Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, August 26, 2008

New York Appellate Court Upholds Limiting of Subpoena Under Shield Law

A New York appellate court has upheld the limiting of a subpoena issued to a non-party author requiring her to answer questions concerning information already published in a book in which she discussed the petitioner, a defendant in a criminal proceeding. The petitioner had wished to obtain additional information, but a lower court had held that the author could claim a qualified privilege under New York's shield law.

Contrary to the petitioner's contention, he failed to satisfy the tripartite test set forth in Civil Rights Law §79-h(c). Even accepting that the information sought was “highly material and relevant,” the petitioner failed to establish that the information was “critical or necessary” to his defense in the pending criminal action (Civil Rights Law §79-h [c][i], [ii]). In order to show that information sought is “critical or necessary,” a petitioner cannot merely show that it would be useful, but rather that the defense could not be presented without it....The petitioner failed to make the required showing based on his vague assertions that the information sought might impact on the credibility of witnesses in the impending trial....Moreover, the petitioner failed to demonstrate that the information sought was not obtainable from another source....

Accordingly, the Supreme Court properly held that the nonconfidential information requested by the petitioner was protected by a qualified privilege, and properly limited his inquiry to confirming information already published in the book.
Read the entire ruling here. The case is Perito v. Finklestein, 51 AD3d 674, 856 NYS2d 677 (2008).

August 26, 2008 | Permalink | TrackBack (0)

Computer Sold On eBay Contained Personal Files

The Royal Bank of Scotland and one of its subsidiaries have launched an investigation into how a computer CPU that contained private customer information could have been sold on eBay to a third party. An IT manager who purchased the unit alerted the bank and others to the problem. RBS says that it did not intend to sell the unit.

August 26, 2008 | Permalink | TrackBack (0)

Monday, August 25, 2008

Copyright Theory in a Digital World

Michael Nwogugu has published "Pricing Digital Content: The Marginal-Cost and Open-Access Controversies." Here is the abstract.
The Marginal Cost and Open-Access controversies have had substantial effects on the debate about the pricing of digital content. Unfortunately, all existing studies of pricing of digital content, have not explored the full ramifications of Marginal Costs and Open-Access.

The article: a) shows that contrary to some "open-access" theories in the literature, copyright law is necessary - for incentives, for trade (transfer, pledging, sale, documentation) in IP rights, and to preserve social order (to reduce crime, breaches of contracts and torts); b) introduces new elements of marginal cost analysis in the pricing of digital content; c) illustrates how the present mispricing of digital content contributes to illegal online filesharing, d) illustrates how the various elements of Marginal cost analysis can be used to allocate resources for enforcement of IP rights.
Download the paper from SSRN here.

August 25, 2008 | Permalink | TrackBack (0)

The Law and Anime

Joshua M. Daniels has published "`Lost in Translation': Anime, Moral Rights, and Market Failure," volume 88 of the Boston University Law Review (2008). Here is the abstract.
This Note examines the process by which Japanese anime series are translated, dubbed, and distributed in the United States, with a particular focus on cases in which the dubbed version has been heavily edited from the original source material. These heavily-edited dubbed versions are often commercial failures because they are rejected by many U.S. fans who are familiar with the original Japanese version of the series through the consumption of illegal "fansubbed" versions. Even though these transactions seem wasteful and thus should be avoided, their occurrence on several different occasions over the years is difficult to explain.

This Note argues that these cases are the result of a failure of the anime licensing market to take into account the legitimate interests and expectations of U.S. fans in the integrity of the series, which ought to be considered even though the moral rights of the original creators technically might not be infringed. Drawing upon prior scholarly literature which justifies the fair use defense in copyright law as a means of curing market failures, this Note proposes the adoption of a limited fair use defense for infringing "fansubs" where the authorized dubbed version of the series has been heavily edited and there exists no other legal means by which U.S. fans may enjoy the series in its original form in the United States.
Download the article from SSRN here.

August 25, 2008 | Permalink | TrackBack (0)

Sunday, August 24, 2008

French Networks Can't Program Shows For Under Threes

France's High Audiovisual Council has nixed tv shows intended for viewing by children under three, citing concerns that such programming might harm the tykes' intellectual development, slow their language acquisition, and make them over-excited (or passive). In its sights: BabyFirstTV and BabyTV. Thus, French networks won't be able to create such domestic shows, and those networks that import such programming will have to label it with warning signs for clueless French parents. Are the Teletubbies next? Read more here in an story.

August 24, 2008 | Permalink | TrackBack (0)