published "Spectrum Policy Reform and the Next Frontier of Property Rights" in volume 60 of the George Mason Law Review (2007). Here is the abstract.
The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.
This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.
Download the article from SSRN here.
Interpreting the DMCA
Timothy K. Armstrong, University of Cincinnati College of Law, has published "Fair Circumvention" as University of Cincinnati Public Law Research Paper 08-08. Here is the abstract.
Judicial decisions construing the key liability provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201, cluster around two incompatible poles. One set of decisions construes the DMCA's liability provisions broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe. Other cases construe the same language narrowly, stressing the avoidance of anticompetitive market distortions. Both sets of decisions insist that their interpretation is commanded by the literal text of the DMCA. A closer look, however, reveals that both sides have overstated the support they may plausibly draw from the literal text of the statute. The overreading of the statutory text ultimately limits the persuasive reach of both sets of decisions and inhibits the development of a rational body of doctrine under the DMCA.
I argue that the courts' disagreements over the meaning of the DMCA's language obscures what should happen (and may, by some accounts, be happening already): to wit, the development of a set of judge-made exceptions to DMCA liability based upon the courts' historically independent role in copyright policymaking. The same factors that have been thought to justify an expansive copyright policymaking role for the courts support a similarly prominent judicial role in under the DMCA - a role that the courts should not be so quick to relinquish by offering poorly supported statements about what the literal statutory text is perceived to command. The emerging fair circumvention doctrine can explain and justify the courts' divergent decisions in a way that merely parsing the statutory text cannot, and can provide guidance for future courts and litigants. I conclude that the courts should continue to develop fair circumvention exceptions to the DMCA, but should do so (1) explicitly, and (2) based, at least initially, on criteria drawn from existing copyright principles of fair use.
Download the paper from SSRN here.
New Technologies, Copyright Infringement, and Emerging Legal Norms
Jane C. Ginsburg, Columbia Law School, has published "Separating the Sony Sheep From the Grokster Goats: Reckoning the Future Business Plans of Copyright Dependent Technology Entrepreneurs" as Columbia Public Law Research Paper 08-166. Here is the abstract.
U.S. and many other national copyright systems have by statute or caselaw (or both) established rules engaging or excusing liability for facilitating (or, in commonwealth countries, "authorizing") copyright infringement. Taken as a group, they share a goal of insulating the innovator whose technology happens, but was not intended, to enable its adopters to make unlawful copies or communications of protected works. The more infringement becomes integrated into the innovator‘s business plan, however, the less likely the entrepreneur is to persuade a court of the neutrality of its venture. The US Supreme Court‘s 2005 decision in MGM v Grokster, established that businesses built from the start on inducing infringement will be held liable; judges will frown on drawing one‘s start-up capital from other people‘s copyrights. Thus, the inferences entrepreneurs may draw from the Court‘s elucidation of the elements of inducement may advise pro-active measures to prevent infringement from becoming a business asset. As a result, even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements.
This article addresses the evolution of the U.S.‘s judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation of good faith efforts to avoid infringement. The recent announcements of inter-industry "Principles for User Generated Content Services" and of complementary "Fair Use Principles for User-Generated Video Content" suggest that proactive avoidance measures may become a matter of "best practice." The article then turns to the statutory regime of safe harbors established for certain Internet service providers and considers whether the statute insulates entrepreneurs who would have been held derivatively liable under common law norms. Finally, the article compares the U.S. developments with recent French decisions holding the operators of "user-generated content" and "social networking" websites liable for their customers‘ unauthorized posting of copyrighted works.
Download the entire paper from SSRN here.
Translation Available of "Piratebay.org" Case
Henrik Stakemann Spang-Hanssen has published a translation of the "Piratebay.org" court ruling. It is available via SSRN here. Here is an abstract of the case.
This is an English translation of the Danish injunction order in the so-called thepiratebay.org case decided on 5 February 2008 by the Bailiff's Court of Frederiksberg (Copenhagen).
Plaintiffs are the music industry. Defendant is a Danish ISP. The court ordered defendant - a Danish telephone company - to block its customers from access to the Swedish website, which help users get music files from each other.
Indirectly, the case involves the international issue of how to block online access to information or business from foreign countries and thus hinder international exchange of data - one of the main purposes with the Internet.
It also involved the problems copyright holders are having online to protect their interests.
Insurance Company Loses Lawsuit Against Robert De Niro
Fireman's Fund Insurance Company, which insured the film Hide and Seek, has lost a lawsuit against the star of the film, Robert De Niro. The company alleged that Mr. De Niro withheld information that he had been diagnosed with cancer; thus, when the film's production suffered delays after Mr. De Niro was diagnosed with prostate cancer and subsequently underwent treatment, Fireman's Fund was forced to cover the resulting losses and sued the actor for nearly two million dollars. Mr. De Niro's diagnosis came two days after he signed the insurance form. Read more here and here.
ASA: Ad Campaign Goes Too Far--Likely To Be Offensive To Christians
The Advertising Standards Authority has nixed an ad campagin for Ghd for "beautiful hair" created by a Manchester advertising agency because it received 23 complaints that the ads were "offensive to the Christian faith."
Jemella said they had not intended to cause offence. They asserted that the ads were intended to show a deeply held wish by a girl and her expression of a response to that wish. They maintained that the use of the word "thy" was to add drama and weight to the intensity of the girl's wishes.
Jemella argued that the phrase "thy will be done" was only a small part of the Lord's Prayer and was in relatively common usage. They maintained that phrases such as "turning the other cheek", "give us today our daily bread" and "lead me not into temptation" were also biblical phrases that were in common usage and had been used in previous advertising. They believed, although a small number of Christians might be offended by the phrase, the ad was unlikely to cause serious or widespread offence.
Clearcast said they had approved ghd ads with a religious emphasis and the strapline "a new religion for hair" for the past seven years. They said, when they received the script for the ads, they took into account the heritage of the brand and the public perception of ghd through their marketing across all mediums. They noted the use of iconography had been present in previous ads in which halos, rings and religious looking books had all featured. They also pointed out that the ASA had previously not upheld complaints about Jemella's use of the phrase "thou shalt convert". They said "thou shalt not" had been a running theme in ghd ads and several previous ads had adopted the idea of adhering to ghd's rules or of invoking help with making a wish come true.
Clearcast believed the ads did not seek to mock any particular religion and contained language that had been used by ghd for the past seven years across all advertising mediums. They believed the depiction of the letter 't' was not intended to cause offence and appeared as a creative device in the same ambiguous vain as other symbolism used throughout ghd's ads. They said the bottom of the 't' became pointed to emphasise a difference to both the letter 't' and a cross.
Clearcast said they had taken a lot of factors into consideration before clearing the ads; they had considered the precedent, heritage, tone, previous investigations and possible offence at script stage and when viewing the finished ads. They said, although 23 people had objected to the ads, they were satisfied they had prevented anything being broadcast that would cause widespread offence.
The ASA acknowledged that ghd had been using the phrase "a new religion for hair" in their marketing for the past seven years. We considered that ghd's use of the word "religion" in that context did not mock faith or belief, but was intended to refer in the wider sense to an interest or hobby followed with devotion.
We noted, however, that the women in the ads appeared to be in prayer: their hands were clasped and they were looking upwards towards the sky. One was holding a votive candle and another was holding a set of beads that resembled rosary beads. We also noted the images of the women in their bedrooms, some of them in their underwear and others on their beds, were presented in a way that could be seen to be erotic.
We considered that the style of the letter t in the word "thy" closely resembled the Cross of Jesus. We considered that the phrase "thy will be done" from the Lords Prayer and the image of the letter t in the style of the Cross, were likely to have particular significance to members of the Christian faith.
We concluded that the eroticised images of the women apparently in prayer, in conjunction with religious symbols such as the votive candle and the rosary beads, the use of the phrase "thy will be done" from the Lords Prayer and the image of the letter t as the Cross of Jesus, were likely to cause serious offence, particularly to Christians.
The ads must not be shown again in their current form
Read the ASA's ruling here.
The ASA has received complaints about Ghd's advertising campaign before. See here.
Appeals Court Grants Leave To Appeal, Stays Fine, For Former USA Today Reporter
The U. S. Court of Appeals for the D.C. Circuit has granted a stay and allowed former USA Today reporter and current West Virginia University professor of journalism Toni Locy to appeal the ruling issued by U. S. District Court judge Reggie B. Walton that she reveal the names of sources who gave her information about Dr. Steven B. Hatfill.
March 12, 2008
TV News Reporter Assaulted By Angry Family Members
CNN and Fox News report that a local journalist from WSPA-TV in Union, South Carolina, reporting on a possible murder was attacked by members of the suspect's family, who shouted racial epithets. Members of another news crew filmed the attack. The family members have been charged with assault and battery.
March 11, 2008
Former Reporter in Hatfill Case Asks Appellate Court For Assistance
Former reporter Toni Locy, now a journalism professor at West Virginia University, is asking the United States Court of Appeals for the D.C. Circuit to reverse a district court judge's order that she reveal the sources that gave her information about Dr. Steven Hatfill, the plaintiff in a suit against the Department of Justice. Judge Reggie Walton told Ms. Locy to reveal the sources or pay daily fines that might go as high as $5,000 a day; she says she cannot remember the names.
FCC Chair Martin's Address at Stanford
FCC Chair Kevin Martin addressed attendees at the "Legal Futures" conference at Stanford Law School on March 7. Here's the link.
Online Newspapers and Public International Law
Henrik Stakemann Spang-Hanssen has published "A Just World Under Public International Law in Cyberspace: Jurisdiction," in volume 13 of the Annual Survey of International and Comparative Law (2007). Here is the abstract.
In this article, I first state my six steppingstones that I use when dealing with what I have termed pure online (see below First Base) incidents on public international computer networks, where public international law is determining. As for the later, I use the term Global Jurisdiction, which is characterized by a State's jurisdictional rules taken on its wording reaches all alien cybernauts, thus making a Worldwide jurisdiction involving aliens whom can be anywhere in the world (outside the forum state). This term has to be distinguished from Universal Jurisdiction.
Thereafter, I briefly mention the aim of jurisdiction rules, the big problem with the Internet in relation to jurisdiction and when a state under public international law is allowed to legislate (prescribe and adjudicate) and enforce.
Next, I use online newspapers as a pure online example and give some perspectives and mention how different states have tried to exercise global jurisdiction over foreign online newspapers.
Finally, I make some short remarks on how to achieve A Just World under Public International Law for Newspapers in Cyberspace.
Download the article from SSRN here.
MIT-Elsevier Agreement Allows More Use of Copyrighted Materials
The Chronicle of Higher Education reports that MIT and Elsevier, the publishing giant, have come to an agreement that allows MIT to use some of the material from Elsevier's journals in MIT's OpenCourseWare project. This agreement will presumable save MIT a huge headache in heading off copyright concerns. The Chronicle also points out that the International Association of Scientific, Technical and Medical Publishers has agreed to a new policy that will allow limited use of copyrighted material from such professional journals. See here.
MySpace and Social Networking Codes of Conduct
Adam Thierer, Progress & Freedom Foundation, has published "The MySpace-Ag Agreement: A Model Code of Conduct for Social Networking?" as Progress & Freedom Foundation Progress on Point Paper No. 15.1. Here is the abstract.
The agreement between MySpace and 49 state Attorney Generals, which contains several Principles of Social Networking, is a major step forward for online safety. Specifically, these involve technical tools, educational efforts, improved law enforcement cooperation, and the creation of an Internet Safety Technical Task Force. Indeed, many of the principles in the agreement could form a potential model code of conduct that other social networking sites could adopt.
However, some initiatives of concern include the proposed child e-mail registry, where parents would submit addresses that would subsequently be barred from opening a MySpace account, raising questions regarding privacy and security. The registry could also be easily circumvented by simply acquiring an alternate e-mail address. The proposed Task Force must not be a rubber stamp for age verification mandates, as some AGs seemed to imply. Age verification is a complicated technical issue, and it also has profound implications for privacy and freedom of speech.
While the actions taken by MySpace and the Attorneys General to promote online safety do much to subdue the concerns of parents and policymakers, parents need to both monitor their children's activities online and use the many technical and educational tools now at their disposal. If for whatever reason, parents are not taking advantage of these tools and options, their inaction should not be used to justify government regulation as a surrogate for household choice / parental responsibility.
Download the paper from SSRN here.
Evaluating Law Professor Blogs and Blogging
J. Robert Brown, University of Denver School of Law, has published "Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings," as University of Denver Legal Studies Research Paper No. 08-04. Here is the abstract.
Law faculty blogs have been around for much of the new millennium. This article examines these blogs, including their role in the legal scholarship continuum and their growing influence of legal community.
The paper begins with an evolutionary study, noting that law blogging originally began in a state of nature, with few rules governing frequency or content of posts. Increased competition and the emergence of Empire and Captive law blogs, however, has resulted in a growing sense of order on the legal blogosphere.
Perhaps as a result, the influence of law blogs has increased. The paper relies on a list of approximately 130 law faculty blogs and studies the frequency of law review and case citations. The numbers have been undergoing significant growth. The growth is particularly noteworthy given the difficulty in searching for material posted on the Internet.
The paper also studies the impact of law blogging on rankings in the US News. In the short term, blogging can disproportionately benefit law schools and faculty outside the top tier. Blogs can enhance the reputation of the sponsoring faculty member, enable them to route around the biases inherent in the system of law review placements and SSRN downloads, permit a level of participation in the legal debate that might otherwise not be available, and facilitate the dissemination of information important to alumni and other constituencies. Most critically, however, they represent a cost effective mechanism for improving a law school's reputational rankings and, perforce, its overall rankings in the infamous US News and World Report.
Much of the data used in the paper is derived from a list of 130 law faculty blogs, something paired down to the top 50 law faculty blogs. The top 50 was determined based upon a number of ranking metrics. These lists are included as an Appendix to this article.
Download the paper from SSRN here.
March 10, 2008
Irish Court of Appeals Overturns Restaurant Review Case
Eoin O'Dell of Cearta.ie notes that an appellate court has overturned the decision that found the Irish News liable for defamation for a restaurant review. Read more here and here.
[Hat tip to Professor O'Dell].
John W. Mayo, Georgetown University, has published "It's No Time to Regulate Wireless Telephony," at The Economists' Voice (v. 5, issue 1, article 3)(2008). It's downloadable from The Berkeley Electronic Press here.