November 28, 2008
Gunning for Dr. Pepper
Axl Rose doesn't seem to be a Pepper. He wants an apology, and big bucks to the band for the use of its name in the company's proposed giveaway of its popular pop, tied to release of the band's new album, Chinese Democracy. Apparently negotiations over the promotion never quite worked out. The company says the promotion was "a fun giveaway," tied to the long-awaited release of the album. Here's what Mr. Rose is reputed to have said about the giveaway back in March. And here's what the New York Times said about attempts to extend the giveaway deadline, after the Dr. Pepper website crashed on Sunday.
Fallout From the MySpace Case
The New York Times' Brian Stelter reports on the Lori Drew verdict here, examining among other issues, the question of whether creating a false identity on the 'net is now a crime. Some commentators say setting up a false identity is perfectly understandable if one wishes to protect against hacking. Others say people do not read social network "terms of service" carefully, if at all, so they do not understand that they are violating their contracts if they set up false identities. The judge in the Drew case will entertain a motion for a verdict of dismissal in December.
November 26, 2008
MySpace Trial Verdict Announced; Defendant Convicted on Lesser Counts
A jury has convicted Lori Drew on three misdemeanor charges and acquitted her of felony charges in the high profile "MySpace" hoax trial. The jury could not come to a decision on a conspiracy charge. Prosecutors did not say whether they would try for a new trial on that charge. The defense also asked the presiding judge, George Wu, to set aside the verdict. Read more here and here.
Coroner Rules BBC Producer "Unlawfully Killed"
A coroner's inquest has found that Kate Peyton, the BBC producer who went to Somalia to do some feature stories was "unlawfully killed." The coroner, Peter Dean, indicated he would follow up his ruling with a letter to the BBC.
Ex-TV Anchor Gets Fine, Community Service For Reading Former Co-Worker's Emails
A judge has sentenced Larry Mendte, the ex-Philadelphia TV anchor who snooped into his co-anchor's email, to 150 hours of community service and fined him $5000, for the infraction. He lost his job earlier this year. Read more here.
Advertising Regulator Tells British Newspaper Its "Aussie" Ad Went Too Far
The ASA has told the Sun Newspaper that its ad twitting Australia for failing to win more medals at the Olympics than Britain went too far. The agency informed the paper that using the word "bloody" in the ad, which asked the Australians, "Where the bloody hell were you?" was likely to be seen by children, and that the ad breached CAP Code clauses 2.2 (Social responsibility) and 47.1 (Children). Read the ruling here.
ASA Rules Beer Ad "Disrespectful To Asian Culture"
The Advertising Standards Authority has found that a beer ad is "disrespectful to Asian culture," and "likely to cause serious or widespread offence."
An ad, for Tiger Beer, appeared on poster and in the Metro and London Lite newspapers. A small image of a bottle of Tiger beer was shown in the top left-hand corner, which was labelled with a star that stated "THE FAR EASTS MOST DESIRABLE EXPORT SINCE 1932". In the foreground of the ad was a large image of a person wearing black stockings, knickers and a bra, with a sheer blouse that was not fastened. The person was putting something into their mouth and was labelled with a star that stated "3rd".
Tiger Beer UK Ltd said the campaign was not intended to condone lewd behaviour, human trafficking or the sex trade in, or as exports of, the Far East. They said the campaign was intended to reflect Tiger Beers Far Eastern heritage and build on its position as the "Far Easts most desirable export since 1932" by presenting it in the context of other recognised Far Eastern exports including ladyboys, tuk tuks, chop sticks and acupuncture, all of which were treated with the respect they deserved.
They said ladyboys were a famous export of the Far East worldwide and the image of the ladyboy in the ad was representative of a cabaret performer rather than a prostitute or model; throughout the campaign ladyboys had been celebrated and treated with the utmost respect. Tiger Beer UK said all of the ads in the series included a web address where consumers could obtain tickets to events that brought the Far Eastern exports in the ads to life and included ladyboy cabaret, tuk tuks, martial arts and karaoke.
They believed the campaign was an exciting fusion of Far Eastern exports and was well positioned within the UKs contemporary culture. Their agency had undertaken research prior to the campaign, the findings of which had not given them any reason to believe that the target audience would find the ads offensive. Tiger Beer UK said their agency had also sought the guidance of the CAP Copy Advice team, who had informed them the ad was not without risk of complaints. They said having run the ad they realised members of the public beyond the target audience could have interpreted the ads differently to how they were intended, particularly because some of the ads appeared in untargeted media. They had therefore taken the decision to remove the ladyboy image from the campaign.
London Lite said they considered the campaign to be light-hearted and, because it had a humorous tone, not offensive or disrespectful to Eastern culture. They considered it to be suitable for their readers, who were not children but a "young, urbanite London crowd", who would see the ad as humorous and would not find it offensive. They said although they had not received any complaints about the ad, they did not have any plans to use it in the future.
The Outdoor Advertising Association said they thought the ad was suitable because it was light-hearted rather than offensive.
The ASA noted the ad was intended to reflect the brands heritage and that Tiger Beer UKs agency had undertaken research that did not give them reason to believe the target audience were likely to be offended by the ad. We also noted however that the ad was likely to be seen by many consumers outside of that target audience, particularly when appearing in the untargeted poster medium.
We noted the CAP Copy Advice team had told the agency that they were concerned that the image linked the product with potentially undesirable export activities such as human trafficking and was, therefore, likely to offend.
We understood that the ads image was intended to represent a ladyboy cabaret act. We considered, however, that by presenting the character in sexual clothing and a provocative pose alongside the implication that she was rated the Far Easts third most desirable export, the ad appeared to link exports with the sex trade and, potentially, human trafficking. We also considered the ad suggested beer and sex were two of the best exports of the Far East, which was disrespectful to Eastern culture. We concluded that the ad was likely to cause serious or widespread offence.
On both points, the ad breached CAP Code clause 5.1 (Decency).
Read the entire ruling here.
Fan Site Shuts Down Links To Fan-Edited Films
Via the IMDB.com blog Studio Briefing News comes this item: the website Fanedit.org has shut down in the face of a legal threat from the Motion Picture Association of America, which says that its fans' practice of re-editing or transforming films is copyright infringement. Here's what the site says:
A DMCA WARNING BY THE MPAA CASTRATES FANEDIT.ORG!
We all knew this day would come, but on the other side we all hoped, it would never. 3 days ago the MPAA has filed a DMCA warning against our download links. The result: 2 days of downtime, in which we removed all download links and all reference to them, making Fanedit.org just a showcase for fanedits without any possibility for the visitor to download.
Our torrents page: Gone. Our Rapidshare lists: gone. And it’s the same on the forum.
Yes, this is a heavy and painful blow by the movie industry against a free art form, against creativity without commercial interest, against sharing between people, who all own the original versions. It seems you own your own DVDs a lot less than you thought you did.
BUT: We will prevail. Even without the links we will continue to inform you about new releases, because one thing is for sure: FANEDITS ARE NOT DEAD. It is just a bit more difficult to get a hold of them. But the internet is a vast place and he who searches will find it somewhere else.
November 25, 2008
NLRB Proceeds On "Fi-Core" Complaint Arising Out of WGA Strike
The National Labor Relations Board general director is transferring that fi-core case from Washington back to Los Angeles and ordering the regional director to issue a complaint. Remember that during the WGA strike earlier this year, some members of the Guild decided to go "fi-core." That is, they opted to pay dues directed for certain activities and withhold dues for others (lobbying, for instance). The WGA, in a statement to its members, said in part,
Yet among the many there were a puny few who chose to do otherwise, who consciously and selfishly decided to place their own narrow interests over the greater good. Extreme exceptions to the rule, perhaps, but this handful of members who went financial core, resigning from the union yet continuing to receive the benefits of a union contract, must be held at arm's length by the rest of us and judged accountable for what they are - strikebreakers whose actions placed everything for which we fought so hard at risk.
While others forfeited paychecks to stand in unity with their fellow Guild members, many who went financial core continued to collect salaries. Without concern for their colleagues, they turned their backs and tossed the burden of collective action onto the rest of us, taking jobs, reducing our leverage and damaging the Guilds for their own advantage.
Even in cases of deep financial distress, there were other options, including generous no-interest loans from our strike funds, which would have sustained them until the end of the strike and beyond. That's what unions are for.
Those who went financial core did not share in the adversity; and should not share in our victory. They cannot vote in our elections, run for Guild office, attend Guild meetings and other events, or participate in the Writers Guild Awards. Further, it has been determined by the National Council of the Guilds West and East, and affirmed by Guild East Council and the Guild West Board, that we send this joint letter with a link to a list on respective websites of those who went financial core during the strike. To view it now and for future reference, you can find it at: subpage_member.aspx?id=2828.
The rest of us are all in this together.
The Alliance of Motion Picture and Television Producers, which had explained on its website how WGA members could "go fi-core," filed a complaint with the NLRB. Apparently the agency is now proceeding on the matter.
Louisiana Appellate Court Finds Owner of Radio Station is Limited Purpose Public Figure For Purposes of Defamation Action
The Louisiana Court of Appeal, First Circuit, has affirmed a lower court ruling granting a special motion to strike, and ruling that the owner-operator of a radio station is a limited purpose public figure for purposes of his defamation action against the defendants, whom he alleged made defamatory statements in a newspaper. The plaintiff "voluntarily injected himself" into the debate, thus abandoning his private figure status for purposes of the controversy.
In Louisiana defamatory words have traditionally been classified into two categories those that are defamatory per se and those that are susceptible of a defamatory meaning....Words which expressly or implicitly accuse another of criminal conduct, or which, by their very nature tend to injure one's personal or professional reputation even without considering extrinsic facts or surrounding circumstances are considered defamatory per se....When a plaintiff proves publication of words that are defamatory per se the elements of falsity and malice are presumed but may be rebutted by the defendant....Injury may also be presumed....When the words at issue are not defamatory per se a plaintiff must prove in addition to defamatory meaning and publication the elements of falsity malice and injury....In cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, i.e., that the defendant either knew the statement was false or acted with reckless disregard for the truth....To establish a reckless disregard for the truth the plaintiff must show that the false publication was made with a high degree of awareness of probable falsity, or that the defendant entertained serious doubt as to the truth of his publication.... Further, conduct which would constitute reckless disregard is typically found where a story is fabricated by the defendant, is the product of his imagination, or is so inherently improbable that only a reckless man would have put it in circulation....In the instant case Starr asserts that five statements printed in the newspaper articles are defamatory. These five statements assert: (1) Michael Starr Vincent Bruno and John Treen were equal owners of Delta Starr; (2) final judgment in a suit against Starr is pending; (3) Cajun Radio executives discovered unethical dealings of ownership with KTIB; (4) KTIB employees complained about receiving bounced checks from Starr and (5) Bruno makes additional claims against Starr, which are serious under federal law, and each count could result in heavy fines or up to five years in jail if the court agrees.Particularly, Starr contends that these five statements are defamatory per se, and therefore, he does not need to establish falsity, malice or injury, as those elements are presumed. However, the Louisiana Supreme Court has recognized that the legacy of United States Supreme Court decisions regarding defamation is that “the protections afforded by the First Amendment supercede the common law presumptions of [malice], falsity and damages with respect to speech involving matters of public concern, at least insofar as media defendants are concerned.”...Accordingly, our supreme court has recognized that in actions against a media defendant involving an issue of public concern, the presumptions of falsity, malice, and injury do not apply....Additionally prior to Kennedy, the supreme court indicated that in cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, implying that defamation per se does not apply in cases involving a public figure....Therefore, in accordance with the above decisions, in cases involving statements made on an issue of public concern against a media defendant or statements made about a public figure, a plaintiff must prove all elements of his cause of action for defamation including actual malice, and may not rely on any presumption based on the fact that the words are defamatory per se. Starr however, contends that he is not a public figure, and therefore, any heightened standard of proof is inapplicable. From our review of the facts and the record in the instant case, we find that Starr is a public figure for purposes of the limited issues involved in the newspaper articles.The United States Supreme Court stated in Gertz v. Robert Welch Inc.... that a person[']s designation as a public figure may rest on either of two alternative bases In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts....More commonly, however, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.... An individual who voluntarily injects himself or is drawn into a particular controversy becomes a public figure for this limited range of issues. In either case such persons invite attention and comment and assume special prominence in the resolution of public questions....In the instant case Starr is an owner of Delta Starr and La-Terr, which operates KTIB, a radio station that served as an important source to the community for local news talk and weather. In his capacity as an owner and operator of KTIB, Starr issued a press release explaining KTIB's sudden removal from the airwaves. In this release, Starr stated that there had been some recent changes and that the station had experienced some setbacks. Starr stated that KTIB was seeking a new owner and he also expressed confidence that KTIB would resume broadcasting. In issuing this press release, Starr voluntarily injected himself into the debate regarding KTIB's removal from the airwaves and voluntarily divulged information regarding the company's operational problems and its search for a new owner. Therefore, to the extent that the newspaper articles at issue discussed Starr in his capacity as an owner and operator of KTIB, and addressed issues directly related to the ownership and management of KTIB, we find that Starr was a public figure for that limited issue.Further even if we did not find that Starr was a public figure, the articles and statements at issue involve a matter of public concern. The United States Supreme Court has defined matters of “public concern” as speech “relating to any matter of political, social, or other concern to the community.”...Clearly, the articles discussing the removal of a local radio station from the airwaves, which was an important source for local news, talk, and weather, relates to a matter of public concern and is an issue about which the local community would reasonably be expected to have a legitimate interest. Therefore, because we find that Starr is a public figure for the limited issues involved, and alternatively, that the articles at issue, published by the media defendants, involve a matter of public concern, Starr must prove actual malice, as well as the other elements of his defamation claim, in order to prevail.From our review of the record, we find no evidence to suggest that the defendants acted with actual malice in publishing the newspaper articles at issue. Defendants filed into the record affidavits of Darrin Guidry, the President and Chief Executive Officer of Guidry Group, and Kenny Boudreaux. In these affidavits, Guidry and Boudreaux state that the articles were researched and written in accordance with proper reporting standards, including review of the public records and interviews with known, reliable, and identified sources. Additionally, the defendants attached copies of the documents they reviewed in writing the articles, including copies of complaints filed in the Seventeenth Judicial District Court and federal court; emails from Starr's employees; letters from Vincent Bruno to the Federal Communications Commission; and affidavits from Vincent Bruno, John Treen, and Thomas Cvitanovich (a shareholder of La-Terr).In opposing the motion to strike, Starr filed his affidavit acts of sale related to ownership interests in Delta Starr and La-Terr, a judgment from the Seventeenth Judicial District Court dismissing a claim filed against Starr on an exception of Venue, affidavits from two of Starr's employees clarifying previous statements regarding their paychecks; and an email from the President of Wilkins Communications stating that he did not know where the defendants obtained information that it or Cajun Radio was excusing itself from the deal with KTIB, that he did not comment orally or in writing to anyone with the defendants, and that the comments contained in the newspaper articles were not made by any of his representatives or counsel.However, none of the evidence presented by Starr demonstrates any actual malice on the part of the defendants in publishing the newspaper articles at issue. The evidence neither suggests that the defendants knew the statements were false, nor that they acted with reckless disregard for the truth. The evidence presented by Starr may establish that the statements were subsequently shown to be false. However, it does not demonstrate that the defendants were highly aware at the time the statements were made that they were false or that they entertained serious doubt at that time as to the statements’ truth. In fact, the totality of the evidence shows that at the time the articles were published, the defendants had a reasonable basis for believing the statements were true....Accordingly, because Starr has failed to prove actual malice with regard to the statements made by the defendants in the newspaper articles, he did not establish a probability of success on his claim for defamation, and the trial court was correct in granting defendants’ special motion to strike Starr's petition.
An Examination of Spectrum Policy
This chapter for a book on the future of digital television examines how spectrum policy priorities came to shape today's television broadcast system and the issues that will influence the future of wireless video. As video services come to migrate freely between wired and wireless platforms, and as broadcast television merges with other forms of wireless video, spectrum policy and the public interest values that it reflects will shape the video value chain. These values are often crosscutting and require tradeoffs among such interests as maintaining existing communications services, technical innovation, spectrum efficiency, universal service, media diversity, and competition. What tradeoffs are made, and what they cost, is too frequently hidden from public view.
Download the paper from SSRN here.
Broadband Competition and Market Penetration
Depending on the source one can conclude that United States consumers enjoy access to a robustly competitive and nearly ubiquitous marketplace for inexpensive broadband Internet access, or they suffer the consequences of a tightly concentrated industry offering inferior service at high rates. On one hand, the Federal Communications Commission ("FCC"), the National Telecommunications and Information Administration ("NTIA") and some sponsored researchers offer a quite sanguine outlook, possibly influenced by their appreciation for the political and public relations dividends in compiling positive results.
On the other hand, other statistical compilations and interpretations show the U.S. behind in terms of market penetration and price, even trailing some nations that have similarly unfavorable geographical and demographic characteristics. In the light of the extraordinary global success achieved by domestic ventures in information and communications technology ("ICT"), it would appear counterintuitive for some current broadband statistics to show the United States lagging other nations in terms of favorable access to next generation networks.
The FCC has used evidence of robust market penetration and competition in broadband markets to support an aggressive deregulatory campaign. Advocates for even more deregulation regularly cite the Commission's statistics as evidence that the unfettered marketplace can achieve broadband access and affordability goals. Both the Commission and many stakeholders assume the frequently cited statistics present a true picture of the marketplace. A recent NTIA document concludes that the United States has achieved the goal of "universal, affordable access for broadband technology by the year 2007" articulated by President Bush in 2004.
This paper will examine the United States broadband penetration and pricing statistics with a critical eye, in light of other contradictory compilations by credible organizations including the International Telecommunication Union and the Organization for Economic Cooperation and Development. Additionally the paper will compare and contrast the FCC's identification of broadband options in the author's home zip code with what actual options the author could identify.
The paper concludes that the FCC and NTIA have overstated broadband penetration and affordability by using an overly generous and unrealistic definition of what qualifies as broadband service, by using zip codes as the primary geographic unit of measure and by misinterpreting available statistics. Additionally the FCC includes as competition services lacking any true cross-elasticity with other services based on substantial price differences.
The paper concludes that credible calculations, using better calibrated measures, show a mixed outcome based on different geographical focus. Some U.S. residents, particularly in urban locales, enjoy comparatively excellent broadband service, while rural residents may have ample access options, albeit at comparatively high prices in light of limited price competition. The paper concludes that the absence of robust price competition among many facilities-based broadband operators in many areas of the nation challenges many of the assumptions built into recent FCC policy initiatives that seek to abandon consumer safeguards. The paper also concludes that a statutory mandate to promote universal access to advanced telecommunications capability requires the FCC to collect and disseminate credible statistics on next generation network deployment.
Donwload the paper from SSRN here.
November 24, 2008
SAG Headed Toward Strike Vote After Talks Fail
The Screen Actors Guild leadership will ask for a strike vote from the membership after talks with the Alliance of Motion Picture and Television Producers produced no movement over the weekend. The negotiations, under the leadership of a federal mediator, were the first in months. The 12,000 SAG members have been working without a contract since June 30.
Here's part of SAG's press release.
"Our leadership was optimistic that federal mediation would help to move our negotiations forward, but despite the Guild’s extraordinary efforts to reach agreement, the mediation was adjourned shortly before 1:00 a.m. today.
Management continues to insist on terms we cannot responsibly accept on behalf of our members. As previously authorized by the National Board of Directors, we will now launch a full-scale education campaign in support of a strike authorization referendum. We will further inform our members about the core, critical issues unique to actors that remain in dispute.
We have already made difficult decisions and sacrifices in an attempt to reach agreement. Now it’s time for SAG members to stand united and empower the national negotiating committee to bargain with the strength of a possible work stoppage behind them.
We remain committed to avoiding a strike but now more than ever we cannot allow our employers to experiment with our careers. The WGA has already learned that the new media terms they agreed to with the AMPTP are not being honored. We cannot allow our employers to undermine the futures of our members and their families.”
Here's part of the AMPTP's press release on the situation.
We are disappointed to report that the federal mediation efforts between SAG and AMPTP failed in the early morning hours of Saturday, November 22nd, when mediator Juan Carlos Gonzalez ended the process.
The mediation failed for one fundamental reason: SAG continued unrealistically to insist on a substantially better deal than all of the other major Hollywood Guilds and Unions have negotiated so far in 2008. In the end, it was clear that SAG was not serious about using the mediation process to make a deal. Instead, SAG appears to have manipulated the mediation process in an attempt to achieve precisely the result it has wanted all along: A strike by SAG members.
SAG has not justified why it deserves to be treated differently than the industry’s other Guilds and Unions – particularly at a time of extraordinary economic distress for both the country and the entertainment business. SAG refuses to deviate from its unrealistic position, even continuing to cling to its proposal to change the DVD residual formula.
AMPTP has already negotiated six major labor agreements in 2008 alone, including the pact just concluded with IATSE. We are prepared to conclude an agreement with SAG, but we simply do not see any justification for SAG receiving more than we have offered - a deal that is every bit as good as the ones the industry’s other Guilds and Unions have negotiated in far better economic times.
Getting Around Britain's Libel Laws
The New York Times' Noam Cohen follows up on Rod Nordland's Newsweek piece about what cannot be written about in Britain with this piece about the British libel laws and how they are being circumvented by publication to the Internet. The NYT article points out that Wikileaks, which has had its own lawsuits to defend, is a host site for much of the material that people might wish to keep under wraps.
Politkovskaya Trial Gets More Complicated; Supreme Court Will Review Trial Judge's Actions In Closing Proceedings
Russia's Supreme Court has decided to review the actions of the judge presiding over the Politkovskaya murder trial after jurors involved indicated that they favored an open trial instead of the closed trial the judge has mandated. Many of the jurors said they were not intimidated by the press who wanted to attend the trial. The President of the Moscow Bar told the press that the judge might have "deliberately misinterpreted the opinion of the jury..." and if so, he "cast doubts about his own impartiality." The judge has now postponed the trial until December 1st. Read more here and here.
BBC Producer's 2005 Death in Somalia To Be Investigated
An inquest begins on the death of BBC producer Kate Peyton, who was assassinated upon her arrival in Mogadishu in 2005. She and a colleague were there to work on a story about the Somali peace process. A UN report found that her death was probably ordered by a local rebel leader linked to al-Qaeda. Among the questions BBC execs are likely to have to answer are whether journalists are ready for such assignments and whether reporters feel pressure to take them. Read more here in a Press-Gazette story and here in a BBC story.
To Be a Reporter In Russia
The Guardian's Luke Harding discusses the very real risks of being a member of the media in today's Russia.
Jackson Recording Contract Dispute Over
Michael Jackson and Sheikh Abdulla Bin Hamad Bin Isa Al-Khalifa have settled their dispute over that recording contract. Proceedings were set to begin today in a London courtroom. Read more here in a BBC story and here in a CNN story.