Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, November 5, 2010

EU Plans To Move On New Privacy Legislation

From the New York Times: The European Union's Justice Commissioner Viviane Reding announced that the Commissioner plans to introduce new legislation that will "take into account" the impact of the Internet and other new technology. More here.

November 5, 2010 | Permalink | TrackBack (0)

Personality Rights in the Hong Kong (China) Legal Regime

Peter K. Yu, Drake University Law School, has published No Personality Rights for Pop Stars in Hong Kong? in The New Law of Brands and Reputation in the Asia Pacific Rim (Andrew Kenyon, Ng-Loy Wee Loon & Megan Richardson, eds. 2011). Here is the abstract.
Referred to as ‘the Pearl of the Orient’ for generations, Hong Kong is a glamorous city known for its lavish lifestyle and the rich and famous. Its entertainment products, in particular movies, television programs, and music, are highly popular in not only Asia, but also different parts of the world. Yet, the region does not offer strong protection of personality rights to celebrities. This development provides an interesting contrast to developments in the United States, where Hollywood actors receive very strong protection of their name, likeness, image, voice, or other personal attributes. The lack of protection also contrasts strongly with that of China, which offers in its civil code a right of portrait.

This book chapter begins by tracing the American origin of the right of publicity as an independent cause of action. It underscores the difference between this discreet right and the type of protection available in Commonwealth jurisdictions. The chapter then discusses the leading case in Hong Kong, Lau Tak Wah Andy v. Hang Seng Bank Ltd. The chapter explores why Hong Kong has yet to offer strong protection of personality rights despite having fertile conditions for such development. The chapter concludes by focusing on three areas of influence that may impact the future development of personality rights in Hong Kong.
Download the essay from SSRN at the link.

November 5, 2010 | Permalink | TrackBack (0)

Thursday, November 4, 2010

YouTube Takes Down Radical Cleric's Videos

According to this New York Times story, YouTube has removed videos by Anwar al-Awlaki, the radical Muslim cleric born in the United States who often targets the U.S. audiences with his words. YouTube spokesperson Victoria Grand indicated that the decision to take down the clips was difficult and required a balancing of free speech and security concerns.

In an e-mail, Victoria Grand, a YouTube spokeswoman, said that the site had removed videos that violated the site’s guidelines prohibiting “dangerous or illegal activities such as bomb-making, hate speech and incitement to commit violent acts,” or came from accounts “registered by a member of a designated foreign terrorist organization,” or used to promote such a group’s interests.

Both the United States and Great Britain urged Google, YouTube's owner, to take down the videos, especially as concerns have mounted over their influence. MP Stephen Timms was stabbed on May 14 by Roshonara Choudhry, who said she watched Mr. al-Awlaki's videos frequently before carrying the attack.

November 4, 2010 | Permalink | TrackBack (0)

Hip-Hop and Copyright

Tonya M. Evans, Widener University School of Law (HB Campus), has published Sampling, Looping, and Mashing … Oh My! How Hip Hop Music is Scratching More than the Surface of Copyright Law as Widener Law School Legal Studies Research Paper No. 10-26. Here is the abstract.

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films (410 F.3d 792), as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley (687 F. Supp. 2d 1325), is but one poignant example.

Courts in the Sixth Circuit apply a per se infringement standard when a defendant copies any part of a sound recording. By contrast, courts in the Eleventh Circuit consider substantial similarity and the de minimis defense traditionally applied in all infringement cases. These differences, in turn, have lead to unclear judicial definitions, distinctions and interpretations for the role of substantial similarity and what constitutes a de minimis use, a fair use, and a derivative work. The resulting incongruent decisions reflect an inconsistent application of federal law. This inconsistency threatens to diminish both the quality and quantity of second-generation cumulative musical works. Accordingly, copyright law’s fragmented application is proving troublesome for the music industry, generally, and for music genres like hip hop in particular.

Ultimately, this article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law just as the law continues to stress and under-perform in balancing the rights/access continuum. To that end, this article posits that any fix should sample patent to remix copyright. By this I mean music copyright reform should consider and incorporate policies supporting reverse engineering in the patent context, which encourages and values cumulative creation to bolster innovation.

Intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative. Such is the case in the creation of music. The need for narrowly-tailored intellectual property laws is especially valid in light of the essential role to both of access to first-generation works and a firmly established custom of borrowing in the creative process.

Therefore, copyright law must be remixed to achieve an optimal balance between a copyright holder’s exclusive rights and the legal space a second generation innovator needs to build upon existing works in order to create new ones in cumulative creative genres like music.

Download the paper from SSRN at the link.

November 4, 2010 | Permalink | TrackBack (0)

Wednesday, November 3, 2010

Foreign Speakers After "Citizens United"

Toni M. Massaro, University of Arizona College of Law, has published Foreign Nationals, Electoral Spending, and the First Amendment in the Harvard Journal of Law and Public Policy (2011). Here is the abstract.

The Court in January of 2010 rocked the nation when it decided Citizens United v. FEC – a case that critics described as a “threat to democracy.” The case lifted restrictions that prevented corporations and unions from using general treasury funds to engage in independent expenditures on behalf of electoral candidates, and thereby opened the spigot on significant new spending for political campaigns.

A long list of proposals followed in the wake of the decision, including proposals to further limit the already restricted right of foreign nationals to make campaign contributions to candidates for state or federal office, or to American political parties. The Court in Citizens United expressly declined to rule on the constitutionality of restrictions on foreign nationals’ electoral spending, though Justice Stevens argued in his vigorous dissent that the reasoning of Citizens United casts doubt on such speaker-based restrictions on campaign spending.

This Essay analyzes in detail whether foreign speakers, including foreign corporations, can be fenced out of campaign electoral spending, and concludes that the constitutional case against such restrictions is very powerful, if not overwhelming. It predicts that the Court nevertheless will be loath to defy Congress on this point, particularly if the government invokes a national security interest or so-called right to prevent “undue foreign influence” over American elections. Signs are that the current Court would defer to Congress and uphold restrictions on foreign national campaign expenditures, were it to address the question directly. But to do so, it would need to ignore its own first amendment logic and especially its soaring rhetoric about the sophistication of American voters and the value of robust political expression fueled by private expenditures.

Whether this constitutional point matters, however, is questionable given the rapid development of new communications technologies. Foreign nationals, like American citizens, now have multiple ways of reaching potential voters that make efforts to territorialize such influence infeasible. Consequently, the most important constitutional question on the post - Citizens United horizon may not be who can expend funds, but whether donor identity can be disclosed so that voters can better evaluate electoral messages from foreign and non-foreign sources, and whether the privacy objections to such disclosure can, or should, be overcome.

Download the article from SSRN at the link.

November 3, 2010 | Permalink | TrackBack (0)

The Teenager and the Videogame

John A. Humbach, Pace University School of Law, is publishing Teens, Porn and Videogames: Time to Rethink Ginsberg? in the Harvard Civil Rights-Civil Liberties Law Review (CR-CL). Here is the abstract.

 

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally “protected”) pornography to persons under age 17.
The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational basis review on reasoning that was analytically flawed. Not only was the reasoning circular but it was founded on the startling idea that states have the power to modify the scope of a constitutional concept (i.e., obscenity) and, therefore, to cut down constitutional rights.
It is doubtful that Ginsberg could be decided on the same reasoning today and, on its record, it probably could not have the same outcome. Rather than gloss over or ignore the analytical flaws of Ginsberg, the Court should take the occasion to rethink Ginsberg and to place this area of law, and minors' constitutional rights, on a sounder footing that is in harmony with the rest of First Amendment law.

Download the article from SSRN at the link.

November 3, 2010 | Permalink | TrackBack (0)

Blanket Licensing and Campaign Events

For over two hundred years, political candidates have utilized the campaign song to instill positive messages in the minds of voters. In the early years, candidates commissioned songs specifically for their campaigns. Decades later, it became apparent that using a hit song with its original lyrics was even more effective. This use of copyrighted music has received mixed reactions from the authors of the works that the candidates have adopted. While some have been flattered, others have felt that such use distorts the original message they intended their works to convey.

This Note addresses the issue of authors in the latter category lacking a practical means to stop public performances of their works by political candidates with whose views they disagree. The underlying cause of this issue is that there is no violation of United States copyright law when a campaign “publicly performs” a song at its rallies, so long as it first obtains a blanket license from the performing rights organization (PRO) of which the copyright holder of the musical work is a member.

Recognition of moral rights by the United States would likely solve the issues that arise when a PRO issues a blanket license for a public performance that an author objects to, but has no way of preventing or enjoining under the status quo. However, given the historical attitude of the United States towards moral rights, their recognition in this country is highly unlikely. Thus, those in favor of moral rights should accept this reality and shift their focus away from advocating such legislative change, and towards the creation of alternative, extra-governmental approaches to protect the moral rights of copyright holders whose works are licensed for public performances for which permission would have been denied if sought directly.

Part I of this Note summarizes the history of Congressional and judicial treatment of moral rights in the United States, with an emphasis on the United States’ reluctance to offer protection on par with that offered in the majority of other countries in the world. Part II traces the history of PROs and the emerging role that such intermediaries have played in copyright law, to the point of their possible replacement of Congress as the de facto rulemaking bodies in this area. Part III points out how the justifications for blanket licensing of musical works are not applicable in the context of political events, and elaborates on why the United States’ failure to recognize the moral rights of copyright owners poses a problem worth addressing. Part IV proposes three alternative solutions to the problems that accompany the blanket licensing of political events - one statutory and two to be executed by the PROs. Part V offers some reflection upon what events should be considered “political” for purposes of the proposed solutions.

 Download the article from SSRN at the link.

November 3, 2010 | Permalink | TrackBack (0)

Telecommunications Policy In Microstates

Ewan Sutherland, University of Witwatersrand, LINK Centre, and University of Namur, has published Telecommunications in European Island Micro-States and Micro-Territories. Here is the abstract.

On the margins of Europe lie a number of micro-states and micro-territories. Global best practice in telecommunications fits them poorly ‒ it does not scale down to the necessary level. The problems are aggravated by geographical remoteness and (except for Iceland) not being part of the EU’s common legal framework and policy processes. On the other hand, not being members of the European Union (EU) allows much greater flexibility.

Jersey and Guernsey comprise the Channel Islands, British Crown Dependencies in the English Channel, off the coast of France, a legacy of William the Conqueror, Duke of Normandy. The Isle of Man, another British Crown Dependency, lies between England and Ireland. The Faroe Islands lie between Great Britain and Iceland, part of the Kingdom of Denmark, but not of the EU. The other Danish territory is Greenland, a vast icy expanse located in North America, but more closely connected to Europe. Iceland has been independent from Denmark for decades and is a member of the European Economic Area (EEA), with an outstanding application to join the EU.

While telecommunications is generally scalable, this eventually breaks down. There are too few people for parliaments, for ministries, for competition authorities, for regulators, for operators and for markets. While expertise can be bought in, the scale of markets cannot be adjusted.

One of the constraints of small island developing states (SIDS) is the high cost and limited access to undersea cables. By comparison, the European islands are very well provided for high capacity and even redundancy. This allows relatively affordable access for telephony and for Internet access.

The small sizes mean a lack of economic diversity. For example, Greenland is heavily dependent on fisheries. Jersey, Iceland and the Isle of Man have relied on financial services, with complaints that the British territories are tax havens. Heavy dependence of employment by government.

The heavy burden of the contemporary regulatory state is not easily borne by small islands. There are severe constraints on the people available to serve as judges, in competition authorities and in regulators. These institutions can be afforded, but add to the costs for citizens and businesses.

Iceland, through its membership of the EEA, has to transpose most of the EU regulatory framework, as do Cyprus and Malta. Not designed for micro-states, and not easily or at least legally customisable.

Small markets. Greenland has elected to have a monopoly in telecommunications, while the others have tried for competition. They have been more successful in mobile than fixed, typically with two GSM operators, migrating to 3G.

 

Download the paper from SSRN at the link.

 

November 3, 2010 | Permalink | TrackBack (0)

Tuesday, November 2, 2010

Existing Sponsorship Disclosure Law and Attempts at Reform

Zahr Said Stauffer, University of Virginia School of Law, has published Embedded Advertising and the Venture Consumer. It is forthcoming in the North Carolina Law Review. Here is the abstract.

Embedded advertising - marketing that promotes brands from within entertainment content - is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures could exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may with legal impunity deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates “hyper-commercialism,” distorts consumers’ tastes, taints the artistic process, and erodes faith in public discourse. This Article argues that the critics are wrong. Sponsorship disclosure law under the Communications Act of 1934 and related regulations is indeed largely ineffective, in part because the media industry has consolidated considerably and in part because media content is now created and consumed in diverse ways unimaginable to the drafters. The law was conceived for yesterday’s marketplace, but also for yesterday’s consumer. The media consumer today is what this Article calls a “venture consumer.” Often, she knows what she wants, knows where to get it, and is aware of the risks and costs involved. The mismatch between the consumer imagined by regulators and the contemporary consumer means that expanded regulation of embedded advertising according to current reform proposals could end up harming consumers more than helping them. Moreover, embedded advertising is not especially amenable to effective regulation, given the incentives for artists and advertisers to collaborate in the production of entertainment content. In light of the difficulty of correcting the regime’s flaws and the consumer interests threatened by expanded regulation, the Article concludes that the consumer is better served if the law is maintained as-is rather than expanded through the proposed reforms.

Download the article from SSRN at the link.

November 2, 2010 | Permalink | TrackBack (0)

Non-Neutral Networks and Their Operation

Eitan Altman and Pierre Bernhard, both Institut National de Recherche en Informatique et Automatique, George Kesidis, Pennsylvania State University, Sulan Wong, University of Coruna Faculty of Law, and Julia Rojas-Mora, University of Barcelona Department of Business Economics and Organization, have published A Study of Non-Neutral Networks. Here is the abstract.

Hahn and Wallsten wrote that net neutrality "usually means that broadband service providers charge consumers only once for Internet access, do not favor one content provider over another, and do not charge content providers for sending information over broadband lines to end users." In this paper we study the implications of being non-neutral, particularly by charging the content providers. Using game theoretic tools, we show that by adding the option for the service providers to charge the content providers, not only may the content providers and the internauts suffer, but also the access provider's performance degrades.

Download the paper from SSRN at the link.

November 2, 2010 | Permalink | TrackBack (0)

What Does the Right To Distribute Mean In the Internet Age?

Peter S. Menell, University of California, Berkeley, School of Law, has published In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, as UC Berkeley Public Law Research Paper No. 1679514. Here is the abstract.
Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages.

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

Download the paper from SSRN at the link.

November 2, 2010 | Permalink | TrackBack (0)

Carl Icahn Loses In Canadian Court

A Canadian court has tossed Carl Icahn's lawsuit against Lionsgate Entertainment, calling him a "bitter bidder." Mr. Icahn's share in the studio dropped from 37.5% to 33.5%. More here from the Hollywood Reporter (check out the mag's new look while you're there).

November 2, 2010 | Permalink | TrackBack (0)

Monday, November 1, 2010

The Court and Violent Video Games

Findlaw's Michael C. Dorf on the upcoming violent video games case before the Supreme Court (Schwarzenegger v. Entertainment Merchants Ass'n (EMA)). The Court will hear arguments tomorrow.

Briefs here.

November 1, 2010 | Permalink | TrackBack (0)

Who Is John Doe? Who Wants To Know?

Lior Strahilevitz, University of Chicago Law School, has published Pseudonymous Litigation at 77 University of Chicago Law Review 1239 (2010). Here is the abstract.

We presently lack a good theory for when we should permit parties to litigate using a pseudonym, and American and European legal systems differ sharply on the question. This essay attempts to leverage one of the developments associated with the information age to make progress towards a satisfying answer. The relevant development is the newfound ease with which one can air a grievance pseudonymously or anonymously via online feedback sites, rating sites, and similar forums. Given the availability of these sometimes attractive alternatives to litigation, the legal system should answer the question of whether to permit a party to litigate as a “John Doe” by determining whether a particular grievance is optimally resolved via legal dispute resolution mechanisms or the self-help alternatives that have arisen online and elsewhere. These alternative mechanisms are markedly inferior to litigation at addressing certain types of disputes and markedly superior at addressing other sorts of controversies. Many of the factors most relevant to determining whether a dispute is best addressed in a court or in a less costly forum – such as the existence of legal issues of first impression, the public relations sophistication and reputational stakes of the parties, the existence of material factual disputes, the degree to which the parties’ conduct violates existing social norms, and the magnitude of the harms suffered – are not easily discerned at the outset of litigation. It therefore may be optimal to permit a party to litigate to final judgment using a pseudonym and to consider revealing the litigant’s identity at the conclusion of proceedings. Such determinations could be based on either a balancing test that weighs the relevant aforementioned factors or a less precise bright-line rule, such as “prevailing party pseudonymity.” The essay examines how such approaches would have played out in Doe v. Smith, a Seventh Circuit invasion of privacy case that expressed misgivings about permitting pseudonymous litigation despite quite sympathetic facts.

Download the article from SSRN at the link.

November 1, 2010 | Permalink | TrackBack (0)

Kids and Copyright

John G. Palfrey, Jr., Urs Gasser, Miriam Simun, and Rosalie Barnes, all of Harvard Law School, have published Youth, Creativity, and Copyright in the Digital Age, as Berkman Center Research Publication No. 2009-05. Here is the abstract.
New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, “Digital Natives” - young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways - are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.

Download the paper from SSRN at the link.

November 1, 2010 | Permalink | TrackBack (0)

Abend Trust Files Yet Another Suit Over "Disturbia"

The Sheldon Abend Trust has filed another lawsuit over the film "Disturbia," which stars Shia Leboeuf, this time against the Alfred Hitchcock estate. A judge dismissed the Trust's 2008 lawsuit against director Stephen Spielberg. The Trust claims that "Disturbia" is disturbingly similar to "Rear Window," Hitchcock's 1954 classic. More here from the Hollywood Reporter.

November 1, 2010 | Permalink | TrackBack (0)