May 8, 2010
Four Reporters Ousted From Gitmo Hearings
Four reporters have been banned from covering Guantanamo Bay proceedings after they violated a court order prohibiting them from publishing the name of a witness, a former U.S. Army interrogator. One is Miami Herald reporter Carol Rosenberg. The other three are Canadian reporters Michelle Shephard (Toronto Star), Paul Koring (Globe and Mail) and Steven Edwards (CanWest News Service). Read more here in an ABA Journal story.
May 7, 2010
Washington Supreme Court Upholds Public Library Internet Filtering Policy
The Washington Supreme Court has upheld a policy that allows public libraries to filter Internet content for all patrons.
The plaintiffs claim that NCRL's Internet filtering policy is overbroad and, more specifically, so overbroad as to rise to the level of a prior restraint in violation of article I, section 5. They also contend that the filtering policy is an impermissible content-based restriction on speech. NCRL maintains that use of the FortiGuard filter makes it possible to provide its patrons access to vast amounts of constitutionally protected material while ensuring that on-line resources are aligned with its mission and collection policy, the interests of public education are advanced, and a safe and appropriate environment for staff and patrons is maintained. NCRL maintains that its filtering policy is constitutional under article I, section 5.
The foundations of the plaintiffs' overbreadth challenge are the presumption that a public library must make accessible all constitutional speech on the Internet and the contention that a policy that applies so broadly that it excludes any constitutionally protected speech violates article I, section 5. But a public library has no obligation to make available any and all constitutionally protected material, and the goal of libraries has never, as the plurality in A.L.A. noted, been to provide "'universal coverage.'" A.L.A., 539 U.S. at 204 (quoting Am. Library Ass'n v. United States, 201 F. Supp. 2d 401, 421 (E.D. Pa. 2002)). Rather, "'[t]he librarian's responsibility . . . is to separate out the gold from the garbage, not to preserve everything.'" Id. (quoting William A. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980)). "'[I]t is the aim of the selector to give the public, not everything it wants, but the best that it will read or use to advantage.'" Id. (quoting Francis K.W. Drury, Book Selection xi (1930)). The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons. "The Internet is simply another method for making information available in a
. . . library'" and "is 'no more than a technological extension of the book stack.'" A.L.A., 539 U.S. at 207 (quoting S. Rep. No. 106-141, at 7 (1999)). Just as it is entitled to exercise its acknowledged discretion in amassing a collection of printed materials physically placed on the shelves in order to carry out its mission, it is entitled to exercise discretion when it comes to Internet access involving its facilities and equipment. The discretion that public libraries enjoy in selecting materials for their collections
is not merely a function of what a library can afford in terms of costs and space, contrary to the position taken in Mainstream Loudoun I, 2 F. Supp. 2d at 795. Even if one were to assume a public library with unlimited funds and space, that library would be under no obligation to make all constitutionally protected printed materials available. For example, regardless of its resources a library need not place pornographic materials on its shelves, although such materials are constitutionally protected. It need not place children's comic books on its shelves, although these, too, are constitutionally protected. As another
example, if a private collector offered a library a collection of books at an attractive set price for the entire collection and the library purchased the collection, it would not have to include all of the books in its own
collection and would not have to make them all available to its patrons. In any event, it is simply not true that there are no costs or physical restrictions attendant to access to the Internet via a public library. Although generally purchase of Internet access includes all of the Internet's free sites, making the Internet accessible to patrons requires devoted library space and frequently scarce computer terminals and
resources. Given the traditional and necessary discretion lodged in public libraries with respect to acquisition of materials, we do not agree that the overbreadth doctrine applies to a public library's decisions about what materials to place in its collections. For example, if a public library decides, in accord with its written policies, not to acquire pornography for its collection, can it be said that its policies are unconstitutionally overbroad? To the contrary, exclusion of this type of constitutionally protected speech is within the discretion that libraries traditionally enjoy. We do not believe there is any
good reason to treat the material available on the Internet any differently. In short, a library simply does not have to include all constitutionally protected materials in its collection and it follows that no overbreadth problem necessarily results under article I, section 5 as a result of a public library's Internet filtering policy under which access to certain categories of constitutionally protected materials is denied.
The case is Bradburn v. North Central Regional Library District, Docket No. 82200-0, decided May 6, 2010.
Brandeis and the Tort Theory of Privacy
Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.
My basic claim is that Brandeis came to largely abandon the tort theory of privacy he expounded in “The Right to Privacy.” As a young lawyer, Brandeis conceived of privacy as a tort action protecting emotional injury from newspaper stories that revealed private facts. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.
But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some contemporary implications of Brandeis’s rejection of tort privacy and his linkage of intellectual privacy with free speech.
Download the article from SSRN at the link.
Supreme Court of Canada Rules Media Have No Constitutional Right To Protect Sources
In an 8-1 decision, the Supreme Court of Canada has ruled that the media does not have a constitutional right to protect its sources. Instead, such assertions of privilege must be decided case-by-case. The National Post had asserted the right in a 2001 incident in which one of its reporters had received an unmarked envelope containing information during the course of his investigation into the government of Quebec Prime Minister Jean Chretien. He was ordered to turn over the documents and refused.
Said the Court in part,
Freedom to publish the news necessarily involves a freedom to gather the news, but each of the many important news gathering techniques, including reliance on secret sources, should not itself be regarded as entrenched in the Constitution. The protection attaching to freedom of expression is not limited to the “mainstream media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest. To throw a constitutional immunity around the interactions of such a heterogeneous and ill‑defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations, but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source in accordance with the principles of common law privilege would not in general violate s. 2(b).
Although the common law does not recognize a class privilege protecting journalists from compelled disclosure of secret sources, a journalist’s claim for protection of secret sources can be assessed properly using the case‑by‑case model of privilege.
The scope of the privilege will depend, as does its very existence, on a case‑by‑case analysis, and may be total or partial. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant. A promise of confidentiality will be respected if: the communication originates in a confidence that the identity of the informant will not be disclosed; the confidence is essential to the relationship in which the communication arises; the relationship is one which should be sedulously fostered in the public good; and the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. This approach properly reflects Charter values and balances the competing public interests in a context‑specific manner.
The media party asking the court to uphold a promise of confidentiality must prove all four criteria and no burden of proof shifts to the Crown. This includes, under the fourth criterion, proving that the public interest in protecting a secret source outweighs the public interest in a criminal investigation. The weighing up under this criterion will also include the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained measured against the public interest in respecting the journalist’s promise of confidentiality. The underlying purpose of the investigation is relevant as well. Until the media have met all four criteria, no privilege arises and the evidence is presumptively compellable and admissible. Therefore, no journalist can give a secret source an absolute assurance of confidentiality.
In this case, the first three of the four criteria are met. The communication originated in confidence and neither the journalist‑source relationship nor the communication would have occurred without confidentiality. This type of journalist‑source relationship ought to be sedulously fostered given the importance of investigative journalism exploring potential conflicts of interest at the highest levels of government. The appellants, however, have failed to establish the fourth criterion. The alleged offences are of sufficient seriousness to justify the decision of the police to investigate the criminal allegations. The physical evidence is essential to the police investigation and likely essential as well to any future prosecution. While it is appropriate under this criterion to assess the likely probative value of the evidence sought, the reviewing judge ought not to have pre‑empted the forensic investigation by seemingly prejudging the outcome without first considering all the relevant factors in her assessment.
The argument that there is a “fatal disconnect between the envelope, the document, the identity of X and the alleged forgery” hinges on the credibility of X’s story that he or she was not the perpetrator of the forgery, but an innocent recipient, who passed it on to M in good faith. However a denial of criminal involvement is not a sufficient ground to put an end to a serious criminal investigation, even where the intermediate (though not the ultimate) intended victim of the alleged crime happens to be a media organization.
The media’s ss. 2(b) and 8 Charter interests are clearly implicated when the police seek to seize documents in their possession. Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their “special position” and be reasonable in the “totality of circumstances”. It is not sufficient for the Crown merely to establish that the requirements set out in ss. 487.01 and 487.02 of the Criminal Code were met. In this case the conditions governing the search ensured that the media organization would not be unduly impeded by a physical search in the publishing or dissemination of the news. The order contained the usual clause directing that any documents seized be sealed on request. The police had reasonable grounds to believe that criminal offences had been committed and that relevant information would be obtained. The search warrant was reasonable within the meaning of s. 8 of the Charter.
On the facts of this case, the ex parte nature of the issuing judge’s order is not a ground for setting the warrant aside. There is no jurisdictional requirement to give notice to a media entity of an application for a warrant to search its premises. The media should have an opportunity to argue against a warrant at the earliest reasonable opportunity, but whether and when to provide prior notice remain matters of judicial discretion. Where, as here, a court proceeds ex parte, adequate terms must be inserted in the warrant to protect the special position of the media, and to permit the media ample time and opportunity to challenge the warrant.
In this case, the issuing judge was aware that the secret source issue lay at the heart of the controversy, and the appellants’ position was fully protected by the terms of the warrant. They have not demonstrated any prejudice on that account. The assistance order also was reasonable. Given the concerted action between M and his editor, it was appropriate to enlist the editor’s assistance in locating and producing the concealed documents.
Accordingly, the warrant and assistance order were properly issued and must be complied with even if the result is to disclose the identity of the secret source who, the police have reasonable cause to believe, uttered (and may indeed have created) a forged document.
May 6, 2010
No Blogs, Please--We're JudgesFindLaw's Anita Ramasastry discusses why the judge in the Casey Anthony trial was right to recuse himself after talking to a blogger.
The FCC's "Third Way" Response To Comcast v. FCC
The FCC is announcing its new plan to bring broadband to the nation. Here's a link to the live proceedings. FCC Chair Genachowski issued a statement concerning his new policy, "The Third Way: A Narrowly Tailored Broadband Framework". Here are links to other statements from Commissioner Copps, Commissioners McDowell and Baker, Commissioner Clyburn, and FCC General Counsel Schlick.
Dutch Public Prosecutor Files Appeal In AEL Cartoon DisputeAccording to Reuters, the Dutch public prosecutor is filing an appeal over a court's acquittal of those charged of offending Jews by publishing a cartoon on their website. The Arab European League published a cartoon on its website in 2006 that the court called in "bad taste" and "exceptionally offensive" for its portrayal of Jews and references to the Holocaust. But the court noted that free speech values must be preserved under the European Convention on Human Rights, Article 10. The AEL said it published the cartoon in order to respond to the Danish cartoons of the Prophet Mohammed published in 2005 that caused such antagonism. See a copy of the AEL cartoon here.
The NY Times on Video Games and RegulationAn editorial on the Schwartzenegger v. EMA case.
What Now For the FCC's Broadband PolicyFrom the New York Times, a piece on the FCC's likely broadband policy in the wake of Comcast v. FCC.
May 5, 2010
"My Husband's Family Is So Humorless...."Stand up comedian Sunda Croonquist can start working on more mother-in-law jokes. A federal judge issued a 21-page opinion ruling that her quips at the expense of her husband's family are protected under the First Amendment. Her husband, an attorney in the firm that represented her in the lawsuit that his mother, sister and brother in law brought against his wife, is pleased at the outcome. Read more here in this AP story.
May 4, 2010
Second Circuit Affirms Refusal To Quash Subpoena In Music Downloading Case
The Second Circuit has affirmed a lower court's refusal to quash a subpoena served on an ISP to disclose the identities of anonymous users alleged to be downloading music in violation of a plaintiff's copyrights. The case is Arista v. Doe 3, 09-0905-cv.
Pursuant to Fed. R. Civ. P. 72, Doe 3 objected to the magistrate judge's denial of the motion to quash, and sought "de novo review," "reversing" and "overruling" that order. As a threshold procedural matter, Doe 3 argued that the motion to quash had been referred to the magistrate judge "without the consent of either party, and without an actual order of referral from the District Judge" ....He also argued that the motion should not have been referred to a magistrate judge for decision because "[t]he motion, while styled as one to quash a subpoena, actually challenged the legal sufficiency of the complaint in the nature of a motion under F.R.Civ.P. 12(b)(6). As such it is dispositive" because "the motion to quash would for practical purposes be determinative of the outcome of the present litigation . . . ." (Doe 3's Objections to Magistrate Judge's Memorandum Decision and Order at 1, 2). Doe 3 argued that the magistrate judge thus lacked jurisdiction to decide the motion to quash and that Doe 3 was entitled to have the district judge review the magistrate judge's decision de novo. As to substance, Doe 3 contended, to the extent pertinent to this appeal, that the magistrate judge's order erred in "its conclusion that the complaint states a legally cognizable claim, and that 'making available' music files is automatically copyright infringement." ...
In a Decision and Order dated March 5, 2009 ("Arista II"), District Judge Suddaby rejected Doe 3's objections. The court first rejected Doe 3's contention that his motion--which had requested the quashing of the subpoena or the severance of the claims against the various defendants--was a dispositive motion. ... The court rejected the proposition that the motion to quash was in essence a motion to dismiss under Rule 12(b) (6) and hence was a dispositive motion, noting that that Rule, by its terms, confers the right to move for dismissal for failure to state a claim on "'a party.'" .... The defendants, not having been served with process, were "not yet 'parties'" and thus could "not properly move for dismissal for failure to state a claim. "...Given that the motion to quash or sever was a nondispositive motion, the court implicitly rejected Doe 3's contention that the magistrate judge lacked authority to rule on it.
Further, because the motion to quash or sever was a nondispositive motion, the district judge concluded that the proper standard for reviewing the magistrate judge's order was "clear error, not de novo. " ...The court found no clear error in the magistrate judge's order. It also determined that it would reach the same conclusion "even [upon] de novo review."...
This appeal followed. The order is appealable under the collateral order doctrine, as the subpoena at issue "'is directed against a third party who is unlikely to risk being held in contempt to vindicate someone else's rights.'" .... On motion of Doe 3, this Court stayed SUNYA's compliance with the subpoena with respect to information pertaining to Doe 3 pending resolution of the appeal.
On appeal, Doe 3 principally argues that the Complaint does not state a claim sufficient to overcome his First Amendment privilege of anonymity. He also pursues his contentions that his motion to quash was improperly referred to the magistrate judge and that the district court thus erred by not reviewing the magistrate judge's decision de novo. We find no merit in Doe 3's contentions.
The district court may designate a magistrate judge to hear and decide a pretrial matter that is "not dispositive of a party's claim or defense." ...Like most discovery requests directed to opposing parties, subpoenas to nonparties are designed to elicit information. A motion to quash a subpoena in an action seeking relief other than production of the subpoenaed information is not normally a dispositive motion.
As to a nondispositive matter, "[t]he district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law." ...As to a dispositive matter, any part of the magistrate judge's recommendation that has been properly objected to must be reviewed by the district judge de novo. ...
In the present case, the Doe defendants' motion to quash plaintiffs' subpoena to SUNYA was not a dispositive motion. Although Doe 3 contends to the contrary, arguing that the magistrate judge "necessarily had to decide whether the complaint stated a claim or not" ... that argument ignores, inter alia, all factors other than the viability of the Complaint. Applying the five-factor Sony Music test, the magistrate judge could have granted the motion to quash despite the sufficiency of the Complaint if it had found, for example, that the subpoena was unduly broad or that plaintiffs had easy access to the Doe defendants' identities through other means. Quashing the subpoena on such a basis plainly would not have ended the action.
In addition, Doe 3's contention that the motion to quash was the equivalent of a motion to dismiss for failure to state a claim ignores arguments he made to the magistrate judge. He argued that in order to overcome the qualified privilege, a plaintiff must produce evidence supporting each element of its claim "[i]n addition to establishing that its action can withstand a motion to dismiss for failure to state a claim." (Does' Amended Memorandum at 12 (internal quotation marks omitted) (emphasis in Memorandum).)
Finally, even if Doe 3 were correct in characterizing the motion to quash as a dispositive matter, the only consequence would have been that review by the district judge should have been de novo. Given that the district judge stated that he would conclude that the motion should be denied even if he reviewed the matter de novo, Doe 3's procedural contention provides no basis for reversal.
A district court's ruling on a motion to quash a subpoena is reviewable for abuse of discretion. ...A court abuses its discretion when its decision rests on an error of law or on a clearly erroneous factual finding,... "or [when] its decision-- though not necessarily the product of a legal error or a clearly erroneous factual finding--cannot be located within the range of permissible decisions.... We see no abuse of discretion in the refusal to quash the subpoena in the present case.
The fundamental copyright principles are clear. The owner of a copyright has the exclusive right to--or to license others to--reproduce, perform publicly, display publicly, prepare derivative works of, and distribute copies of, his copyrighted work. ...To establish infringement of copyright, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. " ...
Further, " [a] 1 though ' [t]he Copyright Act does not expressly render anyone liable for infringement committed by another,'" ... it is well established, based on "the common-law doctrine that one who knowingly participates or furthers a tortious act is jointly and severally liable with the prime tortfeasor," that "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer," ... The knowledge standard is an objective one; contributory infringement liability is imposed on persons who "know or have reason to know" of the direct infringement, ...Such "liability exists if the defendant engages in 'personal conduct that encourages or assists the infringement,'" .... The "'resolution of the issue . . . depends upon a determination of the function that [the alleged infringer] plays in the total [reproduction] process.'" ...
The relevant First Amendment principles are also well established. The Supreme Court has recognized that the First Amendment provides protection for anonymous speech. ... In the context of political speech, the Supreme Court has recognized that " [a] nonymity is a shield from the tyranny of the majority," ... The Court has also recognized that the Internet is a valuable forum for the exchange of ideas. ...To the extent that anonymity is protected by the First Amendment, a court should quash or modify a subpoena designed to breach anonymity.
The First Amendment does not, however, provide a license for copyright infringement. ...Thus, to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment.
As indicated in Part I. A. above, the legal standard applied by the district court in the present case in denying the moving Doe defendants' motion to quash plaintiffs' subpoena to SUNYA was the standard adopted by the court in Sony Music, 326 F.Supp.2d 556. In Sony Music, after discussing the above principles, as well as several cases that had dealt with the tension between First Amendment rights and copyright rights, then-District Judge Chin concluded that in the analysis of whether the qualified privilege requires that the subpoena be quashed, the principal factors include(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for the subpoenaed information to advance the claim, . . . and (5) the [objecting] party's expectation of privacy.
We agree that this constitutes an appropriate general standard for determining whether a motion to quash, to preserve the objecting party's anonymity, should be granted.
On this appeal, Doe 3 does not contend that the Sony Music standard used by the district court here was an erroneous legal standard. Although he asserts that "downloading, distributing, or making music available constitutes protected First Amendment speech"
Nor does Doe 3 articulate any challenge to the court's evaluation of most of the five factors of the Sony Music standard, i.e., the specificity of the information request, the plaintiffs' need for and the limited availability of the information requested, and the anonymous person's expectation of privacy. Rather, Doe 3 contends that the court should have found that plaintiffs did not make a "particularized showing" (Doe 3 brief on appeal at 20) sufficient to overcome his qualified privilege. In support of his position, Doe 3 contends that the Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ("Twombly"), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ("Iabal"), imposed "heightened pleading standards" (e.g., Doe 3 brief on appeal at 18, 28-29) such that plaintiffs were requiredto present specific evidence, including a declaration on personal knowledge from the person who examined the files available for download from each defendant's computer, listened to the files, verified that they were copyrighted songs, determined that the copyrights were registered (and to which plaintiffs), and determined what songs a particular defendant downloaded
(id. at 28). Neither Doe 3's reliance on Twombly/Iqbal nor his contention that plaintiffs' allegations are insufficiently specific has merit.
"Jersey Shore" Lawsuit Is OnFrom the AP: that lawsuit filed by three of Eugene LaVergne's clients against MTV show Jersey Shore producers will proceed.
Defendant in Linda Stein Murder Receives 25 To Life SentenceLinda Stein's personal assistant Natavia Lowery has received a sentence of 25 years to life for killing Ms. Stein in 2007. Ms. Stein, who managed the musical group the Ramones and was at one time married to Seymour Sire, president of Sire Records, was found beaten to death in her New York apartment. Suspicion focused on Ms. Lowery fairly quickly. She was also sentenced to additional time for theft and other crimes. Ms. Lowery must serve at least 25 years before she is eligible for parole. Read more here in a New York Times article.
The TV Judge and Tort Reform
This is a collaborative study examining the relationship between popular reality-based judge television shows, 'tort tales,' and the politics of tort reform. TV judge shows share or approximate many features of the tort tale described by Haltom and McCann in Distorting the Law: Politics, Media, and the Litigation Crisis. The question driving our research is whether these TV Judge shows contribute to tort tales' conservative anti-litigation message or, instead, generate counter-narratives about the civil law system. Since tort reform is constantly a political issue, this study addresses one way in which popular support for tort reform might be mobilized.
Digital Multi-Media and Privacy Law
While digital video and multi-media technologies are becoming increasingly prevalent, existing privacy laws tend to focus on text-based personal records. Individuals have little recourse when concerned about infringements of their privacy interests in audio, video, and multi-media files. Often people are simply unaware that video or audio records have been made. Even if they are aware of the existence of the records, they may be unaware of potential legal remedies, or unable to afford legal recourse. This paper concentrates on the ability of individuals to obtain legal redress for unauthorized use of audio, video and multi-media content that infringes their privacy. It focuses on an analysis of the European Union Data Protection Directive. The Directive is one of the most comprehensive digital age legal reforms to address information privacy. Yet, even the Directive suffers from shortcomings when applied to audio, video, and multi-media records. The author argues that global law reform is needed to bring privacy law into the age of digital video and multi-media.
Download the article from SSRN at the link.
May 3, 2010
Ronald Coase's Paper Fifty Years On
In the Federal Communications Commission, Ronald Coase exposed deep foundations via normative argument buttressed by astute historical observation. The government controlled scarce frequencies, issuing sharply limited use rights. Spillovers were said to be otherwise endemic. Coase saw that Government limited conflicts by restricting uses; property owners perform an analogous function via the “price system.” The government solution was inefficient unless the net benefits of the alternative property regime were lower. Coase augured that the price system would outperform. His spectrum auction proposal was mocked by communications policy experts, opposed by industry interests, and ridiculed by policy makers. Hence, it took until July 25, 1994 for FCC license sales to commence. Today, some 73 U.S. auctions have been held, 27,484 licenses sold, and $52.6 billion paid. The reform is a textbook example of economic policy success.
Herein, we examine Coase’s seminal 1959 paper on two levels. First, we note its analytical symmetry, comparing administrative to market mechanisms under the assumption of positive transaction costs. This fundamental insight had its beginning in Coase’s acclaimed article on the firm, and continued with his subsequent treatment of social cost. Second, we investigate why spectrum policies have stopped well short of the property rights regime that Coase advocated, considering rent-seeking dynamics and the emergence of new theories challenging Coase’s property framework. One conclusion is easily rendered: competitive bidding is now the default tool in wireless license awards. By rule of thumb, about $17 billion in U.S. welfare losses have been averted. Not bad for the first 50 years of this, or any, Article appearing in Volume II of the Journal of Law & Economics.
Download the paper from SSRN at the link.
Coverage of Dissenting Appellate Opinions in the Media
Numerous legal scholars and practitioners, included Earl Warren (Klarman 2004), Charles Evan Hughes (1928), and Learned Hand (1958), have expressed concern that dissenting judicial opinions may damage public opinion of the court and stir resistance to the court majority’s rulings. Though the topic has received little empirical testing overall, a recent study confirms the plausibility of this assertion (Zink, Spriggs, and Scott 2009). However, this potential effect is rendered meaningless if the news media do not convey the courts divisiveness in the first place. Thus, one must ask, how much news coverage do court decisions get? To what degree is the court’s unity or disunity highlighted in these stories? Are dissents associated with more or less media coverage of a case? To begin answering these questions, I present a test case on the local newspaper coverage school desegregation busing cases in the United States Courts of Appeals from 1965 to 1989. By using this case study in this venue, the issue can be held constant across numerous cases in various regions decided with differing levels of unity. The results indicate that these cases are frequently covered, that they do often mention the court’s vote on the ruling, particular when that vote is divided, and that divided opinions are indeed more likely to receive attention from the news media than unanimous opinions are.
Second Circuit Vacates, Remands Salinger Copyright Dispute
We hold that, although the District Court applied our Circuit's longstanding standard for preliminary injunctions in copyright cases, our Circuit's standard is inconsistent with the "test historically employed by courts of equity" and has, therefore, been abrogated by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006).
The Copyright Act of 1976 authorizes courts to "grant temporary and final injunctions on such terms as [they] may deem reasonable to prevent or restrain infringement of a copyright." ... And, as the District Court stated, this Court has long issued preliminary injunctions in copyright cases upon a finding of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
Thus, once a plaintiff establishes a likelihood of success on the merits, the only additional requirement is a showing that the plaintiff will be irreparably harmed if the preliminary injunction does not issue. And traditionally, this Court has presumed that a plaintiff likely to prevail on the merits of a copyright claim is also likely to suffer irreparable harm if an injunction does not issue.
This Court has applied this presumption in several ways. Some decisions have interpreted the presumption to mean that a plaintiff likely to prevail on the merits does not need to make a detailed showing of irreparable harm. ...A few decisions, by contrast, have found the presumption rebuttable where the plaintiff delayed in bringing the action seeking an injunction.
Under any of these articulations, however, this Court has nearly always issued injunctions in copyright cases as a matter of course upon a finding of likelihood of success on the merits. ...
Defendants do not claim that the District Court failed to apply this Circuit's longstanding preliminary injunction standard. Rather, they argue both that this standard is an unconstitutional prior restraint on speech and that it is in conflict with the Supreme Court's decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006). We agree that eBay abrogated parts of this Court's preliminary injunction standard in copyright cases, and accordingly, this case must be remanded to the District Court to reevaluate Salinger's preliminary injunction motion. In light of that holding, we need not decide whether the preliminary injunction issued by the District Court constituted an unconstitutional prior restraint on speech.
This Court has not directly addressed the scope of eBay. And district courts in our Circuit have split on eBay's reach. Compare, e.g., Lennon v. Premise Media Corp., 556 F. Supp. 2d 310, 319-20 n.1 (S.D.N.Y. 2008) (holding that eBay only applies to permanent injunctions in patent cases), with Microsoft Corp. v. AGA Solutions, Inc., 589 F. Supp. 2d 195, 204 (E.D.N.Y. 2008) (applying eBay in a permanent injunction trademark case). Two district court decisions have noted that the scope of eBay remains an open question in this Circuit and have decided the cases before them without determining whether the eBay or pre-eBay standard applied. See Gayle Martz, Inc. v. Sherpa Pet Group, L.L.C., 651 F. Supp. 2d 72, 85 (S.D.N.Y. 2009); Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513, 552 (S.D.N.Y. 2008).
This Court's pre-eBay standard for when preliminary injunctions may issue in copyright cases is inconsistent with the principles of equity set forth in eBay. The Supreme Court's decision in Winter tells us that, at minimum, we must consider whether "irreparable injury is likely in the absence of an injunction," we must "'balance the competing claims of injury,'" and we must "'pay particular regard for the public consequences in employing the extraordinary remedy of injunction .'" 129 S. Ct. at 375-77 (quoting Amoco, 480 U.S. at 542; Weinberger, 456 U.S. at 312. Therefore, in light of Winter and eBay, we hold that a district court must undertake the following inquiry in determining whether to grant a plaintiff's motion for a preliminary injunction in a copyright case. First, as in most other kinds of cases in our Circuit, a court may issue a preliminary injunction in a copyright case only if the plaintiff has demonstrated "either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the [plaintiff]'s favor." ... Second, the court may issue the injunction only if the plaintiff has demonstrated "that he is likely to suffer irreparable injury in the absence of an injunction." Winter, 129 S. Ct. at 374. The court must not adopt a "categorical" or "general" rule or presume that the plaintiff will suffer irreparable harm (unless such a "departure from the long tradition of equity practice" was intended by Congress). eBay, 547 U.S. at 391, 393-94. Instead, the court must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the "remedies available at law, such as monetary damages, are inadequate to compensate for that injury." ... Finally, the court must ensure that the "public interest would not be disserved" by the issuance of a preliminary injunction. ...