June 25, 2010
A Red Letter Day For Adult Sites
Today, ICANN voted to consider adding .xxx as a domain for adult (otherwise known as porn) sites. Porn sites have wanted their own domain for several years, but not everyone thinks such a move is a good idea. More here from CNN.com and from boston.com.
Judge Declines To Dismiss IIED, Publication of Private Facts, Right of Publicity Act Claims Against A&E
A federal district judge has declined to dismiss a plaintiff's claims under the Illinois Right of Publicity Act, common law publication of private facts invasion of privacy, and intentional infliction of emotional distress against the A&E Network and a production company with regard to the broadcast of her appearance on the show Female Forces. The plaintiff repeatedly refused to consent to the airing of the video including her appearance, but the defendants broadcast it anyway, and plaintiff sued.
Wrote the judge in part:
Best alleges that the media defendants violated the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/30, which prohibits use of an individual's identity for commercial purposes without written consent. Best contends that broadcasting the footage of her arrest in a Female Forces episode constitutes a use of her identity for commercial purposes.
The Illinois statute defines a commercial purpose as "the public use or holding out of an individual's identity (I) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising." 765 ILCS 1075/5. Best alleges that the defendants used her identity in connection with a product, namely a television show. The Female Forces show is a for-profit product, broadcast on a network with commercial advertisements. People pay for television service, including via subscriptions to cable networks such as the Biography Channel. It appears that broadcasting the footage concerning Best on Female Forces satisfies the "commercial purpose" requirement under IRPA.
The defendants argue that Female Forces is exempt under IRPA because it is a television broadcast, and therefore Best's claim fails. In support, defendants cite a decision in which a court in this district held that a cartoon depiction of a person on a television show was exempt from IRPA under 735 ILCS 1075/35(b)(1). ... Section 35 of IRPA provides several exemptions from the statutory prohibition, including for works of art, news programs, and sports broadcasts. ...The footage of Best's arrest used in Female Forces... was not "an attempt to portray, describe, or impersonate" her in a work of art; it was actual video of her arrest. Therefore, the exemption contained in section 35(b)(1) does not apply, and Collier appears to be inapposite.
Defendants also argue that IRPA should not apply because "the Episode uses Plaintiff's identity in connection with legitimate coverage of public activities." Defs.' Mem. in Support of Mot. to Dismiss at 6. Defendants make reference to the First Amendment protections granted to books and newspapers, id. at 5, and they cite Supreme Court cases (and the Second Restatement of Torts) that discuss First Amendment protections for newspapers. By these references, defendants may be suggesting that the Female Forces program is a news or public affairs broadcast and thus exempt from IRPA under section 35(b)(2), which exempts "use of an individual's identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign." 765 ILCS 1075/35(b)(2). They may also be attempting to argue that the First Amendment precludes the application if IRPA to programs like Female Forces. Neither of these arguments are squarely presented in the defendants' brief, however, and the Court declines to grant a motion to dismiss on an argument that defendants have failed to develop fully. The Court therefore denies defendants' motion to dismiss count 2.
Best's complaint also includes a claim for invasion of privacy by publication of private facts, a tort under Illinois common law. Best alleges that the Female Forces segment about her arrest includes a shot of a computer screen on the dashboard of Malec's patrol car which displays personal details about her, including her name, age, height, weight, driver's license number, and information about previous traffic stops and arrests — including at least one that appears to have taken place when she was a minor. This shot of the computer screen, Best argues, constitutes publication of private facts.
In Illinois, to succeed on a claim for public disclosure of private facts, a plaintiff must prove that: "(1) publicity was given to the disclosure of private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person." ...
Defendants have moved to dismiss this claim on the ground that the facts visible on the monitor in Malec's patrol car are not private facts and that nothing revealed on the screen would be highly offensive to a reasonable person. In ruling on a motion to dismiss, the Court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the non-moving party. ... Best has alleged that the publication of this information was highly offensive and caused her great distress. Given the nature of at least some of the information, and given the risk of identity theft that is presented by the exposure of such information in association with a person's name, the Court concludes that it is reasonable to infer that disclosure of such information would be highly offensive to a reasonable person. The Court is satisfied that Best's complaint satisfies this element of the test.
Furthermore, though defendants argue that the facts disclosed were not private facts, the Court is not entirely persuaded. Illinois cases addressing the question of publication of private facts have held that private facts are "intimate personal facts," such as health issues and sexual relationships. ...Matters of public record such as a person's name, address, date of birth, and fact of marriage, have been held not to be private facts....Other cases have limited the definition of private facts to those facts that the Illinois legislature has expressly stated are private or those that are "facially revealing, compromising, or embarrassing." ...
The defendants argue that all of the facts Best alleges were revealed on the computer screen are, in fact, public facts, and therefore count 3 should be dismissed. Defendant notes, correctly, that the fact of a prior arrest or traffic stop is not a private fact. ...From the dates visible on the computer screen, however, it appears that at least one of the prior arrests shown occurred when Best was a minor, which in the Court's view raises additional privacy implications. The rights of minors are often different from those that apply to adults. The defendants have offered no case that stands for the proposition that record of an arrest as a minor (as opposed to an adult) should be treated as a public fact.
Defendants also argue that courts have held that facts such as a person's name and age are matters of public record, and as such are not private facts.... However, taken in combination, the facts about Best's name, age, height, weight and driver's license number could arguably be classified as "facially compromising," particularly given the identity theft risks that disclosure of such information presents. .... The Court therefore concludes, drawing reasonable inferences in Best's favor, that she has adequately alleged facts sufficient to sustain a claim of invasion of privacy by publication of public facts and therefore declines to dismiss count 3.
Defendants have moved to dismiss Best's claim for intentional infliction of emotional distress. Under Illinois law, to succeed on a claim of intentional infliction of emotional distress, a plaintiff must prove that defendant's conduct was so extreme and outrageous as to exceed all possible bounds of decency; it resulted in emotional distress so severe that no reasonable person could be expected to endure it; and defendants intended to inflict this distress or were substantially certain that their conduct would result in severe distress. ...
Best's complaint alleges that Malec and Boogerd engaged in extreme and outrageous conduct when they made what she characterizes as mocking comments about her Coach products, her Jaguar, and the fact that they interrupted her trip to the grocery store when they pulled her over. She alleges that media defendants' decision to televise the footage of her arrest without her consent, after she had been assured that it would not appear on the show, and Naperville's failure to object to the use of that footage, was likewise extreme and outrageous. The complaint alleges that Best "suffered and continues to suffer severe embarrassment, humiliation and emotional distress as a result of these actions."
Defendants assert that Best has "fail[ed] to sufficiently allege a cause of action for intentional infliction of emotional distress." Defs.' Mem. in Support of Mot. to Dismiss at 10. They argue that the conduct Best has identified is not extreme and outrageous. Whether conduct is extreme and outrageous is "determined by the facts and the circumstances of each case, and is evaluated on an objective standard." ...Courts have granted motions to dismiss claims of intentional infliction of emotional distress when the court concludes that the conduct plaintiff alleges fails to rise to the level of "extreme and outrageous."
If Best's claim were based solely on the fact that Malec and Boogerd made a few remarks that amount to mocking or teasing about Best's perceived wealth or fancy taste, the defendants might be correct that she was complaining about "mere insults [and] indignities," and motion to dismiss the intentional infliction of emotional distress claim might fare better. Id. As it stands, however, Best's complaint alleges not only that the comments were made but that the defendants aired footage including those mocking comments without her consent, knowing that she objected and ignoring the assurances that they had given her that it would not be televised. Compl. ¶ 148. This, in the Court's view, elevates this claim above the level of "mere insults," at least for purposes of a motion to dismiss.
Best's complaint also sufficiently alleges that broadcasting the footage of her arrest caused her substantial emotional distress and that defendants knew or should have known that televising the footage over her objection would cause that distress. Compl. ¶¶ 149-50. The Court concludes that Best's complaint, taking all facts as true and drawing all inferences in her favor, alleges facts sufficient to establish the elements of a claim of intentional infliction of emotional distress. The Court therefore declines to dismiss count 4.
The case is Best v. Malec, Case no. 09 C 7749, U. S. D. C., N. D. Illinois, Eastern Division, June 11, 2010.
June 24, 2010
Copyright Protections and the Internet in the Indian Legal Regime
The growth of information and digital technology has rapidly increased the number of internet users. Many countries, including India, have enacted legislations to regulate the activities related to Internet. The Government of India has passed Information Technology Act in 2000 and further amended it on October 27, 2009, which gave fillip to cyber law. Though the amended Act contains considerable changes, the issues such as copyright, payment issues, media convergence, domain name, cybersquating and jurisdiction still remain unsolved. Infringement over Internet and piracy of copyrighted works are considered as big threats hampering the growth of the Internet, e-commerce and digital economy. Dissemination of computer virus, hacking and disabling the network system are still the challenging tasks for corporate houses, service providers, and the internet users. This paper suggests that there is a need for an appropriate legislation, policies and strong legal institutions to effectively enforce cyber laws for the promotion of e-commerce and reduction of copyright related disputes.
Facebook and PrivacyEric Sinrod on the debate surrounding requests for more privacy on Facebook.
Metropolitan Police Begin Investigation of Google's Street View Program
The Metropolitan Police (UK) has started an investigation into whether Google has violated any criminal laws through its use of data collected over wifi networks. The criminal laws implicated would be the Regulation of Investigatory Powers Act and the Wireless Telegraphy Act. Google used the data to create its street view program of photos. The non-profit Privacy International filed the complaint. Here's more from the San Francisco Business Times and the Guardian.
Pakistani Court Bans Internet Access AgainA court in Pakistan has again banned access to certain Internet services because their content gives offense to Islam. They include Yahoo, Amazon, and Google. Read more here in a Reuters story.
Personal Manager Sues Joan Rivers For DefamationWilliam Sammeth, former manager to Joan Rivers, is suing her over statements in her new book Joan Rivers: A Piece of Work, which he says defame him by saying he "disappeared" rather than stating that she fired him. He also claims Ms. Rivers did not pay him some commissions he is owed. Ms. Rivers denies that allegation. Read more here in a BBC article.
June 23, 2010
Josh Gottheimer Named Senior Counselor To FCC ChairFCC Chair Julius Genachowski has a new senior counselor: Josh Gottheimer. Mr. Gottheimer holds a JD from Harvard Law School, and served in the Clinton Administration.
Free On Bail, Professor Erlinder Comes HomeC. Peter Erlinder has returned to the U.S. More here.
Trademarks and "Free Riding" Claims
Trademark owners regularly rely on claims that the defendant is “free riding” on their mark by making money using that mark, foreclosing an opportunity for the trademark owner to capture that revenue. We analyze those free riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well‐known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff’s mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to the plaintiff. And unlike real property, or even other types of intellectual property, trademark law has no such theory. The result is that free riding claims fall back on empty circularity. Those free riding arguments are - explicitly or implicitly - behind the most problematic expansions of trademark law in recent years. We suggest that trademark law needs a theory of trademark injury that distinguishes harm to legitimate interests the law should protect from a mere desire to capture a benefit enjoyed by another.
Download the paper from SSRN at the link.
Cyber Warfare In Popular Culture
Cyber warfare is increasingly listed alongside nuclear, chemical and biological weapons as a potential weapon of mass destruction. Interest in and concerns for cyber warfare have also been prevalent for decades. War-oriented writers usually exploited such serious and expensive terms as cyber war, information war and electronic war to spread their impetuous and cheap ideas. This paper by no means devaluates serious designs and plans, studies and research, ideas and claims revolving around cyber warfare. Rather, the purpose of this paper is to analyze existing jokes, hoaxes and hypes on the so-called cyber warfare, so as to distance serious research from misleading information.
June 22, 2010
Julie Hilden on the Libel Law of the 'Net
Julie Hilden on why the development of the Internet suggests libel law should be federal law. She says in part,
Over time, the idea that your reputation exists only -- or at least primarily -- where you live, or have lived, is proving more and more false. A reputation now may stand or fall with comments that are made on Facebook, or with the result of a Google search -- and those comments may be made, and that search may be performed, from any State. As a result, topics -- which can be used to frame searches -- are increasingly important as a way of categorizing speech, while the writer's or searcher's location is often entirely beside the point.
Libel Law and Science In the UK and Ireland
Channel 4's Costs In Defamation Suit Nearly Two Million PoundsChannel 4 says it spent 1.7 million pounds over two years defending itself and its documentary on the Jackson family against the defamation lawsuit brought by Matthew Fiddes, money which it cannot recoup. Mr. Fiddes' law firm brought the suit under a contigency agreement. Read more here in a Guardian article.
June 21, 2010
The Policy of Copyright Law
The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that digital technologies and the explosion of amateur art challenge the usefulness of creativity as the organizing principle for copyright law. I propose that knowledge should be restored as copyright’s core concept. I illustrate that argument with the art and writing of Vincent van Gogh, who is often used to illustrate the idea of the prototypically creative author, and I draw out some implications from the proposal in terms of legal doctrines that relate to producing, distributing, conserving, accessing, and sharing knowledge.
Download the article from SSRN at the link.
What Artists and Scholars Think About When They Think About Intellectual Property Law
It has become commonplace among intellectual property scholars and policy makers concerned with promoting innovation to dispute the reasonableness of laws that protect intellectual property. By and large, legal scholars explore the question of whether the grant of intellectual property rights adequately (or at all) encourages innovators by looking mostly at output: the intellectual property granted and cases litigated concerning that intellectual property. Scholars ask, for example, are the grants of rights too broad or too frequently granted? With patents, they ask whether patent thickets exist and, if so, do they hamper innovation rather than encourage it? With copyright and trademarks, they ask whether the digital medium alters how copyright and trademarks should be protected given the relative freedom with which digital data flows and free-riding and user-generated creation is more likely? By analyzing particular statutory provisions or cases for their reasonable implications on the issue, legal scholars mobilize economic theories of rational actors or moral theories about owning the fruits of labor to identify the problematic or acceptable bases for the legal rules.
But rarely do we ask the people who are innovating – inventing, writing, developing, commercializing and possibly getting paid for their work (whether or not through intellectual property royalties) – whether the ability to protect their innovations through intellectual property law played any part in their endeavor, and if so, what part law played in promoting innovation. We rarely ask whether intellectual property law works in practice as we imagine it does in theory. My project, which has culminated in a pilot study of nearly 30 face-to-face interviews, explores the germination, harvesting and commercializing of art and science by and between creators and innovators, on the one hand, and their business managers or lawyers, on the other. These creative and innovative practices are being investigated in contexts in which intellectual property, were it sought, would play a role in the individual’s welfare or organization’s vitality. I intend this qualitative empirical study to lead to an understanding of whether and how the public discourse on intellectual property law (the central incentive story about public goods and monopolies) connects with intellectual property creation and distribution on the ground.
Too few studies of intellectual property look at the actual practices of invention (creation and discovery) and its commercialization to understand the relationships among daily work practices, organizational structure, perceptions of and the formal application (or not) of intellectual property law. Most legal scholarship, if it is empirical, takes filed and litigated cases as data to analyze the scope and success of intellectual property claims. This project, by contrast, investigates creative culture and innovation outside the limited arena where formal doctrinal intellectual property law is applied or contested. Through face-to-face interviews and document collection, this project develops a richer account of the various ways intellectual property law is manifest (or not) in creative and innovation culture. This project seeks to identify the diverse explanations and justifications of the how and why of creative and innovative activity – beyond the dominant incentive story of IP – in order to better understand the activities’ ties to (or disconnections with) United States intellectual property law.
The primary data from this project comes from nearly 30 semi-structured interviews with artists, scientists and intellectual property professionals, each ranging from one to two hours in length. The artists and scientists include: engineers, laboratory and theoretical scientists, writers involved in print or on-line media, web-designers, filmmakers and videographers, musicians, sculptors, painters, jewelry designers, craftspeople and architects. Some have sought intellectual property protections, others have not. The lawyers are both in-house and firm lawyers whose expertise is intellectual property. The other intellectual property professionals are predominantly licensing professionals or managers who assist in the maintenance of a client’s work or business, including (if relevant) their intellectual property portfolio. I have been working with a semi-structured interview protocol that covers central issues but leaves room for individual variation: a series of open-ended questions that are designed to elicit descriptions, explanations and stories from the interviewees on the relationship between the art and innovations in which they are involved and intellectual property law. I am also collecting workplace documents from the interviewees that are used in the development and harvesting of intellectual property, as well as contracts or agreements where IP had not been otherwise secured. The interviews are on-going. Those completed have been taped and transcribed and are currently being read, analyzed and coded.
The interview transcripts will become a substantial database of language used to describe creative and innovative processes and to describe the origins and methods of creating and maintaining intellectual property on the ground. To analyze the transcripts, codes are developed deductively from preliminary findings and inductively from the emergent language, repetitions, narrative structure and conceptual themes contained in the interviews. In my analysis, I intend to treat each the interview as a text and to evaluate its structural features as a story of law-in-action and of innovation culture. In conducting an inductive, qualitative analysis of these transcripts, I hope to arrive at a systematic understanding of popular legal consciousness regarding intellectual property as well as a “thick description” of the origins and output of creative and inventive processes that may (or may not) become intellectual property.
My intention is to draw from this database of language about intellectual property and invention evidence of the culturally circulating schema, memes, interpretations and understandings of intellectual property law. As a student of literature (I have a Ph.D. in comparative literature) and a scholar of law, I believe that the stories people tell and the language they use to describe their work involving art and science are of import in and of themselves. First, stories are political insofar as they are justificatory units for status quo or change. Second, language is constitutive insofar as the repeated use of words and phrases reify concepts, categories and expectations that structure relationships in our communities. For example, were this project to unearth a variety of explanations for resorting to intellectual property in the fields of arts and sciences (or reasons not to), the dominant story justifying intellectual property protection in formal legal discourse (the incentive story) might be proven less dominant in these informal settings. Further analysis could then attempt to draw connections between the variety of justifications for intellectual property protection (or a lack thereof) in specific arts and science contexts and the efficacy of proposed reforms for intellectual property law to help it achieve its stated goals.
Moreover, inasmuch as the analysis of the transcripts together with any documentation also reveals preferences acted upon by the interviewees through their descriptions of their work and its concrete output, the project may also be able to explore connections or disconnects between popular consciousness and self-reported behavior. This study is therefore intended to both access perceptions and commonly circulating explanations of intellectual property law and track the behaviors of and processes that produced and commercialized the art or science for those who are in the business of making or harnessing creativity and invention, whether or not through legal means. Analysis of the interviews and documents will help compare what the interviewees say about creative and innovative processes and what they actually do (their behavior, process, their output, and their means of making a living). This project will therefore begin to map more systematically the relationship between the incentive story of intellectual property law and the innovation process.
This project is part of an intended larger study of 150 interviews. I have applied for funding to pursue this larger project over the next three years. The funding application is substantially the paper I submitted for this conference. But this summer I intend to write up the preliminary findings of the first 30 interviews (of which 20 have been completed as of this writing). And it is the write up these preliminary interviews (the pilot study), combined with the overall structure of the empirical project, that I hope to present at the Fifth Annual Conference on Empirical Legal Studies at Yale in November.
Download the paper from SSRN at the link.
Harmonizing IP Law
These remarks to the 2008 ATRIP Annual Conference addressed the question of whether “one size fits all” in intellectual property law. Are there sufficient commonalities among the component parts of the field that we could realistically construct a unitary body of intellectual property law? I first set out the different inquiries that might be subsumed by the question of whether “one size fits all” in intellectual property law, focusing on the possibility of a single form of intellectual property, common treatment of different subject matter within regimes, and uniform intellectual property laws across borders. Focusing on this last aspect of the question, I note that the backwards-looking aspect of the classical international system, which tended to favor national autonomy and keep internationally-mandated levels of protection low, has been somewhat disrupted of late. Although it remains the case that one size does not fit all, there is much to be gained by seeking greater commonality. But if the focus of the current international system requires greater commonality - greater attention to a one size fits all approach on certain issues - it does so both with respect to the rights conferred on IP right holders and with respect to the new rights that might potentially be conferred on users.
Download the paper from SSRN at the link.