October 11, 2008
Author Decides To Delay Release of Book on Prophet Muhammed's Wife, Apparently Because of Violence
Sherry Jones, the author of a forthcoming biography of Aisha, a bride of the Prophet Muhammed, says she, and apparently her publisher, will delay British release of the book, titled "The Jewel of Medina." The AP is reporting that her British publisher's offices were firebombed. The original US publisher of the book decided not to release it, but another publisher has made it available here in the US. Here's more from the CBC.
October 10, 2008
Radio Station Says It Will Air Public Service Spots On HIV/AIDS After On-Air Hosts Make Comments About Magic Johnson
The AP reports that Minneapolis radio station KTLK has announced it will air some public service spots recognizing the gravity of HIV/AIDS as a disease and the work sports star Magic Johnson has done to promote awareness of and cures for the disease, after two of the station's on air hosts said they thought Mr. Johnson had "faked AIDS." The two, Chris Baker and Langdon Perry, made their comments Wednesday. Read more here. The website mediamatters.org has a partial transcript and audio of the show here.
Check Those Junk Email Folders, Just In Case
Ack! What happens when email sent by your ISP containing important new information lands in the junk email folder provided by your ISP based on spam filters created by your ISP? Are you still supposed to check your junk mail folder? AT&T customer Lance Mead says he was caught in just this situation, and attorney Paul Bland agrees it can pose a problem for the consumer since the wayward email might very easily be overlooked. AT&T says responsibility rests with its customers to check their junk email folders, but it's checking into what happened here after MSNBC.com asked about Mr. Mead's case. Read more here.
Steven J. Heyman's Free Speech & Human Dignity
Steven J. Heyman's new book Free Speech & Human Dignity (Yale, 2007) attempts to offer a coherent, rights-based theory of the First Amendment in analyzing some of the important issues facing our society today. Professor Heyman, who teaches at Chicago-Kent College of Law, examines issues of privacy law, hate speech, and pornography--difficult questions on which reasonable persons can and do differ--in an attempt to reconcile competing interests. Worth a look, and worth some space on the First Amendment bookshelf.
Philippine Ambassador Sends Letter To BBC, Objecting To Comedy Sketch On Popular Show
The Philippine Ambassador to the UK and others have objected to a sketch that aired on the BBC1 comedy show "Harry and Paul", calling it racist. Ambassador Edgardo Espiritu sent a letter of protest to the head of the BBC Trust, asking for an apology over the portrayal of a Filipina in the episode. Tiger Aspect, the producers of the program, noted that it airs after the "watershed" hour, deals with comic situations, and "the sketch in question is so far beyond the realms of reality as to be absurd, and in no way is intended to demean or upset any viewer."
House of Lords Committee Hears Testimony On Influence of Popular BBC Radio Program "Today"
Journalists testifying before a House of Lords committee told it that the popular BBC Radio 4 program Today does not have the kind of influence that it's reputed to have, although it does provide an audience for governmental announcements. But the BBC's Business Editor does have influence. Read more here in a Guardian article.
NUJ Pursues Labor Action Against Trinity Mirror Management
The Guardian reports that the National Union of Journalists continues to pursue a labor action against several of the Trinity Mirror's papers, based on its objections that management has not kept its promises, even though the union has cancelled a walkout. Read more here.
October 9, 2008
BBC Withdraws Part of Defense In Defamation Suit Brought By Physician Plaintiff
In a defamation case brought by a British physician against the BBC, the defendant has withdrawn a defense based on qualified privilege. Therefore, the presiding judge, Mr. Justice Eady, noted that Dr. Mohamed Taranissi was "entitled in principle" to a payment but did not order an immediate payment, since he was not certain how much the payment should be. The BBC maintains that payment ought to be put off until trial is completed, since the BBC still has other defenses to argue. Read more here.
New Zealand University Pulls Master's Thesis From Library Shelves To Examine Author's Work After Objections
From the Chronicle of Higher Education comes this bit of news: the University of Waikato (New Zealand) has pulled a master's degree thesis over the objections of its author, based on the request of Kerry Bolton, who objects to the author's analysis of his views. The author, Roel van Leeuwen, stands by his work and expects the university to do so as well, but the university says it is investigating Mr. Bolton's concerns. Here's more from a local paper, the Dominion Post. Here are links to the thesis, the original, and as edited by the author, Mr. van Leeuwen.
Update: Mr. Bolton, in an email to me, dated October 10, 2008, says that he asks for an investigation not primarily on the basis that the thesis was defamatory but that he thought the research methodology of the work was "shoddy and calls into question the standards not only of Waikato Uni., but further afield, given that it was deemed to merit honours by two external examiners." He also says that he has not threatened legal action.
Mr. Bolton also said in part in the email to me that he has not been "a member of any 'nazi' group." Here is a link to Mr. Bolton's website.
I thank Mr. Bolton for his clarifications.
Chinese Copyright Law and Internet Parody
In 2005, a funny flash song, "I Don't Want to Say I'm a Chicken", spread over the Internet (hereafter referred to as the Chicken Song Case). People were sharing it among friends, downloading it and using it as a mobile phone ring tone, and singing the song on KTV. The flash song is the lament of a chicken that was happy to be a source of eggs and meat, but is now facing extermination because of the threat of bird flu. Although the lyrics of the "Chicken Song" are creative and humorous, the melody of the song is lifted entirely from a famous Chinese song, "I Don't Want to Say", written by Li Haiying. As a result Li has sued the wireless content provider Kongzhong.com where the "Chicken Song" first appeared, for copyright infringement. Li believes he is owed an apology, 2 million Yuan in compensation, court costs and 50000 Yuan for mental suffering.
In 2006, a video spoof of a big-budget film created by a Chinese blogger triggered a hot debate among Chinese legal academics on copyright law. Hue Ge in his short video titled, "The Bloodbath That Began with a Steamed Bun", mocks much more than Chen Kaige's movie, "The Promise" (hereafter referred to as the Steamed Bun Case). The video pokes fun at the premise of the movie in which a hungry girl lies to a boy and steals his steamed bun. The boy grows up hating the world and becomes a cold-blooded killer. Chen was so infuriated by the "Steamed Bun" that he threw stones at Hu and threatened to seek litigation against him.
New British Survey on Defamation Shows Rise in Settlements
According to a new Sweet and Maxwell survey, fewer media defendants are willing to take a defamation case all the way through to a verdict. Instead, they're more willing to resort to settlements. The researchers believe that such settlements result from more competition among media outlets for stories that the public wants to see but that may lead to litigation, thus leading to the media's acknowledgement that the stories were factually problematic. The results of the survey highlight plaintiffs' lawyers' increasing willingness to take cases on contingency. Read more here from the Guardian. Here's more from the Times on a prior survey.
Need To Know the Inside Scoop On Reality Show "Survivor"?
If you wanted to know, MSNBC.com's Andy Dehnart has the inside track on some "Survivor" secrets here. For example, what is a "mactor"? Do things really happen as they are shown on the show as aired? Do contestants get toothbrushes? What happens if a contestant gets injured? How do contestants travel? What happens to them once they're voted out? Check out more heart-stopping, gottahavit information here.
WGA Tells Members That They Should Steer Clear of New Osbourne Reality Show Because of Pay Problems
The Writers Guild of America is telling its members that the new show featuring the Osbourne family should be off limits since its producer Fremantle does not pay according to WGA scale. The WGA told members that those who opted to sign up to work on the show did so "at their own peril."
Reality tv shows generally do not pay according to the same scale as do "scripted" shows, and WGA negotiators have been unable to come to terms with reality show representatives. Read more here.
McCain Not "Our Hero"--Foo Fighters
Like Jackson Browne, the Foo Fighters object to John McCain's use of their work in his political campaign. In the Foo Fighters' case, the song is "My Hero," and the band says that the campaign's use of the song "tarnishes" it. Ouch. Read more here in a BBC story and here in a Guardian article.
October 8, 2008
Country Life Settles Defamation Lawsuit With Barbados Politician
Yet another British magazine has agreed to pay damages and legal fees over a false story published in its pages. Country Life, the glossy weekly, has acknowledged that its reference via a song to the suggestion that Mia Amor Mottley, the former deputy prime minister of Barbados, had assaulted someone, was factually incorrect. Ms. Mottley has now withdrawn her defamation suit against the magazine and its parent company, IPC Media. Read more here in a Guardian story. Here's coverage from Barbados via The Nation Newspaper.
SNL Sketch Disappears, But Network Says It Will Be Back
Courtney Hazlett of "The Scoop" explains what happened to that "bailout sketch" from Saturday Night Live. It was available online, then it disappeared. Conspiracy theorists suggested pressure from somewhere forced NBC to remove it. But no, says the network. It needed some tweaking, and will return soon.
October 7, 2008
Seventh Circuit Affirms Dismissal of Producer's Breach of Contract Lawsuit Against NBC
The Seventh Circuit has affirmed the dismissal of a breach of contract lawsuit against NBC by a producer for the show To Catch a Predator. The plaintiff had asserted that the network failed to follow its own internal guidelines in producing the show and had complained to network brass. Later she lost her position.
As a journalist and producer for NBC, one of Bartel's main responsibilities was to ensure compliance with the ethical standards of journalism and NBC's internal guidelines. Bartel found numerous aspects of the Predator segment production to be in violation of these standards and guidelines. She believed, for example, that NBC was providing compensation directly or indirectly to the law enforcement officers participating in the stings. She thought it wrong that "Perverted Justice" representatives did not provide NBC with complete transcripts of their conversations with the targets, and that they did not identify all of their volunteers to NBC. She also objected that Dateline and Perverted Justice were staging the arrests in a way that maximized the humiliation of the target. Bartel informed her superiors at NBC of these problems, but they took no steps to cure them. Bartel then told her supervisors that she could not produce the segment. On November 17, 2006, NBC informed Bartel that her contract would be terminated effective December 25, 2006. NBC asserted that this action was part of a program of lay-offs that it was making because of general economic conditions.
Bartel did not believe this explanation, and so she sued NBC for breach of contract. She asserted that the termination was premature in light of the protection her contract afforded her. In addition, she charged that the reason given for her termination was pretextual; that the real reason was her refusal to produce a segment that violated ethical and company standards; and that her contract included an implicit restriction against firing her for this kind of reason, thus rendering NBC's action a breach of contract.
NBC moved to dismiss the complaint for failure to state a claim. It argued that the contract Bartel attached to the complaint was unambiguous and allowed it to end Bartel's employment when and why it did. The contract, NBC went on, contained no restrictions on allowable reasons for dismissal. NBC also argued that New York law, which both parties agree governs this case, does not allow courts to recognize the implicit restriction for which Bartel was arguing. The district court granted NBC's motion to dismiss, and Bartel appeals.
Bartel first argues that NBC was not permitted under the contract to end her employment when it did. In support of this position, she sought to introduce extrinsic evidence about the parties' understanding of the contractual arrangements, but the district court held that the language of the contract was unambiguous and therefore denied her request.
The provision that directly addresses the time at which NBC was entitled to terminate Bartel's employment is Paragraph 4(a) of the Letter Agreement between NBC and Bartel:
The term of this Agreement shall commence on December 26, 2005 and shall continue, subject to suspension, extension or termination as hereinafter provided, for a period of two hundred and eight (208) consecutive weeks thereafter. The term hereof shall be divided into four (4) consecutive cycles of fifty-two (52) weeks each. NBC shall have the right to terminate this Agreement effective at the end of any cycle prior to the last by giving Artist written notice not less than twenty-eight (28) days prior to the end of any such cycle. This Agreement shall automatically terminate at the end of the last cycle without notice, unless the parties agree otherwise.
The Letter Agreement was executed on March 31, 2006, but was retroactively effective as of December 26, 2005.
Bartel argues that "term" and "cycle" are terms of art that are not defined in the contract. But this is plainly not so: the two words are defined right in the paragraph we have just quoted. The "term of this Agreement" is 208 consecutive weeks, with a specified start-point and endpoint. That period is divided into four consecutive, equal 52-week sub-intervals, each of which is referred to as a cycle. A reasonable person reading this paragraph would not be confused about the meaning of the words "term" or "cycle" as they are used in the agreement.
We hold that the contract is unambiguous. Because NBC gave Bartel written notice on November 17, 2006, that it was terminating her contract effective December 25, 2006 (the end of the first cycle), NBC gave more than the required amount of notice. Thus, it did not breach the contract, assuming its action did not violate any implied-in-law restrictions on reason for dismissal, the point to which we next turn.
Even if NBC's termination of Bartel's contract was permissible as a matter of timing, Bartel argues that NBC nevertheless breached the agreement because of an implicit restriction in it. Specifically, Bartel alleges that NBC's stated reason for firing her--lay-offs as a general cost-saving measure--is a pretext; the real reason was Bartel's insistence that NBC live up to the ethical standards recognized by the profession of journalism and imposed by NBC's internal guidelines. The latter reason, she continues, is just as impermissible as something like a racially discriminatory motive.
Bartel does not contend that the termination of her employment contract violated the Constitution, a statutory proscription, or an express limitation in the contract (putting aside the timing argument that we have rejected). Instead, she argues that Wieder recognizes an exception not only to the rules for employment-at-will, but also inserts an implied term into all employment contracts. In Wieder, an attorney working as an associate at a law firm was fired after demanding that the firm report another associate's misconduct to the state disciplinary committee. The Court of Appeals of New York found that "in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession."
As we read Wieder, the court went to great lengths to highlight the uniqueness of the legal profession and to narrow its holding to that particular profession--perhaps even to the particular disciplinary rule at issue in that case. The opinion is riddled with limiting language, some of which we highlight here:
 [Plaintiff's] employment as a lawyer to render professional services as an associate with a law firm differs in several respects from the employments in Murphy and Sabetay. . . . plaintiff's performance of professional services for the firm's clients as a duly admitted member of the Bar was at the very core and, indeed, the only purpose of his association with defendants. Associates are, to be sure, employees of the firm but they remain independent officers of the court responsible in a broader public sense for their professional obligations.
More telling even than the language in Wieder is the language in Horn v. New York Times, supra. Postdating Wieder by eleven years, Horn discusses that case and the other relevant cases at length. It is the most recent pronouncement by the Court of Appeals of New York on its view of the law. Because we are sitting in diversity, we must rule as we think the highest court of the state would rule if it were deciding the case, even if we think that another approach would be preferable.
In declining to expand the "narrow exception to the at-will employment doctrine adopted in Wieder," Horn reaffirmed New York's position that "such a significant change in our law is best left to the Legislature."...Horn noted New York's "strong disinclination to alter the traditional rule of at-will employment."... It then catalogued the "unique" aspects of the legal profession that were critical to the recognition of an exception in Wieder.... It pointed out that the New York Legislature has delegated to the state judiciary the task of overseeing attorney self-regulation, and so the leave-it-to-the-Legislature argument had less force for the situation in Wieder.... Recognizing the importance of physician-patient confidentiality, the court acknowledged that Plaintiff Horn "strikes a sympathetic, and even a seductive, chord," but she had nonetheless "failed to plead facts that place her claim for breach of contract within the Wieder exception to the at-will employment rule."
Horn leaves us convinced that the Court of Appeals of New York would decline to expand Wieder to include journalists. We therefore find no breach of contract on NBC's part, even assuming that Bartel can prove that the reason NBC offered for the lay-off was pretextual.
The case is Bartel v. NBC Universal, 2008 U.S. App. LEXIS 19347.
Oliver Stone's "W"
Variety reviews Oliver Stone's new cinebio of George W. Bush here.
Cyber Attacks and the Rise of Cyber Civil Rights
Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital "scarlet letters" that ruin reputations.
Today's cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.
General criminal statutes and tort law proscribe much of the mobs' destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.
Download the article from SSRN here.
Google's "Image Search" and the 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.