Friday, October 29, 2010
Thursday, October 28, 2010
The United States District Court, Southern District, has issued a permanent injunction against operation of the P2P downloading site Lime Wire, ending a drawn-out legal battle. Citing evidence that the site is used "overwhelmingly for infringement" and that Lime Wire "encouraged infringement" among other things, Judge Kimba Wood issued the injunction on October 26th on behalf of numerous record companies including Arista Records, Capitol Records, and Sony Music Entertainment.
The Federal Trade Commission has wrapped up an investigation of the Google Street View program in the United States, but investigations go on in other countries. The agency did ask the company to develop procedures to protect consumer privacy because the FTC has concerns over how Google collects data, and to "continue its diaglogue with the FTC."
Wednesday, October 27, 2010
From the Hollywood Reporter: Peter Jackson has made the decision to continue filming "The Hobbit" in New Zealand. The government is anteing up some $15 million (U.S.) in rebates which may increase, depending on the film's success, and will introduce legislation to "clarify" the industry status of film employees.
There is a clear trend for law and regulation, particularly in the computing and communications sector to become increasingly detailed. The perceived benefit of this approach to lawmaking is increased certainty as to compliance, but that uncertainty may be illusory. There are serious disadvantages to over-complex laws, particularly in that their normative effect is greatly weakened but also in terms of over-complexity, contradiction and too-frequent amendment. The combined effect of these disadvantages can be to produce a “bad” law system, assessed in terms of Fuller’s internal morality of law. It may also result in a law-system which substantially fails to achieve its intended aims. This paper proposes that these defects can be cured by abandoning the search for certainty. In its place we should substitute a method of lawmaking which requires the law’s subjects to make their own qualitative assessments as to whether they were meeting the obligations imposed on them. This will not only make the law more easily understandable by those to whom it applies, but will also increase the normative effect of computer and communications law.
Download the paper from SSRN at the link.
Tuesday, October 26, 2010
In the July/August issue of Humanities, a look back at the career of crusading editor John Mitchell, Jr., of the Richmond Planet. Says author Donna M. Lucey in part,
The young crusader fought against the lynching of both African Americans and whites (though blacks far outnumbered whites as victims of that crime), and he protested against unjust sentences that were being meted out to black prisoners. Mitchell quickly made a name for himself with his daring deeds and became known as the “Fighting Negro Editor” who would gladly “walk into the jaws of death to serve his race.” It was his job, he said, “to howl, yes howl loudly, until the American people hear our cries.”
Mitchell’s life is an uplifting tale of triumph in the face of racial hatred, an astounding story of passion, talent, and endurance. So, why is he so little known? Beyond a wonderful biography by Ann Field Alexander, entitled Race Man: The Rise and Fall of the “Fighting Editor,” John Mitchell, Jr., published in 2002, which this article draws upon, not much has been written about his dramatic life. In Richmond—a city full of monuments and markers—his legacy was almost completely ignored until recent times. Fortunately, many of his newspapers survive, and they are currently being digitized thanks to the National Digital Newspaper Program, which is funded by the National Endowment for the Humanities and cosponsored by the Library of Congress.
Monday, October 25, 2010
Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” enough. Property is an attempt to coordinate resource use through a system of in rem rights whose content can be understood by third parties without reference to the subjective use preferences of others. Traditional property law dealing with the transformation of mundane objects uses objective, socially intelligible tests of identity to determine when an owner’s rights in a thing have been extinguished, thus preventing owners from asserting subjective use preferences as a means of extracting value from transformed objects created by others.
Far from implying “absolutist” authorial rights, an in rem approach to copyright requires that we place clear boundaries around the identity of the “work of authorship.” This means moving away from the notion that disembodied fragments of “protected expression” can be owned separately from the “work of authorship” of which they are a part. I show how this might be done, proposing to define a “work of authorship” in terms of a coherent expressive experience designed by an author. Putative “copies” that are not tailored to facilitate beneficial use of the work as conceived by the author, but rather to communicate second-order information, or to give rise to expressive experiences radically discontinuous from the ones the author designed, therefore fall outside the author’s right to exclude altogether. Such a “propertarian” approach could be both clearer and more protective of free speech than current doctrine, because limits on the scope of the author’s rights would be defined intrinsically, obviating the need to resort to fair use doctrine with its value-laden weighing of social worth.
The Canadian Radio Standards Council, Ontario Regional Panel, has ruled that an October 20, 2009, broadcast of the Dean Blundell Show on CRNY-FM violated the Canadian Association of Broadcasters Equitable Portrayal Code for comments made about Justin Bieber. As a sanction, the CRSC told the station to read the following twice during specified times on air.
The Canadian Broadcast Standards Council has found that CFNY-FM (102.1 The Edge) has violated the Canadian Association of Broadcasters’ Equitable Portrayal Code. During the course of the Dean Blundell Show of October 20, 2009, there were gratuitous and unnecessary sexual comments made with reference to children. Those comments violated Clause 8(b) of the Code, which prohibits the sexualization of children in programming.
More here from THE, Esq.
Networks are making it tougher for consumers to get their content free via the web and other non-traditional outlets. NBC, Fox, and CBS are just a few of the content providers blocking access to popular shows in an effort to force eyeballs back to the boob tube, or to their wallets to pay for play, for example for Hulu.com's $10 per month subscription service.
In Globe and Mail v. Attorney General of Canada, the Supreme Court has held that the laws of Quebec can support a reporter's source privilege or a journalist's right to protect his sources in civil cases. The Court established a test in order to balance such a privilege against the government's right to require the journalist to provide information.
There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke,  3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
...Whether they rely explicitly on the Wigmore framework or not, what the lower court decisions ultimately demonstrate is the need for a balancing exercise between the competing rights or interests at stake. To paraphrase my colleague Justice Binnie in National Post, this all sounds very much like Wigmore where, at the crucial fourth step, the question is whether the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth. Indeed, the Wigmore framework itself, when stripped to its core, is simply a taking into account of competing interests. The Wigmore criteria can therefore shape the structure of the analysis and the elements to be considered, in claims of journalist-source privilege brought in matters engaging the laws of Quebec.
...It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media’s reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.
As Justice Binnie noted in National Post, it is the fourth Wigmore factor that will do most of the grunt work in the analysis of any claim for journalist-source privilege. He set out a number of relevant considerations in the determination of whether physical evidence must be disclosed in the criminal context (see paras. 61-62). It is therefore helpful, particularly given that this issue is being remitted to the Superior Court for reconsideration, to highlight some of the considerations that will be relevant to the court’s balancing exercise at the fourth Wigmore stage, in claims arising in the context of civil litigation.
The Parents Television Council, long the terrier that bedeviled both the FCC and a good many advertisers and networks, has lost a lot of its oompf. Here's an article from the New York Times that analyzes the reasons it seems less visible, and less powerful, today than it was ten years ago.