Media Law Prof Blog

Digital Broadcasting Testing To Begin In Wilmington, North Carolina in September

From the National Association of Broadcasters press release, dated May 9, 2008

NAB Statement Regarding DTV Test Pilot in

Wilmington

,

NC

Today the Federal Communications Commission (FCC) announced the creation of an experimental test market – the

Wilmington

,

N.C.

designated market area (DMA) – for the full-power television station transition to all-digital broadcasting. In the FCC experiment, full-power stations in the

Wilmington

market will shut off their analog signals on September 8, 2008 – a full five months before the national transition to digital television (DTV) occurs on February 17, 2009.

NAB’s Vice President of the Digital Television Transition Jonathan Collegio issued the following statement:

“The FCC-initiated experiment in

Wilmington

can shed light on a number of issues surrounding the national DTV transition in February 2009. The results must be objectively reviewed to determine how or whether the findings can be applied nationwide. NAB will be fully supportive of our local television broadcasters in this effort.

NAB hopes that this experiment will answer important questions that will help all parties ensure the success of the DTV transition, including:

• What is the coordination plan between the federal, state and local governments to distribute information about the September 8 experimental analog shut-off? 
• How will the government ensure retailer coordination so that enough coupon-certified converter boxes will be available given the increased demand of the early shut-off date?
• In particular, what specific actions will the government take to ensure that retailers have “analog pass-through” converter boxes available, given the low-power television stations in the

  Wilmington

  market, including one major network affiliate? 
• How will the government prioritize converter box coupon application requests originating from the Wilmington DMA, given the current national backlog of coupon requests?
• What action will the government take to ensure that national messaging or messaging from bordering markets about the February 17, 2009 transition date does not result in confusion in the Wilmington DMA? 
• How will the government ensure that satellite operators accelerate their coordination schedule?  
• How will the government ensure that cable operators serving the

  Wilmington

  market are prepared to coordinate an early analog shut-off and have they made plans to ensure viewability to analog television subscribers?

We look forward to working closely with our

Wilmington

stations, the FCC, the National Telecommunications & Information Administration and other parties as they move forward with this initiative.

Broadcasters nationwide have led the private-public partnership to ensure a successful DTV transition, committing more than $1 billion towards a multiplatform campaign to educate Americans.”

Turkish President Signs Amended Penal Code Article 301 Into Law

The President of Turkey has signed into law the amendment of Penal Code Article 301, which now makes it a crime to insult the Turkish nation rather than Turkishness. Many academics and journalists had been prosecuted under the former Article 301. Read more here.

Journalist Fined For Printing Story About Government Labor Problems

An Egyptian court has slapped a journalist and editor with the equivalent of a two thousand dollar fine for publishing a story about labor problems inside a government agency. Last week, the same journalist also received a similar fine for publishing a picture of a police officer allegedly receiving a bribe. The journalist, Mohammed Sayyed Said, says the fines are attacks on freedom of the press. Read more here.

Can They Sing It's Your Birthday Without Paying Royalties?

Robert Brauneis, George Washington University Law School, has published "Copyright and the World's Most Popular Song." Here is the abstract.

"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story of the song demonstrates that a long, unitary copyright term requires changes in copyright doctrine and administration. With such a term, copyright law needs a doctrine like adverse possession to clear title and protect expectations generated when, as with this song, putative owners do not challenge distribution of unauthorized copies for more than 20 years. And Copyright Office recordkeeping policy, which currently calls for discarding correspondence after 20 years and most registration denials and deposits after five years, must be improved to facilitate resolution of disputes involving older works.

Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article.

Download the paper from SSRN here.

The Authorship Process

Alina Ng, Mississippi College School of Law, has published "Authors and Readers: Conceptualizing Authorship in Copyright Law," in the Hastings Communications and Entertainment Law Journal, Summer 2008. Here is the abstract.

Copyright law recognizes authors as the first owners of copyright. However, there is paucity of literature in copyright analysis of the author and the rights which should be granted by virtue of the very act of creativity in the production of literary and artistic works. This indicates insufficient attention paid to a concept that is so central to a law that primarily aims to encourage authorship for society's benefit. The idea of the author and authorship as a creative process is central to copyright analysis. Deeper analysis of the author and creative authorship will provide insights into how the law can work towards encouraging better author-reader connection and create a more efficient market for literary and artistic works to provide rewards to authors to encourage greater production of works to benefit society. This article proposes that conceptualizing authors as the most important figure for the grant of property rights will facilitate greater production of works that society will be willing to pay for in the market. This paper concludes that copyright is a law to encourage authors to create literary and artistic works for society. The rights granted under the law should encourage creative authorship, rather than a recovery of investment, and that public interests are served best by a law recognizing the creative author over the economic investor.

Download the article from SSRN here.

No Prosecution Contemplated In "Pauper" Reality Show Case

After an investigation, the Orange-Osceola State Attorney's Office has decided not to file charges against producer Marc Brilleman, who was arrested last month when some young women alleged that he held them against their will in an Apopka, Florida house, where a new reality show, Pauper to Princess, was being filmed. The producers raised credibility questions about the women, and the prosecutors indicated that "there was not enough evidence to support criminal charges." Read more here and here.

New York Civil Liberties Union Files Lawsuit On Behalf of Reporter Leonardo Blair

The AP reports that the New York Civil Liberties Union has filed a lawsuit challenging the NYPD's "stop and frisk" policy on the grounds that it unconstitutionally targets racial minorities. Here's a link to the NYCLU press release, explaining that the lawsuit is on behalf of reporter Leonardo Blair, who was stopped and arrested last November. A judge dismissed the charges against Mr. Blair in February.  Here's a link to the complaint.

Les Grèves

Strikes have hit the French papers La Tribune and Le Monde, La Tribune for the fifth time in less than twelve months, and Le Monde for the third time in a month.

Can You Hear Us Now?

On July 7, that won't be the question in Britain any longer. The Advertising Standards Authority is implementing new rules that require TV ads be "must not be excessively noisy or strident," after receiving many complaints from listeners. The ASA also released a report on the matter. Here's a link to the Advertising Code (see section 6.9)

ASA Puts Weight Loss Product Company On Diet

The Advertising Standards Authority has told Goldshield Healthcare Direct, a company that markets weight loss products, that claims made in a recent ad campaign concerning its weight loss pill, LIPObind, were deceptive and that the ads are now banned. Among the claims: that the pill is "clinically proven fat binding pill … a pill that has been tried and tested and proven to bind fat" and that the pill will"take the nation by storm" and that "there are no gimmicks, no fad diets, no additional exercise routines that have to be undertaken, in fact you can still indulge yourself with your favourite treat every now and again". The phone number advertised as toll free also turned out to be a pay number. Read the ASA's ruling here. Read more about the ad campaign and objections to it here.

Austrian Police Arrest Overeager Photographers in Fritzl Case

Police have arrested more than a dozen photographers attempting to get pictures of Elisabeth Fritzl and her children, who are at the center of the rape-incest case in a town in Austria. Spokespersons for law enforcement said that photographers were very enterprising, even dressing up as police themselves in order to get close to Ms. Fritzl, who would like to be at the bedside of her daughter Kerstin, who is seriously ill. Read more here.

Literary Agent Sues Wikimedia, Claiming Defamation

Barbara Bauer, a literary agent in Matawan, New Jersey, has gone to court over a Wikipedia article (since removed) that called her the "dumbest of the twenty worst" literary agents, claiming defamation and tortious interference. Wikimedia (the parent org) claims that it is protected by Section 230 of the Communications Decency Act. In any case, Wikimedia says, calling someone "dumb" is not defamatory. It has filed a motion to dismiss. Here's more. Here's a link to Ms. Bauer's amended complaint (courtesy of the Citizen Media Law Project) in which she sues the posters.

Book About an Unusual Penguin Household Most Challenged Book of '07

For the second year in a row, a book in which a baby penguin has two fathers was the library book most objected to by parents, according to the American Library Association's Office for Intellectual Freedom. And Tango Makes Three heads a list that also includes Maya Angelou's I Know Why the Caged Bird Sings, Mark Twain's Huckleberry Finn, and Philip Pullman's The Golden Compass. Read more here.

ASA Investigating: Does PETA Ad Breach Rules?

The ASA is investigating a PETA sponsored anti-Kentucky Fried Chicken ad. Inside the pamphlet PETA makes allegations about the manner in which KFC treats its poultry and in which they are slaughtered. KFC complains the pamphlet is "offensive, irresponsible and unsuitable for targeted delivery" and might frighten children.  PETA has responded that the ad is parody and wouldn't scare anyone "unless the reader was a chicken." Read more here.

Pay Inequity at Financial Times

The Media Guardian reveals that it has obtained access to an internal memo from the Financial Times that confirms that women employed at the paper earn less for comparable work overall than men. But the FT says the gap is less than 10 percent and the Financial Times says it is moving to address the issue in accordance with the law. The paper has a series of confrontations over work issues with staff over pay, including anger over job cuts in 2006 and subsequently the paper's highest ever profits in 2007. Read more here.

Malaysian High Court Allows Challenge To Ban On Use of Word "Allah" By Non-Muslims

The Malayasian High Court is allowing the Roman Catholic paper the Herald to challenge a ban on the use of the word "Allah" by anyone other than Muslims. The paper used the word as equivalent to "God" recently and the government threatened to shut it down. Read more here.

"You're out of order! You're out of order! The whole trial is out of order!"

In a recent "Boston Legal" episode, Alan Shore (James Spader) excoriates the "Supreme Court" (played by lookalikes) for drifting away from "civil rights and liberties" to protectors of "pro-business". Read more in a Legal Times interview with producer/writer David E. Kelley here (registration may be required) and here.

Hells Angels Founder Sues HBO, Director, For Copyright Infringement, Breach of Contract

Sonny Barger, founder of the motorcycle group the Hells Angels, has sued HBO and director Michael Tolkin for breach of contract, unjust enrichment, and misappropriation of personality rights over a tv pilot that Mr. Tolkin and HBO planned to develop. Mr. Barger claims that he contributed substantially to the pilot. Read more, and examine the complaint, here.

How IP Informs the Cultural Bank

Michael J. Madison, University of Pittsburgh School of Law, has published "Intellectual Property and Americana, or Why IP Gets the Blues," at 18 Fordham Intellectual Property, Media & Entertainment Law Journal 677 (2008). Here is the abstract.

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google's Book Search program. Download the entire essay from SSRN here.

Michigan Offers Hollywood Incentives To Locate Projects in Wolverine State

Michigan's legislature has passed, and Governor Jennifer Grantholm has signed, a new law that the state government hopes will bring substantial numbers of film projects to the state. The state's film office director indicates that already thirteen movies are slated. Read more here.