Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, November 19, 2010

Applying "Citizens United"

Daniel Winik, Yale Law School, is publishing Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United in volume 120 of the Yale Law Journal. Here is the abstract.
This Note proposes a new direction for the regulation of corporate electoral advocacy in the wake of Citizens United. Rather than examining whether Citizens United was rightly decided, it argues that broad disclosure and disclaimer regulations for corporate electoral speech are both constitutionally sound and normatively superior to outright prohibitions. After surveying state and federal disclosure and disclaimer requirements, the Note proposes a broader scope for such mandates than existing doctrine permits in the context of individual speech. It argues that regulations of corporate-funded electoral speech should be neither strictly limited to express candidate advocacy nor balanced against a right to anonymity.

Download the Note from SSRN at the link.

November 19, 2010 | Permalink | TrackBack (0)

MSNBC Suspends Joe Scarborough

That's two: MSNBC has suspended "Morning Joe" Scarborough, the former Rep and present MSNBC morning host, for making donations to Republican candidates; such donations are in violation of network policy. Keith Olbermann was suspended for violating the same policy. Mr. Scarborough is getting the same treatment--2 days off the air without pay.

November 19, 2010 | Permalink | TrackBack (0)

Terrorism and Online Speech Rules

Steven R. Morrison, University of North Dakota School of Law, is publishing Terrorism Online: Is Speech the Same as It Ever Was? in the 2010 volume of the Creighton Law Review. Here is the abstract.
Like all of us, terrorists now use the Internet for many purposes. It is commonly believed that planning operations, fundraising, and recruitment are the three main ways that terrorists take advantage of online communication. While it is clear that speech related to the first two can be prohibited, online recruitment speech may be protected under the First Amendment.

As a result, a number of commentators have been concerned at online recruitment and the fact that our current speech rules may not be adequate to deal with this new threat. They have proposed a number of remedies, but have largely accepted that online recruitment is a unique and potent danger.

This article questions that assumption. It discusses the structure of online communication and observations about it from the field of psychology. It concludes that online communication is currently no more dangerous than its real-world counterpart, and may actually be safer when it comes to terror recruitment.

This is not to say that there is no threat. Terrorist groups do recruit via the Internet. By showing, however, that the nature of online communication does not facilitate this recruitment, we can move toward truly effective solutions to the problem of online recruitment.

Download the article from SSRN at the link.

November 19, 2010 | Permalink | TrackBack (0)

Update On Ronni Chasen Murder

An update on the Ronni Chasen murder. Police are now speculating that her death was planned. They are looking at footage obtained from security cameras at the Hackett estate. More here from the Hollywood Reporter, here from the Los Angeles Times.

November 19, 2010 | Permalink | TrackBack (0)

Live Nation Files Lawsuit Against Former Head To Recover Payments

Live Nation is suing ex-chairman Michael Cohl for more than $5 million, alleging that he violated terms of his exit agreement with the company. Details here in an exclusive story from The Hollywood Reporter.

November 19, 2010 | Permalink | TrackBack (0)

Lincoln's Gettysburg Remarks: Reread Them Today

November 19 is the 147th anniversary of Abraham Lincoln's delivery of his remarks at Gettysburg. After Edward Everett, the featured speaker, had spoken for two hours giving his Gettysburg Address, the attendees were pleased but understandably tired. The President got up and read his speech, not even 300 hundred words, which did not impress many at the time. According to Garry Wills, author of Lincoln at Gettysburg: The Words That Remade America (1992), Lincoln created an "intellectual revolution" with his speech at Gettysburg. The media did cover them, but how would it have analyzed them, had CNN, Fox, MSNBC and a 24/7 news cycle been around then?

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

November 19, 2010 | Permalink | TrackBack (0)

Bollywood Lawyers

Apar Gupta, Amity Law School and Columbia Law School, has published Tareek Par Tareek: The Archetype and the Ethics of Indian Lawyers as Depicted in Popular Hindi Cinema. Here is the abstract.
Few would quarrel with the influence and significance of popular culture on society. However culture is vaporous, hard to capture, harder to gauge. Besides pure democracy, the arts remain one of the most effective and accepted forms of cultural indicia. A song, dance or a painting may provide tremendous information on the cultural mores and practices of a society. Hence, in an agrarian community, a song may be a mere mundane hymn recital, the celebration of a harvest or the mourning of lost lives in a draught. It can even be all three. Similarly placed as songs and dance, popular movies serve functions beyond mere pop corn accompaniments. A movie can reaffirm old truths and crystallize new beliefs. Hence we do not find it awkward when a movie depicts a crooked politician accepting a bribe or a television anchor disdainfully chasing TRP’s. This happens because we already hold politicians in disrepute, and have recently witnessed sensationalistic news stories which belong in a Terry Prachet book rather than on prime time news. With its power and influence Hindi cinema has often dramatized courtrooms, judges and lawyers. This article argues that these dramatic representations define to a large extent an Indian lawyer’s perception in society. To identify the characteristics and the cornerstones of the archetype this article examines immensely popular Bollywood movies which have lawyers as its lead protagonists. Taking the evaluation further the Article finally examines these preconceived stereotypes against notable rulings on lawyer’s ethics. The article also seeks solutions to the lowering public confidence in the legal profession keeping in mind the problem of free speech and censorship. Finally, this article aims to put up a looking glass to lawyers, albeit tinted by drama, action, romance and the frequent song and dance sequences.

Full text is not currently available from SSRN. 


November 19, 2010 | Permalink | TrackBack (0)

Thursday, November 18, 2010

Weinstein Company To Challenge MPAA Ratings Of Two New Releases

The Weinstein Company has decided to challenge the MPAA's ratings of NC-17 given to Blue Valentine and R given to The King's Speech. The studio's legal team includes David Boies, Bert Fields, and Alan Friedman. The studio objects to the ratings, given because of profanity in the case of The King's Speech, noting that films containing a great deal of violence receive similar ratings. Says the company in a release,

While we respect the MPAA, I think we can all agree that we are living with an outdated ratings system that gives torture porn, horror and ultraviolent films the same rating as films with so-called inappropriate language.

More here from the L.A. Times.

With regard to prior legal challenges, consider Miramax v. MPAA, N.Y. Supreme Court (1990). Miramax  and Pedro Almodovar challenged an X rating given to Mr. Almodovar's film "Tie Me Up! Tie Me Down!" Said the court,

Traditionally, any controversy regarding the content of a motion picture focused on the issues of censorship and free speech, not on the fairness of action taken with regard to a particular film by an industry rating board.

Censorship is an anathema to our Constitution and to this court. The respondent which created and administers the present rating system also proclaims that it is against censorship. However, notwithstanding the denials of censorship by the respondent, the present system of rating motion pictures "G", "PG", "PG-13", "R" and "X" is an effective form of censorship. It is censorship from within the industry rather than imposed from without, but censorship nevertheless.


For its part, the MPAA contends that because First Amendment issues are not at stake, its rating determination must stand unless there is overt administrative misconduct. Once there is a finding of no administrative misconduct, the argument goes, its expertise ought to be deferred to as a legitimately authorized and duly constituted administrative body. Omitted from this analysis is the question of the reasonableness of the standard which the MPAA applies. If the MPAA is to avoid the relief sought herein then that standard must be rational, not arbitrary.

Initially, the court notes that there is no serious dispute that the court has the jurisdiction to review a film rating determination of the MPAA in the context of an article 78 proceeding. As shall be further discussed herein, the standard of proof necessary for relief and the method of judicial review is very much in dispute.


With regard to "Tie Me Up! Tie Me Down!" a seven-member board viewed the film and unanimously determined that the film should be classified with an "X" rating. The board members individually filled out, in their usual course of operations, rating forms which detailed the basis for the "X" rating. Each of the raters found that two sexually explicit scenes warranted giving the film an "X" rating. The board also found the visual depiction of the sex acts and language accompanying one scene to justify an "X" rating.

Petitioners were afforded an opportunity to delete or edit the objectionable scenes and declined. An appeal of the ruling was heard by the rating appeals board which split down the middle on whether the film warranted an "X" rating. As a two-thirds vote of the appeals board is required to reverse the underlying determination, the "X" rating was upheld.

Petitioners point to no deviance from standard procedures of the MPAA in the rating of the film.

The court notes that at any time a producer may withdraw a film from consideration by respondent and distribute the film unrated. The negative economic impact of not obtaining a satisfactory rating is clear and severe. Petitioners chose to distribute the film unrated.

The MPAA's standard for rating films was described in a memo to the rating board members from the chair of CARA, Mr. Richard D. Heffner. In that memo Mr. Heffner states that the MPAA rates films "as we honestly believe most American parents will want us to". It is evident that the MPAA standard is to rate films "G" through "X" based upon the tastes of the average American parent (AAP). The stated purpose of the rating system is "to provide advance information to enable parents to make judgments on movies they wanted their children to see or not to see" (Valenti, The Voluntary Movie Rating System, at 4 [MPAA 1987]). As such the MPAA rating system is clearly not designed to rate the merits of a film or 5*5 even to advise adults as to which films they may wish to see.

The MPAA's list of cinematic no-nos is predictable: language, violence, nudity, drug use and sex. Notably absent is any sensitivity to the offenses suffered by women, minorities, the disabled and those who may not share the values of the AAP.

This court cannot avoid the notion that the standard is reasonable only if one agrees with it. This standard, by definition, restricts material not because it is harmful, but because it is not average fare.

There is a breach between the standard for protected speech in Roth (supra) and material which the rating board finds acceptable that is wide indeed. Into that breach step those who would create and distribute motion pictures. The manner in which the MPAA rates all films, not just "Tie Me Up! Tie Me Down!" causes this court to question the integrity of the present rating system.

The court notes that the initial rating board and the Ratings Appeals Board members have no special qualifications. "There are no special qualification for Board membership, except one must have a shared parenthood experience, and one must love movies, must possess an intelligent maturity of judgment, and have the capacity to put himself or herself in the role of most parents and view a film as most parents might — parents trying to decide whether their younger children ought to see a specific film." (Valenti, The Voluntary Movie Rating System, at 5 [MPAA 1987].)

Petitioners allege in conclusory fashion that the board members and Ratings Appeals Board are selected and subject to the control of the major motion picture producers and distributor establishment. This court is unable to address this issue because no attempt at offering a factual underpinning for such allegations has been made.

An even more substantial concern is the question, not addressed by the parties, of whether respondent is adequately meeting the needs of America's children in film rating. Having voluntarily taken on this responsibility there may well be the obligation to competently address the task. An often leveled criticism of the MPAA is that violence in films is condoned to a far greater extent than displays of sexual activity. Without professional guidance or input it may well be that the interests of children are not adequately protected or are even endangered by providing color of acceptability to extremely violent and psychologically damaging films.

Although each of the categories which the rating system 6*6 uses is cloaked in terms which suggest that they are fashioned to protect America's children, the inference of concern for the welfare of children is not borne out by any scrutiny of the standard and the guidance given to the rating board members. The standard is not scientific. There are no physicians, child psychiatrists or child care professionals on the board, nor is any professional guidance sought to advise the board members regarding any relative harm to minor children. No effort is made to professionally advise the board members on the impact of a depiction of violent rape on the one hand and an act of love on the other, nor is any distinction made between levels of violence. In this regard, the court notes the following from Mr. Heffner's December 1988 memo to rating board members: "Be concerned about violence, for American parents increasingly are * * * but remember always how much violence seems to be accepted, perhaps even expected, in television and films."

Excerpts of Valenti's description of what the ratings indicate are probative of the relative tolerance with which violence in films is permitted related to material of a sexual nature:

"R: `Restricted, under 17 requires accompanying or adult guardian' (Age varies in some jurisdictions) * * *.

"The language may be rough, the violence may be hard, drug use content may be included, and while explicit sex is not to be found in R-rated films, nudity and lovemaking may be involved * * *.

"X: `No one under 17 admitted' * * *.

"The reason for not admitting children to X-rated films can relate to the accumulation of sexually connected language or of explicit sex, or of excessive and sadistic violence". (Valenti, The Voluntary Movie Rating System, at 8 [MPAA 1987].)

Thus, the MPAA rates films on a purely subjective basis of what they believe is the AAP criteria for their children. A film may be viewed by children that may contain "hard violence" and "drug use" but not "explicit sex". Only "excessive and sadistic violence" will result in an "X" rating. It may well be that the MPAA ratings are skewed towards permitting film makers huge profits pandering to the appetite for films containing "hard violence" and "drug use" while neglecting the welfare of children intended to be protected by the rating system. This court concludes that reliance upon a nonprofessional rating board is misplaced and that the effort by the MPAA to encourage a more lenient policy toward violence is indefensible.

The failure of the rating system to provide a professional 7*7 basis leaves only the viewing taste of the AAP, the consumers, as the standard. This standard may serve as a basis for a successful marketing strategy but may not coincide with the advice child care professionals might offer.

It may make good business sense not to ask a question if you might not like the answer, but it does render as hypocritical Mr. Heffner's claim that the sole rationale for the "X" rating is to avoid psychological abuse of children. The industry that profits from scenes of mass murder, dismemberment, and the portrayal of war as noble and glamorous apparently has no interest in the opinions of professionals, only the opinions of its consumers.

The record also reveals that films are produced and negotiated to fit the ratings. After an initial "X" rating of a film whole scenes or parts thereof are cut in order to fit within the "R" category. Contrary to our jurisprudence which protects all forms of expression, the rating system censors serious films by the force of economic pressure. The MPAA requires that American films deal with adult subjects in nonadult terms, or face an "X" rating. Films shown under the present system tend to be restricted to those fit for children under 17, as defined by the AAP.

The heart of petitioners' grievance is that an "X" rating stigmatized their film and lumped it into a category with pornographic films which none of the parties or serious critics contend should be done. Petitioners wish the court to award an "R" rating or alternatively seek to have the court determine that the rating system itself is patently arbitrary and capricious or without rational basis.

At its inception, the rating system denoted the various levels by the use of symbols and registered those symbols as trademarks, with the notable exception of the "X" rating. The effect of that exception (not explained in the papers submitted or during oral argument) has been to permit those who characterize themselves as pornographers to appropriate the "X" rating for their own purposes. "X rated" is now synonymous with pornography. For a film not intended for the pornography market, the rating of "X" is a stigma that relegates the film to limited advertising, distribution and income.

While it may be true that the MPAA has permitted the "X" rating to be appropriated by the pornography industry with a concomitant tainting of any film awarded an "X" rating, petitioners do not allege any bad faith or foresight in respondent's failing to register the "X" rating. While arguing in conclusory fashion that the current system works to the 8*8 detriment of certain types of films and film makers, petitioners do not set forth an adequate factual basis on the papers before this court, or oral argument, to warrant such findings.

The court notes that it is clearly precluded in judicial review from substituting its judgment for that of the body reviewed or from considering the facts de novo (see, Matter of Colton v Berman, 21 N.Y.2d 322; Matter of Clancy-Cullen Stor. Co. v Board of Elections, 98 AD2d 635; Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373). This principle will also apply to a review of a determination of a private nongovernmental organization (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530). This court is also precluded from imposing a different (professional) standard because the MPAA may not be required to do so under the First Amendment. Therefore, the burden is on petitioners to set forth facts indicating that respondent acted arbitrarily, capriciously and without rational basis in applying the standard of the AAP. This petitioners have clearly failed to do. Within the context of this rating system for parental guidance there has been no showing that the "X" rating afforded "Tie Me Up! Tie Me Down!" was without a rational basis or arbitrary and capricious. Petitioners themselves acknowledge that the film contains material that is not suitable for those under the age of 18 and there is no dispute that the film contains language and sexually explicit scenes that parents might not wish their children to view.

As a part of this proceeding, the court has been requested to view selected scenes from "Tie Me Up! Tie Me Down!" and scenes from other films rated "R" in order to determine if the "X" rating was arbitrary. That determination this court declines to make.

This court will not dignify the present system by rendering an opinion on so frivolous a standard as the wishes of the AAP. What is offensive is the unprofessional standard itself, not the manner in which the rating board applies it. The standard of the AAP is a marketing standard, a tool to aid in promoting films. There is no basis in the record for the court to conclude that the MPAA does not know how to label its products for market, there is only a question as to the significance of the labeling.

At best the offering of clips of "R" rated films into evidence amounts to an argument of discriminatory enforcement of the rating standards. That over the course of more than two decades a handful of films may have been as sexually explicit 9*9 as "Tie Me Up! Tie Me Down!" or arguably, in the eyes of the beholder, more explicit and unsuitable for youthful viewers and have obtained an "R" rating is not inherently arbitrary and capricious or without rational basis. To find respondent's actions of affording the "R" rating to certain films and not to "Tie Me Up! Tie Me Down!" to be wrongful, the court believes petitioners need offer evidence of clear and intentional discrimination (see, Matter of Di Maggio v Brown, 19 N.Y.2d 283). Petitioners have failed to do so. Merely alluding in conclusory fashion to possible vague discrimination is not sufficient. Additionally, the overriding concern is whether respondent acted in good faith in furtherance of its own legitimate purpose (see, Matter of Levandusky v One Fifth Ave. Corp., 75 N.Y.2d 530, supra). Petitioners do not, other than by cursory conjecture, substantiate any basis to indicate respondent acted in bad faith or outside of its stated function in its rating of "Tie Me Up! Tie Me Down!"

There are also questions of the good faith of the petitioners in instituting this proceeding. As aforesaid, the allegations of economic prejudice and discrimination are unsubstantiated and the exploitation of the "X" rating by the petitioners in their advertising and their refusal to cooperate in the review process until after they had physical possession of the "X" certificate leads to the inference that this proceeding may be just publicity for "Tie Me Up! Tie Me Down!"

Petitioners, without a shred of substantiation, contend that respondent may be motivated by a prejudice towards foreign films as well as a prejudice towards independent distributors. Such allegations, in the form of conjecture and wholly conclusory in nature, will not provide a basis for relief or even an evidentiary hearing (see, Matter of Cannon v Urlacher, 155 AD2d 906; Gagnon v Board of Educ., 119 AD2d 674; Matter of Feigman v Klepak, 62 AD2d 816). However, the court notes, and respondent should be guided accordingly, that should such discriminatory practice be substantiated in the context of an article 78 proceeding or a plenary action by such a subject discriminated group of film makers, based upon restraint of trade or intentional interference with prospective economic advantage, there may well prove to be a basis for relief.

This court is mindful of constitutional limitations on the imposition of a governmental system of censorship (see, Interstate Circuit v Dallas, 390 US 676). The courts would thus be reluctant to tamper with a voluntary independent system of film rating. However, in view of the dominant and preemptive 10*10 role played by the MPAA in the film industry there is an obligation to administer the system fairly and with a foundation that is rationally based. This proceeding has raised certain issues which need be addressed by respondent although no relief may be afforded herein. The initial problem is the need to avoid stigmatizing films of an adult nature, which ought not be seen by children, but which are clearly not pornographic. The MPAA, having acquiesced in the use of the "X" rating by the pornography industry, may well have some affirmative responsibility to avoid stigmatizing films with an "X" rating.

This court also concludes that the rating system's categories have been fashioned by the motion picture industry to create an illusion of concern for children, imposing censorship, yet all the while facilitating the marketing of exploitive and violent films with an industry seal of approval.

While the petition before this court does not adequately present a case for addressing these serious issues, it appears that the MPAA should strongly consider some changes in its methods of operations to properly perform its stated mission. Unless such concerns are meaningfully dealt with, the MPAA may find its rating system subject to viable legal challenge by those groups adversely affected herein, including organizations charged with the responsibility of protecting children.

If the MPAA chooses to rate films for the benefit of children it is its duty to do so with standards that have a rational and professional basis or to leave the task to others whose interests are not subject to the powerful economic forces at work within the industry. The respondent is strongly advised either to consider proposals for a revised rating system that permits of a professional basis for rating films or to cease the practice altogether. The petition before this court is, however, not the appropriate vehicle to afford such relief.

Accordingly, the petition is dismissed and the relief sought denied.




November 18, 2010 | Permalink | TrackBack (0)

Investigation Opened Into Some Student Behavior at Medill Innocence Project

State attorneys are investigating possible ethical and legal violations alleged to have been committed by Northwestern University journalism students working on the school's Innocence project. Prosecutors say the students may have secretly taped a witness while investigating one case, something that is prohibited under Illinois law. More here from Chicago Breaking News Center.

November 18, 2010 | Permalink | TrackBack (0)

Egyptian Blogger Release After Four Year Prison Sentence

Blogger Kareem Amer is out of jail after serving four years for insulting Islam and committing other crimes. Here is a link to a Reporters Without Borders press release announcing Mr. Amer's return to his home.

November 18, 2010 | Permalink | TrackBack (0)

Google, Hachette Agree On Scans For Some French Out of Print Titles

Google and Hachette Livres have agreed on which copyrighted but o.p. materials Google can scan for its Google Books program. Hachette will make the call. Google is appealling a December French court ruling that found it in violation of French copyright law concerning scans of other French books.

November 18, 2010 | Permalink | TrackBack (0)

Student Speech On and Off School Grounds

Emily Gold Waldman, Pace University School of Law, is publishing Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions, in volume 19 of the William and Mary Bill of Rights Journal. Here is the abstract.

This Article offers a new perspective on what is arguably the thorniest, most pressing issue in student speech rights today: the extent to which schools can regulate students’ off-campus speech, particularly on the internet. Although numerous scholars have considered this topic, there has been little critical focus on the fact that most of these cases are arising in one very specific category: student speech that is hostile toward school officials. In fact, that has been the context of all four of the student internet speech cases that have reached the circuit court level so far, including two cases that are currently pending in the Third Circuit after being reheard en banc.

In this Article, I explore the issue of students’ hostile speech about school officials, both on and off school grounds. To what extent can schools legally restrict such speech, and how does that change when the speech originates off campus? Conversely, what legal and educational risks do schools face by not responding to such speech? I look to both case law and relevant psychological research to answer those questions, and then propose a standard that focuses on preserving students’ ability to express dissenting views while also protecting school officials from harassment. My analysis suggests that the on-campus/off-campus distinction, while important, should be less central to the outcome than the content of the speech itself. Indeed, I argue that courts are under-protecting some on-campus speech that qualifies as legitimate dissent, while over-protecting some off-campus speech that largely amounts to harassment.

Download the article from SSRN at the link.

November 18, 2010 | Permalink | TrackBack (0)

Jeff Zucker On The Comcast/NBCU Merger

Jeff Zucker discusses the Comcast/NBCU merger and other issues here (via Hollywood Reporter).

November 18, 2010 | Permalink | TrackBack (0)

Copyright and Content Online

Niva Elkin-Koren, University of Haifa Faculty of Law, is publishing Tailoring Copyright to Social Production, in volume 12 of Theoretical Inquiries in Law (2011). Here is the abstract.
The prevalence of social production and the increase in User Generated Content (UGC) destabilize some of the fundamental premises of our current copyright law. Copyright law is primarily designed to regulate the relationships of a single owner with other non-owners and is focused on the sovereignty of the author/owner. Social production, by contrast, requires us to articulate a matrix of relationships between the individual, the facilitating platform and the communities and crowds involved in social production. The transition from industrial production to social production transforms the social relations associated with the production of content and therefore requires adjustment of the institutions that design such relations.

This Article closely examines the social dimension of content production and analyzes the consequences for the governance of content in the social web. The Article proceeds as follows: Part I describes social production and analyzes the implications for the stakeholders involved. I focus on three key features of social production which affect why we create, how we create, and what assets are generated by these social processes involving creation. Part II explains why social production might be incompatible with the current copyright regime. In particular, I argue that copyright law mainly defines rights against strangers and fails to provide a framework for managing the rights and interests within a gigantic group of collaborators.

Download the article from SSRN at the link.


November 18, 2010 | Permalink | TrackBack (0)

Wednesday, November 17, 2010

Localism and Communications

Jon Garon, Hamline University School of Law, has published Localism as a Production Imperative: An Alternative Framework to Promoting Intangible Cultural Heritage and Expressions of Folklore, in Bits Without Borders--Law, Communications & Transnational Culture Lfow in the Digital Age, September 2010. Here is the abstract.

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.

Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect these interests into trade policy, content distribution rules, and the legal regimes of copyright and trademark. Some jurisdictions, for example, emphasize the need for historical preservation of particular culture and content. Other jurisdictions emphasize localism to promote domestic employment and economic growth. At the same time, however, other regulators are cloaking governmental censorship under the guise of protectionism.

These efforts assume, arguendo, that some model of protectionism is necessary to assist these communities. Because there are many different types of intangible cultural heritage – local languages, tribal customs, religious traditions, folklore, styles of artworks, etc. – this assumption may be counterproductive. Particularly in our increasingly networked, global information community, assumptions of territorial protections must be reconsidered.

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on localism’s attributes of developing human capital to improve the quality of content being produced and encouraging local communities to focus on the content of their own choosing.

Download the essay from SSRN at the link.

November 17, 2010 | Permalink | TrackBack (0)

Copyright Protection For "Unfixed" Works

Larisa Mann, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing If it Ain’t Broke.... Copyright’s Fixation Requirement and Cultural Citizenship, in a forthcoming volume of the Columbia Journal of Law & the Arts. Here is the abstract.

Copyright subsists in creative works that are “fixed in any tangible medium of expression,” usually understood as making fixation a prerequisite for protection. However, some argue that denying copyright to unfixed works unfairly denies protection to certain classes of artists or works, and that fairness, or concern for those classes of artists or genres, requires that they receive the benefit of copyright ownership for those unfixed works. These arguments generally assume the benefits of copyright protection to the artist, and often by unexamined extension to society. However, copyright ownership has social costs as well as social benefits. This paper examines the possible costs of applying copyright protection to unfixed works, in the context of the specific artists, traditions, genres, and practices that rely mainly on unfixed works. It argues for a deeper, more empirically grounded understanding of the creative process and a broader definition of values that arise from culture-making, and thus a broader understand of the public policy implications in copyright law.

Download the article from SSRN at the link.

November 17, 2010 | Permalink | TrackBack (0)

The Beatles Have Landed

...with great success on iTunes, and reports are that their albums are selling extremely well. The NYT opines that the addition of Beatle Tunes to Apple's stock was a Very Good Idea.

November 17, 2010 | Permalink | TrackBack (0)

Oyez Project moves to IIT Chicago-Kent

From the Chicago-Kent College of Law

CHICAGO--November 12, 2010-IIT Chicago-Kent College of Law is the new headquarters of the Oyez Project ( <> ), a multimedia archive devoted to the Supreme Court of the United States and its work. Visited more than 750,000 times in the past 30 days, the site aims to be a complete and authoritative source for all audio recorded in the Court since the installation of a recording system in October 1955.

The site's archive of digitized arguments enables users to search for key terms relevant to their research. A search for a particular term, such as "strict scrutiny" or "substantive due process," yields a list of snippets from case transcripts that link to the corresponding audio recording.  The new version will have identification of the speakers as they speak.

"No other site boasts such functionality," said Chicago-Kent Dean Harold J. Krent. "With the Oyez Project, Chicago-Kent leverages the power of the Internet to deliver a unique legal resource to students, scholars, lawyers, jurists, legislators, teachers and countless others who are interested in the dynamics of the U.S. Supreme Court."

Founded and directed by political scientist Jerry Goldman, the site also provides written summaries of Supreme Court cases and holdings, links to the written opinions, detailed biographies and voting records of Supreme Court justices, and a virtual tour of the Supreme Court building.

The site will soon make its content widely accessible to mobile users via apps for iPads and other handheld devices. iPhone apps for selected content are already available.

Chicago-Kent plans to utilize the research of its students and faculty in further content development. "Bringing Oyez to Chicago-Kent allows us to expand our initiatives at the forefront of law and technology," said Dean Krent. "It also presents a valuable opportunity for our law school to reach out to a larger community and for our students to work on Supreme Court projects knowing that their work will be viewed far and wide."

November 17, 2010 | Permalink | TrackBack (0)

The NBA, Dress Codes, and Self Expression

D. Aaron Lacy, Southern Methodist University School of Law, has published Represent: Hip Hop Culture, the NBA Dress Code and Employment Discrimination. Here is the abstract.

The National Basketball Association’s current dress code policy is discriminatory toward African-American men because it places a higher burden upon African-American men than it does upon other members of the NBA. This policy is rather obviously based upon a negative reaction by team owners and NBA officials to the infiltration of hip hop culture into the NBA. The article investigates the legal and social merits of this policy in light of the fact that the NBA has arguably benefited from its association with hip hop culture, and given that this policy is arguably not job-related.

Download the paper from SSRN at the link.

November 17, 2010 | Permalink | TrackBack (0)

Producer Arrested In Wife's Murder

From Findlaw: Bruce Beresford-Redman will appear in court today for the first time in a fight over his extradition to Mexico. He is suspected in his wife's murder. Monica Beresford-Redman was found dead at a Mexican resort in April of this year. Authorities arrested Mr. Beresford-Redman yesterday, pursuant to a request from the Mexican authorities.

November 17, 2010 | Permalink | TrackBack (0)