February 13, 2009
FTC Releases Report On Online Advertising
While the Federal Trade Commission isn't moving toward regulation, it is telling Internet companies that they are not informing consumers adequately about privacy policies. An FTC press release says in part,
Over the last decade, the FTC has periodically examined the consumer privacy issues raised by online behavioral advertising – which is the practice of tracking an individual’s online activities in order to deliver advertising tailored to his or her interests. The FTC examined this practice most recently at its November 2007 “Behavioral Advertising” Town Hall. The following month, in response to public discussion about the need to address privacy concerns in this area, FTC staff issued a set of proposed principles to encourage and guide industry self-regulation for public comment. Today’s report, titled “Self-Regulatory Principles for Online Behavioral Advertising,” summarizes and responds to the main issues raised by more than 60 comments received. It also sets forth revised principles.
The report discusses the potential benefits of behavioral advertising to consumers, including the free online content that advertising generally supports and personalization that many consumers appear to value. It also discusses the privacy concerns that the practice raises, including the invisibility of the data collection to consumers and the risk that the information collected – including sensitive information regarding health, finances, or children – could fall into the wrong hands or be used for unanticipated purposes. Consistent with the FTC’s overall approach to consumer privacy, the report seeks to balance the potential benefits of behavioral advertising against the privacy concerns it raises, and to encourage privacy protections while maintaining a competitive marketplace.
The report points out that most of the public comments the FTC received concern the scope of the proposed principles. For example, commenters discussed whether it is necessary to provide privacy protections for data that is not personally identifiable. In response, the report states that privacy protections should cover any data that reasonably can be associated with a particular consumer or computer or other device.
Also, commenters questioned the need to apply the principles to (1) “first party” behavioral advertising, in which a Web site collects consumer information to deliver targeted advertising at its site, but does not share any of that information with third parties, and (2) contextual advertising, which targets advertisements based on the Web page a consumer is viewing or a search query the consumer has made, and involves little or no data storage. The report concludes that fewer privacy concerns may be associated with “first-party” and “contextual” advertising than with other behavioral advertising, and concludes that it is not necessary to include such advertising within the scope of the principles. The report notes, however, that regardless of the scope of the principles, companies must still comply with all applicable privacy laws, some of which may impose requirements that are similar to those established by the principles.
Here's more in a New York Times story.
The History of Musical Copyright Law
This paper, written for a conference of the Society for Economic Research on Copyright Issues, explores the history of copyright protection for musical compositions. The first modern copyright law did not cover musical works. The role of Johann Christian Bach, Ludwig van Beethoven, and Johann Neopmuk Hummel in securing legal changes is traced. How Giuseppe Verdi exploited the new copyright law in Northern Italy is analyzed. The paper argues that Verdi, enriched by copyright protection, reduced his compositional effort along a backward-bending supply curve. However, his good fortune may have had a demonstration effect inducing other talented individuals to become composers. An attempt to determine the impact of legal changes on entry into composing is inconclusive. The paper shows, however, that a golden age of musical composition nevertheless occurred in nations that lacked copyright protection for musical works.
February 12, 2009
The Latest On Lott v. Levitt
The Seventh Circuit has affirmed a lower court ruling in Lott v. Levitt, the defamation case concerning the popular book Freakonomics.
John Lott, an academic and economist, believes that his reputation was sullied by Freakonomics, the popular and off-beat book written by Steven Levitt and Stephen Dubner. Lott's name was mentioned in one paragraph of the 200-page book, and he understood this passage to be an accusation of scholarly dishonesty. Offended, he filed suit against Levitt and HarperCollins, the publisher of the book, claiming that he had been defamed. The district court dismissed this claim after concluding that the passage could reasonably be read as a refutation of Lott's controversial theories and not a swipe at his integrity. Lott now appeals.
First things first-we must decide what law to apply. Lott contends that the district court erred by applying Illinois law and argues instead that Virginia law should apply. The defendants first addressed this issue in their motions to dismiss, in which they argued that Illinois substantive law should apply, raising and rejecting the possible application of Virginia law. In Lott's response, he stated that he “agree[d] with Defendants that Illinois law governs this dispute,” made no separate choice-of-law analysis, and cited no Virginia cases. Accordingly, the district court decided the motions based on Illinois law. Seven months later, Lott argued for the first time that Virginia law should have governed and asked the court to reconsider its ruling, contending, as he does here, that he only agreed that Illinois choice-of-law principles should apply, not that Illinois substantive law should govern. Under Illinois's choice-of-law rubric, Lott contends the law of his domicile, Virginia, should control this case.
This argument is disingenuous. To read Lott's agreement to the governance of Illinois law so narrowly robs it of both its obvious meaning and its context. Lott explicitly submitted to Illinois law and relied solely on it, and having done so, the district court was right to apply it to the dispute....The principle of waiver is designed to prohibit this very type of gamesmanship-Lott is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don't go his way, ask for a mulligan under the laws of a different jurisdiction. In law (actually in love and most everything else in life), timing is often everything. The time for Lott to ask for the application of Virginia law had passed-the train had left the station.
On, then, to Illinois law. Defamation is the publication of a false statement that “tends to harm a person's reputation to the extent that it lowers that person in the eyes of the community or deters others from associating with that person.” ... To bring a successful claim, a plaintiff must normally show that the unprivileged communication of a false statement caused him harm. In Illinois this type of action is called per quod defamation. Some statements, however, are so obviously harmful that injury to the plaintiff's reputation can be presumed and are considered actionable per se.In Illinois there are five categories of per se defamation, two of which are pertinent in this case: (1) statements imputing an inability to perform or lack of integrity in one's duties of employment; and (2) statements that prejudice a party, or impute a lack of ability, in his profession. Id.
But not all statements that fall into one of these five categories are necessarily actionable per se-the statement's only reasonable readings must also be defamatory in nature. In other words, a statement that is reasonably capable of an innocent construction is not per se defamatory. ... The Illinois courts have emphasized that the meaning of a statement is not a fact for the jury to find, but a “question of law to be resolved by the court.” ... To discern the meaning, courts must draw from the context of the statement and give the words their “natural and obvious meaning.” Id.... Courts need not weigh the relative value of competing constructions; instead, any reasonable, nondefamatory interpretation is the one that sticks....
Lott's first argument turns this substantiative law on its procedural head. Lott argues that the district court erred when it dismissed his defamation claim on the basis of this innocent construction rule. He notes that the district court was bound by federal, not Illinois, pleading standards, and argues that federal standards preclude a preference for an innocent interpretation over a defamatory one at the pleading stage. Instead, Lott argues that his claim should have survived the motions to dismiss because the passage in Freakonomics is reasonably susceptible to a defamatory interpretation, notwithstanding any equally reasonable innocent interpretations that may exist.
It is true that federal courts sitting in diversity are bound by federal procedural rules, but those rules impose no impediment for a judge to decide the natural and obvious meaning of an allegedly defamatory passage at the pleading stage. Courts, when reviewing a motion to dismiss, are indeed required to accept as true the facts alleged in the complaint, including the words used in the allegedly defamatory statement, and make all reasonable inferences in favor of the plaintiff. But that does not mean that the court must take the plaintiff's interpretation of the allegedly defamatory words at face value. Figuring out the meaning of a statement and whether it is reasonably susceptible to an innocent construction is a question of law for the courts to resolve. ...Our reliance on federal procedural rules does not allow us to ignore Illinois substantiative law, and shortly before the district court rendered its decision, the Illinois Supreme Court rejected the same argument Lott raises here. ... Instead, the high court reaffirmed that any reasonable, innocent interpretation sounds the death knell to a per se defamation claim. In doing so, the high court acknowledged that this rule puts a thumb on the scale for defendants but deemed this warranted in per se actions, where damages are presumed. ...It is not our place to water down the Illinois high court's policy decision.
Now, on to the alleged defamation. Lott contends that Levitt's refutation of his more-guns/less-crime hypothesis can be read only as a smear of his professional reputation and is therefore defamatory per se.Using an academic definition of “replicate,” Lott maintains that the passage means that others repeated, to a tee, his technical analysis but were unable to duplicate his results, suggesting that he either faked his data or performed his analysis incompetently.
But this technical reading is not the only reasonable interpretation of the passage. After all, Freakonomics didn't become a bestseller by targeting just academics. The book takes into account the lay reader, breaking down technical terms into easily understandable, if imprecise, ideas. For example, the technicalities of regression analysis are explained by an analogy to a golfer's handicap, since both even the playing field so that variables (or golfers) can be compared on all fours. The book relies on anecdotal evidence and describes with only the broadest strokes the statistical methodologies used. In this context, it is reasonable to read “replicate” in more generic terms. That is, the sentence could mean that scholars tried to reach the same conclusion as Lott, using different models, data, and assumptions, but could not do so. This reading does not imply that Lott falsified his results or was incompetent; instead, it suggests only that scholars have disagreed with Lott's findings about the controversial relationship between guns and crime. By concluding that this more generic definition of “replicate” is reasonable, we are not assuming that the reader is a simpleton. After all, econometrics is far from conventional wisdom. We are, however, taking into account the context of the statement and acknowledging that the natural and obvious meaning of “replicate” can lie outside the realm of academia for this broadly appealing book.
A closer look at the paragraph where the contested sentence is found supports this innocent reading. The paragraph describes and critiques Lott's “idea,” “theory,” and “hypothesis,” but makes no mention of his methodology or what data set he used. In this context, it is natural to read Levitt's statement as a critique on his theory, rather than an accusation of falsifying data. In fact, instead of weighing in on the rumor that Lott faked some of his results, Levitt distanced himself from it. Levitt mentioned the “troubling allegation,” but noted that “[r]egardless of whether the data were faked, Lott's admittedly intriguing hypothesis doesn't seem to be true.”Far from assailing Lott's competence, he acknowledged that Lott's theory is “sensible” and “intriguing.” To the extent that Lott is complaining about an attack on his ideas, and not his character, he is barking up the wrong tree. The remedy for this kind of academic dispute is the publication of a rebuttal, not an award of damages. ...
Finally, Lott also contends, couched in two distinct procedural arguments, that he had a viable claim for pro quod defamation-that is a defamation claim where damages cannot be presumed. He first argues that the district court missed the pro quod claim in his original complaint and therefore erred by failing to address it. Alternatively, Lott argues that the district court should have allowed him to file an amended complaint that explicitly added a pro quod claim, instead of refusing to do so on the grounds that the proposed complaint was untimely and futile.
Both these arguments fail for the same reason-Lott neglected to allege any special damages in both his original complaint and his proposed amended complaint. In Illinois courts and federal courts sitting in diversity, special damages must be specifically stated in a pro quod claim. ...In his original complaint, which made no explicit pro quod claim, Lott alleged only “substantial reputational and monetary damages,” without a specific accounting of those damages or an explanation of how the purported defamation caused them. While the proposed amended complaint explicitly tacked on a claim for pro quod defamation, its allegations of damages are equally vague. Lott added allegations that he encountered people in job interviews and at academic seminars who understood the passage to be a swipe at his professional reputation but does not describe what pecuniary losses he suffered as a result. Lott doesn't even say what came of the job interviews where the book was mentioned. Such general allegations, which make no effort to explain how any reputational damage translated into actual harm, are not enough....Thus, we see no error in the district court's dismissal of the defamation claim or its refusal to accept the futile amended complaint. ...
Accordingly, the judgment of the district court is AFFIRMED.
The case is Lott v. Levitt, --- F.3d ----, 2009 WL 322148 (C.A.7 (Ill.))
February 11, 2009
Evaluating "United States v. Williams" and Protecting Children on the Internet
Congress's latest effort to protect children from on-line predators banned the pandering or soliciting of child pornography regardless of whether the images were actual or virtual. My paper discusses last term's Supreme Court decision in United States v. Williams that upheld the prohibition and ruled that an offer to engage in illegal activity is unprotected speech. I place Williams within the larger context of the classic impossibility defense that differentiates between factually and legally frustrated attempts, and show how the majority and dissenting opinions fall into these two camps. I propose that the revival of the impossibility debate sparked by Internet cases is misguided and that, in fact, the Internet provides the best reason for rejecting impossibility as a bar to prosecuting predators.
Download the paper from SSRN here.
Some Stations Plan Complete Switch To Digital In Spite of Congressional Okay For Delay To June 12th
A number of tv stations plan to make the digital leap February 17th, even though Congress has put off the transition until June 12th. They include outlets in San Diego, Lubbock, Lincoln, Nebraska, and Mobile, Alabama. Read more here.
February 10, 2009
Missouri Court of Appeals Remands False Light Case To Allow Plaintiff To Amend Petition
The Missouri Court of Appeals is remanding a false light case and may allow it to proceed in Meyerkord v. Zipatoni.
Plaintiff, Greg Meyerkord (“ Meyerkord”), appeals from the judgment dismissing Meyerkord's action for false light invasion of privacy against defendant, The Zipatoni Co. (“ Zipatoni”). Meyerkord contends his claim represents the “classic case” of false light invasion of privacy. We vacate and remand.
Some time prior to early 2003, Meyerkord was employed by Zipatoni, a Missouri corporation that provides marketing services to businesses, and was listed as the “registrant” for Zipatoni's account with Register.com for the purpose of the registration of websites. Meyerkord's employment with Zipatoni ended in 2003.
In 2006, Zipatoni registered www.alliwantforxmasisapsp.com through Register.com. Meyerkord was listed as the registrant for www . alliwantforxmasisapsp.com, but had no involvement in the creation, registration, or marketing of the website, which was used during a viral marketing campaign initiated by Sony to sell its Play Station Portable (“PSP”). Shortly after the PSP campaign became active, bloggers, consumers, and consumer activist groups began voicing on blogs and websites their concern, suspicion, and accusations over the campaign and those associated with it, including Zipatoni and Meyerkord.
Thereafter, Meyerkord filed an action against Zipatoni for false light invasion of privacy because Zipatoni failed to remove him as the registrant for its account with Register.com and registered www.alliwantforxmasisapsp.com with Meyerkord listed as the registrant when he no longer worked for Zipatoni. As a direct result of the “negligence” of Zipatoni, Meyerkord alleged the content of www.alliwantforxmasisapsp.com was “publicly attributed” to Meyerkord, and his “privacy has been invaded, his reputation and standing in the community has been injured, and he has suffered shame, embarrassment, humiliation, harassment, and mental anguish.” Meyerkord also alleged these injuries will continue because the blogs and websites criticizing him will remain “on the [i]nternet and open for searching/viewing for an indefinite period of time.” Meyerkord requested a judgment in excess of $25,000.
Zipatoni filed a motion to dismiss in which it argued no Missouri court had recognized the “false light” tort as an action separate from defamation, and Meyerkord failed to plead a claim for defamation. The trial court granted Zipatoni's motion to dismiss. This appeal follows.
In his sole point, Meyerkord argues the trial court erred in granting Zipatoni's motion to dismiss because his claim represents the “classic case” of false light invasion of privacy as set forth by the Missouri Supreme Court and the Restatement (Second) of Torts because Zipatoni publicly and falsely attributed a website to Meyerkord.
We review the grant of a motion to dismiss de novo.
In deciding whether to adopt the tort of false light invasion of privacy, we note the majority of jurisdictions addressing false light claims have chosen to recognize false light as a separate actionable tort. Further, of these jurisdictions most have adopted either the analysis of the tort given by Dean Prosser or the definition provided by the Restatement (Second) of Torts. Id. On the other hand, a minority of jurisdictions have refused to recognize the tort of false light invasion of privacy....
As to the first rationale, we find false light invasion of privacy is sufficiently distinguishable from defamation torts. In defamation law, the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. Id. On the other hand, in privacy cases, the interest affected is the subjective one of injury to the person's right to be let alone....Further, where the issue is truth or falsity, the marketplace of ideas provides a forum where the answer can be found, while in privacy cases, resort to the marketplace merely accentuates the injury....Thus, we find the interests at stake are sufficiently distinct for a separate remedy for false light invasion of privacy to exist. The second rationale for refusing to recognize false light invasion of privacy can be easily mitigated through the adoption of a heightened standard like actual malice or recklessness. Some courts have adopted an actual malice standard for claims involving public officials or figures or claims asserted by private individuals about matters of public concern and a negligence standard for claims by private individuals about matters of private concern. ...However, we find that adhering to the actual malice standard in the Restatement for all types of cases strikes the best balance between allowing false light claims and protecting First Amendment rights. ...Further, this heightened standard will help to alleviate some of the concerns regarding judicial economy, which are evident in the third rationale for not recognizing false light invasion of privacy. Moreover, the Restatement's requirement that the statement must be “highly offensive to a reasonable person” reduces the possibility that the recognition of the false light tort will result in unnecessary litigation.
Nevertheless, Zipatoni argues even if Missouri courts are receptive to recognizing a cause of action for false light invasion of privacy, this is a poor case to advance that theory for at least three reasons: (1) the false light tort requires one “to give publicity to a matter,” and Zipatoni argues it did not “give publicity” to this matter and the website was not “publicly attributed” to Meyerkord; (2) Zipatoni claims this case did not involve a major misrepresentation which would be highly offensive to a reasonable person; and (3) Meyerkord only alleged Zipatoni acted negligently, but the Restatement and cases from other jurisdictions have required reckless disregard or actual malice for false light invasion of privacy claims.
We now turn to Zipatoni's third argument for not recognizing a cause of action for false light invasion of privacy in this case. In his petition, Meyerkord alleged Zipatoni was “negligent and careless” in failing to remove him as the registrant for its account with Register.com and in registering www.alliwantforxmasisapsp.com with Meyerkord listed as the registrant. Because we have adopted the tort of false light invasion of privacy and have found that the proper standard for liability is actual malice, we find Meyerkord has failed to plead the essential elements for a claim of false light invasion of privacy. Meyerkord failed to allege Zipatoni acted with knowledge of or with reckless disregard as to the falsity of the publicized matter and the false light in which Meyerkord would be placed. Thus, we conclude Meyerkord's current petition does not adequately plead a cause of action under the false light invasion of privacy theory as stated in the Restatement and adopted by us. Therefore, the trial court did not err in granting Zipatoni's motion to dismiss because Meyerkord's petition failed to state a claim upon which relief may be granted.
However, because of the developing status of this area of the law, and because no previous cases have discussed pleading requirements in Missouri, we will remand this case and give Meyerkord an opportunity to amend his petition to plead the correct standard for his claim of false light invasion of privacy as adopted above.
We can fairly easily dispose of Zipatoni's first two contentions. First, because we are merely testing the adequacy of the petition on a motion to dismiss and we accept all allegations as true and Meyerkord alleged “the content of www.alliwantforxmasisapsp.com was publicly attributed” to him, we find he adequately pleaded facts to support this element of false light invasion of privacy. Second, with respect to whether this case involves a major misrepresentation that would be highly offensive to a reasonable person, we find Meyerkord adequately alleged the content of www.alliwantforxmasisapsp.com was wrongfully attributed to him and he alleged this caused him to suffer shame, embarrassment, humiliation, harassment, and mental anguish. Further, we find the questions of whether these allegations describe a major misrepresentation that would be highly offensive to a reasonable person are questions for a jury. At this stage, we are bound to accept all averments in the petition as true. Thus, we cannot say this case did not involve a major misrepresentation that would be highly offensive to a reasonable person.
New Report Says British Public Cynical About Press
The Media Standards Trust has published a report, A More Accountable Press, critical of the Press Complaints Commission and the current system under which the media as a whole operates, saying the media and the PCC are not sufficiently transparent or accountable to the public.
[R]esearch commissioned by the Media Standards Trust, carried out by YouGov, shows startling new levels of public cynicism about standards in the press with 75% of the public saying that ‘newspapers frequently publish stories they know are inaccurate’, and only 7% saying they trust national newspapers to behave responsibly – a lower trust score even than banks. There is strong support for greater government intervention to protect privacy (60% of the public are calling for this), while almost three quarters of respondents (73%) would like the government to do more to correct inaccuracies in the media.
Shepard Fairey Sues AP In Dispute Over Image
Shepard Fairey has now upped the ante in that dispute with the Associated Press. He's gone to court to ask for a ruling that he did not infringe any copyright the AP has in the original photo of President Obama that he used to create the now famous image that's at issue. Meanwhile Mannie Garcia, who appears to have shot the photo, now says he, not the AP, has the copyright in the photo. Read more here in a New York Times article.
February 9, 2009
Ofcom Gets Complaints About New Virgin Atlantic Ad
Ofcom has received complaints about Virgin Atlantic's new ad, which features attractive flight attendants (read "stewardesses") dressed in short red skirts and a male pilot and sexist comments from male passengers. The ad is intended to evoke the year the airline was launched--1984. Apparently it's also evoking other things, like feminism's heyday. Read more here.
Trial Opens In Death of "Harry Potter" Actor
The court hearing evidence against the defendant in the death of Rob Knox, who had a role in the upcoming Harry Potter film, was told that Karl Bishop was "running amok" and had already threatened to kill someone the week before. Mr. Bishop is facing a murder charge in the death of Mr. Knox, who the Crown says was protecting his younger brother, also an actor. Mr. Bishop's lawyer says he acted in self defense. Read more here.
February 8, 2009
Bale Apologizes; Meanwhile BBC Broadcasts Part of Unedited Tape
Christian Bale has apologized for the tirade he loosed at "Terminator 4" director of photography Shawn Hurlbut, saying he (Bale) "acted like a punk." He delivered the mea culpa via phone to an L.A. radio station. Meanwhile both the rant and the apology have gotten international attention, getting the BBC into yet another on-air problem. BBC One Breakfast hosts went to what they thought was an edited version of Mr. Bale's explosion at Mr. Hurlbut, but it turned out--oops--to be the entire, unedited Mount Vesuvius. Says the BBC, "The actor's outburst includes the use of the F-word 35 times in just over four minutes." The BBC's spokesperson said, "A technical error led to us broadcasting an unacceptable swear word." The BBC's sorry, too.
Shepard Fairey Arrested Over Graffiti
Shepard Fairey, who's currently battling copyright infringement claims with the AP, was arrested for "tagging property with graffiti," while he was enroute to an event at the Institute of Contemporary Art in Boston. Law enforcement indicated warrants were issued in late January for Mr. Fairey. Read more here from the CBS News. Here's more from the L. A. Times.