September 27, 2008
Steven Tyler Sues Bloggers
Via the Citizen Media Law Project, this news: Steven Tyler is suing some John Doe bloggers who impersonated him and girlfriend Erin Brady. Here's a link to the Reuters story which details the claims: misappropriation, public disclosure of private facts, and making false statements. Actually, the complaint lists common law misappropriation, public disclosure of private facts and false light.
Weinstein Plan To Take "Project Runway" To Lifetime Auf-ed, At Least Temporarily
The Weinstein Company had planned to take its hit show Project Runway, now airing on the Bravo Network, to the Lifetime Network after this season, but that plan has hit a snag. A judge has issued a preliminary injunction to prevent the Weinsteins from doing so. The Weinsteins say they plan to appeal. NBC has a right of first refusal on the show according to its contract. Read more here and here in a New York Times story.
September 26, 2008
The FCC on Communications Problems of First Responders
FCC MOVES A STEP CLOSER TO SOLVING NATION'S COMMUNICATIONS CHALLENGES CURRENTLY FACED BY AMERICA'S FIRST RESPONDERS
FCC MOVES A STEP CLOSER TO SOLVING NATION'S COMMUNICATIONS CHALLENGES CURRENTLY FACED BY AMERICA'S FIRST RESPONDERS
Creation of Nationwide, Interoperable Public Safety Broadband Network Would Enable Police, Fire and Medical Personnel to Communicate With Each Other in Emergencies, Disasters
Washington, D.C. – In a sustained commitment to help solve the nation’s communications challenges currently faced by America’s first responders, the Federal Communications Commission (FCC) today adopted a Third Further Notice of Proposed Rulemaking (Notice) that proposes licensing the 700 MHz D Block spectrum as part of a revised 700 MHz Public/Private partnership that will maximize the public safety and commercial benefits of a nationwide, interoperable broadband network in the 700 MHz band.
A primary goal of the Commission is to promote the deployment of a broadband network that provides maximum coverage to first responders across the country. Today’s Notice proposes to retain a Public/Private Partnership framework for the 700 MHz band absent other sources of funding. Today’s Notice proposes a modified set of rules to govern the D Block and a revised auction plan for assigning D Block licenses. Specifically, the FCC proposes to use the competitive bidding process to determine whether, based on greatest population coverage and highest bid(s), the D Block spectrum would be licensed to a single licensee on a nationwide basis or to regional licensees on the basis of 58 public safety regions.
In the event the D Block is licensed on a regional basis, the auction results also would determine the particular air interface technology that would be deployed across the nation by the D Block licensee(s) when building out the interoperable broadband network(s), which would facilitate the ability of public safety entities to communicate outside of their home regions. With regard to the D Block license term and performance requirements, the notice proposes to extend the license term to fifteen years and to adopt performance benchmarks applicable at the fourth, tenth, and fifteenth years under the life of the license(s).
The Notice also proposes, and seeks comment on, rules involving significant clarifications and revisions of the respective obligations of the D Block licensee(s) and the Public Safety Broadband License regarding the construction and operation of the shared wireless broadband network. The public is also invited to comment on when the Commission should hold an auction for this spectrum after the rules are approved.
The clarifications and revisions address, among other things, the use of spectrum in the shared wireless broadband network (including requirements regarding public safety priority access to commercial capacity in emergencies), the technical requirements of the shared wireless broadband network (including detailed proposals relating to interoperability, robustness, capacity, quality of service, and security), the coverage requirements of the broadband network(s), and the respective operational roles of the D Block licensee(s) and the Public Safety Broadband Licensee.
The Notice also presents a number of specific proposals with regard to the rules governing public safety users and the Public Safety Broadband License. The Notice proposes, for example, that eligible users of the public safety broadband spectrum capacity must be providers of “public safety services” as defined under federal law. The Notice also proposes that the Public Safety Broadband Licensee should remain a non-profit entity, and that certain restrictions be imposed on its business relationships to avoid the potential for conflicts of interest. Further, the Notice proposes a number of changes to the Public Safety Broadband Licensee’s organizational structure to enhance its operational efficiency and transparency.
Because the D Block did not meet its $1.3 billion reserve price in the 700 MHz Auction held in early 2008, the FCC sought comment in May on whether it should revise the 700 MHz Public/Private Partnership and re-auction this spectrum. These rules included the creation of a 10-megahertz license in the D Block to be part of a public/private partnership with the adjacent 10 megahertz of spectrum dedicated to a Public Safety Broadband License. To ensure that all aspects of this critical initiative are given careful consideration, the Commission seeks additional public comment on this latest proposal, which was largely developed from the input, ideas and recommendations received from public safety organizations and officials, government representatives, wireless carriers and manufacturers across the country.
The public comment period for this Notice will begin once it is published in the federal registry and run for a period of 30 days, with reply comments due within 40 days from federal register publication.
Action by the Commission, September 25, 2008, by Third Further Notice of Proposed Rulemaking (FCC 08-230). Chairman Martin, Commissioners Tate and McDowell with Commissioner Copps concurring and Commissioner Adelstein concurring in part and dissenting in part. Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate and McDowell.
For additional information on the commercial services portion of the 700 MHz Band, contact Peter Trachtenberg at (202) 418-7369 or Peter.Trachtenberg@fcc.gov. For additional information on the public safety portion of the 700 MHz Band, contact Jeff Cohen at (202) 418-0799 or Jeff.Cohen@fcc.gov.
Statements by the Commissioners: Chairman Martin
Italian Court Vacates Blocking Order Against Pirate Bay
Free Speech in California Schools: A Round-Up of the Law
This article discusses one of the most important decisions on student speech to be issued out of the courts of California: Smith v. Novato Unified School District (2007). In this published decision -- binding on all school districts and trial courts in California -- the California Court of Appeal gave unprecedented protection to speech in public schools by narrowly defining "incites", the key word of the U.S. Supreme Court's Brandenburg v. Ohio decision, in the context of a California public high school student speech case. In doing so, the Court of Appeal correctly set aside the United States Supreme Court's student speech jurisprudence.
Quite to the contrary of the federal courts, which have explicitly said that "the constitutional rights of students are not automatically coextensive with the rights of adults in other settings" , California public school students possess the same free speech rights on campus as adults do standing on a street corner because, unlike federal courts, California state courts do not distinguish between free speech and school speech when presented with a student speech case. The Smith decision further reminds us that California state courts provide the broadest protection nationwide for students who wish to engage in controversial and/or politically incorrect speech in public schools. The article concludes with guidelines for public school districts and students to follow in light of Smith.
The article was written by the plaintiff's lead attorney in Smith and a former Litigation Fellow at the Pacific Legal Foundation, a national, freedom-based, public interest organization headquartered in Sacramento, California. Mr. Beard was recently published in the Texas Review of Law & Politics and Mr. Luther was recently published in the Santa Clara Law Review and has an article forthcoming in the Valparaiso University Law Review.
Download the article from SSRN here.
A Blog on EU Media Law
If you are interested in EU media law, check out this blog: contentandcarrier. The bloggers are academics, attorneys and judges specializing in the area. Thoughtful, interesting posts.
Google and Copyright Law
Search engines such as Google.com provide a tremendous public benefit by enhancing, improving, and mainstreaming information-gathering techniques on the Internet. After the dotcom bubble burst in 2001, Google claimed a domineering position in the marketplace, securing its niche as "the nexus of human curiosity." Google's corporate mission to make the world's information more accessible and more useful is revealing of its vast influence in today's world. Google provides an ever-improving search technology that is capable of scouring billions of web sites, news articles, literary works, images, and videos in the "Indexable Web." Google features not only search functionality, but also several Internet-based services that have further solidified its online empire.
This Comment explores and seeks to derive a balance between public interest in the disclosure of a creative work and a copyright owner's exclusive rights granted under copyright law. It begins by providing a brief overview of the American copyright system and explaining the technology involved in Google's "Image Search." After an in-depth analysis of copyright infringement and fair use jurisprudence, it argues that Google's use of thumbnail images in its Image Search is fair and noninfringing. In order to preserve the usefulness of the Internet, this Comment proposes that courts recognize an interpretation of copyright jurisprudence that will promote easy access to information, while preserving copyright protections.
Fomer Thai Prime Minister Loses Appeal Over Criminal Defamation Case
Thailand's former Prime Minister and a co-defendant have lost an appeal over a conviction for defamation and must begin serving their sentences. They may still appeal to the Supreme Court within 30 days. Their convictions came over remarks made on their talk shows about a former Bangkok official. Read more here.
A Review of Netanel's Copyright's Paradox
This essay reviews Copyright's Paradox by Neil Weinstock Netanel. It argues both that the book is the best exposition of the free speech critique of copyright and that the critique suffers two flaws. First it must cherry-pick among strands of free speech theory, emphasizing some and ignoring others. It thereby sacrifices a claim to be grounded in any conception of freedom of expression as such.
Second, in Netanel's version the critique holds that judges and legislators may intervene selectively in the expressive environment to make that environment more robust. Such intervention includes favoring some types of speech over others. To the extent this claim is true it undermines the premise that government actors are incapable of determining the socially optimal level of various kinds of expression. Without that premise, however, the free speech principle itself is undercut, and the free speech critique of copyright with it. I propose that this is the most interesting paradox Netanel's book identifies.
Download the paper from SSRN here.
Nunziato On Net Neutrality and Free Speech
Professor Nunziato's book explains why the growth of the Internet as the most open forum for free expression in history is now threatened by the privatization of the Internet, the gatekeeper control over expression exercised by a handful of corporate owners, and their power to censor what we say and read online. She sets forth how we got to this place and what must be done about it to guarantee meaningful free speech rights in the Internet age.
Download the paper from SSRN here.
Copyright Law and Work For Hire
Current copyright law allocates the initial ownership of works made by employees within the scope of their employment, to their employer. The work-made-for-hire doctrine is based on agency law, which in turn is based on tort law. This article revisits the doctrine and proposes an obvious, yet novel, basis, which integrates copyright and employment law. After drawing a spectrum of possible allocations of initial ownership, the article examines copyright law under an economic conception and employment law under a fairness conception. The discussion moderately supports current doctrine, with some modifications.
The article argues that an efficient and fair allocation is to award initial ownership to the party who bears the risk associated with making the work. Typical cases, based on the kind of work, employer and employee are proposed. Building on a Coasean analysis, I suggest that the law should avoid allocations that the market is likely to correct instantly in a costless manner. The analysis explains why penalty default rules are not suitable for the employment context, but instead, it offers to address information deficiencies with interpretive rules, by relying on the typical cases and with greater emphasis on job descriptions. The discussion illustrates yet another situation in which copyright law should not be developed in isolation from other fields of law. Within copyright law, the challenge is to preserve a multiplicity of forms of cultural production.
Download the paper from SSRN here.
September 25, 2008
Cleveland P-D's Music Critic's Reassignment Sounds Sour Note With Some, Or Is He the One Off Key?
The New York Times' Daniel Wakin discusses the flap over Donald Rosenberg's removal as the Cleveland Plain Dealer's classical music critic, after he went head to head with the Cleveland Symphony Orchestra's new music director, Franz Welser-Moest. Mr. Rosenberg wasn't fired; he was "reassigned." Ouch. Read more here.
Agreement Proposed On Digital Royalties
There's an apparent agreement on how digital royalties will be paid. The Digital Media Association has posted a press release outlining the agreement, which will be submitted to the Copyright Royalty Tribunal. Here are the high points, copied from the press release.
- The agreement proposes mechanical royalty rates that cover both limited downloads and interactive streaming, including when offered by subscription and ad-supported services.
- The percentage rate structure in the agreement provides much-needed flexibility for new business models.
- The agreement permits the use without payment of certain kinds of promotional streams, in the interest of encouraging paid uses of musical compositions.
- The agreement confirms that the mechanical licenses issued under its provisions will include all reproduction and distribution rights necessary to provide the licensed limited downloads or interactive streams.
- Outside the scope of the draft regulations, the parties confirmed that non-interactive, audio-only streaming services do not require reproduction or distribution licenses from copyright owners.
Advertising Standards Authority Bans Gambling Ad For Inapt Description of Qualities Needed For Poker
The Advertising Standards Authority has addressed complaints about a PokerStars advertisement that linked gambling and success with the opposite sex. It questioned whether the comparison between playing poker and achieving such success is apt.
The ASA noted Pokerstars' argument that the ad was targeted at men aged 21-44 years of age, and that the design of the ad was not attractive to young people. We considered that Daniel Negreanu was not a well-known personality or an obviously aspirational figure, and was unlikely to be of particular appeal to children or young people. We also considered that, in the context of the ad as a whole, the phrase "courage, conviction and confidence", although of general appeal, was unlikely to appeal particularly to children. We therefore concluded that the ad was not irresponsible and did not exploit the susceptibilities of children.
On this point we investigated the ad under CAP Code clauses 57.2 and 57.4 (b) (Gambling) but did not find it in breach.
We noted Pokerstars' argument that poker was a 'mind' sport that was distinct from other forms of mechanical gambling because it involved an element of tactics and skill. We also noted the complainant's concerns about the use of the term 'sport' in the ad. We considered, however, that poker was a well-known card game, and that the description of poker as a sport was unlikely to materially mislead members of the public about the nature of game. We also considered that the definition of 'sport' as a game, pastime or recreational activity was a definition that could be applied to poker. Notwithstanding that, we concluded that merely using the 'term' sport in itself to describe poker did not appeal particularly to children or young people, or encourage them to gamble.
On this point we investigated the ad under CAP Code clauses 7.1 (Truthfulness), 57.2 and 57.4 (b) (Gambling) but did not find it in breach.
We noted Pokerstars' argument that the reference to "courage, conviction and confidence" aimed to highlight the difference between poker and other, more mechanical, forms of gambling, and that that phrase did not suggest physical power or machismo. However, we considered that "courage, conviction and confidence" were attributes that demonstrated mental toughness or resilience, and would be seen as admirable qualities by the target audience of 21- to 44-year-old men. We also considered that the claim implied not only that those qualities were needed in order to play poker, but also that success at poker would therefore enhance those qualities. Because of that we concluded that the ad breached the Code.
On this point the ad breached CAP Code clauses 57.4 (f) and 57.4 (i) (Gambling).
The ad must not appear again in its current form.
Read the ASA's ruling here.
ASA Raps Lexus Car Ad, Calling It Misleading
The Advertising Standards Authority has banned a Lexus ad after viewers complained about its claims concerning the environment. The ASA indicated that the claims would mislead viewers into thinking that the car "caused little or no harm to the environment." After attempting to clarify its copy, Lexus amended it. Read more here. Read the ASA's ruling here.
Media Ethics--The British View
Roy Greenslade discusses the debate over media ethics here.
British Radio Show Host Drops Unfair Dismissal Case Against Former Employer
Radio talk-show host James Whale has abandoned his lawsuit against TalkSport. The radio network fired him over comments he made concerning the recent London mayoral election. Mr. Whale indicated he had run out of money to pursue his case. Read more here.
September 24, 2008
Implied Licenses in Copyright Law
This article addresses a proposed new standard in copyright law - the "implied license" doctrine, which has the potential to play a prominent role in copyright conflicts, especially in the context of digital media. The implied license doctrine is not new to intellectual property law however its use is currently limited. It is viewed essentially as a ramification of contract law, and as such the doctrine is usually applied to fill gaps in existing contractual or quasi-contractual relations, as a means of identifying the subjective or even objective intent of the relevant parties. This article proposes a new conceptualization of the implied license doctrine, one that would enable courts to impose norms based on public policy considerations in order to bring reasonableness into the law of copyright, as it affects digital media, especially in the internet. This standard of an implicit license should, in this view, override the intent of the relevant parties, even if explicitly stated, and would thus introduce clear and binding rules of conduct. In this sense, "implied license" is used here metaphorically, since is removed from the realm of contract law and in fact is used in some cases as a means of bypassing actual contractual provisions.
The scope for applying the proposed doctrine can be seen, for example, in the case of copyright issues that challenge the legality of various practices on the internet, such as linking, framing, the operation of search engines and the sale of works through transmission of digital copies. With respect to all these issues, the implied license doctrine can serve as a fine-tuning mechanism, permitting reasonable practices that are essential to the operation of the internet, while taking into consideration other conflicting interests where appropriate.
A Film About Grove Press and Its Daring Publisher
A new documentary features Barney Rosset and his revolutionary press, Grove, which championed publications that could find a home nowhere else. Read the New York Times article about Obscene here.
French Journalist On Trial For Inciting Racism
French investigative journalist Pierre Pean is on trial for inciting racial hatred over four pages in his recent book Noires Fureurs, Blancs Menteurs. A rights group, SOS Racisme, filed the charges against him. Read more here in a BBC story.