January 8, 2011
History Channel Drops Plans To Air "Kennedys" Series
The History Channel has decided not to air the controversial docudrama The Kennedys, a production by Joel Surnow. Criticism of the project began early last year, and continued throughout filming. The drama may still air outside the U.S., since the History Channel has broadcast rights only in this country.
January 7, 2011
News of the World Suspends Assistant Editor; Sienna Miller Decides To Sue Over Phone Hack
Some Members of Parliament are asking for yet another inquiry into the News of the World phone hacking affair, this after the paper suspended its assistant news editor on Wednesday. The Guardian has obtained permission from a court to see documents that apparently show he okayed tapping actress Sienna Miller's phones. Meanwhile, Ms. Miller has apparently already decided to sue the paper. The Metropolitan Police have said they won't reopen the case, but that may change.
Cryptography and Protection of Digital Evidence
In this article, the author presents an interesting study from a technical-legal scope, about the cryptography, technique used for the cipher of messages that contain information, including its evolution along the history, and the functions of the cryptography in the digital environment, and its extremely important utility in the context of the digital evidence treatment. After exposing the restrictions to the use of the cryptography and the strong controls that some countries have imposed to the export, import and domestic use of cryptographic techniques, the author stands out the absence of regulation of the cryptography in Colombia and the need to establish an state policy on this discipline, and suggests the items that should be considered as a priority in this public policy.
The Comparative Law of Ownership of Works Created In Employment Relationships
Great quantities of copyrighted works around the world are produced in the context of labor law Relationships. The ownership of these works has been regulated in different ways by the national laws of each country, and the only attempt of legal harmonization has been found in the European Community regarding computer programs created in the course of employment. The sovereignty and territoriality principles by with each country can enact its own laws in its territory to rule on the ownership question has been applied by countries. As an example, Germany and United States have regulated the subject in their respective national copyright laws. Nonetheless, there are similarities and differences in the ways that these two countries regulate the ownership of economic rights. In other countries, such as Colombia, lawmaker have established a legal rule regarding the ownership of moral rights in copyrighted works, but does not define a clear rule on the important issue of the economic rights in such works. This ambiguity has caused legal uncertainty, raising the question as to whether these types of rights belong to employees, private contractors, freelancers or employers. Taking into account the current issues that can arise in works created in employment relationships, this paper will make a comparative study of the laws of Colombia, Germany and the United States of America.
Download the paper from SSRN at the link.
January 6, 2011
Call For Papers
Call For Papers
The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester.
Topically, the organizers take a broad view of what constitutes “Internet Law” scholarship, and we welcome all types of scholarly approaches (doctrinal, theoretical, empirical, etc.). We offer three ways to participate in the event: Papers-in-Progress Presentation for paper drafts sufficiently advanced to share with event attendees; Projects-in-Progress Presentation for research projects without a paper draft for attendees to review in advance; Discussant.
Those interested in participating should email Eric Goldman (egoldman [at] gmail.com) no later than Jan. 17, 2011.
More information at the SCU and NYLS websites.
January 5, 2011
VOD Regulation In the UK
Media regulation in the United Kingdom has traditionally seen a division between State regulation (in the case of broadcasting) and self-regulation (in the case of newspapers), both subject to laws of general application. However, co-regulation has emerged as a significant feature of contemporary regulation of the media, particularly in relation to video- on-demand (VOD). This article considers the various stages of consultation and implementation of the European Union’s Audiovisual Media Services Directive (AVMSD) in the United Kingdom. A proposal for a new approach to categorizing and analysing relevant statutory provisions and regulatory arrangements that pertain to audio-visual media including VOD is made. Other issues are explored, including methods of regulation, technological and organizational developments in the media industries, and the impact on community media and the film industry. It is argued that the AVMSD did not resolve all issues in relation to the scope of regulation, and that even the most recent developments in the launch of co-regulation highlight the diverse forms of media regulation now in force.
Copyright Law and Fan-Made Derivative Works
Fan-made derivative works based on works of popular culture have a growing importance in twenty-first century culture, and in fact represent the rebirth of popular folk culture in America after a century of being submerged beneath commercial mass-media cultural products. The Internet has enabled what scholar Lawrence Lessig calls a “read/write” culture where ordinary Internet users are empowered to become active creators of culture rather than mere passive consumers. Yet if this exciting trend is to continue, the copyright laws of the twentieth-century must adapt to accommodate the possibilities of the twenty-first.
This Article describes the importance of amateur fan-made derivative works in the new folk culture of the twenty-first century, and demonstrates how this culture is under attack by the creators of the popular works it pays tribute to. It describes how overreaching copyright claims by media companies cast a considerable chilling effect on vibrant new art forms such as fan fiction, fan-made videos, and virtual worlds. Finally, this Article argues that the Copyright Act must be amended to (1) explicitly clarify that noncommercial, transformative works are fair use, (2) ban the use of the DMCA takedown process and automated copyright filters to block this type of content, and (3) provide real penalties to deter copyright owners from abusing copyright law to suppress legitimate follow-on creativity.
The full text is not available from SSRN.
Media Regulation Today
In addition to prominent constitutional theories relating to the importance of political speech, the Supreme Court on countless occasions has stated that political speech, or speech relating to the conduct of self-government, is the kind of speech with which the First Amendment is most concerned and should most protect. Under current First Amendment jurisprudence, however, not only do some constitutional doctrines fail to favor political speech, but at times political speech actually receives more disadvantageous treatment than does indecent commercial media entertainment. This Essay examines some ways in which this has occurred, along with the reasons for such disadvantageous treatment. Such an examination will involve the legacy of First Amendment doctrines born nearly a century ago and under a much different media environment than what exists today. Using the marketplace metaphor that was first articulated by Justice Holmes nine decades ago in his dissent in Abrams v. United States, this Essay argues that the Court has articulated First Amendment doctrines that end up greatly benefiting nonpolitical media entertainment - sometimes at the expense of political speech.
Current First Amendment doctrines can give the illusion, by protecting the vilest and most vulgar of speech, that speech in general is overly protected, which in turn results in a backlash that can spill over to political speech.
The full text is not available through SSRN.
Tim Goodman's Blog Reappears at THR
Tim Goodman's blog The Bastard Machine has found a new home at the Hollywood Reporter.
Critics and admirers alike are reacting to a publisher's new edition of Mark Twain's New Adventures of Huckleberry Finn. New South Publishers of Alabama has put out an edition of the book with the N word excised and the word "slave" put in its place. What would Mr. Twain have thought? Well, he thought pretty highly of his right to protect his own work. Read this New York Times article from December 12, 1906, in which he explains his plan to beat those who wanted to read and/or republish his work for free, after the copyright had expired.
January 4, 2011
The Comic Book, Copyright Law, and Comic Book History
This is a meditation on the creative process, copyright law, and comic book history.
Intellectual Property Law in Egypt
The conventional wisdom in Egypt examines the issue of intellectual property solely as a question of policing and enforcement. The high levels of protection indicated by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights are unquestioningly assumed to be desirable. Policy debates - and all too often academic ones as well - focus only on the questions of how to more efficiently tighten IP protection and crack down on piracy. Yet a more critical examination is urgently needed, whereby IP law, policy, and practice are viewed from a development perspective, rather than from an enforcement perspective.
This volume takes on this endeavor. It offers the first examination of IP issues in Egypt adopting a multidisciplinary bottom-up approach that aims at maximizing access and contribution to knowledge, and in turn, promoting development. Bringing rigorous empirical research to bear on unquestioned ideologies, the collaborating authors question the conventional wisdom that more IP protection is necessarily better for innovation and development.
Download the introduction from SSRN at the link.
New York Court Upholds "Amazon" Holding
In Amazon.com LLC et al. v. New York State Department of Taxation and Finance et al., the Appellate Division of the New York Supreme Court upheld and remanded New York’s “Amazon” law. The appeals court correctly held that the New York statute, on its face, comports with the dormant Commerce Clause physical presence nexus test articulated in National Bellas Hess v. Department of Revenue and confirmed in Quill Corporation v. North Dakota. The Appellate Division also correctly held that, on its face, New York’s Amazon law complies with the requirements of Due Process though, on this point, the Appellate Division’s opinion reaches the right result in an unconvincing fashion.
On remand to the trial court, of critical import will be the informal administrative construction of New York’s Amazon statute by New York’s Department of Taxation and Finance (“the Department”). The Department concludes that, under the Amazon statute, a New York associate’s unauthorized solicitation activity generates in-state physical presence nexus between New York and the internet seller with which such associate is affiliated. This interpretation of the statute contravenes the dormant Commerce Clause case law of the U.S. Supreme Court and should accordingly be rejected by the New York courts. There is no agency when there is no authority.
The constitutionality of New York’s Amazon law does not ensure the law’s wisdom. Indeed, as a matter of tax policy, New York’s Amazon law is unwise. For the long run, New York’s Amazon statute will cost New York more revenue than New York gains as Amazon and other out-of-state internet retailers will respond to the statute by terminating their associates in the Empire State. The best resolution of the problem addressed by New York’s and other states’ Amazon laws is for Congress to legislate pursuant to the Commerce Clause to permit the states to impose sales and use tax enforcement responsibilities on internet (and mail order) sellers regardless of such sellers’ physical presence vel non in the taxing state.
A History and Analysis of Patent Law
The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from the Court’s opinions. The article suggests that renewing consideration of the idea of a law of knowledge would bring some clarity not only to patentable subject matter questions in particular but also to much of intellectual property law in general.
The full text is not available from SSRN.
Free and Open Source Software
Free and open source software (FOSS) is a movement continually gathering accolades as a non-market based system of knowledge production and distribution. This continues even while commercial influences overtake the movement, resulting in many hybrid approaches to software development and appropriating value from the resulting code. FOSS licensing harnesses the phenomena of peer-production, where distributed collaboration among scattered but organized community members results in both new software and a new development methodology. Source code availability, an enforced feature of one major type of FOSS license, enables the peer-production methodology and facilitates knowledge distribution in the form of freely available code as a learning platform. Other FOSS benefits, however, are more ambiguous, such as whether the movement inherently produces higher quality code compared to proprietary software development, or whether it allows for sufficient appropriability to economically support non-incremental advances in information technology. This article assesses these questions generally with reference to the FOSS licensing system and its two primary modes of licensing, and specifically with reference to an increasingly important appropriability mechanism for software – patent protection. One mode of FOSS licensing uses a feature called, tongue-in-cheek, copyleft, which uses copyright law to ensure that distribution of the code prevents its direct incorporation into proprietary software. The other mode of FOSS licensing is more permissive, allowing its use even in proprietary software without source code availability and even without any monetary remuneration to the originators. Both modes have differing appropriability implications apart from patent law. Patent protection complicates the FOSS licensing system, creating potential for greater nuance in appropriability as well as greater power over competitors and communities. The article concludes by illustrating these possibilities with two exemplary areas of patent law doctrine likely to be at issue in such circumstances: implied license and factors for evaluating whether an injunction should issue.
Download the article from SSRN at the link.
January 3, 2011
Hate Speech and Latin American Norms and Legal Regimes
In Latin America, like many countries in Europe, hate speech is prohibited. Yet, Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discussion is captured by the binary comparisons between the advisability of Europe’s hate speech regulations as opposed to the United States free speech acceptance of hate speech. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, are undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise in the occurrence of hate speech worldwide.
Expanding the transnational hate speech discussion to incorporate the Latin American context, can help to provide insights about which legal structures are pragmatically more effective. For persons of African-descent frequently subjected to the blows of racist hate speech in Latin America, there is little effective enforcement of the criminal law sanctions that predominate. In contrast, civil law remedies have shown greater success at responding to the harms of hate speech.
This Article begins by presenting in Section I, the social science research regarding the harms of hate speech. Section II then examines the international law sanctions against hate speech and the ways in which they have inspired Latin American hate speech laws. The enforcement of the Latin American hate speech laws will then be assessed in Section III, and the Brazilian litigation regarding the “Look At Her Hair” song lyrics will be examined as a case study in Section IV. With the benefit of the Brazilian case study, the Article then concludes that the predominant criminal law approach is a poor vehicle for regulating hate speech. What is needed is a framework for civil remedies that is better formulated to address the harms of hate speech and its hindrance to racial equality.
Download the article at the link.
The News Media and Coverage of the Duke Lacrosse Team Scandal
In spring 2006, three white members of the Duke University men's lacrosse team were indicted in the alleged sexual assault of an African-American dancer at a team party. The allegations proved to be unfounded and the players ultimately were declared actually innocent, but only after a campus and media firestorm that resulted in numerous media apologies, the disbarment of the District Attorney, and multiple lawsuits.
The many features of this now famous controversy are best understood in the context of the three major socio-legal institutions in which the drama played out. The legal system, Duke University, and the news media all struggled to respond to and handle the case, tinged as the events were with race, sex, violence, class, privilege, and notions and perceptions about sports. The problems, missteps, mistakes, and injustice in the CSE resulted from each institution's failure to operate properly, from the incentives built into each institution that affected individual behavior, and from the inability of each institution to communicate and cooperate with the others. To understand the Duke lacrosse controversy is to student these institutions and to answer questions about the performance of each.
By examining the conduct of these institutions and the individuals within them, the authors in this collection of essays consider the role each played in the case, how each contributed to the crisis and its resolution, the ways in which they interacted with one another, and the lessons this case teaches about the appropriate functioning of each.
Full text is not available from SSRN.