September 13, 2008
BBC: Saudi Judge Says "It's OK" To Kill Those Who Disseminate Immoral TV Shows If No Other Means Will Suffice
The BBC reports that a "senior" Saudi Arabian judge has declared that "It is legitimate to kill those who call for corruption if their evil can not be stopped by other penalties." He was referring to those who own satellite tv networks. Read more here.
September 10, 2008
al-Jazeera Unfair Dismissal Case Begins
al-Jazeera is responding to Jo Burgin's allegations that sex discrimination exists at the station. At the employment tribunal hearing going on now in London over Ms. Burgin dismissal claims, attorney Ingrid Simler, representing the network, presented evidence to show that the network employed and continues to employ women in top positions. Read more here.
Press Complaints Commission Raps British Paper For Attempting To Distract Readers' Attention From Negative PCC Ruling
The Press Complaints Commission, which earlier ruled against the Brighton Argus in a complaint against it lodged by Conservative MP Nicholas Soames, has now again told the paper it has misbehaved. The Argus reported the earlier ruling, but on page 32 of its publication, rather than in a prominent section of the issue. Said the PCC, "The Press Complaints Commission has made clear in a criticism of the Brighton Argus that it will not tolerate newspapers publishing its negative rulings with insufficient prominence."
Court Orders Thai Prime Minister Out For Hosting Cooking Show
Political scandal couldn't force him out of office, but a recipe did--Thailand's Prime Minister Samak Sundaravej is gone and his Cabinet with him, after the country's highest court ruled that he improperly continued to host a cooking show after taking office, thereby violating the law which prohibits members of the government from having against ties with business. However, some observers say the rule here has been taken too far. Well, he always has his tv career to fall back on. Read more here and here.
Comparative Law of Consumer Protection: Wireless Style
This article explores the impacts on consumers when wireless device interference causes the device to malfunction or renders the wireless device inoperable or unlawful to operate. The article compares consumer protections in the United States, Canada, and the European Union. Specifically, the article discusses notification requirements to consumers regarding rights of use, the consumer's duty to eliminate harmful interference, enforcement mechanisms, and remedies. The article then discusses how emergent interference threats from multiple wireless technologies and black-market devices can impact consumer protections. The paper explores the advantages and limitations of possible market, regulatory, and legislative mechanisms to enhance consumer protections.
Download the paper from SSRN here.
September 9, 2008
The Curse of Substantial Similarity: Rowling Wins Infringement Lawsuit Against RDR Books
A federal judge has ruled that the Harry Potter lexicon produced by Steven Vander Ark and published by RDR Books took too much from J. K. Rowling's original works to escape the Curse of Substantial Similarity and he zapped it with his magic gavel. He awarded the author and her publishers nearly $7,000 in damages and the injunction they sought. Read more here in a New York Times article. Here's Judge Robert P. Patterson's opinion, which engages in a close reading of both works.
The publisher may appeal the decision.
Spielberg, Paramount, Sued Over "Disturbia"
The estate of Sheldon Abend is suing Steven Spielberg, Dreamworks, and Paramount Pictures over the film Disturbia, which it claims infringed its rights in a short story written by the noir author Cornell George Hopley-Woolrich, who wrote under the name Cornell Woolrich and William Irish. The story, "It Had to be Murder," also called "Murder From a Fixed Viewpoint," or "Murder From a Fixed Perspective," published in 1942, was made into the film Rear Window, which starred Jimmy Stewart and Grace Kelly, in 1954. Read more here and here.
FCC Accepting Applications For Attorney Honors Program
"The Federal Communications Commission today announced that it will again accept applications from graduating law students in the fall for its Attorney Honors Program, to better accommodate law students who participate in the traditional fall interview process. As in previous years, the FCC will also seek applications from recent law graduates and graduating students in the spring.
Through the Attorney Honors Program, the FCC recruits new and recent law school graduates to the FCC and the field of communications. The FCC encourages law students with superior academic credentials and an interest in communications law to apply for the 2009 class. Applications submitted during the fall application window must be received by October 20, 2008; incomplete applications will not be considered. All Attorney Honors Program participants will be located at the FCC’s headquarters in Washington, DC.
Interested candidates should submit a cover letter, resume, writing sample, official and/or unofficial law school transcript, and list of three references to firstname.lastname@example.org, to the attention of Kim Mattos, Office of General Counsel, Federal Communications Commission, 445 12th Street S.W., Washington, DC 20554. Eligibility criteria and other pertinent information are available on the FCC’s Attorney Honors Program webpage at http://www.fcc.gov/attorneyhonorsprogram.
Selection for participation in the Attorney Honors Program is highly competitive. Selection criteria include: academic achievement; writing skills; law review and/or moot court experience; clinic or extracurricular activities; and demonstrated interest in government service and/or the communications industry.
Attorneys at the FCC work on cutting-edge issues in the communications and high-tech arenas, including those affecting public safety and homeland security. They also review mergers and acquisitions of Fortune 500 companies, promote the deployment of broadband technologies, promote access to communications services for Americans with disabilities, and protect the rights of consumers."
"Get Me Rewrite!"
For today's New York Times' Critics' Picks, A. O. Scott discusses the screwball comedy His Girl Friday, a remake of The Front Page, (although Mr. Scott never indicates that) a farce about newspapers, newspaper people, capital punishment, politicians, and marriage. The play (by Ben Hecht and Charles MacArthur) was later updated for Kathleen Turner for the film Switching Channels (1988) and the marriage-divorce plot was used for the 1946 film The Thrill of Brazil.
Minnesota Appellate Court Holds Consent Bars Patient Invasion of Privacy Claim Over Broadcast
The Minnesota Court of Appeals has reversed and remanded a case in which a patient sued the Mayo Clinic for invasion of privacy after "a videotaped interview of her discussing a private medical condition, produced and disseminated by Mayo, aired on Forum‟s news broadcast in the city where she lives," citing consent as "an absolute defense."
Anderson initiated this action against Mayo and Forum after a videotaped interview of her discussing a private medical condition, produced and disseminated by Mayo, aired on Forum's news broadcast in the city where she lives. Mayo asserts that it was privileged to publicize Anderson's medical condition by virtue of her written consent. Anderson asserts, and the district court concluded, that genuine issues of material fact exist with respect to whether consent was fraudulently induced.
Anderson initially asserts that the district court's order is not appealable. We disagree. While the denial of a motion to dismiss generally is not subject to immediate review, the district court's decision here is appealable under the collateral-order doctrine....An order denying a motion for judgment on the pleadings is subject to de novo review....Dismissal is appropriately granted when it is not possible "on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded."...Consent is an absolute defense to an invasion-of-privacy claim....Consent need not be in writing, but courts have construed written consents according to the rules of contract construction, including the parol evidence rule, which forbids the consideration of extrinsic evidence to vary the unambiguous terms of a written instrument....Here, Anderson's consent was without limitation. The one-page written authorization that she signed stated that Mayo could disclose Anderson's name and contact information as well as details regarding her condition and surgical treatments "to media representatives selected by Mayo Clinic in Rochester ('Media Representatives'), or through interviews, photographs, audiotapes, and/or films (including digital media) ('Materials') for public dissemination by Mayo or media." The expressed purpose of the authorization was to "allow Media Representatives to record Materials, and for Mayo to disseminate health information to the general public." Consistent with that purpose, the authorization permitted Mayo and the media to "use the Materials in any manner they wish, including dissemination to the general public via any media." Thus, under the plain and unambiguous language of this written consent, publication of the video footage was privileged unless Anderson's consent was induced by fraudulent misrepresentation.
Anderson asserts that her consent was fraudulently induced by the doctor who performed her surgeries and initially asked her to participate in a video. In her complaint, Anderson alleges that the doctor represented that the video was "intended to educate patients about the condition and treatment options available to them." It does not follow from this alleged representation that the video footage would be used solely for in-office patient education, as Anderson apparently envisioned. Nor is a broadcast news segment inconsistent with the allegedly expressed educational goal. Rather, it seems likely that Mayo uses a variety of methods to reach and educate both current and prospective patients.
Even assuming that Anderson's doctor told her that her videotaped interview would be used only for a patient-education video, her fraudulent-inducement claim nevertheless fails for two reasons. First, she has not alleged a misrepresentation of fact. Second, the unambiguous and contrary language of the written authorization precludes reasonable reliance as a matter of law...."It is a well-settled rule that a representation or expectation as to future acts is not a sufficient basis to support an action for fraud merely because the represented act or event did not take place." Rather, a party claiming fraud must assert the misrepresentation of past or present fact....Here, the alleged representation by Anderson's doctor amounts to no more than statements of future intent, that it was Mayo's intent to use the video footage of Anderson for a patient-education video. Without more, this statement of future intent cannot support a finding of fraudulent inducement.
We further agree with Mayo that Anderson could not reasonably have relied on her doctor's alleged promises in light of the subsequent, unambiguous language in the authorization that she signed....Here, the alleged representation by Anderson's doctor that use of the video footage would be limited to the creation of a patient education video is directly contradicted by the written authorization that Anderson signed. Indeed, the expressed purpose of the authorization was to "allow Media Representatives to record Materials, and for Mayo to disseminate health information to the general public," which purpose was to be accomplished "via any media." (Emphasis added.) We reject Anderson's assertion that this broadly worded language does not contradict her doctor's alleged earlier promises because the authorization does not outline the specific ways in which the video footage would be disseminated. The authorization allowing unrestricted use clearly contradicts the alleged promise of limited use. This is not a case in which the contract is "couched in ambiguous legal language which a layman could reasonably believe supported the representation."...While Anderson may not be a sophisticated contracting party, the authorization in this case is a one-page document drafted in clear language. Under these circumstances, Anderson could not have reasonably relied on her doctor's alleged earlier representations.
Anderson's assertion that she shared a fiduciary relationship with her doctor does not alter our conclusion. Initially, we find no authority to support imposing a fiduciary relationship on physicians, particularly with respect to matters outside the context of diagnosis and treatment.
Neither does Anderson's and the district court's characterization of the right to revoke the consent as "illusory" impact our analysis. The right to revoke a gratuitous consent arises by operation of law, not contract....There is no allegation that Anderson revoked her consent before the newscasts. Rather, Anderson alleges that, because she was not provided with a copy of the video prior to it airing, her right to revoke was "illusory." But there is no basis for Anderson's implicit assertion that the right to revoke necessarily implies a right to preview.
Because Anderson failed to allege facts sufficient to support a finding of fraudulent inducement, her claims are barred by consent and should be dismissed. Mayo and Forum agree that, absent a basis for tort liability, Forum's indemnity claim fails as well. Accordingly, we reverse the district court's order in these respects and remand for entry of judgment in Mayo's favor on Anderson's claims and Forum's cross-claim.
Read the entire opinion here.
Lawyer-Blogger Goes On Trial For Defamation in Singapore
Lawyer-blogger Gopalan Nair has pled not guilty to defaming a Singaporan judge, Belinda Ang, whom he accused of "prostituting herself," implying that she was not impartial in a recent high profile trial. He is representing himself. He was found guilty last week of disorderly conduct and fined more than $2000. He also faces trial in another case of insulting yet another judge. Read more here.
Nyet, South Park
September 8, 2008
Making Money on the 'Net--Business, Not Law, Should Be the Model
This chapter considers the primary strategies that the international music and film industries have employed to date, namely lawsuits and technological protections, and why these strategies have failed to produce a viable path to long-term revenue generation. I argue that content owners should not hold out hope that using law (in the form of copyright infringement lawsuits against individuals) or technology (in the form of digital rights management encryption software) will unlock the Web's potential for monetizing their content. Instead, successful monetization of content online will come through business models that can harness and monetize the current behavior of Internet users. There are three emerging such models analyzed in this chapter, each of which has significant potential and challenges: retail online content subscriptions, ad-supported content, and voluntary blanket licensing.
The discussion in this chapter is mostly broad, outlining circumstances facing copyright owners globally, and some emerging potential solutions. Nevertheless, I make a point throughout to highlight the situation in China in particular. China is a challenging but dynamic Internet and digital media market, and is the first market in the world where all three of the emerging models discussed in this chapter are being deployed in an effort to jumpstart the digital creative economy. China is an important market for the rest of the world to watch regarding emerging monetization models.
Copyright and the Internet
This Article analyzes the legal and human rights implications of efforts by copyright owners such to "opt out" of the Internet in general, and out of Web 2.0 sites in particular. I argue that courts and legislatures should reject the argument by copyright owners that absent a license agreement respecting a copyrighted work, technology and Internet companies should be forced to monitor for and technologically filter out any quotations or clips on their sites unless a copyright owner affirmatively "opts in" to being included on a given site. Instead of this type of an "opt-in" framework, judges and policymakers should permit Internet companies to respond to allegations of infringement by removing offending files from their sites, and should require copyright owners to identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement. This "opt out" framework will better preserve technological innovation and freedom of expression than would a system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users' speech.
I briefly describe the development of "Web 2.0" services such as YouTube and Wikipedia, and the complex intellectual property issues that they engender. I then summarize the case law in the U.S. on opting out of the Internet, from the early cases in which courts struggled with the possibility that copyright law would chill the development of online services, to the more recent judicial consensus shielding online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases such as Perfect 10 v. Google (9th Cir. 2007), Perfect 10 v. Visa (9th Cir. 2007), and Parker v. Google (3d Cir. 2007). My distinctive contribution to the field consists in showing that European courts have erected a similar knowledge-based opt-out framework for online intermediaries such as Internet service providers, creators of peer-to-peer file sharing software, and user-generated content platforms. Some cases have bucked this trend, of course, notably such as the Google News case in Belgium have bucked this trend. The court's ruling in that case would do untold damage to freedom of expression and the process of Web-enabled innovation, as would the similar rulings of the French courts in the Dailymotion and MySpace cases. If such cases become the norm, Internet companies will scramble to reduce user freedom so as to block infringing uploads.
Many European courts base their rulings on the European Community's Electronic Commerce Directive of 2000, which provides that storing or "hosting" information provided by users does not give rise to monetary liability if an Internet company does not control the user and either does not have actual knowledge of infringement or expeditiously removes the infringing material upon becoming aware of its presence on the site. The developing consensus of the European courts resembles the celebrated ruling in Kelly v. Arriba Soft (9th Cir. 2003) that reproducing copyrighted work in order to improve access to information over the Internet constitutes a fair use, and that respecting clear opt-outs is evidence of a lack of intent to disregard the copyrights of others. Moreover, I address, and rebut, the common objection that international copyright treaties, and specifically the minimum level of copyright protection required by the Berne Convention and GATT-TRIPs agreement, preclude the establishment of an opt-out regime for copyright disputes. Finally, I discuss the implications of these findings for currently pending cases that will define the future of Web and Web 2.0 services such as digital libraries and online video sites. Search engines and hosting sites for books, news, and videos are the focus of this section.
September 7, 2008
Call For Applications: Fellowship in First Amendment and Media Law
From Professor Angela Campbell of Georgetown University Law Center:
Georgetown Law's Institute for Public Representation is inviting applications due December 1, 2008, for a two-year fellowship in First Amendment and Media Law. The details are provided in the attached announcement. Please forward to any of your graduates or graduating students who would be interested in working on important public interest communications policy issues in Washington, D.C. and teaching law students in a clinic setting.
Click on this link for more information.