June 20, 2008
Danish Appellate Court Upholds Lower Court Ruling: No Liability For Newspaper That Published Prophet Muhammed Cartoons
A Danish appeals court has upheld a lower court ruling that the Danish newspaper which published those controversial "Prophet Muhammed" cartoons was exercising a right of free speech. The cartoons caused outrage both in Denmark and abroad. The plaintiffs in the case have not decided whether to appeal to the highest court in Denmark. The case was a civil action, brought after Danish prosecutors refused to file criminal charges against the paper. Here's the text of the appellate ruling (in Danish).
Law Profs File Brief in RIAA Downloading Case
Several law professors have filed a brief supporting the position of the only defendant to have gone to trial in a downloading piracy case brought by the RIAA. The profs, variously at the University of Idaho, Villanova University, Southern New England School of Law, University of Minnesota, Hamline University, Suffolk University, Santa Clara University, William Mitchell College of Law, and University of Virginia, support Jammie Thomas's contention that simply making a copyrighted song available for download is not the same thing as actually infringing the copyright owner's rights, if there's no proof that the song is actually downloaded. The judge in the case now says he may have erred in his instructions to the jury. The Chronicle of Higher Education has made a link available to the law profs' brief in the case, in which they explain why they agree that the jury instructions are erroneous, because for several reasons, making something available does not constitute "distribution".
June 19, 2008
University Study Tracks Cell Phone Users; Ethics Questioned
Northeastern University carried out a study on cell phone users abroad to investigate their patterns of movement, and the results are both interesting, and disturbing. Ethics experts note that the users did not know they were being tracked, and did not consent to being part of the study. The study was funded by the U.S. Navy; a Navy ethics review board did review the study before it was funded. Read more here. Here's a response from the University's Public Relations department.
France Moves To Block Access To Child Porn, Other Offensive, Objectionable Websites
France has moved to block websites that enable access to child pornography, terrorism, and racism, starting in September. Users will be able to alert the government to objectionable sites and government officials will then be able to evaluate them to see if they should be added to a list of blocked sites. The plan is part of a larger effort to eradicate access to child pornography and other material considered dangerous across geographic boundaries. Read more here.
A Documentary on Blasphemy
Russia Arrests Three in Murder of Journalist
The BBC reports that three men have been charged in the murder of journalist Anna Politkovskaya, who was shot down in front of her Moscow home in October of 2006. A fourth suspect remains at large. A fifth man, an official employed by the Russian government is also charged with a lesser crime. Read more here.
June 18, 2008
Protecting Performers in Sexually Explicit Works
Ann Bartow, University of South Carolina School of Law, has published "Pornography, Coercion, and Copyright Law 2.0" in volume 10 of Vanderbilt Journal of Entertainment and Technology Law (2008). Here is the abstract.
The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.
While legal scholars have addressed the copyright law's role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.
Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control - namely by requiring the creator to show that the subjects' participation was voluntary as a condition of providing copyright protection - would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators' compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.
Download the article from SSRN here.
Eating It Up: Ads For Weight Loss and the FTC
Eric S. Nguyen, Harvard Law School, has published "Weight Loss Testimonials: A Critique of Potential FTC Regulations on Diet Advertising," in volume 63 of the Food & Drug Law Journal (2008). Here is the abstract.
Each year, millions of consumers purchase diet products ranging from herbal supplements to meal replacement drinks. Companies like Weight Watchersand Jenny Craig devote tens of millions of dollars of their annual budget toadvertising. At the center of much of the industry's marketing efforts are television advertisements featuring consumers who have experienced great success with such products. Concerned that these testimonials consistently mislead consumers, the Federal Trade Commission has suggested that it may promulgate more restrictive advertising guidelines. Industry watchers have suggested concrete revisions.The most aggressive proposal would restrict advertisers to featuring only those consumers who have experienced typical weight-loss results. Other proposals call for companies to include in their advertisements a table of detailed statistics on typical weight loss. This article argues that these leading proposals for change are overly broad and likely to be found unconstitutional under the First Amendment. It suggests that Congress and the Commission should instead devote greater resources to the post-market enforcement of the existing guidelines, which already require that testimonials be both representative of what consumers will generally achieveand confirmed by adequate substantiation.
Download the article from SSRN here.
FCC Denies Media Request For Inspection of Records
The FCC has denied John Dunbar of the Associated Press's request "for a copy of the Second Report and Order regarding the service rules for the 700 megahertz auction . . . as approved by the Commission on July 31, 2007, prior to editorial revisions." The agency determined that "...[t]he deliberative process included in FOIA Exemption 5 permits the Commission to withhold materials that both are predecisional and reflect the agency’s consultative process. The Bureau correctly concluded that the draft submitted to the Commission for the July 31, 2007 vote was a predecisional deliberative document properly withheld under FOIA Exemption 5. When the Commission votes to adopt an item at an open meeting, the Commission’s deliberations concerning the item are not at an end. Following adoption of an item, the Commissioners may continue to consider possible edits to the item until all Commissioners in the majority agree on the language of the draft to be released. This practice is consistent with the practice of other agencies as confirmed by the courts. Thus, the fact that the Commission voted at the July 31, 2007 meeting to adopt the draft report and order does not, as Dunbar claims, make the draft a final, decisional document which would not be protected from release by Exemption 5. Further, it is the Commission’s usual practice to withhold draft decisions that are subject to continued deliberations pursuant to FOIA Exemption 5 to protect the deliberative process of the agency. We decline to depart from that practice here. We also disagree with Dunbar’s contention that “not releasing the text of the rule at the meeting is detrimental to the public interest.” In fact, the final editorial process results in well thought-out decisions of a higher quality. Release of the item still in draft form, followed by a final version after all post-adoption editing is complete, could result in public confusion and would be contrary to the public interest...."
The agency also declined to released any "severable" part of the document voted on at the open meeting. "There are some factual statements in the draft item, but these materials are inextricably intertwined with the deliberative process portions of the records and cannot be practicably segregated and released. Our review of the draft confirms that it would be impractical to segregate any factual or non-deliberative portions of the record withheld by the Bureau."
Read the entire Memorandum Opinion and Order here.
FCC Issues NAL For Repeatedly Broadcasting Buzz Lightyear Commercial As "Children's Programming"
The FCC has fined Station KMTV in Hutchinson, Kansas, $16,000 for "apparently willfully and repeatedly violated Section 73.670 of the Rules, by failing to comply with the limits on commercial matter in children’s programming." The agency noted that "the Licensee indicated that between May 31, 2002, and July 10, 2002, the Station exceeded the children’s television commercial limits on six occasions when it aired a commercial featuring the character, “Buzz Lightyear” during the “Buzz Lightyear” program."
...Station KMTW(TV)’s record of exceeding the Commission’s commercial limits on children’s television programming on six occasions, all program-length commercials, constitutes an apparent willful and repeated violation of Section 73.670. Congress was particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Given this congressional concern, the Commission made it clear that program-length commercials, by their very nature, are extremely serious violations of the children’s television commercial limits, stating that the program-length commercial policy “directly addresses a fundamental regulatory concern, that children who have difficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that interweaves program content and commercial matter.”
...The number and magnitude of overages at issue here mean that children have been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children’s Television Act of 1990. The Licensee’s implementation of policies to prevent subsequent violations of the Commission’s children’s television rules and policies does not relieve the Licensee of liability for violations which have occurred.
Joan Rivers Uses Banned Words on ITV Talk Show
Comedienne and actress Joan Rivers was tossed off the ITV live program "Loose Women" after she used two of George Carlin's 7 words in referring to actor Russell Crowe. They're as banned in Britain as they are in the U.S. Ms. Rivers said she thought ITV used a time delay. ITV producers decided to take her off the show before the end of the episode. Read more here.
June 17, 2008
No Cameras In Church
The producers of Angels & Demons, the prequel to The Da Vinci Code, will not be able to film any scenes inside two churches in Rome. The diocese of Rome says that the film's content is contrary to the Church's views on the issues discussed in the movie, so the producers will have to be content with exterior views of the sites. Read more here.
Singapore Blogger Update
Update: Mr. Nair has been released on bail. Read more here.
Borat Litigation, Strike One
One of the pending cases in the mass of "Borat" litigation has been dismissed. Lemerond v. Twentieth Century Fox (No. 07 Civ. 4635 (LAP)), a publicity rights case, was dismissed by U. S. District Court judge Loretta A. Preska (who is hearing all the Borat cases), who stated that "This action arises from the brief use of Plaintiff's image in Defendant's film, BORAT—Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (“Borat”). Plaintiff filed this action on June 1, 2007, asserting claims under New York Civil Rights Law §51 (“NYCRL §51”) and under New York common law for the unlawful use of his image. Defendant moved to dismiss for failure to state a claim under Rule 12(b)(6), and, for the reasons set out below, that motion is GRANTED."
As she discussed, "New York does not recognize a common-law right of privacy....Instead, it provides limited statutory protection through, inter alia, NYCRL §51, which provides a cause of action for “[a]ny person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade without” their written consent....To state a claim under NYCRL §51, therefore, a plaintiff must allege: (1) the use of his name, portrait, or likeness; (2) for “advertising purposes or for the purposes of trade;” (3) without written permission.... Because factors (1) and (3) are not disputed, the only question here is whether Plaintiff's likeness was used for “advertising purposes or for the purposes of trade” within the meaning of NYCRL §51. Notably, New York courts have consistently held that that section “is to be narrowly construed and ‘strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.’”... Thus, the nonconsensual use of a plaintiff's image to depict “newsworthy events or matters of public interest” does not fall within the statute's reach....Courts have also observed that this “newsworthiness” exception should be broadly construed to include, “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”...The question of newsworthiness is a question of law to be determined by the courts. ...In determining whether an item is newsworthy, courts consider solely the “content of the article”—not the publisher's “motive to increase circulation.” ...Furthermore, courts should be wary not to “supplant the editorial judgment of the media in determining what is ‘newsworthy’ or of ‘public interest.’”...Consequently, “public interest” and “newsworthy” have “been defined in most liberal and far reaching terms.” ....With these principles in mind, it is beyond doubt that Borat fits squarely within the newsworthiness exception to NYCRL §51. Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, Borat attempts an ironic commentary of “modern” American culture, contrasting the backwardness of its protagonist with the social ills afflict supposedly spohisticated society. The movie challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from “average” Americans. Indeed, its message lies in that juxtapostion and the implicit accusation that “the time will come when it will disgust you to look in a mirror.” Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest. Having determined that the newsworthiness exception applies, liability under NYCRL §51 cannot ensue “unless there is no real relationship … to the article or the article is an advertisement in disguise.” ...Whether Plaintiff's image bears such a relationship to the movie is also a question of law, see Omni Publ'ns Int'l, 77 N.Y.2d at 143, 564 N.Y.S.2d at 1017-18, as to which there is no other answer but that it does. The scene depicting Plaintiff is part of a series of clips showing Borat's first exposure to American culture that emphasizes the differences between Borat's home village and his American destination. The clip with Plaintiff casts these differences in particular relief and, in so doing, bears a direct relationship to the theme of “otherness” described above. As such, it falls within that broad exception recognized by New York courts for newsworthy items or matters of public interest and, therefore, is not actionable under NYCRL §51.... Plaintiff also asserts theories of unjust enrichment and quantum meruit. These two claims, however, are properly treated as one claim.... It is well settled that there is no common law privacy cause of action in New York, and thus the only relief for a violation of a right to privacy falls under NYCRL §50 or NYCRL §51. ...Thus, under New York law, common law claims for unjust enrichment related to unauthorized use of a person's image or likeness are subsumed under §§50, 51....For the reasons stated above, Defendants' motion to dismiss the complaint [dkt. no. 12] must be GRANTED."
The case is Lemerond v. Twentieth Century Fox, 2008 U.S. Dist. LEXIS 26947, 2008 WL 918579 (S.D.N.Y.).
New Committee Chair Promises Re-Examination of British Editors' Code of Practice
Across the Atlantic, the new head of the committee that puts together the voluntary code of practice for newspapers and magazines says he will review it, out of concern that reporters are inhibited from doing their jobs. Paul Dacre, editor of the Daily Mail, says after a year in which a reporter went to jail for illegally intercepting Royal Family voicemail, and "blagging"--obtaining personal information through pretexual means--became front page news, it may be time for the committee to take a second look at the editors' code to see if it is still workable. Read more here.
Singapore Charges Blogger For Insulting Judges
Singapore is charging a U.S. based blogger with defamation for alleging that a judge is "prostituting herself" during a trial. The blogger, lawyer Gopalan Nair, who is now a U.S. citizen living in California, says he will dispute both these charges and others based on other posts he has made critizing other judicial officials in court. Read more here and here.
June 16, 2008
Three Arrested In Japan For Posting Threatening Web Messages
Japan has arrested three people alleged to have posted threatening messages saying they would commit violent crimes, in the wake of a murderous incident in Tokyo on June 8 that resulted in 7 deaths. Read more here.
MySpace Defendant To Appear in Federal Court
Lori Drew, the Missouri woman accused of creating a MySpace account to send hoaxed messages to Megan Meier, the teen who eventually hanged herself in 2006, was to appear in federal court in Los Angeles to answer charges that she contravened the Computer Fraud and Abuse Act. Read more here.
FCC Chair: Sirius/XM Merger Good To Go
FCC Chair Kevin Martin has indicated that the Sirius/XM Satellite merger is a "go", with a few caveats. He would like to see the companies agree to hold prices at current levels, and offer "a la carte" options to customers, for example. Read more here.
Updated Info For Submissions to Law Reviews & Journals Available
Allen K. Rostron and Nancy Levit, University of Missouri, Kansas City School of Law, have published "Information for Submitting Articles to Law Reviews and Journals." Here is the abstract.
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers about 188 law reviews.
Download the document from SSRN here.