May 2, 2008
Judge Hands Down Decision on Internet Royalties Rate
U. S. District Judge William O'Connor has devised a method for determining royalties owed by Yahoo, AOL, and RealNetworks to members of ASCAP. The parties have been waiting for such a formula for years, and the bills have been piling up. The fee Judge O'Connor came up with amounts to 2.5 percent of adjusted music-use revenue and will result in millions for ASCAP and its members. Here's a link to the ruling. Here's some reaction from the blogs: Technewsblog; The Hollywood Reporter, Esq.; and Broadcastlaw.blog.
Who Owns Lennon Tapes?
Yoko Ono Lennon is suing World Wide Video over 10 hours of footage shot by Mrs. Lennon's ex-husband Anthony Cox of John Lennon, Mrs. Lennon and their children, claiming that she owns the rights to the video, which she purchased from a third party in 2002. But World Wide claims that it acquired the video from Mr. Cox in 2000. The situation is complicated by alleged theft by yet another party. Good enough for a Law and Order episode. Read more here.
More On That eBay-Craigslist Lawsuit
We're finally getting a look at the complaint in the eBay-Craigslist lawsuit. According to a Craigslist blogpost, it's all about the ads.
1. Ebay is suing us for implementing a shareholder rights agreement, which it has called a “poison pill”. Here is a 2004 filing by Ebay regarding an increase in authorized shares, which it reserves the right to use for the purpose of implementing a poison pill:
2. Ebay is suing us for offering each of our shareholders the opportunity to exchange their shares for an incrementally larger number of shares bound by a “right of first refusal” agreement, whereby shares must be offered to craigslist on the same terms offered to any other potential acquirer. It had previously insisted that craigslist shareholders be bound by a right of refusal agreement, and has from time to time bound shareholders of Ebay and its various subsidiaries by right of first refusal agreements.
3. Ebay is suing craigslist for implementing an indemnification agreement, which calls for craigslist to pay legal fees for craigslist directors and officers should they be sued individually in the course of their duties. Here is a 1998 filing by Ebay regarding a similar indemnification agreement for its own directors and officers;
4. Ebay is suing us for implementing staggered board elections. Here is a 1999 filing by Ebay indicating that Ebay itself is no stranger to staggered board elections:
eBay now has a competing online ad site, Kijiji. Craigslist considers that this site competes directly with it and wants to reacquire the shares that eBay purchased in Craigslist some years ago. Read more here.
Complaints About Greenwashing Up, According To ASA
The Advertising Standards Authority reports receiving a record number of complaints about corporate environmental practices--an activity called "greenwashing." Read more here.
"Sex Pest" Story Costs London Standard Nearly Six Hundred Thousand Pounds
The London Standard's story labelling an Air India executive a "sex pest" will cost it 85,000 pounds in damages and about half a million pounds in legal fees, after a jury decided that the paper failed to prove that its story was substantially true. The judge in the case did allow the paper time to appeal. Read more here.
Unfair Dismissal Case Against al-Jazeera Adjourned For Four Months
An employment discrimination case brought by Jo Burgin against the al-Jazeera network has been put off for four months. Ms. Burgin alleges that she did not have her contract renewed for gender, race and religious reasons. Read more here. Al-Jazeera lost a case of unfair dismissal earlier this year to another English journalist.
Sudanese Cameraman Released From Guantanamo Bay Detention
U.S. authorities have freed Sami al-Haj, a cameraman who was arrested while on assignment for al-Jazeera in Afghanistan in 2002 because the government believed he was working with al-Qaeda. The U.S. government held him at the facility at Guantanamo Bay without charge until this week. Yesterday his lawyer, Clive Stafford Smith, indicated that Mr. al-Haj was enroute home to the Sudan. The Sudanese government has agreed that he will not be allowed to work as a journalist and will be barred from leaving the country. Mr. al-Haj is believed to be suffering from throat cancer. Read more here in a Guardian story and here in a Reporters Without Borders update.
Media Access To Government Records: Getting It and Keeping It
Catherine Cameron, Stetson University College of Law, has published "Not Getting to Yes: Why the Media Should Avoid Negotiating Access Rights." Here is the abstract.
This article cautions proponents of public access to government records from negotiating over the right to access. As support for this warning, this article details the high-profile events that lead to closure of access to autopsy and crime scene photographs in Florida, including the deaths of Dale Earnhardt and Gianni Versace, a killing spree by executed serial killer Danny Rollings, and the tragic death of Carlie Brucia, and focuses on how access to autopsy and crime scene photographs may have been greater had the media not chosen to negotiate over access.
Download the paper from SSRN here.
May 1, 2008
Turkish Parliament Amends Penal Code, Changing Crime of "Insulting Turkishness" To "Insulting Turkish Nation"
The Turkish Parliament has amended Penal Code section 301, that law that allowed academics and others who criticized the nation and its officials, among other things, to be prosecuted for "insulting Turkishness", to something that looks like a more narrow crime--"insulting the Turkish nation." But it's not clear that "insulting the Turkish nation" is distinguishable from "insulting Turkishness". Read more here and here.
The Debate Over Larry Lessig's "Free Culture"
The Chronicle of Higher Education reports on the current debate over Lawrence Lessig's 2004 book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, which some of his intellectual opponents categorize as anti-free enterprise. Read more here.
April 30, 2008
The Use of Rhetoric When Discussing Intellectual Property Law
Patricia Louise Loughlan, University of Sydney, has published "`You Wouldn't Steal a Car': Intellectual Property and the Language of Theft," at 29 European Intellectual Property Review 401 (2007). Here is the abstract.
It is actually quite easy to tell a good guy from a bad guy when one of the guys is being called a thief. He is the bad guy. It is in fact quite hard to think of a thief as any sort of good guy at all once you have begun thinking about him, even just impressionistically, as a thief.
This paper will scrutinise and consider the legitimacy of the pervasive rhetorical use of the language of 'theft' in intellectual property discourse. That language, comprised of words like 'theft', 'thief', 'stealing' 'burglar's tools' and occasionally even 'robbery,' is increasingly employed to describe the unauthorised use of intellectual property, so that new social meanings become attached to acts such as the digital transfer of a musical file or a film:
YOU WOULDN'T STEAL A CAR
YOU WOULDN'T STEAL A HANDBAG
YOU WOULDN'T STEAL A TELEVISION
YOU WOULDN'T STEAL A DVD
DOWNLOADING PIRATED FILMS IS STEALING
STEALING IS AGAINST THE LAW
Download the article from SSRN here.
Authors Criticize Company For Filing Defamation Lawsuits
In a letter sent to Sir Terry Leahy, head of Tesco, several authors have come out against the supermarket leader's recent filing of defamation actions against its critics in Thailand. They include Lisa Appignanesi, the current President of the English section of PEN (Poets, Essayists, and Novelists), the international association of writers. Tesco is also pursuing a defamation action against the Guardian newspaper. Read more here.
RIAA Sends Out Even More Piracy Notices, Right At the End of the Year
The Chronicle of Higher Education reports a startling increase in the receipt of piracy notices by colleges and universities from the RIAA. Read more here.
What Ever You Write, Be Fair (It's For Class Use)
Peter B. Friedman, of the Case Western Reserve Law School faculty, is using a class blog to supplement his teaching: the subject is copyright. Read more here, and check out Professor Friedman's class blog here.
April 29, 2008
Girl Gone Really, Really Annoyed
Ashley Alexandra Dupre, the "Kristen" of the Eliot Spitzer affair, has sued Joe Francis, the founder of the "Girls Gone Wild" empire for ten million dollars, for misappropriation and unfair business practices, and also claiming she was underage and under the influence of alcohol when she gave her consent to be filmed five years ago. Said Mr. Francis, "It is incomprehensible that Ms. Dupre could claim she did not give her consent to be filmed by Girls Gone Wild, when in fact we have videotape of her giving consent, while showing her identification." He had offered Ms. Dupre one million dollars to appear in a video for his company before one of his employees discovered they already had film of her from 2003. Mr. Francis just finished some time behind bars for putting other underage girls on film in Florida. Read more here.
And Now For Something a Little Different
Timothy Sandefur, Pacific Legal Foundation, Economic Liberties Project, has published "A Critique of Ayn Rand's Theory of Intellectual Property Rights," at 9 Journal of Ayn Rand Studies 169 (Fall 2007). Here is the abstract.
Ayn Rand viewed copyrights and patents as natural rights that were secured by legislation, rather than as monopoly privileges that were created by the state. Other Objectivist writers have followed suit. This article disputes this thesis on the grounds that it fails to recognize the distinction between the right to use and the right to exclude, the latter of which cannot be justified with regard to intellectual property on Objectivist premises. In addition, the article discusses three significant objections to the natural-rights interpretation of copyright that Objectivist authors have failed so far adequately to address.
Download the paper from SSRN here.
A Comparative View of Copyright Law After the Bittorrent Case
Mary Sai Wan Wong, Franklin Pierce Law Center, has published "The Exclusive Rights of `Distribution', `Communication to the Public', and `Making Available' Under the WIPO Copyright Treaty: Lessons for Other Jurisdictions from the Hong Kong Bittorrent Case." Here is the abstract.
Articles 6 and 8 of the 1996 WIPO Copyright Treaty prescribe minimum standards for the distribution (or making available) and public communication of copyrighted works, with resulting national implementations that have been varied and inconsistent. This article examines the state of current copyright law in the United States, the United Kingdom, Australia and Singapore, in light of the 2007 landmark BitTorrent criminal copyright case from Hong Kong, and concludes that the lack of international norms and uniformity remains a cause for concern in the digital age, where online activities blur the line between physical and intangible distribution and communication. This concern is illustrated by the current spate of ongoing litigation in the United States regarding the distinction between reproductions and distributions by users of peer-to-peer filesharing technology.
Download the paper from SSRN here.
Balancing Privacy and the Right to a Fair Trial
Susan Duncan, University of Louisville Law School, has published "Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy," in the Ohio Northern University Law Review for 2008. Here is the abstract.
The growth and influence of nontraditional media and the convergence of these technological platforms on mainstream media brings a host of new issues surrounding media coverage of high profile trials. Hardly a new phenomenon, the media has made a business of covering high profile trials since before the founding of this nation. But the advent of blogs in 1999 and the growing influence they have on the public further complicates the issue. In addition, adoption of more nontraditional delivery platforms, such as blogs, by traditional media as they strive to retain and enlarge readership confirms the growing influence of these nontraditional sources of information for the public. The impact this technology has on the controversy surrounding media coverage of trials, especially celebrity prosecutions, provides ample fodder to ask whether current United States' media practices and the courts' regulation of these practices best serve the individuals involved, the public and the criminal justice system.
Any response to this pretrial publicity explosion needs to be rethought in light of today's new world of communication. This Article analyzes and evaluates many of the current approaches used to balance pretrial publicity against the right to a fair trial and the right to privacy. Concluding these frameworks fail to adequately protect individuals' rights, the Article explores and evaluates suggestions offered by other commentators. Finally, the Article concludes by finding none of these suggestions work but proposes an alternative approach which better balances the freedom of speech, the right to a fair trial and the right to privacy, all of which should be respected as important values in our society.
Download the article from SSRN here.
April 28, 2008
Julie Hilden on the Rowling/RDR Infringement Lawsuit
FindLaw's Julie Hilden discusses the Rowling/RDR lawsuit here, evaluates the claims, and finds that Ms. Rowling has a good chance of winning her case.
April 27, 2008
Ale But No Cakes
John Tagliabue explains why a small Swiss company that produces baked goods cannot label its wares with the town of origin--Champagne. Advertising has become a major IP legal battle.