Saturday, September 5, 2009
Isaac Owusu, the defendant in the Vermont "sexting" case, has received a two-year sentence, but will serve 90 days as a result of a plea deal. The Vermont legislature has in the meantime decriminalized "sexting" for minors (2009 Vt. Act 58; 2009 Vt. S. 125).
Here's discussion of Professor Peter Cumming's characterization of sexting as the 21st century's version of "spin the bottle." Here's a link to Professor Cumming's page and his paper, "Children's Rights, Children’s Voices, Children’s Technology, Children’s Sexuality."
Amazon.com is trying to put that unfortunate "1984" decision behind it by offering replacement copies of those George Orwell titles to customers who lost theirs when the company zapped them from Kindles earlier this summer. The company took the action in order to comply with copyright law. In the alternative Amazon is offering a gift certificate or $30, according to the New York Times. From "1984" to "How To Win Friends and Influence People"?
Friday, September 4, 2009
Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade-secret owners of filing complaints for the purpose of running a competitor out of business, or restraining individuals from discussing matters which are unfavorable to the company. This paper enters the discussion to critically assess whether there is reason to consider restricting these suits or changing the law.
The Article concludes that trade secret litigation on the whole does not inappropriately impinge on free speech rights. The fundamental nature of trade secret rights, in particular the underlying proprietary and corporate privacy interests, has implications for how courts and plaintiff trade-secret holders view, interpret, and approach these cases, and ultimately help illustrate why the free speech issues do not pose an overriding concern sufficient to justify restrictions on trade secret litigation. Even if certain cases sometimes come closer to offending defendants' free speech rights, these occasions and concerns are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil cases, and the other areas of intellectual property litigation suffer from similar problems. Accordingly, any necessary modifications are best addressed in the context of general litigation reform, rather than singling out trade secret cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, should minimize the risk of free speech incursions.Download the article from SSRN here.
Thursday, September 3, 2009
Wednesday, September 2, 2009
The Advertising Standards Authority has told American Apparel it may not run an ad featuring a "semi-nude" model because the woman appears to be under 16, even though the company says the woman is 23. The ASA said the woman appeared to be "stripping." Read more here. Here is an excerpt from the ASA's ruling.
We noted the model was 23 years old and had been styled without make-up to give a natural look. We nevertheless considered that she appeared young, and in some of the pictures, looked under 16. We did not however consider that she appeared especially vulnerable.
While the ad depicted only partial nudity, we considered that the images were provocative with the model exposing progressively more skin in each photo in the series. We considered that the photographs suggested that she was stripping off for an amateur-style photo shoot.
Because the ad could be seen to sexualise a model who appeared to be a child, under the age of 16 years, we concluded that it was inappropriate and could cause serious offence to some readers.
On this point, the ad breached CAP Code clause 2.2 (Social responsibility) and 5.1 (Taste and decency).
Neither the Current EC Directives nor TRIPS make significant legal adjustments to cater for digitised information systems serving world networks, for information superhighways are too novel and shifting a phenomenon. The implications for Copyright, as the most likely tool for shoring up their economic value, are of course, under urgent scrutiny. Whatever else, the provision of on-line services for education, information, entertainment, business and Government promises very considerable realignments in what may be loosely labeled the information industry. In conditions of such insecurity, it seems highly important at least to ensure, if possible, that creators and other providers can secure returns on the users of their material which correspond to the sale of copies and the showing of material in cinemas and on television in the world to date. There are considerable hopes and considerable dangers in a digitised world.Authors, and the creative works that they develop, will ultimately determine whether new digital networks and the global information society succeed or fail. People simply will not take part in the new digital networks if the content available is not sufficiently interesting, creative or useful. Maintaining strong copyright protections for authors of every kind of creative work is necessary to ensure that these authors have adequate, market-driven incentives and rewards to create such content and to make it available to the public in these new ways. The Berne Protocol offers thoughtful and sensitive solutions to the challenges presented by the global Information society - particularly as to the issues of computer programs, temporary copying and use, distribution, digital transmissions and technical protections - while maintaining the maximum opportunity for the quality and quantity of content to grow in the new, digital environment. A successful negotiation of the Protocol will indeed help to make new laws in the digital copyright era.
Download the paper from SSRN here.
From the Blog of Legal Times: the Internet radio service Live 365 has filed a lawsuit alleging that the Copyright Royalty Board is unconstitutional. The company says that those who sit on the board have such authority that they should be appointed by the President. The CRB Judges are appointed by the Librarian of Congress.
Tuesday, September 1, 2009
The Ninth Circuit has ruled that Paris Hilton's lawsuit against Hallmark Cards can proceed. Ms. Hilton alleges that the card, which depicts a waitress with Ms. Hilton's face, infringes her rights of publicity and use of her catchphrase "That's hot". Hallmark maintains that use of the image and phrase are protected by fair use. Read more here and here.
The authors were asked to comment as legal experts upon the proposed amendments to a set of key EU Directives governing telecommunications and related services, and known as the "Telecoms Package". In particular we were asked to clarify whether its provisions might by stealth give legal grounding to national measures, such as the law recently proposed by Sarkozy in France, which permit summary disconnection of a user's Internet access, without initial recourse to a court, in response to allegations of infringement of copyright (ie, file-sharing and downloading of copyright music and movies). Such measures have been popularly referred to as 'graduated response' or 'three strikes and you're out' and have already been condemned by the European Parliament as in breach of fundamental freedoms and due process rights..
On the basis of our analysis, we argue that it is clear that the package does, or at least can, provide a mandatory basis for the "warnings" part of a French-style connection sanctions law (the "strikes") (see para 12 of brief), and also potentially provides a means by which public CSPs (ISPs and the like) can be compelled by the national regulator to work with rightsholders to implement a disconnection scheme ("promoting cooperation") - the "you're out" - see para 19 of brief.
Furthermore, crucial safeguards for due process and orther fundamental rights such as privacy and freedon of expression, inserted into the text by the European Parliament, have been deleted by the Council of Ministers, and are still the subject of horse trading among political interests at time of writing.
Finally we identify other threats to human rights which might possibly emerge from the text in its current state of ambiguity ; including the threat of sanctions such as traffic slowing and filtering imposed by ISPs, also without due court process; and the possibility of unlimited length of time retention of traffic data by ISPs and telcos, under the figleaf of "network security".
The political process of the Telecoms Package is not yet concluded as of this brief's publication on 12 November 2008; this brief is being published now to assist legislators and lobbyists in focusing on what are (and are not) the true potential threats to justice and human rights in the Package. Good European law cannot be made when sectoral agendas are hidden within nested sets of amendments, obscure definitions by reference, and overly wide and vague terminology. The purpose of this brief has been to open up these obfuscated agendas to the light of day. hed now to assist legislators and lobbyists in focusing on what are (and are not) the true potential threats to justice and human rights in the Package. Good European law cannot be made when sectoral agendas are hidden within nested sets of amendments, obscure definitions by reference, and overly wide and vague terminology. The purpose of this brief has been to open up these obfuscated agendas to the light of day.Download the paper from SSRN here.
Judge George Wu has formally dismissed the conviction against Lori Drew, charged with the "MySpace hoax" that led to the suicide of Megan Meier. Judge Wu wrote in the opinion ending the case that the wording of the Federal Computer Fraud and Abuse Statute was too vague to allow the verdict to stand.
Monday, August 31, 2009
Designer Anand Jon Alexander, convicted of forcible rape last year, could receive up to life in prison for his crimes. He was found guilty of enticing young women to Los Angeles under the pretext of hiring them as models, then assaulting them. After the verdict, other problems with the trial surfaced, including an investigation of his sister's conduct with one of the jurors involved with the trial. Mr. Alexander has created fashions for such celebrities as Paris Hilton and Mary J. Blige. Read more here and here.
Update: Judge David Wesley sentenced Mr. Alexander to 59 years to life.
David Simon, who created the popular series The Wire, says advertising constrains creativity on television. "Television as a medium, in terms of being literate and telling stories, has short-changed itself since its inception. "That is because of advertising." He made his comments at the Edinburgh International TV Festival.
The article combines Foucault’s ideas of discursive formations, practices and subjects with qualitative data gained from interviews with working Australian journalists, editors and broadcast producers. This combination of the theoretical and the empirical allows for the exploration of journalism as a discursive formation rather than as simply a set of practices internalised by journalists. Through the examination of the words of the respondents, Foucault’s notions of internal, external and neither fully internal nor external discursive controls are given a practical foundation and provide the basis for the assessment of the central Truth of the journalistic discursive formation. This Truth, the set of practices that without which would render journalism a different discursive formation, is found to be the facilitation of public confession. That is, journalists, if they are to be journalists, must, in the course of their daily lives, allow for, and publish, the 'confessions' of their sources.
Download the article from SSRN here.