Friday, March 11, 2011
This Note examines the appropriate regulatory framework for the distribution of commercial video content over the Internet. As online video providers such as Netflix and Hulu expand, they are beginning to compete directly with the video services of major cable and telecommunications companies. Because these companies oftentimes also serve as a customer’s Internet service provider, they are in the position of carrying these competitive services over their broadband networks. This state of affairs has led to calls for regulation that would protect nascent online video services from feared anticompetitive actions by the major providers.
In April 2010, against the backdrop of this expanding conflict, the Federal Communications Commission (FCC) - the normal arbiter of American communications policy - was dealt a defeat by the U.S. Court of Appeals for the D.C. Circuit in Comcast Corporation v. FCC. There, the circuit court invalided the FCC’s jurisdictional approach to regulating the broadband Internet. Although the FCC has subsequently reasserted its jurisdiction over broadband, the fallout from Comcast has rekindled debates as to whether broadband is best governed by proscriptive FCC regulation, or whether oversight of this marketplace should be left to the general antitrust authorities - the Department of Justice (DOJ) and the Federal Trade Commission (FTC). This Note argues that, given the uncertainty regarding its authority, the FCC should abandon its efforts to regulate broadband video distribution in the absence of clear market harms. This Note proposes that this dynamic and rapidly evolving marketplace should develop outside the bounds of proscriptive regulations, with antitrust serving as a backstop if market intervention proves necessary.
Download the Note from SSRN at the link.
Thursday, March 10, 2011
The High Court for England and Wales ruled in ITV v. TV Catch Up, a case regarding communication to the public of broadcasts by a live stream website. The judge gave a broad interpretation of 'communication to the public' acts and clarified when infringement of copyright in broadcasts occurs.
Download the article from SSRN at the link.
This article explores the ways in which Internet and online service providers could contribute to the deterrence of online user-generated copyright infringement, and also proactively avoid future Digital Millennium Copyright Act safe harbor related litigation for infringing user conduct, via strengthened user agreements. This type of contractual deterrence strategy would require modifications to the status quo of transactional practices within the Internet industry. Fortunately, the Internet allows for relatively swift and easy changes on the part of service providers. Specifically, this approach could be accomplished through changes to the model of user agreements that would require more evidence of users’ assent to the agreements and increased security measures for identity verification. In addition to these model changes involving contract formation, this approach would require robust contractual drafting with the inclusion of remedies for users’ infringing conduct that are more stringent than the current provisions on termination of user accounts. Further, this approach would require actual enforcement of the user agreement when there is a breach by a user in posting infringing content. Finally, Internet and online service providers would need to adopt integrated marketing campaigns to increase the transparency of their efforts to curb cyber-harms that are perpetrated via their services.
Wednesday, March 9, 2011
Katie Holmes has filed a defamation lawsuit against Star Magazine over its recent cover, implying that she is some sort of drug addict. The "addiction" to which the cover refers is to Scientologists' use of the "e-meter," a device that they believe detects mental distress. The Hollywood Reporter's Eriq Gardner likens Ms. Holmes' case to that of Kato Kaelin, who sued over Globe Communications' use of a headline during the O.J. Simpson murder trial that implied Mr. Kaelin was involved in the murders of Nicole Brown Simpson and Ron Goldman.
NPR's CEO Vivian Schiller has stepped down after the non-profit's fundraising executive Ron Schiller (no relation) was surreptitiously taped calling members of the Tea Party "racist" and generally denigrating them. Ms. Schiller was at the center of a controversy last fall for ordering the dismissal of commentator Juan Williams over remarks he made on the Fox Network. More about her ouster from NPR here from David Folkenflik (NPR), the Washington Post, and Time Magazine (interesting convergence of print, video, radio, and the Internet).
Chuck Lorre has hired his own legal team, including Howard Weitzman to address the ongoing Charlie Sheenery. Meanwhile, Mr. Sheen, during his laterst appearance on Sheen's Korner, berated Mr. Lorre, Mr. Moonves, and Warner Brothers Television Group President Bruce Rosenblum. Check out The Hollywood Reporter's interview with Mr. Sheen's lawyers here.
Monday, March 7, 2011
With great power there must also come — copyright reclamation!? A New York federal judge recently ruled that the heirs of legendary comic book artist Jack Kirby have asserted potentially valid copyright termination claims against Marvel Comics. If successful in their claims, the heirs will recapture their father’s rights to many of Marvel’s most popular characters, including “Spider-Man,” “The Fantastic Four,” “The X-Men,” “Iron Man,” and “The Incredible Hulk.” In view of these claims, this Comment argues that allowing authors and their heirs to recapture the rights to fictional characters is inconsistent with the fundamental objectives of copyright law. Such claims thwart media companies’ creative efforts, deprive companies of all certainty in their copyright ownership, and threaten public access to popular comic book, television, and movie characters. Accordingly, this Comment proposes that courts use an extended interpretation of the derivative works exception to prevent authors and their heirs from recapturing the rights to fictional characters that owe their commercial and creative success to media companies.
Download the comment from SSRN at the link.
A Mexican judge has told the makers of the film "Presumed Guilty" ( original Spanish title Presunto Culpable) that they must suspend showings of the documentary which portrays the trial of José Antonio Zuñiga temporarily. A witness who testified at the trial and who is shown in the film has filed a complaint saying that he never signed a release. Producer Roberto Hernandez, who is also an attorney, and head of the group Lawyers With Cameras, says he does not need a release to show such footage, since it is part of the public record. More here from The Hollywood Reporter. More about the film here.
Courtney Love is settling that Twitter defamation lawsuit. She will pay designer Dawn Simorangkir $430,000 plus interest over those tweets she made in 2009 that Ms. Simorangkir says defamed her. While Ms. Simorangkir's lawyer maintained that the settlement shows that defamation law is defamation law no matter what the forum, Ms. Love's attorney commented that the matter boiled down to one of dollars, and that both parties realized the case would be expensive to try. More coverage here from UPI.com and here from The Hollywood Reporter.
From the New York Times: a discussion the progress of the Global Network Initiative, and of whether and how social media protects free speech, particularly in countries that don't have a tradition of free speech, or in areas undergoing periods of civil unrest or revolution.
Sunday, March 6, 2011
Delaware Supreme Court Finds Telling Movie Audiences To Be Quiet While They Watch the Movie Is Ok (If You Tell Them All To Shhhh! At the Same Time)
The Delaware Supreme Court has affirmed an appellate court ruling that the Delaware Human Relations Commission's finding that a theater owner's request that members of an audience adhere to the theater's policy of maintaining quiet during the showing of the film violated the Delaware Equal Accommodations Law.
Section 4504(a) of the Equal Accommodations Act relevantly provides that:
No person being the owner, lessee, proprietor, manager, director, supervisor, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person, on account of race, age, marital status, creed, color, sex, disability, sexual orientation or national origin, any of the accommodations, facilities, advantages or privileges thereof.
The Court said in part:
Before the show, the theater screen displayed messages reminding patrons to turn off their cell phones and to refrain from talking during the movie. Before the movie began, Stewart also made a live announcement to the same effect. He asked the patrons to turn off their cell phones, to stay quiet, and to remain seated throughout the movie. After that announcement, Stewart left the auditorium.
After Stewart left, Appellant Larry Bryant followed him outside and told Stewart that his remarks were not well-taken. Stewart immediately returned to the auditorium and apologized to the audience, explaining that he did not mean to offend anyone and that he was required to make the announcement under Carmike Cinemas' current policy.
In evaluating a claim of this kind, we are guided by the analytical framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green and adopted by this Court in Thompson v. Dover Downs, Inc. Under that analysis, once the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for denying the plaintiff access. If the defendant produces such evidence, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the defendant's proffered reason was merely pretextual.
We conclude that the judgment of the Superior Court must be affirmed, because the Appellants have failed to establish a prima facie case of racial discrimination. Specifically, there was no showing of disparate treatment as between minority and non-minority audience members. Moreover, the Commission erred in concluding that Stewart's statement was racially motivated, because that conclusion rests on an improper application of the burden-shifting McDonnell Douglas analysis.
For DEAL purposes, disparate treatment occurs where a decision maker "simply treats some people less favorably than others because of their race, color . . . or [other protected characteristic]." In disparate treatment cases, "[p]roof of motive to discriminate . . . is an essential element of the complainant's case."
Appellants here did not (and cannot) establish a prima facie case of discrimination, because the undisputed facts show that there was no disparate treatment as between the African-American and non-African-American members of the relevant audience. All audience members were treated the same way: all those who attended the Tyler Perry movie that night in the largest auditorium heard the Stewart announcement. The Appellants (who were African-American) were treated no differently from all other audience members in the auditorium, including other non-complaining African-Americans such as Lina Powell and Sharron Lowery, plus Caucasian and other non-minority attendees.
This was not a case where the Appellants were denied a public accommodation that was provided to other similarly-situated persons. By way of example, the treatment would be disparate had Stewart made the announcement only to the complaining Appellants, or only to the African-American audience members; but not to the rest of the audience. But that did not occur: all members of the audience, regardless of race or color, received the identical message. Therefore, Appellants failed to establish disparate treatment as between themselves and the other members of the audience.
Even if Appellants had established a prima facie case of racial discrimination (as the Commission concluded), the Superior Court's decision must stand, because the Commission misapplied the McDonnell Douglas burden-shifting rule. In concluding that Stewart's statement was "racially motivated," the Commission erred in two respects. First, the Commission erroneously found that Appellees had failed to introduce "credible evidence" of a legitimate nondiscriminatory reason for denying Appellants access. As the United States Supreme Court has explained, Appellees' burden is one of production, not persuasion. Appellees discharged their burden of production. The burden of persuasion, however, remains at all times with the complaining plaintiffs. Second, the Commission concluded—erroneously—that the Appellants had discharged their burden of persuasion on that issue.
Via THR, Esq.: Warner Brothers has hired Munger Tolles & Olson lawyers Ron Olsen and John Spiegel to handle the escalating Charlie Sheen situation. However, THR Esq. blogger Matthew Belloni points out that Mr. Sheen's WB's contract contains an arbitration clause, so courtroom drama is unlikely.