June 20, 2009
New Technologies, Citizen Reporters, Bring News of Violence, Protests in Iran
Because the foreign press is barred from reporting on site on events in Iran without prior government permission, it is relying on citizen reporters for information on the gathering protests, and information on those protests seems to be pouring in via new technologies like Twitter. Check out live coverage and updates from CNN, the BBC, MSNBC, and France Info.
June 19, 2009
Holding On to Holden
A New York Times editorial discusses whether readers really care anything about the legal battle going on over that sequel to Catcher In the Rye.
Jury Finds Against Woman For Illegal Downloading
A jury has found against Jammie Thomas-Rasset at her second trial for illegal downloading of copyrighted music, and socked her with 1.9 million dollars in fines. A judge tossed the first verdict against her in 2007, saying that the jury instructions were faulty. Ms. Thomas-Rasset indicated that she plans to appeal. Had she paid for the 24 songs she was found liable for downloading illegally, she would have paid less than $25.
June 18, 2009
Online Archive of British Newspapers Now Available
Reporter Can Withhold Information, Northern Ireland Judge Rules
A judge in Northern Ireland has held that a journalist may withhold information about the Real IRA, because to hand it over would put her life at risk. Law enforcement had attempted to force reporter Suzanne Breen to hand over the information to assist in an investigation of the group, but the judge took into account a credible death threat Ms. Breen revealed that she had received. Read more here.
June 17, 2009
Las Vegas Paper Says It Will Fight Subpoena For Info About Online Posters
The Las Vegas Review-Journal says it will fight a federal subpoena to hand over information about readers who posted comments on a story about businessman Robert Kahre. A story about the subpoena also elicited comments from Las Vegas Review-Journal readers. More here.
WWCS (What Would Carlin Say)?
The principal of Shaker Heights High (Shaker Heights, OH) has taken matters in hand after discovering that the senior in charge of designing the cover of this year's yearbook imbedded a four-letter word somewhere in there. He sent a letter home to parents of the students in the graduating class; it was accompanied by an apology by the offending student. Said the designer: " I cannot begin to explain the miserable feeling I brought upon myself, when I betrayed the trust of all of you. I apologize for offending anyone and everyone. It is unfortunate that I did not recognize the big responsibility and honor given to me when asked to design the cover of the Shaker Heights yearbook. I offer my sincere apologies."
The school stopped distributing the yearbook when it learned of the not so fleeting expletive and is now issuing "cosmetically altered" books. Students with the old version who want a new cover can bring in their yearbooks to get the offensive word (apparently it starts with an "F") disguised. But not everyone who has the original version wants a sanitized cover. Said one senior, "Thirty years down the road, it's kinda funny to flip it upside down and be like, oh look what's hidden!" Read more here and here.
I spoke to Peggy Caldwell of Shaker Heights High, and she clarified some points for me. By the time Shaker Heights High's administration learned of the issue, about half the books had been distributed. The school's art teacher and some of her students actually made physical changes to the artwork, saving the cost of re-issuing the books. This process took much time and dedication on the part of the teacher and students, but saved much expense. The school district is the official publisher both of the yearbook and of the school's newspaper. Finally, the student whose offending art work caused the problem also agreed to pay for the cost of a substitute teacher to fill in for the art teacher who spent time altering each of the remaining as yet undistributed yearbooks. He also spent some time cleaning up the school's art classrooms.
Pop culture reference: Ah, those golden student days. Remember that Roseanne episode, when the Connors thought Becky had flipped the bird during the class picture? (Bird Is the Word, airdate November 13, 1990).
Beckham Nanny Apologizes, Drops Dismissal Claim
David and Victoria Beckham's former nanny has apologized to them, and promised not to reveal any more private information about them in future. Abbie Gibson, who signed several confidentiality agreements while she worked for the couple, has also abandoned her constructive dismissal claim. Ms. Gibson's lawyer apparently told the judge in charge of the case that Ms. Gibson agrees that Mr. Beckham never made any "insulting and threatening telephone calls" to her as one paper had said. Read more here.
J. K. Rowling Sued For Plagiarism
J. K. Rowling's publisher is defending her against the accusation that her fourth Harry Potter book, Harry Potter and the Goblet of Fire, plagiarizes a novel by Adrien Jacobs, The Adventures of Willy the Wizard, published in 1997. Mr. Jacobs' representatives first approaches Ms. Rowling's publishers about resemblances between the two books in 2004. Mr. Jacobs himself died in 1997. The estate is suing for 500 million pounds.
June 16, 2009
Ministry, Jack Straw, Win Fight To Keep Names of Judges Disciplined For Misconduct Secret
The Ministry of Justice has won a legal fight to keep private the names of judges who have been disciplined for improper behavior. The Guardian newspaper had wanted the names of the members of the judiciary both to "enhance public confidence in the administration of justice and that secrecy is more likely to engender resentment, suspicion and contempt than enhance respect" and to ensure that judges were not wrongly prosecuted, but a tribunal which dealing specifically with freedom of information issues ruled that judicial reputations, judicial authority and judges' privacy would be undermined if the Guardian were allowed to publish the names of judges who had been disciplined. However, the Ministry did promise to be more forthcoming about such proceedings from now on.
Ofcom Considering Changes To Commercial Advertising Rules
Ofcom, the British agency that regulates broadcasting, is looking at the rules governing commercial advertising, and may allow radio stations greater freedom to make money by promoting services linked to content on air. What's at issue, says Ofcom, are "editorial independence and transparency". What aren't being considered are changes to the product placement rules. Read more here.
Foreign Media Banned From Covering Live Protests Over Iranian Presidential Election
The Iranian government is making it more difficult for foreign media to cover the protests over the recent Presidential election. Now it has told foreign news outlets they cannot cover such protests. The media can discuss the events, but cannot cover them live. Read more here in a CNN story. Meanwhile, rallies continue, and news filters out via online sources.
Ricardo Urbina, a district court judge, sometimes orders micreants to write books as part of their sentences (no pun intended). Hmmm--compelled speech. A Good Thing, or a Bad Thing? Read more here in a New York Times editorial.
Examining Copyright Term Legislation
Dennis S. Karjala, Arizona State University College of Law, has published "Judicial Review of Copyright Term Extension Legislation," at 36 Loyola of Los Angeles Law Review 199 (2002). Here is the abstract.
In Eldred v. Ashcroft, the Supreme Court has both an opportunity and a responsibility to reaffirm our basic constitutional system of checks and balances by making an independent review of whether the Copyright Term Extension Act (CTEA) was validly enacted pursuant to congressional power under the Intellectual Property Clause. The Intellectual Property Clause was drafted with important substantive limitations on federal power to grant exclusive rights of patent and copyright, designed to insure that Congress did not succumb to the temptation to effect indirect wealth transfers to rent-seeking special interests. To uphold the CTEA would permanently remove these explicit textual limitations on congressional power from the Constitution because concentrated special interests will always have greater lobbying resources than self-appointed and uncompensated representatives of the public interest. Overturning the CTEA would not take away from Congress the basic power to resolve the complex policy tensions that will be present in any modern copyright statute.
The Court possesses the power of judicial review over Intellectual Property Clause legislation. The Court should also independently review the bases on which Congress acts to ensure that there is good reason to believe that Congress acted with the constitutionally mandated goals in mind and that Congress had a reasonable basis to believe that its action would further those goals through constitutionally permitted means.
There is nothing in the record to show that Congress had a reasonable basis for believing that the CTEA’s retroactive extension would promote the progress of science. Congress did hear from copyright owners holding rights to a relatively small number of old but still valuable works who were seeking desperately to keep their royalty streams flowing. If there was a constitutionally valid reason for retroactive extension, we can be sure that these representatives would have thought of and presented them. Consequently, the Court in Eldred can and should find, without remand, that retroactive extension under the CTEA was unconstitutional (without necessarily determining the validity of any prior retroactive extensions), and the Court should overturn the CTEA in its prospective aspect as well, giving Congress another try at adopting prospective extension if Congress concludes that it is in the public interest and can find constitutionally valid bases for acting. By “remanding” to the legislature, the Court would recognize the basic policymaking role of Congress in our democratic society while maintaining its own special role in interpreting the meaning of the Constitution.
This article summarizes the evidence before Congress for the CTEA’s adoption, argues that any independent review of that evidence must conclude that none of the justifications of the CTEA offered by Congress can be the real reason for the congressional action, concludes that the only viable inference from an independent reading of the evidence before Congress was that Congress gave in to the demands of the heirs and assignees of old copyrights that still had economic value but were about to enter the public domain, and amplifies the claims that the powers granted to Congress by the Intellectual Property Clause require an approach to judicial review different from that used in Commerce Clause cases.
Download the article from SSRN here.
June 15, 2009
Why the "S" Word, "F" Word At Oral Argument During That Fleeting Expletive Case
Tony Mauro of the Blog of Legal Times passes on this tidbit from the Fox v. FCC oral arguments of a few weeks back. Justice Ruth Bader Ginsburg reviewed the case, as well as some other things, at an appearance for the 2nd Circuit Friday, and noted that the lawyer for Fox had said he would use the fleeting expletives themselves "unless instructed otherwise." But at oral argument, he didn't, nor did anyone else. Why didn't he? The word was given. Justice Ginsburg said that the lawyers were told that some of the justices preferred "f" and "s" to a four letter onslaught. Who gave the word? Probably the Chief Justice. Read more here.
A New Book on Defamation and Celebrity
The concept of reputation is the central legal interest protected by the tort of defamation but is comparatively undertheorised in defamation jurisprudence. This book contributes to the analysis of reputation. The introduction to this book examines why it is important to analyse the concept of reputation. It reviews the meanings and importantly the value ascribed to reputation by judges and academics. It also outlines the overall structure and the argument of the book.
The First Amendment and the Right of Publicity
The right of publicity is a legal theory which enables individuals to protect themselves from unauthorized, commercial appropriations of their personas. Although the right of privacy and the right of publicity are similar in that both doctrines are aimed at controlling the extent to which one party can use the details of the life of another, they nonetheless have come to represent distinct legal theories. Publicity actions typically are regarded as the means of achieving compensation for the loss of financial gain associated with a defendant’s unauthorized appropriation. In contrast, the right of privacy continues to be regarded as the predicate for actions based on hurt feelings. The reasons for this distinction are partially attributable to the particular fact patterns in seminal cases as well as the result of the legal system’s failure to embrace a cohesive legal doctrine that affords individuals the ability to redress unauthorized appropriations of their identities involving both economic and reputational damage. Allowing the unauthorized use of an individual’s persona potentially poses the maximum harm when the persona is being appropriated in an objectionable context or for an objectionable purpose. In these instances, neither an award of injunctive relief nor monetary damages will erase the damage to human dignity which the persona perceives as having already been inflicted by virtue of the user’s unauthorized appropriation. No judicially mandated relief can eliminate the prior effects of the user’s objectionable public exposure of the persona. These are situations involving dignity based, as opposed to economically based, objections to the use. Notwithstanding the confusion between privacy and publicity, and between commercial and personal interests, the reality is that both celebrities and non-celebrities can bring actions based on the unauthorized use of their personas that involve dignity as well as economically based harms. Moreover, in the age of 'reality television' the line between celebrity and non-celebrity has become especially fuzzy. Today more so than ever before, an increasing number of ordinary people have the opportunity to garner their so-called 'fifteen minutes' of fame. Although there may be positive benefits to be derived by individuals from this exposure, one downside is that these 'short-term' celebrities also suffer an increased likelihood of being the subject of right of publicity violations generally and dignity based harms in particular. Much ink has been spilled over the intersection between the right of publicity and the First Amendment generally. To date, however, neither courts nor commentators have focused specifically on how the existence of a dignity based harm should impact the analysis in these cases and so this Essay attempts to open a dialogue on this point. For purposes of this work, I accept the right of publicity’s existence as a given, and therefore do not argue for or against the right. Instead, I propose a way of thinking about those publicity cases where damage to human dignity is a prime — or even the prime — concern of the plaintiff. Part I of this Essay initially examines the relationship between causes of action such as privacy, defamation and the right of publicity that can involve harm to the plaintiff’s dignity. It then explores how conflict can arise in connection with these types of claims and the First Amendment. Part II illuminates the current tests courts have used to determine how the right of publicity specifically should co-exist with the First Amendment, and concludes that none of these tests are suitable in the context of publicity claims involving dignity harms. Part III develops a more suitable framework for evaluating such claims.Download the article from SSRN here.
Dangerous Days For Journalists In Russia
Peter Preston on the danger to the press in Russia.
Is the Chilling Effect Taking Hold in English Media Law?
Afua Hirsch discusses whether English libel laws have a chilling effect on investigative journalism here.
Supreme Court Nixes Bail For Conrad Black
The Supreme Court has told Conrad Black he will not get out of jail, pending his appeal in the Court. Mr. Black was formerly chair of Hollinger International, which controlled numerous media outlets including the Chicago Sun-Times.