October 2, 2009
David Letterman Reveals Attempted Extortion Aimed At Him Over Relationships With Employees
A former CBS employee has been arrested in an apparent attempt to extort millions from night talk show host David Letterman. Mr. Letterman discussed the events leading up to the attempt with his audience last night during his show. The audience seemed somewhat confused, at points laughing during Mr. Letterman's recounting of his meeting with his attorney and the Manhattan D.A., and seeming to take its cues from Mr. Letterman's tone and jokes. Today, the story has dominated early morning talk shows, inviting analysis from legal experts and relationship gurus.
Cyberspace and Combat
The national security implications of computer network attacks (CNA) have become far-reaching and have prompted major adjustments to our nation’s defense structure and strategy. One of the current President’s early executive acts created a national Cyberczar to coordinate U.S. defenses against CNA. Meanwhile, the Department of Defense has recognized cyberspace as a realm of combat operations equivalent in importance to land, sea and space, creating a new Cyber Command believed to be capable of launching offensive CNA. This Article examines the critical question of combatant status in such CNA – specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. This Article argues such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, this Article argues that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.
September 30, 2009
Internet Publishing in the EC Legal Regime
The article discusses the legal status of weblogs and examines whether legal standards applicable to traditional press and media should be applied to that specific forum. The analysis is based on two key documents: the Draft Report on the concentration and pluralism in the media in European Union (2007/2253(INI)) of the European Parliament Committee on Culture and Education presented in March 2008 and a landmark decision of the Polish Supreme Court from July 26, 2007 (IV KK 174/07) in the light of present judicial tendency in other European countries. The article aims to examine the status of Internet logs as press and seeks the compromise between the concerns expressed by European authorities and the freedom of thought and speech exercised on the Internet. It proposes an amendment of the existing legal definitions of press to include such an activity and surrendering the web-log journalism to press standards on either obligatory or voluntary basis.
Download the Article from SSRN here.
On "Tinker's" Continuing Meaning
The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to school by declaring censorship of student expression invalid unless a school can demonstrate that it causes 'material disruption' of the educational process. To be sure, this powerful libertarian doctrine has been eroded (much like the egalitarian vision of Brown) by the sharp undertow of the Burger, Rehnquist, and Roberts Courts, but it still shines imperishably bright from the last century as a beacon not only for student rights but for constitutional democracy in public settings generally. It expresses the idea that every social institution must respect freedom of speech unless the exercise of that freedom would thwart the very purpose of having the institution in the first place.
Download the article from SSRN here.
September 29, 2009
Court Dismisses Rather Lawsuit Against CBS
An appellate court has dismissed former CBS anchor Dan Rather's lawsuit against the network, citing Mr. Rather's failure to demonstrate "a single opportunity with specified terms that was actually available to him and which he declined to accept because of CBS' actions." Mr. Rather originally filed the lawsuit in 2007. He left the network in 2005. His legal team says he plans to appeal. Here's more from CBS.com.
Developing an Internet Bill of Rights
The evolution of today’s information society focuses around the issue of the Internet and its development. In order for this new medium to fully take its role, it is necessary for the international community to set clear rules for the sharing of competences in the borderless cyberspace between states. As a solution to this problem, which endangers the integrity and functionality of the web, a wide international consensus covering the principles of sharing competences among the states, should be proposed. Such a compromise might be construed within the organization called upon by the United Nations to this very purpose, that is the Internet Governance Forum (IGF). An important part of such a consensus should be the discussion on the set of basic rights for the widest possible range of cyber-citizens. It is quite clear that the developing information society needs a new approach towards the issue of human rights. Existing rights need to be redefined, new ones – identified and applied in an uniform manner. The laws regulating the scope of information allowed in a community differ from country to country, as the individual communities differ in their values. The question of allowed by law Internet content is however not of what the allowed liberties should be but whether and how a common ground for their regulation can be found. The answer to that question is of great importance, as it may shape the future of the net itself. The IGF was the first organization to deal with the issue of Internet rights, embodied in the proposal to commence work on a unique Internet Bill of Rights - a document (or a set of documents) to list all the traditional and innovative rights, that each member of a 21st century information society should be in disposition of. The idea of the Internet Bill of Rights is aimed at applying the so-far known rights and liberties onto the members of the cyberspace and their activities. At present there is quite a lot of activity taking place in the cyber-societies, aimed at protecting civil rights on-line. It is quite clear, that all those efforts must be focused in one direction - a change of the present internet governance scheme, with the goal to protect newly defined rights in the cyber-realm.Download the article from SSRN here.
Examining Media Policy
This paper deals with two related subjects. The first is the past failure of economic analysis to trigger elimination of welfare-reducing public policies affecting the older mass media technologies, such as broadcasting. The second is some speculation about future policy issues that may continue or arise from the technical characteristics of the new broadband media, combined with advances in social psychology, neuroscience and behavioral economics.
I draw two principal conclusions. First, the failure of economic analysis to stimulate fundamental reform of media regulation is due largely to the fact that policy makers have greater incentives to focus on the allocation of economic rents among interest groups than to promote consumer welfare.
Second, it is clear that IP-based technology is replacing old media such as newspapers and broadcast stations. The technology has the potential to greatly enhance competition and diversity, and to reduce the cost of access by consumers and suppliers to each other. However, regulation is not likely to be reduced, because a whole new rationale for media regulation is being developed. The new rational will be a market failure, based on the adverse welfare effects of competitive media content that is responsive to consumers’ cognitive impairments.
This paper was first presented at a 2009 University of Bayreuth conference on the future of public broadcasting in Germany. While my point of reference is media structure and policy in the United States, I believe that most of what I have to say is also applicable to other countries, including Germany and other members of the European Union. For example, new media technology is challenging the highly concentrated “public” structure of German television, and will continue to do so unless policymakers intervene. The externality rational for public television in Germany is of fading importance, but the argument for public control might be strengthened in the future by welfare-reducing market imperfections in commercial media content.
Download the paper from SSRN here.
The History of Scottish Intellectual Property Law
A significant Scottish dimension is apparent in the development of what we would now call intellectual property in the United Kingdom after the Union of 1707. With both patents and copyright under the Statute of Anne, however, that Scottish dimension was always seen in the context of the single market created by the Union; and this was occasionally reinforced by House of Lords cases as well as by the legislature. In Scotland itself there were also issues about how to understand these developing rights within the systematics of Scots law, in particular the doctrine of real rights. While this did not prevent the development of a unified substantive patent law for the United Kingdom long before the abolition of separate Scots and English patents in 1852, there were significant effects in the debate about the existence of rights at common law, beyond grants made under the royal prerogative or by virtue of United Kingdom legislation. The effects were not limited to the literary property arena. The notions of protecting reputation and privacy rather than rights of property also helped from early in the nineteenth century to follow the English development of a concept of a right to protect confidentiality, preventing or sanctioning the taking and use or disclosure of another’s confidential information. Similarly the unauthorised use of badges of another’s trading identity and reputation would provide the platform from which Scots law would move in the second half of the nineteenth century to use the English concept of passing off. But in both common law developments it generally remained clear (as it did not with literary property) that their basis in Scots law was in personal rights, whether by way of delict or contract, and not in any form of property in the confidential information or the badges of identity. It was, however, always a comfort for the Scottish courts that here, as with patents and copyright, the results produced by this different approach were generally in line with those that would be reached in England. The United Kingdom was the inescapable backcloth to the development of intellectual property law.
Download the essay from SSRN here .
September 28, 2009
Weekend UpdateOn the September 26th SNL, new recruit Jenny Slate apparently miscalculated her "friggin's" during a "biker chick" segment. Out popped an f-bomb instead of the scripted word. Guest Megan Fox never missed a beat, however. It seems there will be no repercussions for Ms. Slate from the network brass, however.
A Study of Cross Media Ownership in Australia and Italy
Regulating media ownership is not a simple task. The media represents a ﬁeld where public interest collides with technological and economic interests. The law is challenged to strike a balance between all three dimensions. This article attempts to deconstruct cross media ownership regulation amidst this ﬁeld. It establishes the theoretical viewpoints that inﬂuence the development of cross-media ownership laws, which puts forward the relevant principles and viewpoints that support the social/political, economic and technological dimensions. It then demonstrates the interaction of these dimensions in practice by presenting a comparative case study of cross-media ownership laws in Australia and Italy. In doing so, this article ﬁnds that cross-media ownership regulation requires the careful balancing of competing inﬂuences. Sound understanding of competing spheres of inﬂuence that interact in the realm of media ownership policy allows legislators to best formulate the directions of Australian law.
Download the paper from SSRN here.