Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, March 26, 2010

Advertising Standards Authority Rules Home Office Ad Misleading

The UK Advertising Standards Authority has told the Home Office that its new advertisement, "The Policing Pledge," stating that law enforcement spends 80% of its time walking the beat is misleading. The ad was part of a Labour Government election campaign. Read more here in a BBC story. The ASA ruling is not yet available on the website.

March 26, 2010 | Permalink | TrackBack (0)

Judge: Mediation Best Course In Dispute Over SeaWorld Video

A mediator will attempt to decide what access will be granted to video showing the events leading to SeaWorld trainer Dawn Brancheau's unfortunate death last month, Florida judge Lawrence Kirkwood has ruled. Judge Kirkwood issued a temporary restraining order last week prohibiting release of the video after Ms. Brancheau's family argued that its release would interfere with their right to privacy. Read more here.

March 26, 2010 | Permalink | TrackBack (0)

IP Law and Indigenous Peoples' Property Rights

Danielle M. Conway, University of Hawaii at Manoa Law School, has published "Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights, Identity, and Resources," in Texas Wesleyan Law Review, volume 15 (2009). Here is the abstract.

Cultures live and cultures die. Cultures live by the transmission of law, knowledge, land, and resources from one generation to the next. Cultures die, in large measure, because of exploitation of peoples and the knowledge they possess. In reality, cultures are constantly under attack from politically-oriented societies bent on exterminating, exploiting, or commercializing any culture that is different. Commercialization or commodification of culture is akin to collecting culture for purposes of exploitation, observation, voyeurism, and objectification. The western approach to globalization is keen to recognize culture as an object rather than as a living, evolving organ to be shielded from exploitation. To respond to western commodification of culture, this article proposes that legal pluralism is necessary, in the interim, to protect culture from those who would, without authority or justification, exploit it and reduce it to a short term and short-lived commodity. The proposal to indigenize intellectual property law is for sure only an interim measure to protect Indigenous resources up to and until Indigenous Peoples has fully realized self-determination. In addition, the interim nature of this proposal reflects the legacy of colonization, with its complex extra- and intra-Indigenous power-oppression relationships. Because Indigenous Peoples are rarely in a position to exercise rights from a position of power, there is always risk in proposing legal rules or models for protection that may not fully account for the complex legacy of colonization. With this in mind, this article proposes that legal pluralism is one workable interim means to indigenize western intellectual property law in order to provide essential protections against the ongoing obliteration of Indigenous Peoples’ rights, identity, and resources.

Download the article from SSRN at the link.

March 26, 2010 | Permalink | TrackBack (0)

Protecting the TV Format

Neta-li E. Gottlieb has published "Free to Air? Legal Protection for TV Program Formats," as University of Chicago Law & Economics Olin Working Paper No. 513. Here is the abstract.
Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the format creation process is necessary. Next, I show that contract law and internal industry mechanisms create an overall efficient, unpublished format market where no additional legal protection is needed. In the international trade market of published program formats, however, I conclude that a clearer legal approach offering better protection is justified.
Download the paper from SSRN at the link.

March 26, 2010 | Permalink | TrackBack (0)

Thursday, March 25, 2010

When the Infringement Notices Stop Coming

Annemarie Bridy, University of Idaho College of Law, has published "Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement." Here is the abstract.

At the end of 2008, the music industry ended its five-year campaign of litigation against individual peer-to-peer file sharers and announced that it would be shifting its online copyright enforcement efforts to a model known as graduated response. The most widely publicized form of graduated response is a “three strikes and you’re out” model, in which a user’s Internet access is suspended or terminated by his or her ISP following that user’s receipt of three successive notices of copyright infringement. As it has been presented by entertainment industry trade groups, the enforcement paradigm embodied in graduated response forgoes litigation and statutory mandates in favor of voluntary cooperation between rights owners and Internet access providers - parties that have long been at loggerheads with each other in the war on piracy.

This article seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. Following an analysis of the turn to private ordering and technology-based mechanisms for policing copyrights online, this article proposes a set of principles to guide the implementation of graduated response regimes so that consumers, who have come to rely on uninterrupted Internet access for everything from banking to blogging, do not fall victim to immature filtering technologies and overzealous enforcement.

Download the paper from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

A Response To the FCC's Notice of Inquiry On Empowering Parents and Protecting Children In an Evolving Media Landscape

John G. Palfrey Jr., Harvard Law School, Urs Gasser, Harvard University Berkman Center, and Danah Boyd, Microsoft Research, Harvard University Berkman Center, and University of California, Berkeley, School of Information, have published "Response to FCC Notice of Inquiry 09-94: Empowering Parents and Protecting Children in an Evolving Media Landscape," as Berkman Center Research Publication 2010-02. Here is the abstract.
  
This paper is a response to the FCC's Notice of Inquiry (09-94) on Empowering Parents and Protecting Children in an Evolving Media Landscape (PDF). The response synthesizes current research and data on the media practices of youth, focusing on three main areas -- 1) Risky Behaviors and Online Safety, 2) Privacy, Publicity and Reputation, and 3) Information Dissemination, Youth-Created Content and Quality of Information -- in order to highlight issues of genuine concern, such as growing participation and literacy gaps, and, crucially, in order to discuss the positive and creative opportunities that electronic media provide for young people. In each area, potential policy responses are discussed.
Download the paper from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

Shepard Fairey's Legal Problems

Sonia Katyal and Eduardo Peñalver discuss the case of artist Shepard Fairey and the Barack Obama "Hope" poster here in an excerpt from their new book Property Outlaws; How Squatters, Pirates and Protesters Improve the Law of Ownership (Yale University Press, 2010).

March 25, 2010 | Permalink | TrackBack (0)

More On the Google Books Settlement

James Grimmelmann, New York Law School, has published The Amended Google Books Settlement is Still Exclusive, in the CPI Antitrust Journal (January 2010). Here is the abstract.
 

 

This brief essay argues that the proposed settlement in the Google Books case, although formally non-exclusive, would have the practical effect of giving Google an exclusive license to a large number of books. The settlement itself does not create mechanisms for Google's competitors to obtain licenses to orphan books and competitors are unlikely to be able to obtain similar settlements of their own. Recent amendments to the settlement do not change this conclusion.

Download the article from SSRN at the link.

 

March 25, 2010 | Permalink | TrackBack (0)

Regulation and Online Harassment

Eric Goldman, Santa Clara University School of Law, has published Unregulating Online Harassment at 57 Denver University Law Review Online 59 (2010). Here is the abstract.

This short essay was written as part of the “Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age” symposium sponsored by the University of Denver Law Review in November 2009. The essay offers a few reasons why Cyber Civil Rights advocates should not seek to amend 47 USC § 230, the statutory immunity that protects websites from being liable for user content.

 Download the article from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

Wednesday, March 24, 2010

Oprah Winfrey Settles Defamation Suit Against Her

Oprah Winfrey and the former headmistress of the South African girls' school she founded have agreed to an out of court settlement, and the defamation suit Nomvuyo Mzamane filed against Ms. Winfrey will not go to trial as scheduled. Ms. Mzamane objected to statements Ms. Winfrey made about conditions at the school, including allegations of sexual abuse made against a dorm matron. Read more here.

March 24, 2010 | Permalink | TrackBack (0)

Ethics and IP Law

Derek E. Bambauer, Brooklyn Law School, and Oliver Day have published The Hacker's Aegis, as Brooklyn Law School Legal Studies Paper No. 184. Here is the abstract.
Intellectual property law stifles critical research on software security vulnerabilities, placing computer users at risk. Researchers who discover flaws often face IP-based legal threats if they reveal findings to anyone other than the software vendor. This Article argues that the interplay between law and vulnerability data challenges existing scholarship on how intellectual property should regulate information about improvements on protected works, and suggests weakening, not enhancing, IP protections where infringement is difficult to detect, lucrative, and creates significant negative externalities. It proposes a set of three reforms – “patches,” in software terms – to protect security research. Legal reform would create immunity from civil IP liability for researchers who follow “responsible disclosure” rules. Linguistic reform would seek to make the term “hacker” less threatening either by recapturing the term’s original meaning, or abandoning it. Finally, structural reform would ameliorate failures in the market for software vulnerability data by having a trusted third party act as a voluntary clearinghouse. The Article concludes by describing other areas, such as physical security, where reforming how law coordinates IP improvements may be useful.
Download the paper from SSRN at the link.

March 24, 2010 | Permalink | TrackBack (0)

EU Law, Romanian Law, and Privacy

Cristian Ganj has published The Lives of Other Judges: Effects of the Romanian Data Retention Judgment. Here is the abstract.
 
The Constitutional Court of Romania has recently published a decision that found the implementing law of Directive 2006/24/CE unconstitutional. The conclusions of the Romanian judges and their reasoning are already praised by human rights activists and digital rights groups as one of the most important victories in an age when privacy rights are too easily thwarted in exchange for a chimerical sense of safety. The decision examines the law in light of its compliance with the basic rights contained in art. 26 (privacy) and art. 28 (secret of correspondence). It asserts the fundamental nature of these rights with direct reference to, inter alia, art. 8 of the European Convention of Human Rights to which Romania is part since 1994, art. 12 of the Universal Declaration of Human Rights and art. 17 of the International Covenant on Civil and Political Rights. The Constitutional Court criticized the vagueness of several articles in the law which did not define in a clear and explicit manner the concepts of “related data” and “threats to national security” and stated that a continuous positive obligation on telecom companies to retain indiscriminately communication data of all citizens voids the basic rights to privacy and secrecy of correspondence of their very substance.
Download the paper from SSRN at the link.

March 24, 2010 | Permalink | TrackBack (0)

Protecting Children's Privacy Online

Federica Casarosa, Robert Schuman Centre for Advanced Studies, has published Child Privacy Protection Online: How to Improve it Through Code and Self-Regulatory Tools. Here is the abstract.
 

The accomplishment of an adequate level of privacy is one of the main concerns related to the increasing diffusion of Information and Communication Technologies, due to the expanding possibilities to collect, organise and store thousands of data.

Social studies show that children are more and more interested in new technologies, and Internet in particular offers them new forms of socialisation not available before. When surfing, children leave traces of their passage and provide information about themselves. These pieces of information can be easily organised so as to create a full-fledged profile which would serve for marketing purposes. Thus, websites can monitor and understand what attracts children to the site and then tailor the content and services based on the children's identified interests.

The paper will analyse the changes in the policy approach at European level concerning the protection of children privacy, using a very wide concept of privacy which is interpreted as form of control over personal data. Thus, the analysis will consider in particular the commercial exploitation of personal data, as in this case it is clear that the child lost the control over his/her own data. The analysis will be based on a modified version of the all-embracing matrix developed by Gunningham and Sinclair (1998) concerning the design of the most effective regulatory mix, taking into account the different mechanisms that at European level were put forward. Given the final evaluation of the current regulatory mix, a tentative conclusion will be presented delivering suggestions and comments for further improvement.

Download the paper from SSRN at the link.

March 24, 2010 | Permalink | TrackBack (0)

Tuesday, March 23, 2010

Roger Miller's Widow Wins Fight Over 1964 Copyrighted Songs

The late composer and singer Roger Miller's wife Mary has won a fight over the copyrights to a number of famous songs, including "King of the Road," "You Can't Roller Skate In a Buffalo Herd," and "Dang Me." Sony/ATV Music had won an earlier ruling that it owned rights to other Miller songs, published during the period 1958-1963, but an appellate court ordered a U.S. District Court to consider whether the publisher also owned the rights to these songs, published in 1964. Read the ruling here.

March 23, 2010 | Permalink | TrackBack (0)

Monday, March 22, 2010

Tweeting Defamation

Leslie Yalof Garfield, Pace University School of Law, has published Birds of a Feather: Libel and Slander in the Age of Twitter. Here is the abstract. 

This article focuses on the whether defamatory text messages should be treated as libel or slander. The law treats written defamation and spoken defamation differently; requiring stricter standards for recovery from defamatory verbal communication. Recent lawsuits have tested the boundaries of this century’s old law, which does not contemplated the kind of instant non-permanent texting communication that mobile phones now permit. Decades ago, the advent of broadcast journalism suggested the need to treat communication through the airwaves as something different than written words, even when the communication was broadcast from a written script. This article argues that texting, like broadcast communications, comes with its own set of rules, not contemplated at common law, and that the circumstances surrounding defamatory information communicated via texting demand that it be labeled as slander.
Download the paper from SSRN at the link.

March 22, 2010 | Permalink | TrackBack (0)

"Undercover Boss"

From the New York Times, a review of the new reality tv show, "Undercover Boss."

March 22, 2010 | Permalink | TrackBack (0)

Ethical Issues and Communications On the Internet

David C. Hricik, Mercer University School of Law, has published "Communications and the Internet: Facebook, E-Mail, and Beyond." Here is the abstract.
  

Ethical issues arise with the use of communicating over the Internet, whether by e-mail, social networking sites, or linking and commenting through static web pages. This article addresses all these issues.

Download the paper from SSRN at the link.

March 22, 2010 | Permalink | TrackBack (0)

YouTube Versus Viacom

From the New York Times, a review of the YouTube v. Viacom copyright litigation.

March 22, 2010 | Permalink | TrackBack (0)

California Appellate Court Upholds Lower Court Denial Of Anti-SLAPP Motion In Website Lawsuit

A California state appellate court has affirmed a trial court's denial of defendants' anti-SLAPP motion on the grounds that the defendants' speech did not arise in the context of a public issue. The plaintiff, an aspiriing entertainer, maintained a website; the defendants posted derogatory comments about the plaintiff and statements that the plaintiff found threatening including "Faggot, I'm going to kill you," and "[You need] a quick and painless death." The case is D.C. v. R.R., (2010) , Cal.App.4th, decided March 15, 2010.

March 22, 2010 | Permalink | TrackBack (0)

More About Hate Speech On the Internet

Raphael Cohen-Almagor, University of Hull, has published "Countering Hate on the Internet - A Rejoinder," at 2 Amsterdam Law Forum 125 (2010). Here is the abstract.

 

Steve Newman of York University wrote a reply to my “Holocaust Denial Is A Form of Hate Speech”, Amsterdam Law Forum, Vol. 2, No 1 (2009), pp. 33-42. The Editors of Amsterdam Law Forum invited me to write a rejoinder, answering Newman’s critic. The result is this article in which I reiterate that Internet providers and web-hosting companies should abide by their own rules of conduct. If their terms of service disallow hateful messages on their servers then they should not host or provide forums for Holocaust denial. I further tell the story of Sabina Citron showing that Holocaust denial can cause people severe offence, upsetting them to the extent of loss in their self-esteem. Further, I argue that hate speech can and did translate to hate crime. Some hate mongers are not satisfied merely by the sound of their pounding words and wish to see blood. Finally, I propose ways for countering hate on the Net.

Download the article at the link.

 

March 22, 2010 | Permalink | TrackBack (0)