March 18, 2011
The Dormant Commerce Clause, E-Commerce and the First Amendment
Internet sales continue to increase as consumers take advantage of the convenience and price competition that e-commerce provides. Yet, as North Carolina and other states have learned, frequently the “lower” prices available online result from the fact that many internet retailers, such as Amazon.com, do not collect sales tax on such purchases. In fact, under United States Supreme Court precedent, a state cannot require internet retailers that lack any physical presence in a state to collect sales tax. Thus, when North Carolinians buy goods from Amazon - which has no warehouses, offices, employees, or other form of physical presence in the state - those goods appear to be cheaper than the same products bought from in-state retailers because Amazon does not collect sales tax on the transactions.
But what many consumers do not know (or choose to ignore) is that they still owe taxes on their internet purchases. These taxes, known as “use” taxes, are not collected by the remote retailers; rather, consumers are responsible for paying these taxes directly to the North Carolina Department of Revenue. The use tax applies at the same rate as the sales tax. As a result, North Carolinians should pay the same amount in taxes whether they buy goods at the local store (with the store collecting and remitting sales tax) or over the internet (with the consumer reporting the purchase and remitting use tax).
As it turns out, though, most North Carolinians are not fulfilling their use tax obligations. In fact, economists estimate that North Carolina is losing $160 to $180 million annually in unpaid use taxes from internet sales alone, with less than 4% of North Carolinians reporting any use tax owed. Nationally, the numbers are even more striking, with the total amount of uncollected state and local taxes owed on e-commerce transactions in 2010 estimated at between $8.6 billion and $9.9 billion. Given the state’s ongoing budget shortfalls, the North Carolina Department of Revenue has been actively trying to find new ways to either force internet retailers to collect taxes on internet purchases or to increase use tax compliance among consumers. In particular, in 2009, the Department of Revenue attempted a new strategy - improve use tax enforcement by requiring Amazon to provide the Department with “all information” relating to purchases that North Carolinians made between 2003 and 2010. That is, the Department of Revenue sough the identities of North Carolina purchasers and a list of the products they purchased so that the Department of Revenue could determine each purchaser’s use tax liability. Amazon refused and filed a declaratory judgment action in federal court alleging that the information request violated the First Amendment rights of its consumers. The federal district court agreed and granted summary judgment to Amazon.
This article examines that decision and explores the constitutional issues surrounding North Carolina’s efforts to increase sales and use tax compliance. In particular, we analyze (i) the First Amendment issues raised by the federal district court’s order in the Amazon case as well as (ii) the First Amendment and Commerce Clause issues that would arise if North Carolina were to enact a reporting statute requiring internet retailers to disclose to the Department of Revenue the amount of purchases that individual consumers make annually. While the Department of Revenue could use this information to better enforce the state’s use tax law, we contend that such a statute faces difficult First Amendment and dormant Commerce Clause hurdles that, although possibly avoidable, would severely limit the effectiveness of any such statute. Consequently, while we do not reject the enactment of such a tax reporting statute, we contend that the state also needs to continue pursuing alternative approaches to increase use tax compliance. Ultimately, however, the issue of use tax non-compliance may be solved only through federal legislation authorizing states to require retailers to collect sales and use tax despite their lack of an in-state physical presence.
Download the article from SSRN at the link.
Filmmaker To Be Extradited To France Over Murder Case
The Irish High Court has authorized filmmaker Ian Bailey's extradition to France for questioning in the murder of Sophie Toscan du Plantier, who was found dead in 1996 at her Irish vacation home. Although no one has been charged in the case, police have questioned Mr. Bailey before about Mrs. Toscan du Plantier's death twice. Mrs. Toscan du Plantier was the third wife of filmmaker Daniel Toscan du Plantier, who died in 2003. More here about the case from the Sunday Times.
Tim Wu On the Future of the Net
Tim Wu, whose book The Master Switch, hit the bookstores last November in the US, is released in the UK this week. More here in a Guardian article.
Libya Says It Will Release Four Reporters Today
Seif al-Islam el-Qaddafi told ABC's Christiane Amanpour that Libya's government will release four New York Times reporters shortly, the paper has announced. The Libyans have held the four journalists since Tuesday.
March 17, 2011
U.S. Editor Prevails In Internet Libel Case Brought By Unhappy Author
A French court has ruled in the Karin Calvo-Goller case. As you may remember, Dr. Calvo-Goller was unhappy about a book review of a work she had written, penned by Dr. Thomas Weigend and posted by Dr. Joseph Weiler on the website Dr. Weiler edits. In 2007, she asked Dr. Weiler by letter to remove the review; Dr. Weiler refused. She then sued in a French court, alleging defamation.
The French court has held (French original here, English translation here) that it has no jurisdiction to hear the case since the acts complained of occured outside its territory. It awarded Dr. Weiler 8,000 Euros (he had asked for 10,000 Euros) for costs. Dr. Calvo-Goller explains her actions here, saying she does not intend to appeal. Dr. Weiler discusses the case here.
New Mexico May Change Tax Credit Scheme
The New Mexico Legislature is tinkering with its state film tax credit. While the governor would like to limit the credit to fifteen percent, the lawmakers seem to favor twenty-five. However, to limit the amount of money flowing to film projects, the legislature seems to be leaning in favor of capping total credits at $50 million. More here from The Hollywood Reporter.
New York Times Journalists Missing Since March 15
From MSNBC.com's Photoblog, the last known image of four New York Times journalists covering the uprising in Libya. They have been missing since Tuesday.
March 16, 2011
Can You Tell Me How To Save, How To Save Sesame Street?
Sesame Streeters descended on Capital Hill today to ask Congress not to cut funding for PBS programming and for the fictional neighborhood. Emilio Delgado, Roscoe Orman, Alison O'Reilly, Bob McGrath, and Alan Muraoka, all members of AFTRA (American Federation of Television and Radio Artists) are concerned about the up to $420 million in public funding that could be cut from the Corporation for Public Broadcasting's budget.
Judge Convicts Former Nurse Of Aiding Suicide; Rejects Free Speech Defense
A Minnesota judge has ruled that a former nurse's "encouragement" of suicide amounted to "lethal advocacy" and has convicted a defendant of two counts of aiding suicide. Thomas Neuville will sentence William Melchert-Dinkel, who had argued that his online statements were protected free speech, in May. Mr. Melchert-Dinkel says he plans to appeal. More here from the Associated Press.
Bar Applications and the Relevance of Social Network Information
This piece discusses social networking websites (e.g. Facebook, Twitter and MySpace) and their importance vis-à-vis the First Amendment in terms of communicating ideas (i.e. the market places of ideas), self-expression and discovery, and political expression and discussion. I emphasize the importance of this because the generation of law school graduates currently applying to take the bar is one of the first to grow up with ready access to the internet from a young age.
I go on to examine the recent proposals of the Florida Board of Bar Examiners (FBBE) to screen the social network accounts of certain applicants to the Florida Bar. I argue that the guidelines are unconstitutionally vague and overbroad and as a result will have a chilling effect on speech if not clarified and the information on how the screening process works is then made easily available to bar candidates. I also seek to offer some ways in which it may be possible for a Bar Association to create rules for screen the social networking site accounts of individual applicants without running the risk that such screening will restrict or chill the first amendment rights of applicants. The focus is on the FBBE that is only because they were the first to announce such an ambitious plan. However, I believe the principles would also apply for any bar association seeking to screen the social networking site accounts of applicants.
Wikileaks, Freedom and Sovereignty
Wikileaks represents a new type of (h)activism, which shifts the source of potential threat from a few, dangerous hackers and a larger group of mostly harmless activists – both outsiders to an organization – to those who are on the inside. For insiders trying to smuggle information out, anonymity is a necessary condition for participation. Wikileaks has demonstrated that the access to anonymity can be democratized, made simple and user friendly.
Being Anonymous in the context of Wikileaks has a double promise: it promises to liberate the subject from the existing power structures, and in the same time it allows the exposure of these structures by opening up a space to confront them. The Wikileaks coerced transparency, however, is nothing more than the extension of the Foucauldian disciplinary power to the very body of state and government. While anonymity removes the individual from existing power relations, the act of surveillance puts her right back to the middle.
The ability to place the state under surveillance limits and ultimately renders present day sovereignty obsolete. It can also be argued that it fosters the emergence of a new sovereign in itself. I believe that Wikileaks (or rather, the logic of it) is a new sovereign in the global political/economic sphere. But as it stands now, Wikileakistan shares too much with the powers it wishes to counter. The hidden power structures and the inner workings of these states within the state are exposed by another imperium in imperio, a secretive organization, whose agenda is far from transparent, whose members, resources are unknown, holding back an indefinite amount of information both on itself and on its opponents.
I argue that it is not more secretive, one sided transparency which will subvert and negate the control and discipline of secretive, one sided transparency, it is anonymity. The subject’s position of being “a multiplicity that can be numbered and supervised”, its state of living in a “sequestered and observed solitude” (Foucault 1979) can only be subverted if there is a place to hide from surveillance. I argue that maybe less, and not more transparency is the path that leads to the aims of Wikileaks.
Download the paper from SSRN at the link.
March 15, 2011
Aflac Flack: Gilbert Gottfried Gone From Aflac Commercials
Aflac, the insurance company, has parted ways with comedian Gilbert Gottfried, who provides the voice for the iconic Aflac duck, after Mr. Gottfried sent out what the company characterized as "tasteless tweets" on the subject of last week's earthquake and tsunami in Japan. Aflac does a great deal of business in Japan and released the following comments on the subject.
"Gilbert's recent comments about the crisis in Japan were lacking in humor and certainly do not represent the thoughts and feelings of anyone at Aflac," Aflac Senior Vice President and Chief Marketing Officer Michael Zuna said. "Aflac Japan - and, by extension, Japan itself - is part of the Aflac family, and there is no place for anything but compassion and concern during these difficult times."
Mr. Gottfried has since apologized.
British Government Release Draft Defamation Bill To Address Libel Tourism
From the Independent: with a new Defamation Bill, the British government announces changes in libel laws that seek to protect the expression of honest opinion. More here from Inform's Blog, the BBC, but some criticism from the Content ETC blog. Here's a link to the full text of the bill, requests for proposals, and other materials. Analysis here from the Telegraph.
Briefly, an individual would have to demonstrate that a statement has caused or is likely to harm to his reputation before he can maintain an action for defamation. Defenses include matter of public interest, honest opinion, privilege, and truth.
Did He Or Didn't He?
From the New York Times: more on former German defense minister Karl-Theodor zu Guttenberg's doctoral dissertation and the political debate it caused: did he or didn't he plagiarize?
The Digital Copyright Dilemma
The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists succeed under this alternative compensation model?
Over the years, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced many different arguments for or against stronger copyright protection and enforcement. This article examines eight of these arguments, which the author finds rather unpersuasive. It then outlines five strategies that seek to help the entertainment industry make its proposals for digital copyright reform more convincing. The article concludes with two short stories to illustrate the tremendous difficulty for the public to appreciate the complexities in copyright law. It underscores the paramount importance of making convincing arguments in the digital copyright debate.
March 14, 2011
Media Coverage of Immigration
Immigration has once again become a highly charged issue in American politics. Primarily using experimental data, many scholars have attributed the intensity and nature of public opinion on immigration to the framing and priming power of the media. Yet, in order to estimate the extent of these and other potential effects, we must first understand the nature and complexities of this media coverage. Thus, in this paper which will be an opening chapter in my dissertation on immigrant specific information and its effect on immigration policy preferences, I take a step back and address the question: How has the national media covered immigrants? I employ a content analysis on articles in the New York Times, Washington Post, and USA Today from January 1 2009 to August 31, 2010 to address this question. The descriptive account of immigration coverage in the media will not only build upon previous studies of immigration and race coverage in the news, but will also identify future areas of inquiry for media effects.
The full text is not available from SSRN.
Cultural Protectionism in the Media and On the Net
Cultural protectionism has been an element of national and foreign policies, as an extension of state sovereignty expressed both in a defensive and offensive manner. While the generic protectionist formula in the sense of restraining trade between states through measures such as import tariffs or quotas and through privileging domestic production has somewhat disintegrated over time under the rationale for free trade and the strong practical evidence of its benefits, the particular case of cultural protectionism has persevered. As we reveal in this paper, however, it has been modified, or at least its rhetoric has changed. The enquiry into the notion of cultural protectionism or cultural diversity, as the current political jargon would have it, is but one of the paper’s objectives. Its second and certainly more ambitious goal is the search for the normative dimensions of cultural diversity policies in the global digital space, asking what adjustments are needed and how feasible the entire project of diversity regulation in this environment may be. Taking into account the specificities of cyberspace and in a forward-looking manner, we propose some adjustments to current media policy practices that could better serve the goal of a sustainably diverse cultural environment.
Download the article from SSRN at the link.
Extraterritorial Enforcement of IP Rights in the EU
This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.
The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of problems, they are interconnected; problems in one category may exacerbate problems in another category, and solutions developed in one category may contribute to the resolution of problems in another category. This article briefly reviews the three categories of problems and demonstrates the interrelatedness of solutions that have been developed or will have to be developed to address the problems.
Download the article from SSRN at the link.
Charlie Sheen v. Warner Brothers and Chuck Lorre--Who's the WINNER?
Charlie Sheen's contract has an arbitration clause. Does that spell doom for his $100 million lawsuit against Warner Brothers and Chuck Lorre? THR Esq. opines here. And a reaction from Mr. Lorre's attorney, Howard Weitzman, here.