July 2, 2009
MySpace Defendant's Conviction Will Be Tossed
The judge overseeing the Lori Drew "MySpace" criminal case is set to throw out her misdemeanor conviction, indicating that because the jury did not convict her of felony charges he sees a constitutional problem, according to an MSNBC.com story. The report also says that Judge George Wu "said that if she is to be found guilty of illegally accessing computers, anyone who has ever violated the social networking site's terms of service would be guilty of a misdemeanor." Read more here. Here's more from ABC News.
District Court Rules That Plaintiff Is "Vexatious Litigant"; Dismisses Case
The U. S. District Court for the Eastern District of Virginia has held that a pre-filing injunction is appropriate in Whitehead v. Paramount Pictures, finding that the plaintiff is "a vexatious litigant."
Courts have the constitutional obligation and the inherent power to protect against conduct that impairs the court's ability to conduct their functions...Where “vexatious conduct hinders the court from fulfilling its constitutional duty,” courts have enjoined individuals from filing without court approval or placed other severe limits on the ability to file new cases....The injunction must not, however, effectively deny access to the courts, and the district court must give the litigant notice and an opportunity to be heard prior to granting the injunction....The factors to be considered in evaluating whether to issue a pre-filing injunction are: (1) the litigant's history of vexatious litigation; (2) whether the litigant has an objective good faith belief in the merit of the action; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense or unnecessary burdens on the opposing party and/or the court; and (5) the adequacy of other sanctions....Applying the above factors, the Court finds that a pre-filing injunction is appropriate in this case. As the United States District Court for the District of Maryland concluded, “Plaintiff is clearly a vexatious litigant.” See Viacom, 233 F.Supp.2d at 726. He is subject to pre-filing injunctions in the United States District Courts for the District of Maryland and the District of Columbia and in the District of Columbia Superior Court. See id; Paramount Pictures Corp., 145 F.Supp.2d at 5-6; Wickham, 2005 WL 2874975, at *1. In this case alone, Plaintiff has filed almost one hundred motions or other requests for relief, the majority of which are duplicative of relief previously denied by this court or other courts. Indeed, many of Plaintiff s motions are irrelevant to the pending litigation. For example, in one motion, Plaintiff requested a stay of the proceedings pending the government's release of a memorandum that Plaintiff claims was written by Chief Justice John G. Roberts while he was at the Solicitor General's Office in which Plaintiff claims Chief Justice Roberts “call[ed] the plaintiff a name on several occasions. See Motion to Stay Proceedings, Pending Release of Memorandum (Doc. No. 33). In three other motions, Plaintiff sought a temporary restraining order or other injunctive relief enjoining the “Wall Street bailout matter“ or, in the alternative, “striking] any congressional or executive signing of the bill.“ See Am. Mot. for Injunctive Relief (Doc. No. 18). The nature and content of Plaintiff s filings demonstrate that he cannot have an objective good faith belief in the merit of the action. Plaintiffs numerous lawsuits and motions burden not only the courts, but the defendants named in the filings. As Judge Friedman stated, “Mr. Whitehead has no regard for our judicial system or the drain on its resources caused by his actions.” Paramount Pictures Corp., 145 F.Supp.2d at 5. Indeed, three of the Defendants filed memorandums in support of the Court's Order to Show Cause. See Mem. in Supp. of Order to PI. to Show Cause (Doc. No. 402); Mem. in Supp. of the Court's Order to Show Cause (Doc. No. 403). Finally, it is apparent that the imposition of other sanctions, such as monetary sanctions, will not provide adequate relief. Other courts including the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit imposed sanctions on Plaintiff or awarded attorney's fees to defendants without substantial deterrent effect. Other courts imposing pre-filing limitations on Mr. Whitehead have concluded that “[considering plaintiffs history with the courts … there is no reason to believe any other form of sanctions will cease plaintiffs filing of motions in this case or the initiation of new cases.” Wickham, 2005 WL 2874975, at *4. This Court therefore concludes that a pre-filing injunction appears to be the only means to adequately protect this Court's ability to function....Accordingly, for the reasons stated above and for the reasons stated in open court on May 22, 2009, Plaintiff is hereby enjoined from filing any new civil actions in the Eastern District of Virginia and from filing any new motions, papers or requests for relief in any civil actions currently pending in the Eastern District of Virginia without seeking and obtaining court approval as set forth in this Court's Order dated May 22, 2009.
[T]he facts alleged in the Complaint are both fantastic and delusional. For example, one of Plaintiff s allegations involves what he calls a “broad base conspiracy” to steal unidentified “intellectual properties.” Compl. at 3. To this end, he alleges merely that all of the defendants in this action “are inter-connected holding business contracts for joint business purposes.” Id. at 6.The majority of his other allegations involve successful movies. For example, Plaintiff alleges that the film “Quantum of Solace,” involving the character James Bond, infringed Plaintiffs un-specified copyrights because “Plaintiff created a character named Mrs. James Bond, who revenges her husband's death [and,] in Quantum of Solace, James Bond revenges his lover's death.” Id. at 13.Plaintiff also claims that an unidentified defendant infringed on his “robbery scene” to create the film “Inside Man” because “defendants use [sic] a verbatim line,” “This ain't no robbery,” taken from Plaintiffs line “This ain't no robbery, this is politics!” Id. at 10. Plaintiff also asserts that the film “The Dark Knight” infringes on his work “Batman Blackman” because both use the Joker character for a hostage plot and because the titles are similar (“Dark” versus “Black”). Id. at 14. Finally, he states that “[t]he Academy Awards recently pulled “The Dark Knight“ based on this infringement for possible nomination for Best Picture.” Id. He also believes that “the Academy did the same with ‘Dreamgirls’ once the Academy learned that Dreamgirls was an infringed version of the plaintiffs Aretha Franklin materials.” Id.In another allegation, Plaintiff states that an issue of Vogue Italy, entitled “A Black Issue” and portraying all black models in its pages, infringed on his copyrights because it “was based on Plaintiffs Black Beauty booklet, depicting all black supermodels for Victoria Secrets [sic].” Id. at 10. He further states that Vogue sold “A Black Issue” in “a limited edition from abroad, attempting to conceal the theft from the plaintiff.” Id. Plaintiffs allegations are clearly fanciful and delusional on their face.The facts and legal claims set forth in the Complaint are virtually identical to those made by Plaintiff in cases that have been repeatedly dismissed by other courts, including the courts of this district. They are frivolous and, in keeping with Plaintiffs typical modus operandi, appear to be made for the purpose of harassing the defendants into entering into a nuisance settlement. See, e.g., Whiteheadv. Wickham, No. 15207-04, Mem. Order, at 48 n.177 (D.C. Super. Ct. Mar. 31, 2005) (“It is evident to this Court that Whitehead is either, at best, a dealer in Mitigation futures,’ or at worst a ‘litigation extortionist.’ Neither approach should be tolerated under the Rules of Civil Procedure.”).The Court finds that this action is frivolous and malicious, and that it fails to state a claim on which relief may be granted. Accordingly, Plaintiffs Complaint, filed in forma pauperis, must be dismissed in its entirety pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and 28 U.S.C. § 5 1915(e)(2)(B)(ii).
Press Complaint Commission Ends Teenage Parent/Checkbook Journalism Investigation
The Press Complaints Commission has abandoned an investigation into possible checkbook journalism over stories published in the Sun, the People, and the Sunday Mail (Scotland) after an injunction severely restricting access to the families meant that the Commission could not pursue its inquiries fully. The PCC was concerned over the Sun's reports that a thirteen year old boy had fathered the child of a fifteen year old. These stories later turned out to be untrue. The Sun has since indicated that it will assist in funding a trust to provide living expenses to bring the baby who is the subject of the stories.
Decency, Celebrity, and News
MSNBC.com's Courtney Hazlett highlights the new OK! magazine cover, with a photo of the late Michael Jackson on its cover. She questions the magazine's editorial decision to run the picture of Mr. Jackson "which shows him lying on a stretcher, possibly already dead."
Says Ms. Hazlett,
Every day, news organizations around the world make decisions about decency, respect and the best way to tell a story. It’s a responsibility that bears incredible weight, regardless of the perceived “weightiness” of the subject matter. Just because you have a photo — or have the dollars to throw at acquiring it — doesn’t mean it’s appropriate to run it.
Gay Sex Portrayals and Obscenity Doctrine
This essay develops the author's criticisms of Professor Elizabeth Glazer's thoughtful essay, When Obscenity Discriminates. First, it outlines Professor Glazer's three-pronged argument: (1) that the current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts (as opposed to obscene acts); (2) that this possibility in turn encourages censorship of sexual expression involving gay sex by private actors; and (3) that, in view of the Supreme Court's decision in Lawrence v. Texas, the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination, and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally acceptable as heterosexual sex. The article then discusses what the author considers to be critical legal and empirical problems with Professor Glazer's arguments: (1) the false notion that the Supreme Court's existing constitutional doctrine can itself be unconstitutional because it might be applied in a manner that violates other constitutional doctrines; (2) the false idea that potential unconstitutional applications of a doctrine that purportedly encourage private actors to discriminate render the doctrine itself unconstitutional; and (3) the lack of substantial empirical evidence of discriminatory behavior, based on the obscenity doctrine, by private entities. Finally, the author presents an alternative argument to that made by Professor Glazer: if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue, the demands of a principled and coherent jurisprudence would require the Court to revisit the doctrine, in light of Lawrence v. Texas, to clarify that the gay or lesbian nature of such portrayals is not a constitutional basis for deeming expression to be obscene.
Download the essay from SSRN here.
July 1, 2009
Copyright Law and Technology
This Article examines the symbiotic relationship between copyright law and technology. I describe how an environment characterized by rapid technological change creates two conditions that determine the direction and evolution of copyright law: legal delay and legal uncertainty. I explain how uncertainty over the application of existing copyright law to newly emerging technology catalyzes the actions of copyright owners and users. I argue that uncertainty and delay (1) have an enabling effect on anticopyright sentiments, (2) lead to a greater reliance on self-help efforts by content providers and users, and (3) induce legislative involvement in copyright law. In the final Part of this Article, I consider how the framework of technological uncertainty and delay helps to explain a number of emerging issues in copyright law. I conclude by providing normative proposals for copyright reform. These proposals relate to the choice between standards and rules, as well as the role of courts, legislators, and administrative agencies in the development of copyright law.
Download the article from SSRN here.
From Unknown To Media Darling
Pirate Bay Has New Owner
Swedish company Global Gaming Factory X has purchased The Pirate Bay for more than four million pounds, assuring rights holders that they will get royalties, unlike the policy of the prior owners, who were sentenced to one year in prison for piracy. Read more here.
ASA Rules That Ice Cream Ad Gives Offense
Remember those complaints over that "sexy" nun and priest ad for Antonio Federici Gelato Italiano? The Advertising Standards Authority (UK) has now nixed them after reviewing the complaints and the company's response. Read more here.
The ASA first started looking into the flap over the depiction over the nun and priest in a compromising position? about six weeks ago amid concerns that the ad might give offense to religious readers. The upshot? The ad contravenes the decency rules of the advertising code (CAP Code 5.1)
From the ASA's adjudication:
Antonio Federici said the ad was intended as a light-hearted, tongue in cheek portrayal celebrating forbidden Italian temptations which their Gelato Italiano ice cream represented. They considered that, in an age where religion was frequently used in a humorous way in the media, the image would not offend the vast majority of readers. They felt this was borne out by the small number of complaints received. They considered the ad was unlikely to offend deeply a minority of people. In their view, there was nothing in the ad that was likely to cause either serious or widespread offence.
Antonio Federici said it was significant that the image did not show the nun and priest touching, or kissing and the reader was therefore left pondering their dilemma - would they or would they not succumb to temptation and kiss? They considered the complaints were therefore concerned with the implication of the ad, not the ad itself, and pointed out that each individuals reaction to it would be shaped by their own values and experiences.
The ASA noted the ad played on the theme of giving into temptation but stopped short of showing the nun and priest kissing. The ad stated "KISS TEMPTATION" and the two were portrayed in a seductive pose, as if they were about to kiss passionately.
We considered that the portrayal of the priest and nun in a sexualised manner and the implication that they were considering whether or not to give in to temptation, was likely to cause serious offence to some readers.
June 30, 2009
New Staff at FCC
Via the Blog of Legal Times, news that incoming FCC Chair Julius Genachowski has picked noted attorney Edward Lazarus as his chief of staff, and Priya Aiyar, Colin Crowell, Bruce Gottlieb, Ruth Milkman, Mary Beth Richards, and Sherrese Smith for other top spots. Here's more.
The ISP as Speaker and Conduit
Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.
While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.
For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.
Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.
This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.
Download the paper from SSRN here.
Supreme Court Asks For Re-Argument In "Hillary: The Movie"
Here's a New York Times discussion of the Citizens United (the "Hillary: the Movie") case, the only one left over from this Supreme Court term.
New UK Family Court Rules Regarding Media Access Challenged
One celebrity is already arguing that UK family court proceedings involving famous families and their children should be closed to the media despite new rules opening such proceedings to the press. But an attorney for the media counters that high profile figures are "no different" from others, and should get no exemption from family court rules. Read more here.
Evaluating the Spectrum Auction
Last year, the Federal Communications Commission held its largest ever spectrum auction, selling exclusive rights to use coveted wireless frequencies for approximately $20 billion. This turned out to be the largest ever single auction of public property in U.S. history. Aside from its sheer magnitude, the auction of frequencies in the 700 MHz band was notable for the federal government's attempt to use the auction process as a mechanism to value various conflicting public policy goals. For the first time, the FCC set out to ascertain just how much a contested policy goal would cost in foregone auction revenue and vowed to give up the goal if it cost too much.
This use of auctions as a heuristic for valuing public interest goals raises interesting questions about the relationship between markets and policy, and between government as a proprietor of public resources and as a regulator of those resources. I argue that it is possible to use auction results to inform the policy process without elevating revenue goals over other public policy objectives. In the 700 MHz auction, however, the FCC misunderstood what information auctions can yield and then failed to design an auction that would supply even that information. Correcting these problems for the spectrum auctions of the future - what may be the last great "land rush" to obtain wireless resources valued at more than $1 trillion - would lead to a more rational, transparent, and equitable communications policy.
Download the article from SSRN here.
First Amendment Documentary Airs Tonight
Premiering on HBO tonight at 9 p.m., 8 central, "Shouting Fire: Stories From the Edge of Free Speech," a documentary from hyphenate Liz Garbus, daughter of First Amendment attorney Martin Garbus. According to the Blog of Legal Times,
It's a dynamic look at the history of free speech in the last century, including the McCarthy era, Vietnam protests, and post-9/11 paranoia. But that history is interspersed with in-depth portraits of three controversial speakers of recent years: Ward Churchill, who was drummed out of his job as a professor at University of Colorado-Boulder after suggesting that the 9/11 attack on the World Trade Center was not a senseless act; Debbie Almontaser, forced to resign as principal of a New York City school after the New York Post twisted remarks she had made about the meaning of "intifada"; and California high school student Chase Harper, who was suspended for wearing a t-shirt with the message, "Homosexuality is shameful."
Read more here.
Scammers, Spammers, Are "Pouncing" On Jackson Death
...according to MSNBC.com story.
Anonymous Speech Online
The First Amendment to the United States Constitution prohibits Congress from enacting laws abridging the freedom of speech. However, the text of our Constitution and the First Amendment do not expressly address the issue of anonymous speech. Records from the state ratifying conventions and from the First Congress, the drafters of our Bill of Rights, lack any mention of anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout our Nation’s history.
This article explores the interplay of the right to engage in anonymous speech and the freedom of online speech. Part I of this article offers a brief history of anonymous speech from the invention of the printing press until today. Part II discusses two of the most important decisions concerning anonymous speech from the U.S. Supreme Court, as well as state high courts and lower federal courts. Part III argues that the First Amendment protects the right to speak anonymously online. I conclude with a brief discussion of the future of anonymous online speech rights.
Download the paper from SSRN here.
June 29, 2009
Academic Vampire Killing
In the Chronicle of Higher Education, Christina Hoff Sommers on "Persistent Myths in Feminist Scholarship," including those in law school textbooks.
David Rohde and Wikipedia
In Sunday's New York Times, an extremely interesting and provocative piece about the difficulties of keeping the news of David Rohde's abduction by the Taliban out of Wikipedia.
Not As Big as a Googol
Google's Dana Wagner is trying to convince the public, and the feds, that Google isn't all that big. There's room in the search engine world for Google's many competitors, he says. His company doesn't swallow up the whole. Read more here.