July 5, 2008
Cities Try To Clamp Down On Paparazzi
Malibu is trying to tighten restrictions on the paparazzi. Reuters has more here. Meanwhile, a photographer claims that surfers threw his camera into the Pacific when he tried to take a picture of actor Matthew McConaughey. Read more in this AP story.
Ashley Dupre Drops Lawsuit Against Joe Francis
Ashley Dupre, the young woman involved in the Eliot Spitzer resignation scandal, has dropped her multi-million dollar right of publicity lawsuit against "Girls Gone Wild" entrepreneur Joe Francis. Read more here in a CNN story.
July 4, 2008
District Judge Tells Google To Release Data Logs To Viacom; Ruling Raises Concerns About Invasions of Privacy
A district court judge has granted Viacom's request for access to the database log that Google maintains of videos on YouTube. Viacom successfully made the argument to Judge Louis Stanton that it needed access to the log in order to determine how often a copyrighted video might have been viewed on YouTube's site or on a third-party's site as part of pending litigation. Google had attempted to argue that such a ruling would expose users to invasions of their privacy.
Plaintiffs seek all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website....They need the data to compare the attractiveness of allegedly infringing videos with that of non-infringing ideos. A markedly higher proportion of infringing-video watching may bear on plaintiffs’ vicarious liability claim,
and defendants’ substantial non-infringing use defense. Defendants argue generally that plaintiffs’ request is unduly burdensome because producing the enormous amount of information in the Logging database (about 12 terabytes of data) “would be expensive and time-consuming, particularly in light of the need to examine the contents for privileged and work product material.”...But defendants do not specifically refute that “There is no need to engage in a detailed privilege review of the logging database, since it simply records the numbers of views for each video uploaded to the YouTube website, and the videos watched by each user”....While the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives....Plaintiffs’ need for the data outweighs the unquantified and unsubstantiated cost of producing that information. Defendants argue that the data should not be disclosed because of the users’ privacy concerns, saying that “Plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP address”....But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative. Defendants do not refute that the “login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube” which without more “cannot identify specific individuals”, and Google has elsewhere stated: We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot. Google Software Engineer Alma Whitten, Are IP addresses personal?, GOOGLE PUBLIC POLICY BLOG (Feb. 22, 2008), http://googlepublicpolicy.blogspot.com/2008/02/are-ip-addresses-personal.html (Wilkens Decl. Ex. M). Therefore, the motion to compel production of all datafrom the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted.
July 2, 2008
Press Complaints Commission Upholds Intrusion Complaint Involving Publication of Footage On Newspaper Website
The Press Complaints Commission has upheld a complaint by a woman who says that a newspaper's website publication of video documenting a police raid on her home invaded her privacy because it might lead third parties to identify her address. The PCC said publication of the footage was "highly intrusive." Before last year, the PCC did not have authority to make such adjudications concerning Internet publications of video. In January, 2007, newspapers and magazines agreed to allow the agency to exercise such authority, and it began making such decisions last summer.
In the newest case, the Commission held that "Showing a video and publishing a picture of the interior of the complainant’s house, without her consent, was clearly highly intrusive, particularly when the coverage contained information likely to identify her address. The fact that the police had invited the newspaper on the raid explained how the footage had been obtained, but it did not absolve the editor of responsibility for ensuring that the subsequent publication of the material complied with the Code.
"The relevant consideration was whether there was a sufficient public interest in the story to justify the degree of intrusion. There were two strands to the public interest defence. The first was that the footage showed an important part of local policing in operation. The second was that it allegedly exposed a specific criminal offence.
"The Commission considered that, while it may have been in the public interest to illustrate the police campaign against drugs, insufficient regard had been paid to the complainant’s right to privacy in this case. Showing the video of the complainant’s home involved a degree of intrusion that was out of proportion to any such public interest.
Chinese Journalist Sentenced
A Chinese court has sentenced two Internet journalists, Sun Lin and He Fang, for what appears to be incitement and has sent Sun Lin to prison for four years. The journalists have responded that they were only criticizing the government's actions but have not engaged in illegal or criminal activity, and that the charges appear to stem from attempts to shut down that criticism. Here is part of the statement released by Reporters Without Borders, which is highly critical of the court's decision.
Reporters Without Borders condemns the four-year prison sentence that a court in the eastern city of Nanjing imposed on Sun Lin, a journalist better known by the pen-name Jie Mu, on 27 June. A contributor to the overseas Chinese news website Boxun, Sun was convicted of “gathering crowds to cause social unrest” and “illegal possession of firearms.” His wife, He Fang, who also contributes to Boxun, was released after being given a suspended prison sentence.
“Two well-known news website contributors have been given jail terms after an investigation marked by mendacious allegations and a trial marred by irregularities,” Reporters Without Borders said. “This is yet another tragic example of the government’s inability to tolerate journalists who dare to report news freely, without constraint or censorship.”
The press freedom organisation calls for the release of Sun and the one hundred other journalists, cyber-dissidents and press freedom activists currently held in China.
Read the entire statement on the organization's website here.
July 1, 2008
Not So Grand Theft Auto
Remember the game Grand Theft Auto? And remember the shock when it turned out that someone had embedded (sic) sex scenes in the game? Even the city of Los Angeles got into the action. Well, inevitably someone brought a lawsuit, and about 2600 people filed claims, and ultimately, the lawyers reached a settlement, which Judge Shirley Kram is now considering. The problem is that the participants would not get much, something like $30 each, much less than the lawyers, who have asked for $1.3 million in fees. Another lawyer, who actually bought a copy of the game, is crying foul, or theft--saying that's far too much in fees, and that Judge Kram shouldn't okay the settlement. Read more--a lot more--here in a New York Times article.
AMPTP Makes Offer To SAG As Contract Expires
It seems that film production has nearly ground to a halt and tv shows may be headed that way as the Screen Actors Guild's contract expired at midnight without any indication that the union is in productive talks with the Alliance of Motion Picture and Television Producers. Here's part of what the AMPTP said in a statement on its website,
Our industry is now in a de facto strike, with film production virtually shut down and television production now seriously threatened. In an effort to put everyone back to work, the AMPTP today presented SAG our final offer - a comprehensive proposal worth more than $250 million in additional compensation to SAG members, with significant economic gains and groundbreaking new media rights for all performers.
Our $250 million offer is consistent with the four other labor agreements already reached this year with DGA, WGA, AFTRA Network Code and AFTRA Prime-Time Exhibit A. In addition, our offer addresses issues that SAG identified as being of utmost concern to its members, including tailoring our new media framework for SAG in areas such as feature films and significant gains for working actors.
In short, our final offer to SAG represents a final hope for avoiding further work stoppages and getting everyone back to work. That is our goal, and we hope it is shared by the members of SAG. The economic consequences of a work stoppage would be enormous. If our industry shuts down because of the unwillingness of SAG’s Hollywood leadership to make a deal, SAG members will lose $2.5 million each and every day in wages. The other guilds and unions would lose $13.5 million each day in wages, and the California economy will be harmed at the rate of $23 million each and every day.
The studios seem willing to negotiate, SAG says it is willing. Here's what appears on SAG's website today in a statement dated June 30.
The Screen Actors Guild national negotiating committee has bargained with the AMPTP for the last 42 days and remains committed to negotiating a fair deal for actors as soon as possible.
The AMPTP today delivered a last-minute, 43-page offer that upon initial examination appears to be generally consistent with the AFTRA deal, particularly in its provisions relating to new media. The union is reviewing the complex package and will prepare a response to management once that analysis is complete.
The parties are scheduled to meet Wednesday, July 2, at 2:00 p.m.
“This offer does not appear to address some key issues important to actors. For example, the impact of foregoing residuals for all made-for-new-media productions is incalculable and would mean the beginning of the end of residuals,” said Screen Actors Guild National Executive Director and Chief Negotiator Doug Allen.
The Screen Actors Guild Codified Basic and Television Agreements covering television programs and motion pictures expire tonight at midnight. Work will continue and all SAG members should report to work and to audition for new work past the expiration date until further notice from the Guild.
Other Screen Actors Guild agreements, including the Commercials Contract, Basic Cable Live Action Agreement, Basic Cable Animation Agreement, Television Animation Agreement, Interactive Media Agreement, Internet Agreement, and Industrial Educational Contract are unaffected by the status of these negotiations, and members should continue to audition and work under them as usual.
The smaller actors' union, AFTRA, is still considering an earlier contract. Its members' votes need to be in by early July to approve the contract negotiated by union leaders and AMPTP. A substantial number of performers belong both to SAG and to AFTRA.
Appellate Court Vacates Lower Court Order Concerning Discovery Re Actual Malice in News-Press Defamation Lawsuit
In the ongoing battle between Wendy McCaw, owner of the Santa Barbara News-Press, and various of its employees, third parties have been drawn in, including journalist Susan Paterno, who wrote an article covering the controversy for the American Journalism Review. Ms. McCaw took exception to statements in the article, which alleged that Jerry Roberts, an editor at the News-Press, had "killed" a story to accommodate the management. This suggestion and others gave rise to the inference, said Ms. McCaw, that she meddled in the editorial running of the paper, and she and Ampersand Publishing sued for libel. Writer Paterno filed a special motion to strike under the state's anti-SLAPP statute. The trial court granted the plaintiffs' motion. However, the appeals court told the lower court to vacate its order, finding that the statements complained of were privileged, factually true, or that the plaintiffs were unable to show actual malice.
The anti-SLAPP statute reinforces the self-executing protections of the First Amendment. In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, the court directed a trial court to quash a subpoena to discover the identity of an anonymous Internet poster. To protect First Amendment expression, Krinsky required the discovery proponent to make a prima facie showing the message board statement was libelous....The constitutional malice standard ...protects freedom of expression by requiring plaintiffs who bring defamation actions against public figures to plead and prove falsehood, and to further establish actual malice by clear and convincing evidence....Trial judges should refrain from ordering "unnecessary, expensive and burdensome" discovery proceedings "if it appears from the SLAPP motion there are significant issues as to falsity or publication--issues which the plaintiff should be able to establish without discovery...."
The third allegedly false statement arises from the article's reference to claims by former staffers that the newspaper "slashed" their employee benefits and overtime pay....Ampersand's own brief concedes the newspaper's 401(k) plan "was indeed eliminated...."We do not see how the article's "slashed" statement warrants discovery against Paterno under the anti-SLAPP's statute's good cause requirement. The article clearly explains that these claims about "slashed" benefits represent the views of the newspaper's former employees. As our Supreme Court held in the Synanon case, journalists are within their constitutionally protected rights to write an article describing the perspective of only one side of a controversy. Equally important, Paterno’s decision to publish former employees’ opinions may not be tested for actual malice because the opinions are not provably false. Opinions that present only an individual’s personal conclusions and do not imply a provably false assertion of fact are nonactionable; indeed, such opinions are the lifeblood of public discussion promoted by the First Amendment, under which speakers remain free to offer competing opinions based upon their independent evaluations of the facts.
Evans v. Evans: Court Order Prohibiting "False and Defamatory" Information On Internet About Estranged Husband Is Prior Restraint
Here's a link to that case in which the estranged wife was accused of posting "false and defamatory statements" about her soon to be ex-husband online. The husband asked for an injunction, which the trial court granted, but an appellate court found the injunction to be an unconstitutional prior restraint on free speech. "Because there has been no trial and no determination on the merits..., the court cannot prohibit [Linda]from making statements characterized only as "false and defamatory."...This portion of the order is also invalid as unconstitutionally vague and overbroad. The injunction broadly prohibited Linda from publishing any defamatory comments about Thomas. This sweeping prohibition fails to adequately delineate which of Linda's future comments might violate the injunction and lead to contempt of court....The fact that the court's prohibition on publishing false materials applied only to speech on the Interhet does not affect our analysis. The courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech on other forums." As to whether the injunction was invalid with regard to its prohibition concerning the publication of confidential personal information, such a injunction requires careful balancing of the rights involved: the court said the order was not narrowly tailored and was vague and overbroad.
The case is Evans v. Evans, D051144, California Court of Appeal, 4th Appellate District, Division One (decided May 12, 2008).
June 30, 2008
Media and the Law: Famous Trials
Andy Webb writes about the role that a newly emerging technology--the telegraph--played in catching a fugitive--Dr. Hawley Crippen, and the possibility that Crippen was innocent. Mr. Webb is the director of Was Crippen Innocent? which debuts tomorrow on Channel 5, and will eventually make its way to the U.S. airwaves.
SAG Contract Due To Expire, No Strike On Horizon?
Here's an update on the state of negotiations between the Screen Actors Guild and the Alliance of Motion Picture and Television Producers. SAG wants the members of its sister union AFTRA to reject the contract that AFTRA leaders have negotiated with AMPTP, a deal that seems to be in line with earlier ones signed by, for example, the WGA. So, the AFTRA members seem to be inclined to sign. At midnight, the existing SAG contract, like the existing AFTRA contract, will expire. But SAG President Alan Rosenberg says no strike is imminent. Read more here.
"Family Guy" Creator and Google Experiment With New Series To Begin in Fall
Seth MacFarlane, who created the hit series The Family Guy, and Google, are launching Seth MacFarlane’s Cavalcade of Cartoon Comedy, a new animation series, which will be available only on the web. Why? Because Mr. MacFarlane feels that the "taste police" (code for the FCC) can't censor his message there. Google's first attempt at content delivery begins in September.
Publishers Will Use Software To Seek Out Plagiarists
The Chronicle of Higher Education reports that a number of scholarly publishers have banded together to use CrossCheck, a software program that tracks down plagiarism in articles sent to them for publication. Elsevier's announcement that the publishers are on the hunt for plagiarists came in the form of this news release on its website June 23.