Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, August 13, 2010

Pat Tillman Documentary Will Keep "R" Rating Because of Language

The MPAA has refused to re-rate The Tillman Story, a documentary about the late Pat Tillman, from R to PG-13. The producers had wanted the more child-friendly rating to make the film accessible to young people but the MPAA kept the rating at R because of language used in the film. More here from the Hollywood Reporter. More about MPAA ratings here.

August 13, 2010 | Permalink | TrackBack (0)

NBC's "Mad Men" Parody Premature

From the Hollywood Reporter: NBC, which is hosting the Emmys, yanked its "Mad Men" parodies featuring Jimmy Fallon and Christina Hendricks after other networks cried foul. NBC had prepared three clips but only one aired; the network also showed the parody online but according to THR will probably pull it. The parodies will probably be back after Emmy voting closes next week. More here from the Seattle Post-Intelligencer.

August 13, 2010 | Permalink | TrackBack (0)

Did Dell Hide Docs?

From the NY Times here.

August 13, 2010 | Permalink | TrackBack (0)

Copyrighting Fashion?

Two law professors assess Senator Schumer's attempt to protect the rights of fashion designers via a revision of the copyright law in the op-ed pages of the New York Times here.

August 13, 2010 | Permalink | TrackBack (0)

Thursday, August 12, 2010

An Analysis of the Comcast v. FCC Decision

Marcelo Thompson, University of Hong Kong, Faculty of Law, Law and Technology Centre, has published The Sheriff of 'Not-the-Internet': Reflections on Comcast v. FCC, in volume 1 of Communications Law Review (2010). Here is the abstract.
In Comcast Corporation v. Federal Communications Commission, the United States Court of Appeals for the District of Columbia Circuit reaffirmed its understanding that the Commission’s authority to regulate the provision of broadband Internet services can only be justified with reference to the exercise of the Commission’s statutorily mandated responsibilities. The D.C. Circuit decided that, in restraining Comcast’s practices of arbitrarily interfering with the transmission of BitTorrent files by its users, the Commission relied on statements of policy that, in themselves, do not grant the Commission the authority to regulate those practices. An avenue, however, was arguably opened by the D.C. Circuit for the Commission to explore the impacts of services it does not have direct authority to regulate (e.g. voice-over-IP services and Internet video services) upon those it does have the authority to (e.g. common carrier services and broadcasting services). In a recent move, however, the Commission undertook to ignore such impacts. Instead, it chose to rely on the fiction that the transmission component of broadband Internet services is something separate from the Internet – “not the Internet” – and thus can be regulated based on provisions that grant the Commission the authority to regulate common carrier services, with some caveats. This article argues that such a move by the Commission – which the Commission calls “a third way” – fundamentally ignores the nature of both regulation and the Internet.
Download the article from SSRN at the link.

August 12, 2010 | Permalink | TrackBack (0)

Wednesday, August 11, 2010

Copying the Comics

Joshua L. Simmons, Columbia Law School, has published Catwoman or the Kingpin: Potential Reasons Comic Book Publishers Do Not Enforce Their Copyrights Against Comic Book Infringers, at 33 Columbia Journal of Law & the Arts 267 (2010). Here is the abstract.

The vast majority of comic book publishers are not enforcing their copyrights against those that infringe by copying and distributing their comic books illegitimately. There are only three significant motivations for a copyright holder to enforce their copyrights against infringers: economic gain, distortion control and metacopyright influence. Comic book publishers have none of those motivations when it comes to their comic books. This conclusion is reached based on a finding that comic book publishers are not primarily in the business of selling comic books. While they do sell comic books, a study of their finances shows that the majority of funds are made through licensing their works for consumer products and derivative entertainment programs. Therefore, it is the illegitimate copying and distribution of these additional products that comic book publishers are incentivized to prevent. In addition, the wholesale copying of comic books runs no risk of distortion.

In discussing the motivations of the comic book publishing industry, this paper also compares their motivations to the motivations of the book and music industries, thereby contrasting the comic book industry to other industries with similar levels of infringement. It clarifies who holds the rights in the comic book industry: the comic book publishers, not the creative talent that generates comic books, hold the copyrights to comic books and comic book characters. Finally, this paper suggests that despite lacking enforcement motivations, comic book publishers should create alternatives to infringement in order to guide infringers back to legitimate uses, and also to profit thereby.


Download the article from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)


The unions that represent California's state employees have taken their protests over unpaid leave, which Governor Arnold Schwarzenegger ordered because of the state's fiscal problems, to the theaters showing The Expendables, which premieres around the state and the country this month. While state workers are supposed to take furloughs to bridge the state's budget gap, they say Mr. Schwarzenegger is rebuilding his movie career. (He leaves office in 2011). He has an uncredited appearance in the film. The workers have filed suit over the furloughs and a judge has temporarily lifted the requirement of unpaid leave. More here in an article from the New York Times and here from an ABC affiliate in LA.

August 11, 2010 | Permalink | TrackBack (0)

Dutch Policy Towards Cybercrime

Bert-Jaap Koops, Tilburg University Faculty of Law, has published Cybercrime Legislation in the Netherlands. Here is the abstract.

This report, written for the 18th International Congress on Comparative Law of July 2010, comprehensively discusses cybercrime legislation and case-law in the Netherlands. Following the structure of the Cybercrime Convention, it first describes substantive criminal law: core cybercrimes such as hacking, viruses, denial-of-service attacks, and misuse of devices; computer-related traditional offences such as fraud and forgery; content-related crimes such as child pornography and racism; and copyright infringement. It also goes into crimes not covered by the Cybercrime Convention: data theft (can virtual goods be stolen?), identity theft, grooming, privacy and data protection offences, and ISP liability. Second, investigation powers are discussed, such as production and preservation orders, computer search and seizure, traffic data and data retention, and communications interception. Third, computer-related evidence and jurisdiction issues are briefly discussed, as well as self-regulatory initiatives for notice-and-takedown and filtering and blocking systems. The report then reflects on the way international legal instruments have been implemented in Dutch law, pointing out omissions in criminalisation as well as some provisions that have fundamentally affected the legal system. The report concludes with identifying issues for comparative legal research and for further harmonisation at the international level.

Download the report from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)

Protecting Children On the 'Net By Making It Safer

Cheryl B. Preston, Brigham Young University Law School, has published All Knowledge is Not Equal: Facilitating Children's Access to Knowledge by Making the Internet Safer, at 13 International Journal of Communications Law and Policy 115 (2009). Here is the abstract.

Global access to Internet knowledge is a worthy goal, especially for the children who will populate the information society; however, access must be considered in the context of imposing Western pornography on every culture and family. This Article briefly reviews the risks facing children online. It then focuses on the implications of cultural imperialism in Internet expansion. Nations, communities, and parents must be given the opportunity to access the Internet without drowning in sexually explicit content. In addition to children, what are the consequences on women of flooding various cultures with an intense diet of Western sexual images? Any discussion of expanding Internet access must address, in addition to child exploitation and feminist goals, fundamental questions of self-determination and the right of countries, cultures, religions, families and individuals to honor their own conceptions of morality and human dignity.

This article then describes an Internet port zoning approach that will offer content choice by segregating Internet content. The Ports Concept accommodates those who want to speak and hear adult speech, while recognizing the equally legitimate interests of those who do not want pornography in their homes and businesses, eroding their cultural values. Such a zoning scheme can work with an Internet governance structure relying on a specialized central global authority, or with governance seated in individual national authorities. The Article then suggests various options for trans-national implementation and enforcement if the Ports Concept is applied in a national, rather than centralized, governance approach. The Article also addresses the limitations and risks of this approach. Finally, this Article links the possibilities of Internet port zoning and principles of cultural self-determination.

Download the article from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)

Threats To Free Access To Information

Harsh Gagrani, National Law Institute, Bhopal, has published Axing the Access - Threats to Free Access to Information Especially in Digital Media.  It is forthcoming in IPost. Here is the abstract.

The dawn of digital technologies in the latter half of the twentieth century has worried the copyright enthusiasts, mainly because of the ease with which information can flow through such technologies, including a vast world of copyrighted materials. Legislations are being enacted and technological mechanisms are being used to control such free flow of information. In the author’s opinion, excessively regulating the digital media can impede creativity and innovation. As will be shown in the essay with the help of examples from the past, creativity has flourished only in a culture reasonably balanced in the favour of public, as opposed to the copyright owners. The author has suggested that digital media should not be treated as a threat to the copyright owners, but should be used by the authors as well as by the lawmakers to promote reasonable flow of information to inspire creativity and inventiveness.

Download the article from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)

Protecting Identity In Cyberspace

Parikshit Kshirsagar, Bond University School of Law and Monash University Faculty of Law, has published The Problem of Identity Protection in Cyberspace and Some Suggestions. Here is the abstract.

Increasingly, cybercrime and identity theft are becoming synonymous. Cybercriminals are increasingly making use of the internet to make money, and the author fears, with increasing success and greater anonymity. Identity fraud having been labeled as ‘one of the fastest growing crimes of the twenty-first century’, this author considers it pertinent to discuss its significance and some possible solutions from overseas with a view to constructively managing its harmful effects on Australian society.

Download the paper from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)

The Death of the Publication of Private Facts Tort

Samantha Barbas has published The Death of the Public Disclosure Tort: A Historical Perspective at 22 Yale Journal of Law & the Humanities 171. Here is the abstract.

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure of private facts tort is generally regarded as dead. But why did newsworthiness, in the words of Harry Kalven, Jr., become “so overpowering as to virtually swallow the tort”? The scholarly literature has been largely silent on this question.

This article traces the “death” of the right to privacy against the press to two broad cultural shifts in the period between 1920 and 1940. One was a cultural devaluation of privacy, in the sense of concealing one’s private self from public view. By the 1930s, a certain degree of public self-exposure was not only considered desirable but inevitable. The other change was an expansion of the definition of “the news” to encompass a wide variety of information, including private facts, and a reassessment of the significance of the news media to modern social life. Drawing on an emerging discourse theory of the news, one that saw the purpose of the news media as fostering public discussion and “making people talk,” courts affirmed the social value of media gossip, folding it into a broad new definition of newsworthiness that extended to the far reaches of popular publishing. These developments created the modern American culture of self-exposure, in which the media’s desire to reveal private lives is rivaled by our penchant for self-publicity.

Download the article from SSRN at the link.

August 11, 2010 | Permalink | TrackBack (0)

Tuesday, August 10, 2010

First Circuit Upholds Maine "Data Mining" Law

The First Circuit has upheld a state law prohibiting prescription information "data mining," the second time it has ruled on such laws. In IMS Health Inc. v. Mills, the Court rejected constitutional challenges based in the First Amendment, finding that the statute regulates conduct, not speech.

We reject all of plaintiffs' constitutional challenges to section 1711-E(2-A). Plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte: the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards. They also fail for reasons not present in Ayotte. The Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data. We also reject the argument that the statute is void for vagueness.

Compare with the Court's decision in IMS v. Ayotte, F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2864 (2009) in which the majority said, "We say that the challenged elements of the Prescription Information Law principally regulate conduct because those provisions serve only to restrict the ability of data miners to aggregate, compile, and transfer information destined for narrowly defined commercial ends. In our view, this is a restriction on the conduct, not the speech, of the data miners. ...In other words, this is a situation in which information itself has become a commodity. The plaintiffs, who are in the business of harvesting, refining, and selling this commodity, ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure."



August 10, 2010 | Permalink | TrackBack (0)

How Local News Reports Civil Litigation

Herbert M. Kritzer, University of Minnesota Law School, and Robert E. Dreschsel, University of Wisconsin, Madison, School of Journalism & Mass Communication, have published A Portrait of Local News Reporting of Civil Litigation as Minnesota Legal Studies Research Paper No. 10-34.

Here is the abstract.
What is the nature of the coverage of civil litigation by local newspapers and local television? That is the question considered in this paper. Drawing upon news clips from 2004 (11 media markets around the U.S.), 2006 (9 media markets in the Midwest), and 2007 (9 media markets in the Midwest), we present a portrait of litigation as locally reported. We find (a) torts make up a minority of reports, (b) very few verdicts are reported, and (c) dollar figures are mentioned in a modest proportion of cases but when mentioned tend to be large. We also find significant differences in the reporting practices of local television and local newspapers, particularly with regard to the types of cases discussed (more torts on television and more cases against government in the newspapers). We conclude with some speculations about the implications of our analysis for debates over civil justice “reform.”
Download the article from SSRN at the link.

August 10, 2010 | Permalink | TrackBack (0)

Smart Phones Versus Government Censors

From the Red Tape Chronicles, a story about the threat that Blackberrys (or should that be Blackberries) and other Smart Phones pose to governments that try to control information flow to their citizens.

August 10, 2010 | Permalink | TrackBack (0)

Monday, August 9, 2010

And You Thought Pop Culture Wasn't Important...

Walter Dellinger on Mad Men (the show, that is).

August 9, 2010 | Permalink | TrackBack (0)

Deciding "Snyder v. Phelps"

Christina E. Wells, University of Missouri School of Law, has published Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment, as University of Missouri School of Law Legal Studies Research Paper No. 2010-14. Here is the abstract.

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy or disruptive speech, or resulting violence.

But the Court’s longstanding precedents do not allow regulation of speech solely based on its offensive content absent those objective indicia of harm. Psychological research on emotions validates the Court’s approach as it reveals that anger, the emotion most likely to be involved with offensive speech, is inextricably linked with censorship. Put simply, individuals are often angered by demeaning offenses to their personal or social identity, including speech that is critical of their values and beliefs. As a result, they are often stirred to responsive action. The availability of civil lawsuits based solely on emotional harm would thus provide offended plaintiffs with potential tools to censor speech with which they disagree. The Supreme Court has wisely steered clear of such an approach and should continue to do so in Snyder.

Download the paper from SSRN at the link.

August 9, 2010 | Permalink | TrackBack (0)

The Changing Image of Regulation

Barak Y. Orbach, University of Arizona, has published The New Regulatory Era - An Introduction, at 51 Arizona Law Review 559 (2009). Here is the abstract.
For many decades the word “regulation” has been a bogeyman concept evoking images of unproductive and wasteful government bureaucracy. While this image has been a popular rallying cry for politicians over the years, every interest group — with the exception of libertarians — has actively supported and lobbied for regulation in certain domains of the economy and society. With the recent financial crisis, this bogeyman image of regulation has been turned on its head. This Essay explains some of the causes for the change and highlights several expected directions that the new regulatory era is likely to take.
Download the article from SSRN at the link.

August 9, 2010 | Permalink | TrackBack (0)

Malaysian Blogger Takes Refuge In UK

Malaysian blogger Raja Petra Kamarudin left the country last year after hearing that he might be arrested yet again for his writings; he turned up in the UK where he continues to write online at this website. His criticism of the Malaysian government, which has resulted in charges of sedition, has not abated. More here in a Guardian article.

August 9, 2010 | Permalink | TrackBack (0)

Coming Up With "Reasonable Royalties"


The article surveys theories of licensing royalty rates in patent damages cases. After first reviewing, analyzing and critiquing Georgia-Pacific factors of patent licensing, the article evaluates the entire market value rule in light of the Lucent decision. The article reviews and analyzes real property compensation cases and assesses additional value factors including the restitution model. The article assesses different bargaining scenarios, including voluntary licensing without availability of an injunction and patent licensing with different transaction cost scenarios. Finally, the article offers patent licensing solutions from real options analysis, including hybrid options.

 Download the paper from SSRN at the link.

August 9, 2010 | Permalink | TrackBack (0)