Friday, October 23, 2009
Supreme Court of Washington Reaffirms That Courts Are Not "Agencies" Within Meaning of State Public Records Act
The Washington Supreme Court has ruled that courts are not "agencies" under the state's public records law, Chapter 42.56 RCW, in City of Federal Way v. Koenig.
¶8 The records in Nast and the records at issue here clearly meet the first part of the PRA's definition of public records—both sets of records are writings that contain information relating to the conduct of government. The only question is whether the entity that created the records (here, the judiciary) is a “state or local agency.” The Nast court resolved this question, holding that the PRA definitions do not include “either courts or case files.” ... Because the records met the other elements of the PRA's definition of public records, Nast necessarily held that the judiciary is not a “state or local agency.” We find it unreasonable to now twist this holding to sometimes include the courts in the definition of agency. Either the entity maintaining a record is an agency under the PRA or it is not. Under Nast, the courts are not included in the definition of agency, and thus, the PRA does not apply to the judiciary. As a result, the court records requested by Koenig are not subject to disclosure under the PRA.
¶9 Koenig contends that this court should reconsider Nast entirely because its analysis was erroneous and because a recent amendment to the PRA has incorporated common law exceptions to public disclosure requirements. The principle of stare decisis “‘requires a clear showing that an established rule is incorrect and harmful before it is abandoned.’” ...This respect for precedent “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” ...
¶10 Koenig argues that the Nast analysis erred because it failed to liberally construe the terms “agency” and “public records.” First, this argument was considered by the court in Nast, as evidenced by Justice Durham's dissent on this very issue. ...Making the same arguments that the original court thoroughly considered and decided does not constitute a showing of “incorrect and harmful.” ... Second, the Nast court considered the full definition of agency and found that the judiciary was not included. ...Indeed, the PRA definition of agency does not include any language referring to courts or the judiciary. The Nast court reasonably concluded that the legislature did not intend to include the judiciary, basing its ruling on a “reading of the entire public records section of the [PRA].” ... Koenig has failed to demonstrate that this holding was incorrect and harmful. Without such a showing, we will not overturn precedent.
¶11 Koenig also points out that the third basis for Nast (that the PRA did not include the statutory exemptions honed under the common law right of access to court files) no longer applies because the PRA now incorporates such statutory exemptions. ...While Koenig is correct that the third basis for Nast no longer applies, the broader holding remains. As noted above, the fundamental basis for Nast—that the PRA's definition of agency does not include the judiciary—is sufficient to support Nast 's holding. The fact that the third basis no longer applies is not enough to overturn Nast.
¶12 More notably, the legislature has declined to modify the PRA's definitions of agency and public records in the 23 years since the Nast decision. This court presumes that the legislature is aware of judicial interpretations of its enactments and takes its failure to amend a statute following a judicial decision interpreting that statute to indicate legislative acquiescence in that decision. By not modifying the PRA's definition of agency to include the judiciary, the legislature has implicitly assented to our holding in Nast that the PRA does not apply to the judiciary and judicial records.
¶14 This court previously held that the PRA does not apply to the judiciary and the legislature acquiesced to that decision by not modifying the PRA. We see no reason to violate the doctrine of stare decisis here. The trial court correctly held that the PRA does not require the City to release the judicial records requested by Koenig, and we affirm.
Read the entire opinion here.
From Slate.com, an interesting analysis of the FTC's new guidelines, and why they seem to target bloggers while allowing mainstream media to continue business as usual. Says Slate.com's Jack Shafer,
Because of a pesky thing called the First Amendment, the guidelines don't apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don't apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow's blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.
Thursday, October 22, 2009
COMMISSION SEEKS PUBLIC INPUT ON DRAFT RULES
TO PRESERVE THE FREE AND OPEN INTERNET
Washington, D.C. -- In the next chapter of a longstanding effort to preserve the free and open Internet, the Federal Communications Commission is seeking public input on draft rules that would codify and supplement existing Internet openness principles.
In addition to providing greater predictability for all stakeholders, the Notice is aimed at securing the many economic and social benefits that an open Internet has historically provided. It seeks to do so in a manner that will promote and protect the legitimate needs of consumers, broadband Internet access service providers, entrepreneurs, investors, and businesses of all sizes that make use of the Internet.
The Commission has addressed openness issues in a variety of contexts and proceedings, including: a unanimous policy statement in 2005, a notice of inquiry on broadband industry practices in 2007, public comment on several petitions for rulemaking, conditions associated with significant communications industry mergers, the rules for the 700 MHz spectrum auction in 2007, specific enforcement actions, and public en banc hearings. During this time period, opportunities for public participation have generated over 100,000 pages of input in approximately 40,000 filings from interested parties and members of the public.
The process today’s Notice initiates will build upon the existing record at the Commission to identify the best means to achieve the goal of preserving and promoting the open Internet.
Recognizing that the proposed framework needs to balance potentially competing interests while helping to ensure an open, safe, and secure Internet, the draft rules would permit broadband Internet access service providers to engage in reasonable network management, including but not limited to reasonable practices to reduce or mitigate the effects of network congestion.
Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;
2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;
3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network;
4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers;
5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and
6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.
The draft rules make clear that providers would also be permitted to address harmful traffic and traffic unwanted by users, such as spam, and prevent both the transfer of unlawful content, such as child pornography, and the unlawful transfer of content, such as a transfer that would infringe copyright. Further, nothing in the draft rules supersedes any obligation a broadband Internet access service provider may have -- or limits its ability -- to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or homeland security authorities, consistent with applicable law.
The Commission is also seeking comment on how it should address “managed” or “specialized” services, which are Internet-Protocol-based offerings provided over the same networks used for broadband Internet access services. While the proceeding will seek input on how best to define and treat such services, managed services could include voice, video, and enterprise business services, or specialized applications like telemedicine, smart grid, or eLearning offerings. These services may provide consumer benefits and lead to increased deployment of broadband networks.
The Notice asks how the Commission should define the category of managed or specialized services, what policies should apply to them, and how to ensure that broadband providers’ ability to innovate, develop valuable new services, and experiment with new technologies and business models can co-exist with the preservation of the free and open Internet on which consumers and businesses of all sizes depend.
The Notice affirms that the six principles it proposes to codify would apply to all platforms for broadband Internet access, including mobile wireless broadband, while recognizing that different access platforms involve significantly different technologies, market structures, patterns of consumer usage, and regulatory history. To that end, the Notice seeks comment on how, in what time frames or phases, and to what extent the principles should apply to non-wireline forms of broadband Internet access, including mobile wireless.
Recognizing that the Commission’s decisions in this rulemaking must reflect a thorough understanding of current technology and future technological trends, the Chief of the Commission’s Office of Engineering & Technology will create an inclusive, open, and transparent process for obtaining the best technical advice and information from a broad range of engineers.
The adoption of this Notice will open a window for submitting comments to the FCC. Comments can be filed through the Commission’s Electronic Comment Filing System, and are due on Thursday, January 14. Reply comments are due on Friday, March 5. In addition, the rulemaking process will include many other avenues for public input, including open workshops on key issues; providing feedback through openinternet.gov, which will include regular blog posts by Commission staff; and other new media tools, including IdeaScale, an online platform for brainstorming and rating solutions to policy challenges.
Wednesday, October 21, 2009
Flickr and the Creative Commons Movement teamed up to expand the commons by making it easier to license copyrighted creative works, like digital photographs. Creative Common licenses with commercial terms, however, may give away rights that copyright holders do not have, such as the publicity rights of private individuals. To remedy this, Flickr and similar websites that facilitate CC licensing should educate copyright holders about publicity right infringement, create a tagging system to provide potential image users with notice of consent from private individuals, and facilitate royalty negotiations between photographed individuals and potential commercial users. Without these changes the possibility of publicity right infringement inhibits the integrity of commercial licenses and imposes additional costs on potential image users. This Article briefly summarizes the history and goals of the Creative Commons Project, illustrates cases where CC commercial licenses have encouraged publicity right infringement, and suggests ways to implement methods of restoring the integrity of CC commercial licenses.
Download the article from SSRN here.
Tuesday, October 20, 2009
In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.
Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.
With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.
Download the article from SSRN here.
Monday, October 19, 2009
Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting a narrow reading of Zacchini v. Scripps-Howard Broadcasting Co. (to date, the only Supreme Court decision addressing the right of publicity), and by looking to principles of conflict preemption to cut through the indeterminacy of conventional preemption analysis under § 301 of the Copyright Act.
More precisely, we argue that First Amendment and copyright preemption analysis tend to converge on two relatively simple principles: first, that publicity claims arising in the context of commercial speech usually should withstand both First Amendment and copyright preemption challenges; and second, that publicity claims arising in the context of noncommercial speech may proceed only when, among other things, the exercise of publicity rights plausibly can be justified as advancing a state interest in protecting personal privacy or individual autonomy, or (possibly) in preventing consumers from erroneously perceiving that the plaintiff endorses a product that she does not, in fact, endorse. Viable publicity claims involving noncommercial speech should be small in number, however; and should the Supreme Court someday opt to eliminate the distinction between commercial and noncommercial speech regulation, or to overrule Zacchini in favor of a more speech-protective standard, the number of viable claims within both classes should shrink further still.Download the Article from SSRN here.
Censorship scholars unanimously, but mistakenly, treat a 1907 ordinance of the City of Chicago as the first act of censorship in the United States. This Article finds, however, that movie censorship was born in March 1897 with prohibitions against a now-extinct genre: prizefight films that depicted real and staged boxing fights. At the time, boxing was generally illegal, yet the sport was enormously popular and boxers enjoyed privileged social status. In fact, shortly after Thomas Edison commercialized moving picture technologies in 1894, he accommodated the production of prizefight films at his studio in New Jersey, where prizefighting was prohibited.
The Article documents the reasons for Edison’s decision to veto of the use of his equipment for prizefight films, only a few months after the production of prizefight films at his studio. Because of Edison’s position in the industry, this decision effectively constituted the first form of content self-regulation in the motion-picture industry, approximately thirteen years before the presently-believed-to-be first form of content self-regulation in the industry.
This Article, therefore, begins to close a neglected gap in the literature on movie censorship. Its findings require a reexamination of content regulation in the motion picture industry, whose presumed twentieth century origins hide legislatures and industries already experienced with censorship campaigns and laws. Despite this Article’s historical reach, it provides important insights into modern-day social regulation. The failures of the nineteenth-century regulators to curtail popular activities like prizefighting can inform and shape current regulatory efforts, such as the design of anti-smoking policies.
Download the article from SSRN here.
The influences of digital distribution of content have begun to redefine the music industry in a highly-visible battle between record producers and consumers which has left musicians standing at the sidelines. Given the high cost of production and relatively limited number of theatrically distributed feature films each year, motion picture producers are exposed to much greater risk from digital piracy than other media. At the same time, changing technology has created new opportunities for film producers, filmmakers and audiences to interact. These same trends may grow to subsume the traditional notion of prime-time television entertainment as well.
All the parties involved in filmmaking must reinvent the production and distribution methodology under the pressure from digital piracy, smart phones and personal video players, YouTube, and social networks. This article reviews the technological influences that have transformed the motion picture and television industry. Based on these influences, it recommends approaches to the business and contractual arrangements to allow filmmakers and producers to succeed in the modern, digital environment. In particular, the article outlines new contractual arrangements to allow filmmakers to directly interact with curatorial audience — technologically savvy viewers who collect, blog, share and influence opinion using the modern social-networking tools.