Saturday, May 9, 2009
CNN reports that the father of Roxana Saberi says she will have her appeal heard tomorrow. THe told the press the Iranian Supreme Court will meet to consider her 8-year prison sentence, imposed after a one day closed day trial. The U.S. government has previously indicated it is concerned about her treatment and that she receive a fair hearing.
Friday, May 8, 2009
CNN reports that Miss California/USA pageant officials have called a press conference for Monday to announce whether they will "dethrone" current title holder Carrie Prejean over photos that have surfaced showing her semi-nude at a lingerie shoot. Miss Prejean maintains the pictures were taken when she was 17 and before she understood the implications of the photo session. Pageant officials and attorneys have been huddled for several days discussing the fine print in the contract that all pageant contestants sign, agreeing to disclose the existence of "nude or semi-nude photos." The CNN story indicates that Ms. Prejean will not be at the press conference, and that 1st runner up Tami Farrell will be in attendance, suggesting that Ms. Prejean's reign might be measured in days. We'll see...
Louis Caldera, the White House Military Office Director, has delivered his resignation to President Obama in the wake of that April flyover photo op that we now learn cost more that $350,000, scared the beejeebers out of New Yorkers who saw a 747 zip by at a very low altitude, and annoyed Mayor Bloomberg. The White House had originally said it would not release details of the incident but Defense Secretary Gates has now released information on the flyover. Read more here.
Next up: Winslet v. the Daily Mail. Ms. Winslet is suing for defamation over the Daily Mail's contention that she lied about her fitness regime. The offending article carries the headline: "Should Kate Winslet win an Oscar for the world's most irritating actress?" The Oscar winner (for the film "The Reader") said in papers filed with London's High Court the article had a particularly nasty tone.
In light of Justice David H. Souter's plans to retire from the Supreme Court in June, NYTimes.com is taking its readers’ pulse with an interactive feature to see who they would pick as a replacement, if they were president.
The Times invites Media Law Prof Blog readers to explore the listed candidates, view the current ranking and submit their top choices.
Readers can choose from a list of contenders, from judge Sonia Sotomayer, currently in the lead, to former president Bill Clinton, or write in their own nominee.
This interactive feature is part of the “If you were president” series that began in November 2008, when readers were asked to select and write-in nominees for President Obama’s cabinet.
Thursday, May 7, 2009
As it turns out, the big publishing house Elsevier didn't just put out one "fake" journal, it apparently put out seven during the early 2000s, according to this Scientist story by Bob Grant. Elsevier now says that it is conducting an internal review of its publishing practices in order to make certain that such things do not happen again. The journals were apparently part of a marketing scheme carried out to accommodate at least one pharmaceutical company. Michael Hansen, CEO of the Health Sciences Division said in a prepared statement,
Radio host Michael Savage now says he wants UK Home Secretary Jacqui Smith to apologize to him for including him on a list of unwanted visitors to the country. "I'm a patriotic American, and if that's a crime in England, God help us all." Mr. Savage said he had heard from English attorneys willing to take his case. He has threatened to sue Ms. Smith and the British government for refusing to allow him to entry the country. Read more here.
Proposed budget cuts at Louisiana State University have made the national news: the Louisiana State University Press may close its doors, according to the Chronicle of Higher Education news blog. Earlier this morning I heard an interview on this topic with Bob Mann of the Manship School of Journalism on the local NPR news station; he noted that the Press operates on a very lean budget of $450,000 per year. For that amount of money, the Press has delivered numerous prize-winning titles, and has earned four Pulitzer Prizes.
U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.
This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.
Associate Justice Antonin Scalia seems miffed at a Fordham Law School professor who asked his privacy law class to see what it could find out about the justice online. So reports the Wired Campus blog.
According to a related Concurring Opinions post, Professor Joel Reidenberg notes that "He [Justice Scalia]was reported to have made the comment that treating much of the information on the web as private was “silly[,] [so]..."Justice Scalia became the logical public figure for the exercise researching publicly available personal information. Over the course of the semester, students posted links to web pages containing information about Justice Scalia, which in turn led to information about his family. To enhance a summation class discussion on the issues of aggregation and secondary use, the loss of anonymity, and legal responses, I had one of the students compile the information in an organized dossier format. The class was pretty shocked by the results. This was one of the teachable points. Our class dossier has remained a course document- we have not published it and have not disclosed the personal information found on the web."
Said the Justice, in an interview with Above the Law, "It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any."
Wednesday, May 6, 2009
Speculation is increasing that Miss California/USA Carrie Prejean could lose her title after the leak of those semi-nude photos, not necessarily because of the pix, but because she failed to disclose the existence of the photos to pageant officials and because she is working with an outside organization, again without the permission of pageant officials. According to the AP, Miss Universe officials have asked the National Organization for Marriage, the group with which Ms. Prejean is working, to cease using her ad because it includes footage of the 2009 Miss USA pageant. The NOM, however, claims fair use in the materials.
U.S. radio host Michael Savage, who's on the list of sixteen "least wanted" people in the U.K. and thus not eligible to enter the country, says he will sue Home Secretary Jacqui Smith. The list also includes Fred Phelps of Westboro Baptist Church, Abdul ali Musa, and Stephen Black (who set up the Stormfront website).
The Advertising Standards Authority has banned an email campaign for the new film Shifty after the agency received a complaint from an employee who worried that the campaign might jeopardize his or her employment. The ad featured language that suggested the recipient was under investigation by a (fictional) law enforcement agency and used a (fictional) email address, [email protected]. The ad also included the following message: "If you fail to respond to this email within seven days of receipt please be aware that this will then become an official matter and there will be a strong likelihood of criminal investigation."
The ASA also noted that the sender falsified its true address. The ASA wrote in part:
The ASA noted Metrodome's response. We considered, however, that the ad's claims that the recipient was involved in illegal drugs, had been named in a police interview and was at risk of criminal prosecution, as well as the implication that the e-mail had been sent by an official body, could cause alarm and undue distress to some recipients. We also considered that further distress could be caused to recipients were the e-mail to be seen by their employer or friends and family. We noted that Metrodome had amended the ad to include text at the end of the email that stated "If you are still reading this e-mail please be aware this is a hoax sent to you by one of your friends". However, we considered that that sentence was not sufficient to mitigate the possible distress caused by the overall impression of the ad. We acknowledged that Metrodome had withdrawn the e-mail function from their website. However, because we considered that the ad was irresponsible and could cause serious distress, we concluded that that approach should not be used again.
On this point the ad breached CAP Code clauses 2.2 (Principles) and 9.1 (Fear and distress).
We noted that the email appeared to have been sent from the address [email protected], and that references to the Community Drugs Team were repeated throughout the email. We also noted that the e-mail contained a reference number that included the recipient's name and stated that a copy of the e-mail had been sent to the address at which the recipient was registered on the electoral role. We considered that that approach could mislead recipients into believing that the email was a communication from a government body or other official organisation. We noted that there was nothing in the body copy of the e-mail, or its subject line and sent address, that identified the email as marketing material, and whilst we acknowledged that recipients who clicked on the community-drugs-team link provided in the e-mail were taken to the film's website where the hoax was revealed, we considered that the ad should have been clearly identified as marketing material without the need to open the email or click on the link. Because it was not we concluded that the ad was misleading.
On this point the ad breached CAP Code clauses 7.1 (Truthfulness) and 22.1 (Recognising marketing communications and identifying marketers).
We noted that the film's website did not seek to obtain the explicit consent of the recipient to receive e-mail marketing, or ask the friend who initiated the hoax e-mail to confirm that they had the consent of the recipient. We also noted that the website stated that the sender's e-mail address would be withheld, and we were concerned that it would not be made clear to recipients how and when their e-mail address had been obtained. We considered that Metrodome should have taken steps to satisfy themselves that the recipient was happy to receive e-mail marketing from them, and because they had not we concluded that the ad was in breach.
On this point the ad breached CAP Code clause 43.4c (Database practice).
The ad must not appear again in its current form. We told Metrodome to make clear that future ads were marketing material and to ensure that they had the explicit consent of the recipient to receive marketing by e-mail in future.
Here's comment from the Press Association regarding the email campaign.
Tuesday, May 5, 2009
Currently, virtual world governance is the product of end user license agreements, contracts which attempt to provide a complete legal and enforcement system to the virtual world. This method of governance is flawed, however, and results in participant frustration. Alternative approaches that have been advanced so far include governmental regulation, which has begun in some countries. However, numerous pressures and precedent resist such an application in the United States. The following argues against keeping just the license agreements as the body of law, and also against a wholesale shift toward governmental regulation.
Instead, a compromise -- establishing a standards-setting body of developers, referred to here as a virtual world council -- is the most efficient solution. This is a daunting task; however, numerous examples exist for the developers of virtual worlds to follow and they are explained below. The final proposed result is a two-tier system that retains EULAs with modifications as appropriate, and supports a common law approach rooted in standardization for resolving what EULAs cannot.
Download the paper from SSRN here.
Just when we thought that the fight between Carrie Prejean, Miss California/USA and first runner-up in the Miss USA 2009 contest, and newly crowned spokesperson for the National Organization for Marriage, and gay marriage advocates could not get messier, someone has leaked "racy" photos of her to various websites. Ms. Prejean says the pix were taken of her when she was a teen. “I am a Christian, and I am a model...Models pose for pictures, including lingerie and swimwear photos. Recently, photos taken of me as a teenager have been released surreptitiously to a tabloid Web site that openly mocks me for my Christian faith. I am not perfect, and I will never claim to be.” At least one judge who participated in the Miss USA pageant, however, says she thinks the photos are inappropriate. Donald Trump, owner of the pageant, has indicated his support of Ms. Prejean's right to speak her mind, calling the question "a bit unlucky." But he hasn't yet weighed in on the issue of the photographs (only one has yet been published).
Here's an update on that Woody Allen/American Apparel lawsuit. Mr. Allen would like to block American Apparel's planned strategy: putting Mia Farrow and Mr. Allen's wife Soon-Yi Previn on the stand to show that Mr. Allen's reputation is not worth what he alleges. Read more here.
Cyberbullying does not yet have a generally accepted definition. Therefore, if universities are considering adding cyberbullying as a conduct code offense, they should stop and take at least four steps: (1) consider the types of activity that might be included within the term, (2) consider the type of harm, (3) consider the level of intent required by the offender, and (4) determine the extent that it will address off-campus conduct. Proposed definitions that emphasize severe, repeated, and hostile conduct are likely the best direction for most campuses.
Download the paper from SSRN here.
A bill introduced into the California State Senate is aimed at reducing libel tourism. Senate Bill 320 as amended reads:
1716. (a) Except as otherwise provided in subdivisions (b) and (c), a court of this state shall recognize a foreign-country judgment to which this chapter applies.
(b) A court of this state shall not recognize a foreign-country judgment if any of the following apply:
(1) The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.
(2) The foreign court did not have personal jurisdiction over the defendant.
(3) The foreign court did not have jurisdiction over the subject matter.
(c) A court of this state is not required to recognize a foreign-country judgment if any of the following apply:
(1) The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend.
(2) The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case.
(3) The judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States.
(4) The judgment conflicts with another final and conclusive judgment.
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court.
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
(7) The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment.
(8) The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
[D> (9) The cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and the press in that case as would be provided by both the United States and California Constitutions. <D]
[A> (9) A COURT OF THIS STATE HAS DETERMINED THAT THE DEFAMATION LAW APPLIED BY A FOREIGN COURT IN ADJUDICATING A CLAIM OF DEFAMATION DOES NOT PROVIDE AT LEAST AS MUCH PROTECTION FOR FREEDOM OF SPEECH AND THE PRESS AS PROVIDED BY BOTH THE UNITED STATES AND CALIFORNIA CONSTITUTIONS. <A]
(d) If the party seeking recognition of a foreign-country judgment has met its burden of establishing recognition of the foreign-country judgment pursuant to subdivision (c) of Section 1715, a party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subdivision (b) or (c) exists.
SEC. 2. Section 1717 of the Code of Civil Procedure is amended to read:
1717. (a) A foreign-country judgment shall not be refused recognition for lack of personal jurisdiction if any of the following apply:
(1) The defendant was served with process personally in the foreign country.
(2) The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant.
(3) The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved.
(4) The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country.
(5) The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action or claim for relief arising out of business done by the defendant through that office in the foreign country.
(6) The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action or claim for relief arising out of that operation.
(b) The list of bases for personal jurisdiction in subdivision (a) is not exclusive. The courts of this state may recognize bases of personal jurisdiction other than those listed in subdivision (a) as sufficient to support a foreign-country judgment.
[D> (c) A court of this state has personal jurisdiction over any person who obtains a judgment in a defamation proceeding outside the United States against any person who is a resident of California, or is a person or entity amenable to jurisdiction in California who has assets in California or may have to take actions in California to comply with the judgment, for the purposes of rendering declaratory relief with respect to that person's liability for the judgment, or for the purpose of determining whether the judgment should be deemed nonrecognizable pursuant to Section 1716, to the fullest extent permitted by the United States Constitution, if both of the following apply: <D]
[D> (1) The publication at issue was published in California. <D]
[D> (2) That resident, or person amenable to jurisdiction in California, either (A) has assets in California that might be used to satisfy the foreign defamation judgment, or (B) may have to take actions in California to comply with the foreign defamation judgment. <D]
[D> The provisions of this subdivision shall apply to persons who obtained judgments in defamation proceedings outside the United States both prior to, and after, January 1, 2010. <D]
[A> (C) IF A JUDGMENT WAS RENDERED IN AN ACTION FOR DEFAMATION IN A FOREIGN COUNTRY AGAINST A PERSON WHO IS A RESIDENT OF CALIFORNIA OR A PERSON OR ENTITY AMENABLE TO JURISDICTION IN CALIFORNIA, AND DECLARATORY RELIEF WITH RESPECT TO LIABILITY FOR THE JUDGMENT OR A DETERMINATION THAT THE JUDGMENT IS NOT RECOGNIZABLE IN CALIFORNIA UNDER SECTION 1716 IS SOUGHT, A COURT HAS PERSONAL JURISDICTION OVER THAT PERSON OR ENTITY IF BOTH OF THE FOLLOWING APPLY: <A]
[A> (1) THE PUBLICATION AT ISSUE WAS PUBLISHED IN CALIFORNIA. <A]
[A> (2) THE PERSON WHO IS A RESIDENT, OR THE PERSON OR ENTITY WHO IS AMENABLE TO JURISDICTION IN CALIFORNIA, EITHER (A) HAS ASSETS IN CALIFORNIA THAT MIGHT BE SUBJECT TO AN ENFORCEMENT PROCEEDING TO SATISFY THE FOREIGN-COUNTRY DEFAMATION JUDGMENT, OR (B) MAY HAVE TO TAKE ACTIONS IN CALIFORNIA TO COMPLY WITH THE FOREIGN-COUNTRY DEFAMATION JUDGMENT. <A]
[A> THIS SUBDIVISION SHALL APPLY TO PERSONS WHO OBTAINED JUDGMENTS IN DEFAMATION PROCEEDINGS IN A FOREIGN COUNTRY BOTH PRIOR TO AND AFTER JANUARY 1, 2010. <A]
Here's an article from the Guardian discussing the bill.