Saturday, May 17, 2008
The Fifth Circuit has dismissed the Julie Doe lawsuit against MySpace, indicating that Section 230 protects third party networking sites. A lower court had also dismissed the suit last year. The plaintiff was assaulted by a sexual predator she met online via MySpace and wished to hold MySpace responsible for the harm. On appeal, the Does attempted to argue that MySpace failed to use "measures that would have prevented Julie Doe from communicating with Solis." Because this issue was not raised below, the Court refused to consider it. The Does also attempted to argue for the first time that MySpace created content by "facilitating" the profiles that users presented and "[chose] the information they [will] share with the public through an online questionnaire." [The "Roommates.com argument].
The Fifth Circuit rejected these arguments and noted that Julie Doe lied about her age to create her profile and exchanged informtion with her attacker, which the Does admitted to the lower court. Read the opinion here.
Friday, May 16, 2008
On a voice vote, the Senate has voted to reject the new FCC rule on media ownership. President Bush has indicated that he will veto a bill to overrule the FCC rule should it reach his desk.
Meanwhile two FCC Commissioners have welcomed the Senate vote. Commissioner Adelstein said, "The Senate's complete rejection of the FCC's attempt to permit greater media concentration represents a great victory of the people over the powerful. In light of the Senate's action, any proposed transaction seeking to exploit the new rules will likely face intense scrutiny. This vote reflects a strong consensus across the ideological spectrum against further media concentration, from left to right and virtually everybody in between. The FCC veered dangerously off-course from the American mainstream, so our elected representatives are trying to steer us back. This unequivocal, bipartisan rebuke of the FCC is a wake-up call for us to serve the public rather than the media giants we oversee. Chairman Inouye, Senator Dorgan, Vice Chairman Stevens, Senator Snowe and the many other Senate leaders and public interest organizations who pushed this forward deserve our congratulations and the thanks of the American people."
Commissioner Copps released a statement saying "The Senate spoke for a huge majority of Americans last night by voting to overturn the flawed FCC decision gutting our long-standing ban on newspaper broadcast cross-ownership. With courageous leaders like Senator Byron Dorgan, the Senate has struck a blow for localism and diversity in a media environment crying out for more of both."
Tiny Anascape of Tyler, Texas, has won a patent infringement suit against giant Nintendo. The company sued over the controllers Nintendo uses in its popular Wii Classic, WaveBird and Gamecube products. The jury awarded Anascape $21 million. Nintendo plans to appeal. In an earlier suit, Anascape settled earlier this month for an undisclosed amount with Microsoft over similar alleged infringements before trial. Read more here.
Hugh Grant, his former girlfriend Elizabeth Hurley, and her new husband Arun Nayar have won 58,000 pounds in damages for invasion of privacy against Big Pictures (UK) Ltd and Eliot Press SARL, which also apologized for snapping photos of the trio, who were on vacation at a secluded resort in the Maldives last year. The defendants later offered the pix for sale, and some were published in the Mail on Sunday and News of the World last fall. Read more here.
The damages that Channel 4 and indie producer Hardcash receive from their successful libel action will go to a charity that aids reporters and their families if they are killed or injured overseas. The plaintiffs won in the High Court after defendants the West Midlands police and the Crown Prosecution Service acknowledged that the complaints they had brought to Ofcom over a documentary the plaintiffs had aired on Islamic organizations and mosques were biased. After an investigation, Ofcom announced that Channel 4 and Hardcash had "dealt with the subject matter responsibly and in context." See ruling here (under Not In Breach). Because the police and Crown Prosecution Service did not apologize, the plaintiffs decided to sue. Read more here.
In an email sent to its employees, Thomson-Reuters has confirmed that it will cut jobs. Although it did not announce actual numbers, the National Union of Journalists fears that the numbers might go as high as 5,000 of the 50,000 employees of the company. Read more here.
A federal grand jury has indicted Lori Drew on charges of conspiracy and gaining access to "computers without authorization to get information used to inflict emotional distress" on Megan Meier in 2006. Ms. Drew and another woman sent Ms. Meier messages via a MySpace account in the name of an imaginary person, "Josh Evans", who told Megan he liked her. A few weeks later, "Josh" sent a message to Megan breaking off the relationship. A day later Megan, 13, was dead.
State prosecutors earlier said they could not find a way to charge Ms. Drew criminally, and federal prosecutors in Missouri also did not proceed with a case, but federal prosecutors in Los Angeles noted that MySpace keeps its servers in L.A. Read more here in an MSNBC.com story, which includes a timeline of the events and in an MSNBC.com story here, discussing Megan's mother's reaction to the indictment. Here's a link to video announcing the indictment and explaining the theory of the case.
Thursday, May 15, 2008
A district court judge fined two notorious spammers $230 million for flooding MySpace email accounts with unwanted advertisements for porn and other activities. Judge Audrey Collins imposed the record fine under the terms of the CAN-SPAM Act against Sanford Wallace and Walter Rines. Plaintiff MySpace obtained the default judgment when Mr. Wallace and Mr. Rines failed to appear. Read more about the case here.
Wednesday, May 14, 2008
Randall Bezanson, University of Iowa College of Law, has published "Art and the Constitution," forthcoming in the Iowa Law Review. Here is the abstract.
Art and the Constitution addresses a longstanding problem in free speech theory: the status of art as expression protected by the First Amendment. The article, drawn from Professor Bezanson's forthcoming book, Art and the First Amendment (U. Ill. Press 2008-09), suggests that art should be broken down into two separate forms, propositional art and non-propositional art, with propositional art to be protected under the traditional speech paradigm and non-propositional art to be protected under an altogether different paradigm that results in art enjoying a distinct and greater degree of freedom under the First Amendment.
Download the entire paper from SSRN here.
The Boston Herald has apologized for a story that it published back in February alleging that someone on the staff of the New England Patriots football team videotaped the St. Louis Rams' walkthrough the day before The Big Game in 2002 (that is, Super Bowl XXXVI). The Patriots' owner, Robert Kraft, indicated he was pleased with the apology but still unhappy that he had had to defend his team for months against unsubstantiated allegations.
Tuesday, May 13, 2008
The California Supreme Court has ruled that two prosecutors may remain involved with their high profile cases, even though each also became voluntarily involved with the media as a result of those cases. The Court found that Ron Zonen's turnover of confidential documents in the "Alphadog" case did not warrant his removal from the murder case of Jesse James Hollywood, although Justice Kathryn Werdegar wrote that "We find his acknowledged actions in turning over his case files without so much as an attempt to screen them for confidential information highly inappropriate and disturbing." Another case before the case, that of Santa Barbara County Deputy D.A. Joyce Dudley, also resulted in a win for the attorney. Ms. Dudley had written a novel that tracked some of the facts in a rape case she was trying. Said Justice Werdegar, "Because there was no meaningful factual connection between the two, publication of the book created little incentive for Dudley to handle the Haraguchi prosecution any differently than she otherwise would have." The Court found that the defense could eliminate potentially biased jurors from the pool, thus diminishing the risk of harm created by exposure to Ms. Dudley's book. Read more here, here in a prior post about Joyce Dudley, here about the Alphadog case, here for the Dudley opinion (Haraguchi v. Superior Court) and here for the Alphadog opinion (Hollywood v. Superior Court).
Ofcom is still contemplating Sky's proposed Pay TV service, to be called "Picnic", which would take the place of Sky News, Sky Sports News and Sky Three. Sky originally proposed replacing its current services last year. Sky is the dominant pay tv broadcaster in Britain. Read more here and here in an earlier article about Ofcom's questions concerning competition in the pay TV market.
In a private meeting and demo, the Recording Industry Association of America (RIAA), explained how it determines when online piracy on campus seems to be going on, and how it then determines when to dispatch letters to the educational institutions. The Chronicle of Higher Education has the scoop here.
Monday, May 12, 2008
Stephen Raban discusses why the image of journalists in popular culture has dipped over the years. For more about the journalist in popular culture, see the very interesting website, the Image of the Journalist in Popular Culture, maintained by the Norman Lear Center at the University of Southern California. BTW, the first season of Courteney Cox's new series, Dirt, is now available on DVD.
Patrick M. Garry, University of South Dakota School of Law, has published "A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age," in volume 2007 of the Brigham Young University Law Review. Here is the abstract.
In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material - especially obscenity and pornography - Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down these attempts using a strict scrutiny approach.
Part I of this Article outlines the case against the Court's current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today's multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.
Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech. This new model examines the actual burdens placed on the subject speech. It also considers perhaps the most vulnerable freedom in the current media environment - the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model - a variation of the intermediate scrutiny approach now used for so-called content-neutral regulations of speech - takes into account and incorporates the realities of the modern media world. It does so by recognizing that there is a vast array of media channels through which any one type of speech can flow, and that a restriction of speech in one venue may not rise to the level of an unconstitutional censorship.
Download the article from SSRN here.
Toni Locy, a former USA Today reporter, and currently a professor of journalism at West Virginia Univeristy, battles on in the DC Circuit to keep her sources secret and reverse a district court judge's order that she pay thousands of dollars in fines. At issue is Dr. Steven Hatfill's invasion of privacy lawsuit against the Department of Justice. He claims he needs the names of Ms. Locy's sources; she claims that he doesn't need them to pursue his suit since he is already headed to trial. Read more here.
There's likely to be a strike at Thomson-Reuters, reports the Guardian today. Thomson bought the wire service last year and has been trying to cut costs. The National Union of Journalists has been negotiating for voluntary cutbacks but management refused to commit to that proposal. Read more here.