Saturday, August 29, 2009
The Dutch royals have won a ruling from a Dutch court that the AP violated their privacy by publishing photos of Crown Prince Willem-Alexander and his family on holiday in Argentina (Princess Maxima was born in Argentina). The AP snapped pix of them in their private life, said the court, and in weighing the freedom of freedom of expression against the right to privacy, ruled the media should recognize that members of the royal family, while they take the risk of media scrutiny while performing their public duties do have an expectation of privacy in their private lives.
Compare with the von Hannover case (decided under Article 8 of the European Convention on Human Rights) handed down by the European Court of Human Rights, in which the court decided in favor of Princess Caroline of Monaco in her action against German media for publishing photos of herself and her family in their private life. The case is Von Hannover v. Germany, 2004-III Eur. Ct. H.R. 294.
Thanks to Matt Duffy for the tip.
Friday, August 28, 2009
STATEMENT OF FCC COMMISSIONER ROBERT M. McDOWELL
REGARDING THE D.C. CIRCUIT’S DECISION TO STRike down the FCC’s CABle ownership cap
The following statement can be attributed to Commissioner Robert M. McDowell:
“It was clear in December 2007, when I dissented from the FCC decision to once again impose a 30 percent national cap on cable system ownership, that the effort to re-justify the very same cap that the D.C. Circuit first struck down in 2001 was even more vulnerable to court challenge the second time around. Despite the Commission staff’s best efforts to provide post hoc empirical support for the chosen outcome, the court recognized that the 2007 analysis’ aging data and questionable assumptions sat oddly against the facts about new – and successful – competitors to cable systems in the multichannel video marketplace. It should go without saying that, in the future, outcomes in our proceedings should be driven by the facts and law, rather than the other way around.”
A link to the ruling, Comcast v. FCC, decided August 28, 2009.
The FCC has issued a Notice of Inquiry on whether there are additional opportunities to protect and empower American consumers by ensuring sufficient access to relevant information about communications services.
As communications technologies and services become more essential, and the communications market more complex, information is key to consumer protection and empowerment. The Commission seeks comment from communications service providers, academic researchers, consumer groups and third-party analysts on how best to ensure consumers have the information they need to make informed decisions in the communications marketplace.
The Commission’s approach to information disclosure issues has traditionally focused on the formatting of consumer bills. This is relevant only after a consumer has already selected a service provider, and has been restricted to wireline voice and wireless services. Today’s Notice asks questions about the information available to consumers at each stage of the purchasing process: (1) choosing a provider, (2) choosing a service plan, (3) managing use of the service plan, and (4) deciding whether and when to switch an existing provider or plan for all communications services, including wireline voice and wireless services, as well as broadband and subscription video (cable and satellite).
This Notice also seeks particular comment on cost-effective best practices in information disclosure from within the communications sector – as well as familiar examples for other areas, such as nutrition labeling on food products, fuel efficiency for automobiles, energy efficiency for household appliances, and rates and fees for credit cards. Comments will be due 45 days after release of the Notice of Inquiry and replies will be due 15 days thereafter.
Action by the Commission, August 27, 2009, by Notice of Inquiry (FCC 09-68). Chairman Genachowski, Commissioners Copps, McDowell, Clyburn and Baker with Chairman Genachowski, Commissioners Copps, McDowell, Clyburn and Baker issuing separate statements.
Thursday, August 27, 2009
Wednesday, August 26, 2009
The New York Times' Maureen Dowd, like other columnists, weighs in on a judge's ruling in the anonymous blogger case, and so do readers. Many, like her, think anonymous speech on the net may have gone too far, but not all. Meanwhile, here's opinion from across the pond.
Tuesday, August 25, 2009
The BBC reports that Wikipedia is close to a radical change of its publishing model, which would provide for editorial control of changes to pages devoted to living persons and "some organizations." The changes are in response to recent problems with pages devoted to high profile personalities such as the late singer Michael Jackson and U.S. Senator Robert Byrd. Some Wikipedia users are upset about the new policy, but some welcome it. Editorial control would extend only to changes attempted by new or unknown users. Says the New York Times' Noam Cohen,
The new feature, called “flagged revisions,” will require that an experienced volunteer editor for Wikipedia sign off on any change made by the public before it can go live. Until the change is approved — or in Wikispeak, flagged — it will sit invisibly on Wikipedia’s servers, and visitors will be directed to the earlier version.
The change is part of a growing realization on the part of Wikipedia’s leaders that as the site grows more influential, they must transform its embrace-the-chaos culture into something more mature and dependable.
Mr. Cohen also notes that the new policy "crosses a psychological Rubicon. It will divide Wikipedia’s contributors into two classes — experienced, trusted editors, and everyone else — altering Wikipedia’s implicit notion that everyone has an equal right to edit entries."
Read more in the New York Times article here.
Following work published in 2006, this article explores the history of the phrase 'intellectual property' as it was used in the 19th century and early 20th century by jurists speaking French, Spanish, Italian, and English. During this period 'intellectual property' was used by many commentators to refer to copyright alone; indeed, in Spanish, the phrase unambiguously meant just copyright. The article sketches out how officials in WIPO's predecessor organization rechristened it an 'intellectual property' entity and helped establish the modern, umbrella sense of the term for patents, copyrights, trademarks, etc. Finally, the manuscript explores how the property-or-not debate has animated discussions of copyright theory throughout the history of copyright law.
This Article compares the pending settlement between Google and the representative author and publisher plaintiffs to the most likely outcome of the litigation the settlement resolves. This counterfactual provides a useful benchmark by which to assess the effects, and thus the merits, of the Google Book Search settlement.
Google was never likely to receive the courts unqualified approval for its massive digitization effort. In fact, the most likely outcome of the litigation was that book digitization would qualify as a fair use subject to an opt-out. Accordingly, the aspects of the proposed settlement which allow Google to continue to operate its book search engine in its current form should not be controversial; they essentially mirror the court’s most likely fair use ruling if the case had gone to trial. In effect, the opt-out that fair use would have required has been replaced by the ability of copyright owners to opt-out of the class-action settlement.
This conclusion explains why, in the wake of the proposed Settlement, the Google Book debate has shifted away from the merits of book digitization, and refocused on questions of commoditization and control. This Article highlights four critical areas in which the Settlement differs sharply from the predicted fair use ruling. First, the Settlement permits Google to engage in a significant range of uses including the complete electronic distribution of books that go well beyond fair use. Second, the Settlement provides for initial cash payments by Google to the copyright owners and a fairly generous revenue sharing agreement, neither of which would have been required under a fair use ruling. Third, the agreement creates a new set of institutional arrangements that will govern the relationship between Google and the copyright owners covered by the Settlement. The foundations of this new institutional framework are the Settlement agreement itself, the creation of a collective rights management organization called the “Book Rights Registry” and the “Author-Publisher Procedures”. The fourth area in which the Settlement differs from the likely fair use outcome relates to the accessibility, commoditization and control of orphan works.
Over a decade since the Internet became an acknowledged mainstream commercial medium, it still retains its less than savoury reputation as a happy hunting ground for pornography and other types of distasteful content.
Some of the basic issues in this area which this chapter addresses, from a European and comparative perspective, are:
• Has the Internet created novel problems in this area which can not be adequately regulated by the existing legal and regulatory framework?
• Can such laws be enforced successfully in the environment of the Internet and if not, what steps should be taken?
• Should control of content be undertaken only by state law enforcement agencies and courts, or by private bodies such as ISPs and search engines?
• Should states and private institutions seek to control access to prohibited or unwelcome Internet content and by technological (“code”) means such as filtering, rather than by legal means? What are the implications for free speech of such online filtering?
The chapter observes a dangerous international trend towards non transparent and non accountable censorship online, not only in non democratic countries like China but increasingly in Europe and elsewhere. The author proposes a speech impact assessment process be put in place before new systems of top-down state-endorsed Intenet filtering are implemented.
Monday, August 24, 2009
From the FCC:
Announcement of Next Meeting Date and Agenda of Consumer Advisory Committee
By this Public Notice, the Federal Communications Commission (“Commission”) announces the date and agenda of the next meeting of its Consumer Advisory Committee (“Committee”).
Purpose & Functions
The purpose of the Committee is to make recommendations to the Commission regarding consumer issues within the jurisdiction of the Commission and to facilitate the participation of all consumers in proceedings before the Commission.
The next meeting of the Committee will take place on Thursday, September 10, 2009, 9:00 a.m. to 4:00 p.m., at the Commission’s Headquarters Building, Room TW-C305, 445 12th Street, S.W., Washington, DC 20554.
At its September 10, 2009 meeting, the Committee will focus upon broadband and the development of the National Broadband Plan. The Committee is expected to consider an outline of its recommendations to be submitted in connection with the National Broadband Plan Notice of Inquiry, Docket 09-51. The Committee may also consider other consumer issues within the jurisdiction of the Commission. A limited amount of time on the agenda will be available for oral comments from the public. Meetings are open to the public and are broadcast on the Internet in Real Audio/Real Video format with captioning at www.fcc.gov/cgb/cac. Members of the public may address the Committee or may send written comments to: Scott Marshall, Designated Federal Officer of the Committee, at the address noted below.
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, assistive listening devices, and Braille copies of the agenda and handouts will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need, and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to: email@example.com or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
For further information contact: Scott Marshall, Consumer & Governmental Affairs Bureau, Federal Communications Commission, Room 3A633, 445 12th Street, S.W. Washington, DC 20554. Phone: 202 418-2809 (voice) or 202-418-0179 (TTY). Email: firstname.lastname@example.org.
Judge Orders Google To Turn Over Anonymous Blogger's Name In Defamation Case; Outed Blogger Now Miffed At Google
Findlaw's Brian Kumnick discusses the recently concluded suit over the anonymous post about model Liskula Cohen and her fight to discover who called her a "skank" (among other things) on a Google-hosted blog. After a trial judge ordered Google to reveal the anonymous blogger's name (it's Rosemary Port), Ms. Cohen seems to have dismissed her defamation lawsuit against Ms. Port.
Meanwhile, Ms. Port is now annoyed at Google for turning over her name (apparently rather than appealing the ruling). Her attorney says "he plans to pursue all her legal options against Google -- and could take the case all the way to the US Supreme Court." Game on.
(David Ardia addresses anonymous blogging at the Citizen Media Law Project here).