Saturday, February 16, 2008
The New York Times has an obituary in today's issue for the HD DVD format, now that WalMart has decided to stock the Blu-Ray format, the type that Sony delivers. Most Hollywood studios and other retailers have already gotten behind the Blu-Ray format. If WalMart's decision marks the end for HD DVDs, then Sony will have won one--its Beta tape format lost out to VHS decades ago. Admittedly, this post has nothing directly to do with media law, but oh, all those law related DVDs!
Friday, February 15, 2008
From this week's eSkeptic, Steve Salerno, the author of S.H.A.M.: How the Self-Help Movement Made America Helpless (2005) critiques broadcast journalism in a piece called "Journalist-Bites-Reality!: How Broadcast Journalism Is Flawed in Such a Fundamental Way That Its Utility As a Tool For Informing Viewers Is Almost Nil." Among Mr. Salerno's complaints--that the mainstream media tend to overstate their cases and that they don't understand statistics. Here's an excerpt.
The mythical Red State/Blue State paradigm is just one of the more telling indications of a general disability the media exhibit in working with data. A cluster of random events does not a “disturbing new trend!” make — but that doesn’t stop journalists from finding patterns in happenstance. Take lightning. It kills with an eerie predictability: about 66 Americans every year. Now, lightning could kill those 66 people more or less evenly all spring and summer, or it could, in theory, kill the lot of them on one really scary Sunday in May. But the scary Sunday in May wouldn’t necessarily mean we’re going to have a year in which lightning kills 79,000 people. (No more than if it killed a half-dozen people named Johanssen on that Sunday would it mean that lightning is suddenly targeting Swedes.) Yet you can bet that if any half-dozen people are killed by lightning one Sunday, you’ll soon see a special report along the lines of, LIGHTNING: IS IT OUT TO GET US? We’ve seen this propensity on display with shark attacks, meningitis, last year’s rash of amusement-park fatalities, and any number of other “random event clusters” that occur for no reason anyone can explain.
Journalists overreact to events that fall well within the laws of probability. They treat the fact that something happened as if we never before had any reason to think it could happen — as if it were a brand-new risk with previously unforeseen causation. Did America become more vulnerable on 9/11? Or had it been vulnerable all along? Indeed, it could be argued that America today is far less vulnerable, precisely because of the added vigilance inspired by 9/11. Is that how the media play it? Similarly, a bridge collapse is no reason for journalists to assume in knee-jerk fashion that bridges overall are any less safe than they’ve been for decades. Certainly it’s no reason to jump to the conclusion that the nation’s infrastructure is crumbling, which is how several major news outlets framed the collapse of the Interstate 35W Bridge this past summer. As Freud might put it, sometimes a bridge collapse is just a bridge collapse. Alas, journalism needs its story line.
Read Mr. Salerno's essay here.
Here's a link to Congressperson Markey's Net Neutrality bill (The Internet Freedom Preservation Act).
Here's a summary of the bill, provided by the Congressperson's office.
The Internet Freedom Preservation Act
Rep. Edward J. Markey (D-MA) and Rep. Chip Pickering (R-MS)
The Internet Freedom Preservation Act is designed to assess and promote Internet
freedom for consumers and content providers. Internet freedom generally embodies the
notion that consumers and content providers should be free to send, receive, access and
use the lawful applications, content, and services of their choice on broadband networks,
possess the effective right to attach and use non-harmful devices to use in conjunction
with their broadband services, and that content providers not be subjected to new,
discriminatory charges by broadband network providers. These general principles have
often been referred to as “network neutrality” principles as well.
The bill has three key sections.
1) Broadband Policy
The legislation establishes overarching national broadband policy. Similar to the
provisions of law that today guide U.S. telecommunications and media policy, which
were enacted decades ago as Section 1 of the Communications Act, the bill proposes a
new section to the Communications Act to update these policy objectives and articulate
new national policy for the broadband era.
The new national broadband policy contained in the bill states:
“It is the policy of the United States—
“(1) to maintain the freedom to use for lawful purposes broadband telecommunications
networks, including the Internet, without unreasonable interference from or
discrimination by network operators, as has been the policy and history of the Internet
and the basis of user expectations since its inception;
“(2) to ensure that the Internet remains a vital force in the United States economy,
thereby enabling the Nation to preserve its global leadership in online commerce and
“(3) to preserve and promote the open and interconnected nature of broadband networks
that enable consumers to reach, and service providers to offer, lawful content,
applications, and services of their choosing, using their selection of devices, as long as
such devices do not harm the network; and
“(4) to safeguard the open marketplace of ideas on the Internet by adopting and
enforcing baseline protections to guard against unreasonable discriminatory favoritism
for, or degradation of, content by network operators based upon its source, ownership, or
destination on the Internet.”
2) Internet Freedom Assessment
The second key provision of the bill tasks the Federal Communications Commission
(FCC) with the job of conducting an assessment of broadband services and consumer
rights. It requires the FCC to evaluate several items, including whether broadband
network providers are adhering to the FCC’s own Broadband Policy Statement (FCC 05-
151), whether broadband network providers add charges for services that are inconsistent
with the bill’s expression of Internet freedom principles, and whether certain consumerfriendly
applications (such as anti-spam services and parental content blocking tools),
network management functions, or policies for prioritizing particular Internet traffic
(such as for emergency communications) may be consistent with such principles. The
assessment will also include an analysis of the benefits of an open platform for the U.S.
economy and how Federal broadband policies and regulations (such as spectrum
allocations, video franchising rules, or universal service programs) may impact the
prospects for protecting and promoting Internet freedom.
3) Broadband Summits
Finally, the legislation also requires the FCC to conduct eight public broadband summits
around the country within a year after the date of enactment of the bill. The goal of such
summits is to obtain testimony and input from consumers, small business owners,
entrepreneurs, investors, local governments, academics, labor organizations, and other
interested parties about Internet freedom and U.S. broadband policies affecting consumer
protection, competition, and consumer choice.
As part of this proceeding, the FCC is also tasked with utilizing broadband technology to
also obtain input via the Internet in order to maximize the ability of citizens to participate
in this inquiry.
The legislation requires the FCC to report back to Congress on the results of its Internet
freedom assessment, and include information gained during its broadband summits, with
recommendations for additional steps to promote competition, safeguard free speech, and
ensure consumer protections and consumer choice.
Feb. 13, 2008
The human right group Human Rights Watch has charged that Bangladeshi authorities tortured a reporter into making a false confession during a detention last year. The reporter, Tasneem Khalil, who still works for the group, said he was detained for 22 hours, during which time he was beaten. After his release he and his family left Bangladesh for Sweden. Read more here and here (from Human Rights Watch website).
A Bell ExpressVu customer has struck a blow for an angry consumer base by achieving what looked like the impossible--the certification of a class action lawsuit against the company. Peter DeWolf did not want to pay a nineteen dollar "administrative charge" for failing to pay a late bill. After a nearly three year battle, an Ontario Superior Court judge is allowing the suit to go forward. Bell ExpressVu provides digital satellite service across Canada. Read more in a Globe and Mail article here.
Thursday, February 14, 2008
The Guardian reports that the National Union of Journalists has averted, at least temporarily, a strike by journalists at Reuters. The journalists and the company will now resume negotiations. Employees are concerned over a possible merger between Reuters and Thomson, the giant media conglomerate. Read more here.
The Chicago Tribune reports on a flap over some writing that Northwestern's dean of journalism did for its alumni magazine last year. In a piece in the Daily Northwestern, the student newspaper, a student reporter questions Dean John Lavine's use of anonymous quotes in two pieces that he wrote for the magazine. Dean Lavine stands behind his work. Read more here in an article by the Trib's Jodi S. Cohen and Tara Malone. NPR has more in an audio interview with the student reporter.
Local authorities in Bucks County, Pennsylvania, have determined that ten 911 dispatchers acted inappropriately in failing to answer a 911 call for assistance when a woman with multiple sclerosis called to report that her bed was on fire January 29th. She died of her injuries. The operator who ultimately answered the phone was already on another line. Other operators thought "someone else" would answer the call. The operators will undergo disciplinary action. Read more here.
A court has accepted a guilty plea from a teenager who admitted filming a "happy slap" battery on a 29-year-old man who later died of his injuries. Gavin Waterhouse was attacked by two of the teen's companions who told her to film the attack with a cell phone. She did so, and then admitted her part--that she had stood by and recorded the event. One prosecutor noted that this case is "[T]his is the first time a suspect in England and Wales has been successfully prosecuted for aiding and abetting murder or manslaughter, for the filming of an inaptly called 'happy slapping' incident. The message is this: If you stand by and watch your friends committing brutal crimes and video their acts for yours or for others' amusement your actions will not be ignored by the law enforcement agencies and prosecution may follow." Read more here.
Steven Wilf, University of Connecticut School of Law, has published "The Making of the Post-War Paradigm in American Intellectual Property Law," in volume 31 of Columbia Journal of Law & the Arts (2008). Here is the abstract.
During the New Deal period, intellectual property underwent a transformation. Copyright was recast from literary property to industrial property; trademark shifted from a common law tort of palming off to a regulatory regime for a mass consumer economy, and patent law was rethought to accommodate corporate invention. This essay begins by examining the advantages of looking at intellectual property as deeply situated in New Deal debates over political economy, and calls for a new history of intellectual property very different from conventional narratives moored in the introduction of new technologies. More broadly, it suggests that examining foundational past policy debates, and the ways these are contingent upon political, economic, and social change, might allow us to understand possible alternatives more clearly than absolute claims constructed using philosophical or economic justifications. The New Deal period has particularly important implications because it marked the beginning of the rapid expansion of intellectual property protection. Adapting intellectual property protection to an industrial economy, four features distinguished this new capacious conception of the products of knowledge, which I call the post-war paradigm: intellectual property becomes a national and international enterprise, propertized intellectual property is subject to modern regulatory interventions, Progressive Era anti-competitive anxieties in trademark and copyright decline - though these continue to prevail through the middle of the twentieth-century in the area of patent law, and intellectual property is envisioned as an economic motor for sustaining growth in developed economies. This article attempts to recover the complexity and the experimentation characteristic of these changes. It emphasizes the ways the post-war paradigm in intellectual property, which we continue to inhabit, extends property protection as it confers a major economic role for products of knowledge. Nevertheless, I also suggest that we have ignored other New Deal legacies: the use of limits, especially anti-competition law, as mechanisms to curb corporation leveraging of rights in markets, the preoccupation with distributive justice in the fields of trademark, copyright, and patent, and, most notably, the New Deal project of combining economic and civic elements of intellectual property to construct a modern form of citizenship.
Download a copy of the article from SSRN here.
Wednesday, February 13, 2008
In protest over the French President's plan to pull advertising from state run television, the employees at public tv and radio are planning a massive strike today. President Sarkozy has his eye on raising the level of quality tv, but supporters of the present model say he wants to assist his friends, notably the owner of TF1, who stand to gain from the shift of advertising to commercial broadcasting. Read more here or here at RFI's website.
The Advertising Standards Authority okayed an advertisement for the new film Saw IV that featured a man's severed head, even though the agency received numerous complaints. Distributor Lions Gate defended the ad, saying that it was intended to be "tongue in cheek" (ouch) and that most of the blood originally on the poster had been "cleaned up" to make it more acceptable. The ASA ruled that the ad was not likely to offend adults and did not go beyond the bounds usual for a horror film.
Said the ASA:
1. Not upheld
The ASA noted that a small proportion of the complaints stated that children had found the ad disturbing. We considered that, although the ad was likely to be distasteful to some, the image was unlikely to be considered explicitly horrific and unlikely to cause offence or distress, either to children or adults.
2. Not upheld
We noted that the ad showed the head in a weighing scale. We considered, however, that the ad contained nothing else in the way of blood or gore that might be expected in an ad for a horror film and considered that although older children might see the ad, younger children were less likely to see it in this media. We did not consider it was likely to cause offence or distress, either to children or adults.
3. Not upheld
We considered that, although the posters appeared in cinemas, where children of all ages were likely to see them, the ad was unlikely to be considered explicitly horrific by either the children or adults who saw the posters and unlikely to cause offence or distress to them.
4. Not upheld
We considered that, although the magazine featured films of interest to children, the ad was unlikely to be considered explicitly horrific by either the child or adult readers and unlikely to cause offence or distress to them.
5. Not upheld
We noted the safeguards described by the websites but did not consider they could ensure in themselves that children would not see the ad. Nevertheless, we considered the ad was unlikely to be considered explicitly horrific by either the children or adults that saw it and was unlikely to cause offence or distress to them.
On points 1, 2, 3, 4 and 5 we investigated the ads under CAP Code clauses 5.1 (Decency) and 9.1 (Fear and distress) but did not find it in breach.
Comcast responded to allegations that it has violated the policy of Net Neutrality by saying that interrupting file sharing by some is a legitmate response in order to keep service flowing to all subscribers. Opponents of its policies say it's trying to protect its own business. The FCC is looking into Comcast's practices. Read more here in an MSNBC story.
From a February 4 News Release
The Federal Communications Commission today announced that it is accepting applications from recent law graduates, graduating students, and judicial clerks for its 2008 Attorney Honors Program. This is the second and final application window for the 2008 Program.
Through the Attorney Honors Program, the FCC recruits new and recent law school graduates and judicial clerks to the FCC and the field of communications. The FCC encourages candidates with superior academic credentials and an interest in communications law to apply for the 2008 class. Applications must be received on or before March 14, 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 with current bar memberships must respond to FCC Vacancy Announcement Number ATTY-OGC-2008-0007, available on the FCC’s website at http://www.fcc.gov/jobs/. Candidates who are not members of a bar 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, or by mail to the attention of Kim Mattos, Attorney Honors Program, 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 the digital television transition, 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.
A number of Danish newspapers have reprinted the cartoon featuring the Prophet Muhammed, more than 2 years after they caused such a furor. One newspaper said it was doing so "to document what is at stake in this case, and to unambiguously back and support the freedom of speech that we as a newspaper will always defend." Read more here.
Tuesday, February 12, 2008
The UK gossip site Holy Moly says it will no longer publish photos of celebrities that might cause distress, saying that things have gone too far. Referring to the decision by one leading paparazzo to quit the business, the creator of the site said, "We're going to do our best to stick to this, because let's face it, when one of the biggest names in paparazzi jacks it in due to ethics and morals and the world's biggest popstar gets her knickers photographed by 30 people an hour after being released from a mental institute, you know there's a problem on the shop floor." Read more in a Guardian article. The site seems to be reacting to a growing trend among both tabloid and mainstream press that the intense interest in celebrities has caused some of them stress and may have exacerbated their problems. In the same way, such self-examination preoccupied many in the media after the death of Princess Diana.
Writer Benedict Fitzgerald has sued actor/producer Mel Gibson over a deal gone sour regarding Mr. Gibson's film The Passion of the Christ. In a lawsuit filed in Los Angeles Superior Court, Mr. Fitzgerald claims that Mr. Gibson promised him credit and possible profits for the screenplay, and he is now suing for five million dollars and breach of contract, fraud, and unjust enrichment. Read more here or here.
Monday, February 11, 2008
More Presidential primary results will not be the only news breaking on Tuesday--the WGA membership will vote--finally--on whether to go back to work after a strike that has lasted since last fall. The script has writers going back to work Wednesday. First to benefit will be the late night talk shows. Then come the rest of the awards shows including the Oscars, although it seemed clear that most if not all of those would have gotten a pass from the striking scribes. Finally, us--the viewers, since the writers would be busy, busy, working on the regularly scripted, and long-suffering dramas, which have been on hiatus. What will the writers get from this deal? Apparently what they wanted--a percentage of profits from new media deals. Next on the horizon might be a strike by SAG (Screen Actors Guild) members. Read more here and here.