Saturday, December 18, 2010
The New York Times comments on FCC Chair Genachowski's proposed new "rules of the road" for the Internet. Says the editorial in part,
The rules proposed so far have several weaknesses. For one thing, they forbid blocking Internet traffic or “unreasonable” discrimination against carrying some online content. But they do not ban the practice of paying to prioritize some Internet traffic over the rest.
Even more problematic is the treatment of the fast-growing new markets for mobile broadband access. While carriers will not be allowed to block Web sites or applications that compete with carriers’ voice and video telephony, the proposal exempts wireless from the rule barring unreasonable discrimination on the grounds that wireless broadband is new and unsettled.
Absent a bar against anticompetitive discrimination, carriers could stop competing GPS or mapping applications from running on their networks. The rules might even allow carriers to block the application used by a company like Netflix to stream movies onto a mobile device to aid their own movie businesses.
Friday, December 17, 2010
That sequel to "Catcher in the Rye" is permanently enjoined from sale in the U.S. The defendants and their agents and representatives may not manufacture, publish, distribute, advertise, promote, sell, or "otherwise disseminat[e] any copy of the book 60 Years Later by Fredrick Colting writing under the name J.D. California, or any portion thereof,in or to the United States." More here from THR, Esq.
This Note is about the First Amendment issues that are raised when political candidates use music in conjunction with political campaigns without the consent of songwriters and recording artists. Sometimes, based on the circumstances, copyright law provides a clear remedy for a contested use. Other times, however, an artist will have to look to other legal doctrines for a remedy. Although there are other doctrines that the musical artist may invoke, this Note will demonstrate that these alternative avenues of relief are inadequate to protect the artist and also flawed in that they fail to fully address the unique First Amendment concerns that arise in such a scenario. There is, thus, a lacuna in this area of the law - a "gap" that Congress must fill.
This Note argues that Congress should address this lacuna by providing a remedy that would protect the rights of musical artists not to associate, through their music, with the campaign of a candidate whose views they do not share. I will discuss this First Amendment-based nonassociation interest, which is entangled with the related interest against compelled speech. These two interests, taken together, constitute a strong reason for Congress to fill the lacuna, thus protecting musical artists. Such a remedy, however, must also take into account the competing First Amendment interests of the political candidates who seek to express their political views through music.
Part I of this Note will set the stage with a discussion of the relevant portions of the Copyright Act, followed by a historical survey of the use of music in political campaigns. Section I.A will explain how the statutory structure of copyright law, in tandem with practices inherent to the music industry, leads to a scenario in which a musical artist is without legal recourse under the Copyright Act. Section I.B will discuss the history of the use of music in political campaigns and survey the legal battles arising out of several contested uses, noting the specific claims the plaintiffs stated in each. Part II of this Note will then discuss the two competing First Amendment issues that are at stake when a politician seeks to use a song or sound recording for political speech while the writer or performer of that song or sound recording wishes not to be associated with that speech.
Part III will address the existing avenues of relief (outside of copyright) that are available to a hypothetical plaintiff, namely, a right of publicity action and a claim under § 1125(a) of the Lanham Act. Section III.A will address the right of publicity, concluding that it is an unreliable cause of action that does not lend itself to the necessary balancing of competing First Amendment interests and that it is also unlikely to provide a remedy for our plaintiff. Section III.B will address the Lanham Act, and conclude that such a plaintiff is not likely to find relief under the Act
Additionally, trademark doctrine is not equipped to fully and consistently address the unique First Amendment interests underlying such a scenario. The various tests that have been developed by the courts to address First Amendment issues in Lanham Act cases are inadequate to address this scenario, which implicates competing First Amendment interests - as opposed to a more typical case, in which the First Amendment is simply used as an affirmative defense by a plaintiff. Section IV.A will propose that Congress enact legislation to create a remedy that fills the lacuna by protecting musical artists while also ensuring that the First Amendment rights of political candidates are not unduly burdened. Finally, section IV.B will address two implications of the proposed legislation.
This Note will conclude that political candidates should generally be required to obtain the consent of musical artists in order to use a song, but when such a use rises to the level of true political speech - in that it communicates a discrete political message pertaining to a matter of public concern - political speech interests outweigh the competing nonassociation interests of the musical artist and the use should be permitted with or without consent.
Download the Note from SSRN at the link.
This small paper attempts to answer inquiries received during the span of at least a decade. It contains little information that is unavailable at the Copyright Office website, but it focuses on the needs of a much smaller, if sizable, audience.
In the context of what is called the new media environment, the term “sports image” is used meaning the athlete’s right to their own image as well as the right to exploit commercially a sports event.
Under Greek law sports events are not recognised as original intellectual products, so they are not protected under the Law on Intellectual Property. Individuals (sportsmen) producing the sports event, are not aware of the result, i.e. its final form. The elements of competition and improvisation combined with physical contact are enough to guarantee a different result every time, no matter how many times the event is repeated. This is why a special legal provision had to be introduced.
To what the athlete’s right to their own image is concerned the Greek legislator seems to have defined the personality right in a general way allowing thus the content of this right to be constantly expanded in order to cover for the ever growing needs of our times. As a result enumerating all the rights contained in the general personality right is neither possible nor useful. It is up to the bearer of the right to decide each time whether their personality is offended in any way. The protection of one’s image right does not come without restrictions or exceptions. Also the athlete as a bearer of the right may “legitimise” an infringement. The most common legal tools in order to justify an otherwise illegal infringement in most European countries are the athlete’s consent or the doctrine of the acceptance of risk or the public’s right to information.
The purpose of the present paper is to present the Greek law concerning the protection of the sports image as well as the exceptions to this protection and to compare the provisions to those of other European countries in order to show that more often than not similar problems inevitably result to similar solutions.
Thursday, December 16, 2010
In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages. Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’. Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.
Download the article from SSRN at the link.
Wednesday, December 15, 2010
High drama on the Italian legislative floor this week as Prime Minister Silvio Berlusconi escaped disaster, surviving a confidence vote by three yeas. Three pregnant women arrived to vote against him. Votes shifted one way, then the other. Accusations of vote buying flew around the chamber. Inside, plotters plotted, outside, protesters protested, and the police policed. Hollywood could not have written the script better. Mr. Berlusconi lives to wield power for a little while longer. More here from The Hollywood Reporter and from the New York Times.
Wilkileaks founder Julian Assange, although granted bail yesterday, is still in custody after the Swedish government challenged his release. The Swedes are seeking his extradition on sex offense allegations brought by two women. The U.S. government is also considering whether to charge Mr. Assange with espionage for publishing secret documents on the Wikileaks site.
Tuesday, December 14, 2010
A British judge has set bail at 200,000 pounds for Wikileaks founder Julian Assange. He must surrender his passport to ensure he will not flee the jurisdiction. He will stay at the estate of a friend and will be under electronic monitoring.
Los Angeles judge Judge H. Chester Horn Jr. sentenced former tv chef Juan--Carlos Cruz to nine years in prison for trying to hire two homeless men to kill his wife and ordered the star of "Calorie Commando" and author of The Calorie Countdown Cookbook to pay nearly $2000 in restitution payments. Mr. Cruz must serve nearly five years before he can ask to be considered for parole.
Monday, December 13, 2010
How to protect against joke theft is an up and coming area of IP law, or would be if IP lawyers could figure out how to protect jokes from being stolen. The NYT's Dave Itzkoff writes here about Craig Ferguson's recent encounter with a French admirer and other recent instances in which the Internet has made the discovery of imitation (or admiration) somewhat easier than it would have been otherwise. For more on comedy and developing norms in the area, see the short bibliography below.
Allen D. Madison, The Uncopyrightability of Jokes, 35 San Diego Law Review 111 (1998).
Michael J. Madison, Of Coase and Comics, Or, The Comedy of Copyright, 95 Virginia Law Review In Brief 27 (2009).
Dotan Oliar and Christopher John Sprigman, From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create, The John M. Olin Program in Law and Economics Working Paper, 2009 No. 60
Dotan Oliar and Christopher John Sprigman, Intellectual Property Norms in Stand-Up Comedy, in The Making and Unmaking of Intellectual Property (University of Chicago Press, 2010).
Dotan Oliar and Christopher John Sprigman, There's No Free Laugh Anymore: The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Virginia Law Review (2008).
K. J. Strandburg, Who's In the Club?: A Response to Oliar and Springman, Virginia Law Review In Brief 2009