Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Saturday, April 19, 2008

Regulating Language on the British Airwaves

Mark Lawson discusses offensive language and its regulation on the British airwaves in this piece for the Guardian. Here's an excerpt.

You might think that, at the moment, the television regulator Ofcom doesn't know whether it's coming or going on the question of whether it's permissible to speak on TV the slang words for, well, coming and going. This week it turned down complaints about the use of the F-word in The Catherine Tate Christmas Special, but, a few days earlier, had forced the BBC to make a long on-screen apology for sexual and scatological language during the Live Earth concerts.

...

There are other confusions. Strikingly, in refusing the Catherine Tate complaints, the watchdog ruled that words are no more offensive on Christmas Day than on any other date, a refutation of the traditional television view that swearing on Good Friday was worse than on October 5.

And yet, paradoxically, time of day does still seem to matter. The severe sanctions against Live Earth seem to have resulted from the fact that it was transmitted largely before the notional children's bedtime - "the watershed" - of 9pm. And much of the sensitivity over what can come out of mouths on television results from the assumed risk of corrupting innocence.

April 19, 2008 | Permalink | TrackBack (0)

The Harry Potter Lexicon Lawsuit May Be Legally Justified, But May Also Be a Bad PR Idea

One commentator remarks that when Rowling roars, some of her fans may roar back.

April 19, 2008 | Permalink | TrackBack (0)

Friday, April 18, 2008

Journals May Turn To Plagiarism Software To Sniff Out Academic Copying

The Chronicle of Higher Education notes that journals may soon go on technological automated plagiarism patrol to verify that their academic authors don't fail to give credit where credit is due, and forbear recycling their own research, with software programs like CrossCheck, a program marketed by iParadigms, which also makes iThenticate and Turnitin, other plagiarism detection software products. For more on the problem, see this recent article on copying and plagiarism in scientific journals.

April 18, 2008 | Permalink | TrackBack (0)

U.S. District Judge Allows IIED Claim Against NBC "To Catch a Predator" To Go Forward

In Conradt v. NBC Universal, the U.S. District Court for the Southern District of New York refused to dismiss NBC's motion to dismiss the plaintiff's suit for intentional infliction of emotional distress and two civil rights claims based on its actions in working with local law enforcement during filming of an episode of its television series "To Catch a Predator." Plaintiff is personal representative of her brother's estate.

As the district judge indicated, "On November 5, 2006, Louis William Conradt, Jr. ("Conradt") -- an assistant district attorney in Texas -- shot himself in his home as he was about to be arrested by the police for attempting to solicit a minor online. Waiting outside the house were members of the cast and crew of the national televison news show Dateline NBC ("Dateline"). They were there to film Conradt's arrest for a segment of "To Catch A Predator" -- a show that works with local police departments and an on-line "watchdog" group called Perverted Justice to identify and arrest "sexual predators." Apparently unable to face the humiliation of the public spectacle that faced him, Conradt took his own life. In this case, Conradt's sister, Patricia Conradt, sues defendant NBC Universal... alleging that Dateline is responsible for her brother's death and the harm to his reputation and "good name." On behalf of herself and his estate (the "Estate"), she seeks in excess of $ 100 million in compensatory and punitive damages. NBC moves, pursuant to Rule 12(b)(6)...to dismiss the amended complaint for failure to state a claim upon which relief may be granted. NBC argues, among other things, that it owed Conradt no duty to protect him from suicide and that neither it nor the police violated Conradt's rights under the Fourth Amendment to be free from unreasonable searches and seizures. It alleges further that its alleged conduct was not "extreme and outrageous" in the sense required under Texas law for a claim of intentional infliction of emotional distress. Although many of plaintiff's claims will be dismissed, the principal claims survive, for if the allegations of the amended complaint are proven, a reasonable jury could find that NBC crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement. Rather than merely report on law enforcement's efforts to combat crime, NBC purportedly instigated and then placed itself squarely in the middle of a police operation, pushing the police to engage in tactics that were unnecessary and unwise, solely to generate more dramatic footage for a television show. On the facts alleged in the amended complaint, for example, a reasonable jury could find that there was no legitimate law enforcement need for a heavily armed SWAT team to extract a 56-year old prosecutor from his home when he was not accused of any actual violence and was not believed to have a gun, and that this was done solely "to sensationalize and enhance the entertainment value" of the arrest. A reasonable jury could find that by doing so, NBC created a substantial risk of suicide or other harm, and that it engaged in conduct so outrageous and extreme that no civilized society should tolerate it."

With regard to the 1983 claim, the judge wrote, "To prevail on [a] § 1983 claim, a plaintiff must show that (1) the defendant acted under color of state law and (2) the defendant's actions deprived plaintiff of her constitutional rights or privileges....As to the first element, although NBC is not a "state actor," the amended complaint alleges that the actions of the police officer must be imputed to NBC.... NBC does not dispute this allegation for purposes of this motion....Accordingly, for purposes of this motion only, I assume the first element is met. As to the second element, plaintiff alleges that Conradt's constitutional rights were violated in two respects: (1) he was subjected to an unreasonable search and seizure, in violation of the Fourth Amendment ..., and (2) he was deprived of life, liberty, and property without clue process of law, in violation of the Fourteenth Amendment....

"I discuss the Fourth Amendment claim first and the Fourteenth Amendment claim second....At this early stage of the litigation, I conclude that a fair issue exists as to the reasonableness of the police officers' (and NBC's) actions in this case. Based on the allegations of the amended complaint, I conclude that a reasonable jury could find that the intrusion on Conradt's privacy substantially outweighed the promotion of legitimate governmental interests. If the facts alleged in the amended complaint are true, the intrusion was great -- Dateline was camped outside Conradt's house with cameras and crew, waiting to film his arrest for a national television show, as a SWAT team entered his home. On the other hand, the extent to which the search was necessary to promote a legitimate governmental interest is debatable. Although there are legitimate reasons for publicizing arrests...the amended complaint plausibly asserts that many of the police officers' actions were motivated not by a genuine law enforcement need, but by Dateline's desire for more sensational footage....For example, on the circumstances presented, a reasonable jury could find that the following decisions and actions of the police officers were motivated at least in part by Dateline's involvement...Certain other actions also would appear to be deviations from prudent law enforcement practice. In the operations at the sting house, for example, the police permitted Dateline to interview the suspects first, before the police interviewed them. And in his interview with Dateline after Conradt's suicide, the Murphy police chief was willing to speculate on camera as to what a forensic examination of Conradt's computers might show....Here, although the amended complaint does not allege that Dateline representatives entered the house, it does plausibly allege, in substance, that Dateline personnel were "active participants in planned activity that transformed the execution of [the warrants] into television entertainment." The amended complaint alleges that the Dateline representatives did not just have a "passive role, as observers," but that they were involved in the planning, and that, indeed, they purportedly pushed the police officers into dramatizing their actions for the benefit of the television cameras. Moreover, the amended complaint alleges that Dateline personnel trespassed onto Conradt's property. NBC steadfastly denies these allegations, but for purposes of this motion to dismiss, of course, I must assume the allegations are true. NBC argues that, even assuming the allegations of the amended complaint are true, Conradt's Fourth Amendment claim is barred as a matter of law because the police officers had arrest and search warrants that authorized them to enter the house, which thus insulated them from liability....The argument is rejected, for in the circumstances alleged here, the issuance of the warrants does not insulate the officers and NBC from liability....

"To sustain a § 1983 claim based on a Fourteenth Amendment due process violation, a plaintiff must show that (1) she possessed a liberty or property interest protected by law and (2) she was deprived of that interest without due process....In moving to dismiss this claim, NBC argues principally that under Texas law a party has no duty to prevent the suicide of another and that generally suicide is an intervening cause that breaks the chain of causation in a civil action for personal injury or wrongful death....Moreover, while acknowledging the "special relationship" cases where courts have imposed a duty on the state to protect individuals in their custody (for example, prisoners and involuntarily committed mental patients) from committing suicide, NBC argues that in those cases the state officials "'knew of a substantial risk that the detainee might commit suicide and violated the detainee's rights by responding with deliberate indifference.'"... NBC contends that here there is no allegation that anyone knew that Conradt posed a risk of suicide, as the amended complaint does not allege that Conradt threatened to commit suicide or exhibited any sign of a suicidal tendency....NBC's arguments are rejected. As an initial matter, the Estate is suing not just for the suicide, but for other injuries as well, including, for example, the invasion of Conradt's privacy, the intrusion into his home, and the public ridicule and loss of his good name....The claims for damages for these injuries are independent of the suicide (at least to some extent) and would survive even assuming the suicide were deemed an intervening cause in the chain of causation. Similarly, the manner in which the police arrested Conradt -- with the involvement of a dozen or so armed police officers -- surely presented risks other than suicide, including the risk that Conradt or someone else would be shot or otherwise injured. More importantly, with respect to the suicide, I conclude that the amended complaint alleges sufficient facts to render plausible plaintiff's claims that (1) the suicide was foreseeable, (2) the police officers had a duty to take steps to protect Conradt from taking his own life, and (3) the police officers and NBC acted with deliberate indifference and in a manner that would shock one's conscience."

...

With regard to the intentional infliction of emotional distress claim, the judge wrote, "Under Texas law, to recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.... In moving to dismiss the Estate's claim for intentional infliction of emotional distress, NBC makes two principal arguments. First, it notes that "'a plaintiff may not assert a claim for intentional infliction of emotional distress merely because of his inability to prevail on another theory of relief designed to address the gravamen of his complaint,'" and argues that plaintiff here is seeking to do just that....Both arguments are rejected. First, while intentional infliction of emotional distress is "a 'gap-filler' tort never intended to supplant or duplicate existing statutory or common-law remedies,"...it is premature to  [*40] dismiss the claim on these grounds at this time. The tort was created "for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress."...On the facts alleged in the amended complaint, plaintiff's contention that this is one of "those rare instances" is plausible. Plaintiff may very well be able to show that there is an independent basis for a claim of intentional infliction of emotional distress. Moreover, I do not believe plaintiff is asserting this claim as a means to circumvent impediments to other claims, and, in fact, I have held that she may proceed with her claims under [sec. 1983]. Finally, of course, plaintiff is permitted to plead "in the alternative," under Rule 8(a) of the Federal Rules of Civil Procedure, and she is doing so here. If NBC so desires, I will revisit this issue at the summary judgment stage, when I will be in a better position to decide whether "the gravamen of . . . plaintiff's complaint is really another tort" or claim. Id. Second, I conclude that reasonable minds could differ as to whether NBC's conduct was so "outrageous and extreme" as to exceed all possible bounds of decency....The amended complaint, however, alleges far more -- it alleges that NBC intruded into a law enforcement operation to such an extent that the police officers deviated from sound police practice, solely for the sake of creating a more dramatic television show. It alleges that what happened here was neither news nor law enforcement, but a blurring of the two with a tragic consequence -- to avoid public humiliation, an otherwise law-abiding man was shamed into committing suicide, before he had been charged by any court, before he had any opportunity to be heard. Significantly, two of the circumstances that give rise to a finding of outrageousness are arguably present here: NBC was in a position of power, both with its ability to disseminate information to the public and with its apparent influence over the police, and NBC knew or should have known that Conradt was peculiarly susceptible to emotional distress and suicide. In considering whether NBC's conduct was outrageous, a jury could take note of the fact that, as alleged in the amended complaint, NBC failed to act "ethically" and violated "numerous journalistic standards."...The reporter-subject relationship is not monitored by statute, but the profession is guided by self-enforced principles and standards of practice. Although unethical conduct, by itself, does not necessarily equate to outrageous conduct, the failure to abide by these journalistic standards may indeed be relevant to the jury's determination of whether Dateline acted in a reckless and outrageous manner. ...In the circumstances alleged in the amended complaint, a reasonable jury could find that Dateline violated some or all of these standards by failing to take steps to minimize the potential harm to Conradt, by pandering to lurid curiosity, by staging (or overly dramatizing) certain events, by paying Perverted Justice and providing equipment and other consideration to law enforcement, by failing to be judicious about publicizing allegations before the filing of charges, by advocating a cause rather than independently examining a problem, and by manufacturing the news rather than merely reporting it. In light of the consequences here, an "average member of the community" could find that NBC abused its power -- the power of the press enhanced by the involvement of law enforcement -- in reckless disregard of Conradt's rights, in a manner that overstepped "all possible bounds of decency." NBC's motion is denied to the extent it seeks dismissal of the claim for intentional infliction of emotional distress."

Read the entire ruling here. The case is Conradt v. NBC Universal, 536 F.Supp.2d 380 (S.D.N.Y.2008).

April 18, 2008 | Permalink | TrackBack (0)

NBC Explores Line Between Entertainment, Product Placement

A new NBC division will assist advertisers in selling products to audiences, according to this story from the AP. NBC Universal Digital Studio will specialize in creating programs centered on advertisers' products. The first two series in the spotlight? A Rosario Dawson vehicle called "Gemini Division" and something called "Woke Up Dead" about zombies who go to college. No jokes about whether that's fiction, please. Here's more from the Hollywood Reporter and Mediaweek.

April 18, 2008 | Permalink | TrackBack (0)

Thursday, April 17, 2008

Zimbabwe Releases Times Reporter, British Journalist

The New York Times reports that its reporter Barry Bearak has been released by Zimbabwean officials. A Zimbabwean magistrate ruled that the prosecutor had failed to produce that the defendants had broken any law. British reporter Stephen Bevan has also been released. Mr. Bearak is on his way to South Africa. Read more here.

April 17, 2008 | Permalink | TrackBack (0)

Reaction To the Copyright Infringement Lawsuit Against Georgia State

The Chronicle of Higher Education tracks reaction to that publishers' lawsuit against Georgia State University here.

April 17, 2008 | Permalink | TrackBack (0)

New Film Arouses Opposition Among London Underground Drivers

Drivers on the London Underground (the Tube) are protesting a new film, Three and Out, starring Mackenzie Crook (Pirates of the Caribbean: The Curse of the Black Pearl); the plot centers on a driver who seeks out someone willing to commit suicide by throwing himself or herself under the train so the driver can collect a lump sum compensation. The union for the Tube drivers maintains that while the film is a comedy, audiences should recognize that such events are distressing. The film's producers say the issues in the film have been handled "sensitively." Read more here.

April 17, 2008 | Permalink | TrackBack (0)

Darwin's Drafts

Want to read Charles Darwin's first draft of what evolved into The Origin of Species? It's now available online. Read more here and check out what technology hath wrought here.

April 17, 2008 | Permalink | TrackBack (0)

SAG, Independent Studio Ink Deal

The Screen Actors Guild (SAG) and the Alliance of Motion Picture and Television Producers (AMPTP) talks are continuing, but meanwhile SAG has crafted a deal with the indie company The Film Department that would ensue work for its members in case of a strike. Read more here.

April 17, 2008 | Permalink | TrackBack (0)

Judge Allows Copyright Infringement Suit To Proceed Against State Employee

The Chronicle of Higher Education notes that a federal judge dismissed a copyright infringement case against the Board of Regents of California State University, based on a sovereign immunity claim, but is allowing the case to proceed against an employee of San Diego State University, part of the Cal State system. The plaintiffs, Marketing Information Masters, alleged "copyright infringement, conversion, misappropriation and unfair business practices" against both defendants. Read the ruling here.

April 17, 2008 | Permalink | TrackBack (0)

Wednesday, April 16, 2008

Duke University Fails to Shut Down Website

Duke University has lost in its attempt to close down a website that tracks the lawsuit filed against it by the Duke lacrosse players. The University had argued that the website violates a North Carolina State Bar rule. Here's more on the story from the Chronicle of Higher Education blog.

April 16, 2008 | Permalink | TrackBack (0)

The Teachable Moment

USC film student Alice Mathias writes about the limiting of free expression for what seem like good reasons--fear of campus violence--in this essay for the New York Times. How do you balance the First Amendment and school safety?

April 16, 2008 | Permalink | TrackBack (0)

Settle This, "Potter" Judge Tells Parties

According to this AP account, the judge in the Harry Potter "Lexicon" case has told the parties they should try to settle their differences out of court. Judge Robert Patterson told Ms. Rowling and RDR Books, "“I think this case, with imagination, could be settled." The plaintiffs rested their case today. Read more here.

April 16, 2008 | Permalink | TrackBack (0)

Publishers Sue Georgia State Over Copyright Infringement

Three publishers are suing Georgia State University for copyright infringement, alleging “systematic, widespread, and unauthorized copying and distribution" of numerous copyrighted materials. The publishers are Sage, Oxford and Cambridge. The University has not commented on the lawsuit, but the Association of American University Presses, in supporting the publishers, said in a statement released today that

In todayʼs universities, it is increasingly rare for students to buy assigned books at the campus bookstore or purchase coursepacks at the local copyshop. Instead, professors often distribute assigned course readings electronically through digital course management, e-reserves, or similar systems. While many universities seek legally required permissions, others do not and simply distribute substantial excerpts from books and journals without permission or compensation. This has become a significant problem for university presses, who depend upon the income due them to continue to publish the specialized scholarly books required to educate students and to advance university research....The basic legal issue in the suit, namely whether permissions are required for course materials, was forcefully addressed in Basic Books v. Kinkoʼs Graphics Corp. (1991), which held that the coursepacks sold by Kinkoʼs required the payment of permissions fees to publishers, and that the reproduction of a single chapter was “quantitatively [and] qualitatively substantial” under the Copyright Act. While AAUP respects the doctrine of fair use, which permits spontaneous and limited uses of copyrighted material for instruction, it is clear that universities need to seek permission for more regular and substantial uses of excerpts in coursepacks and other assigned reading. That the delivery method for coursepacks is digital rather than print-on-paper does not change the nature of the use or the content, and such uses are governed by the same legal principles established in earlier cases....

Many universities have understood these realities and have promulgated strong institutional policies on the digital use of copyrighted materials. Over the last two years, publishers have had productive discussions with several universities including Cornell, Syracuse, Marquette and Hofstra, all of whom have recently adopted sound copyright policies about the use of digital course materials. Several mechanisms currently exist for universities to obtain clearance for the use of these materials, whether through individual publishers or the Copyright Clearance Center. While many universities have adopted a centralized approach and treated electronic course materials as they do paper, Georgia State has flatly rebuffed repeated attempts by publishers to work toward an acceptable university policy and has continued to foster a system of widespread copyright abuse. The decision to file a suit is never easy, and always a last resort. It is particularly painful for non-profit publishers to sue a university, even if in this situation it was unavoidable. “It feels like suing a member of the family” said AAUP Executive Director Peter Givler. “Unfortunately, the alleged infringement is like stealing from a member of the family.”

Read the entire statement here. Read more about the suit here in a post from the Chronicle of Higher Education blog.

April 16, 2008 | Permalink | TrackBack (0)

French National Assembly Takes Aim at Websites That Promote Thinness

That anti-anorexia French bill passed by the National Assembly earlier this week also targets websites and print publications, according to this article in the Independent. "Although the law would also apply to magazines, it is mostly aimed at internet sites and blogs which have sprung up in France in the past two years. These sites, which also exist in the UK, worship extremely thin female celebrities, including Nicole Richie and Victoria Beckham."

April 16, 2008 | Permalink | TrackBack (0)

Yesterday's Harry Potter Testimony

Steven VanderArk testified yesterday in the Harry Potter lawsuit, and was apparently quite emotional on the stand, according to New York Times reporter Anemona Hartocollis.  Meanwhile, the blogosphere abounds with Potterisms, or at least titles: Harry Potter and the Supernatural Courtroom (from Gawker); Harry Potter and the Presentation of Power (from Mediabistro); J. K. Rowling and the Courtroom of Muggles (from the New York Times's Jennifer 8 Lee); Harry Potter and the Testimony of Fire (from MediaBistro); Fairuse Obliteratus (from Ars Technica); Harry Potter Goes to Court (P2P.net).

April 16, 2008 | Permalink | TrackBack (0)

ASA Says easyJet Easter Ad Campaign Laid an Egg

The Advertising Standards Authority told airline easyJet that the Easter ad campaign it ran last year with the tag line "Up to 25% off every seat, every route, every day" was misleading since some seats sold for more than they would have right before the campaign began, and some were the same price as before the sale. easyJet said its prices are "dynamic" and increase as demand increases. Nevertheless, said the ASA, easyJet may not use the same ad campaign unless it tells customers prices for seats may increase during the campaign.

Here's part of ASA's ruling.

The ASA noted the evidence submitted by easyJet. We acknowledged the documentation showed discounts of up to 25% were available on every seat, every day of the available period between 14 March and 30 June. We also acknowledged that the promotion applied to all easyJet routes, regardless of whether they departed or landed in the UK. We considered the evidence showed that the maximum discount of 25% applied to 10% of the fares included in the promotion, and that that constituted a sufficient proportion of the available fares. We also considered that the pricing structure information submitted by easyJet showed that for most of the promotional period, customers could purchase flights at a rate that was cheaper than in the period before the promotion. However, we noted that the information also showed that, towards the end of the promotional period, fares on some routes had been increased due to demand, and that as a result some customers would pay more for their flights than if they had booked tickets in the period immediately before the promotion began. We considered that, because the ad stated "Up to 25% off Every seat, every route, every day", most customers would expect fares to be cheaper than if they had booked tickets in the period immediately before the promotion began on "every seat, every route, every day", for the whole of the promotional period. Because that was not the case we concluded that the ad was misleading.

Read the entire adjudication here.

Read more here.

April 16, 2008 | Permalink | TrackBack (0)

Daily Telegraph Journalists Hold Off On Strike

The Guardian reports that the anticipated labor action at the Daily Telegraph is delayed, even though management let go two long-time journalists, a married couple, and the entire customer relations department. The National Union of Journalists local intends to wait to see how the paper's owners plan to proceed. Read more here.

April 16, 2008 | Permalink | TrackBack (0)

Tuesday, April 15, 2008

French Legislature Considering Bill That Would Ban "Inciting" Anorexia

The National Assembly of France has passed a bill that would make it illegal to "incite" people to make themselves too thin, this after a Brazilian model died from the effects of anorexia. The bill's sponsor is Valery Boyer. The fashion industry generally has already moved toward de-emphasizing ultra-thinness over the past year. Read more here and here.

April 15, 2008 | Permalink | TrackBack (0)