March 25, 2011
City of London To Support Film London; UKFC Closing Down
Film London will receive $2.1 million in funding in 2011/2012 for its projects from the city of London even though a number of arts projects have lost funding and the British economy is still suffering. The city's mayor Boris Johnson has agreed to give the agency a boost, perhaps taking into account that the UKFC, the agency formerly responsible for assisting the film industry, is transferring some of its functions to Film London and other partners.
From 1 April 2011, the UK Film Council's role in encouraging inward investment into the UK will be taken on by Film London in a public/private partnership with Warner Bros., Pinewood Studios Group, the Production Guild, UK Screen Association and others.
UKFC is transferring other functions to the British Film Institute. The UKFC will be closing down its operations soon.
Amanda Knox Asks Civil Court To Prohibit Downloads of Lifetime Film About Her Case
Amanda Knox, who is appealing her conviction for murder in the death of Meredith Kercher, is asking an Italian court to prohibit downloads of the Lifetime film Amanda Knox: Murder On Trial in Italy, which was broadcast last month in the U.S. Ms. Knox told the civil court, "I consider it the pinnacle of the repeated violations by the media against my person, my personality and my story. It does not correspond with the truth." The film is now available with Italian subtitles.
March 24, 2011
Carla Bruni Sues Newspaper Over Audio Clip
French First Lady Carla Bruni is suing the French newspaper Midi Libre for posting an audio clip of her Italian cover of the song Douce France (Sweet France), an air written by and made famous by the singer Charles Trenet during the Second World War. She is alleging the paper engaged in "counterfeiting" by posting the clip without her permission. The song will appear on her next album.
Words Fly Between London Police, Director of Public Prosecutions Over News of the World Phone Hacking Inquiry
An update from the Guardian on the News of the World phone hacking inquiry. The Metropolitan Police and the Director of Public Prosecutions are pointing fingers at each other over who bears responsibility for the mess over the failure to investigate the matter fully and to inform Parliament. At issue is the question of whether the Regulation of Investigatory Powers Act 2000 applies to voicemail that has not yet been heard by the person for whom it is intended. Says the Guardian, "In evidence to the House of Commons' culture, media and sport committee, Scotland Yard's acting deputy commissioner, John Yates, listed a series of occasions on which prosecutors had advised police that the Regulation of Investigatory Powers Act 2000 (Ripa) made it an offence to intercept voicemail only if the voicemail had not already been heard by its intended recipient." However, DPP Keir Starmer told the Commitee that interpretation of the statute was not at issue when the police prepared charges, notably against former News of the World editor Clive Goodman, who was eventually convicted and sent to prison for four months.
March 23, 2011
Judge Refuses TRO To Sheen Team
An L.A. Superior Court Judge has refused Charlie Sheen's legal team a requested TRO, which would have allowed his dispute with CBS, Warner Brothers, and Chuck Lorre to proceed to trial. Lawyers for Mr. Sheen apparently intend to appeal the decision. We still don't know which arbitrator JAMS, the entity responsible for the arbitration in the case, intends to appoint to handle it.
From The Scientist, an opinion piece suggesting that sometimes self-help (via the media) is the only way to obtain a remedy, because internal methods of investigating complaints just don't seem to work.
Supreme Court To Hear Challenge To Copyright Term Extension Act With Regard To Foreign Works (Golan v. Holder)
Plaintiffs filed this action, challenging the constitutionality of the Copyright Term Extension Act, Pub. L. No 105-298, § 102(b), (d), 112 Stat. 2827, 2827-28 (1998), and Section 514 of the URAA, seeking declaratory and injunctive relief. Initially, the district court granted summary judgment to the government. On appeal, we concluded that plaintiffs' challenge to the Copyright Term Extension Act was foreclosed by the Supreme Court's decision in Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003). See Golan v. Gonzales, 501 F.3d 1179, 1182 (10th Cir. 2007) ("Golan I"). We also held that "[Section] 514 of the URAA ha[d] not exceeded the limitations inherent in the Copyright Clause" of the United States Constitution. Id. We recognized that "legislation promulgated pursuant to the Copyright Clause must still comport with other express limitations of the Constitution," id. at 1187, and concluded that plaintiffs had "shown sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny of [Section] 514," id. at 1182. We then remanded the case to the district court to "assess whether [Section] 514 is content-based or content-neutral," id. at 1196, and to apply the appropriate level of constitutional scrutiny.
Reviewing de novo, and applying intermediate scrutiny, the 10th Circuit held,
Congress acted within its authority under the Copyright Clause in enacting Section 514. See id. at 1187. Further, Section 514 does not violate plaintiffs' freedom of speech under the First Amendment because it advances an important governmental interest, and it is not substantially broader than necessary to advance that interest. Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to grant summary judgment in favor of the government.
An Open Source Model To License Data and Information
This Article examines the relationship between two trends: the move towards transparency in government data and information and the increasing commercialization of data through social network and other sites. The author presents a normative framework for reconciling these two trends, analyzes the legal implications of this normative framework, and examines three case studies: the private use of government real estate assessment records, the creation of websites like data.gov, and governmental protection of databases. The Article concludes with a proposal for an open source licensing model for data and information.
Apple Sues Amazon Over "Appstore" Usage
From CNN: Apple is suing Amazon.com over the latter's use of the term "Appstore" to describe its Android Marketplace. Apple filed for trademark protection for when it rolled out the iPhone 3G. More coverage of the suit here from the Los Angeles Times.
Judge Nixes Google Books Settlement
Coverage of the news that Judge Denny Chin has rejected the proposed settlement between Google and the Authors Guild and other plaintiffs. From the Chronicle of Higher Education; from the American Library Association; from the ABA Journal's Law News Now. In brief, Judge Chin found that under the settlement, Google would have the power to create a monopoly over "orphan works" and would be exempt from liability for infringement under copyright laws.
While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action--which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching--to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.
Read Judge Chin's ruling here.
The Value of Lies
This Article, prompted by recent criminal cases involving alleged false claims to have been awarded particular military medals, addresses broad questions of lying and freedom of speech.
The Supreme Court has held that false assertions of fact – let alone outright lies – have no value for free speech purposes. With more nuance, the Court has also said that as a realistic matter, courts should protect some false speech in order to provide “breathing space” for, or to avoid inhibiting, good faith speech on important matters.
This Article argues, however, that lies can actually have substantial, direct, and independent free speech value. Such lies can, under given circumstances, uniquely promote one or more of the standard reasons for protecting speech.
While this may initially seem paradoxical, the Article considers in particular two kinds of extreme cases: first, lying in the context of fugitive slave cases, where the lie is told either by the fugitive slave, or by someone assisting the fugitive slave; and second, lying, especially to officials, by threatened Jews, or by others seeking to protect them, in Nazi-controlled territories. The alternatives to lying in such cases are carefully considered as well.
The Article then considers less extreme cases, and concludes that in particular circumstances, lying, on any reasonable definition, may distinctively promote any or all of the standard free speech values. Whether a particular lie, or kind of lie, should ultimately be constitutionally protected will of course depend upon an appropriate judicial free speech test.
Download the article from SSRN at the link.
March 22, 2011
You Want Tiger Blood?
Tip of the magic hat to iTricks.
Will Charlie Sheen Return TO TAHM?
From the Today show: a report that CBS might be willing to take Charlie Sheen back as star of Two and a Half Men, if he bridges the enormous divide between himself and exec producer Chuck Lorre and Warner Brothers. It's a huge divide, and the report is based on stories from the Sheen people. Today interviews an attorney who thinks CBS may actually be considering the idea and a media expert who thinks it would backfire. Radar Online also reports that CBS head Leslie Moonves also wants Mr. Sheen to return.
Cornell University: "That's It!" To Library Vendor NDAs
From the Chronicle of Higher Education, news that the Cornell University Library system has decided to cease entering into contracts with vendors that require non-disclosure agreements concerning pricing. Here is the library's statement from its website.
To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret.
With the full support of the faculty library board and the Provost, the Library undertook this policy change in early 2011. It had become apparent to the entire community that the anticompetitive conduct some publishing firms engage in results partially from these nondisclosure agreements in contracts.
The more libraries can communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. These limiting clauses, therefore, hinder the Library's ability to work openly, collaboratively and transparently.
Many state university library systems can disclose pricing under sunshine laws.
The price of scholarly journals have been steadily eating away at library budgets for years, and prices are still going up. Here's a link to a 2009 article on journal prices and their impact on budgets from Library Journal.
Harmonizing Internet Regulation
This article presents a legal method that can be used to find solutions to the challenges of regulating Internet technology. The method consists of ten steps and the reader is guided through the application of these steps. To illustrate the use of the method, it is applied to the research task of finding a solution to the conundrum of regulating cross-border data flows on the Internet. Thus, the article has two distinct aims, and it should benefit anyone with an interest in research methodology, as well as those interested in the regulation of privacy in general, and on an international level, in particular.
Download the paper from SSRN at the link.
Copyright Infringers and the Digital Economy
This article was written as a response to a piece by Birgitte Andersen, which raised concerns over the implications of the UK's Digital Economy Bill. I focus on several reasons why the Bill would not achieve its intended objectives, and is likely to have other, unanticipated negative impacts.
Download the article from SSRN at the link.
Regulating the Internet Marketplace
Rob Friedan, Pennsylvania State University, has published Legislative and Regulatory Strategies for Providing Consumer Safeguards in a Convergent Information and Communications Marketplace in the Hastings Communications and Entertainment Law Journal, volume 33. Here is the abstract.
Many ventures involved in information, communications and entertainment (“ICE”) industries have begun to expand their array of offered services. Technological convergence, digitization and the ability of the Internet to handle many different service types within a single bitstream make it possible for companies to offer “quadruple play” bundles of wireless and wireline telephony, video, and Internet access services. Financial and efficiency gains from vertical integration, and the search for new revenues to replace declining margins from maturing and newly competitive services, combine to create robust incentives for carriers to diversify.
Diversification by ventures typically results in a single company providing services that fit within more than one regulatory classification. This frustrates the FCC’s desire to apply a single regulatory classification to services and service providers, a process the Commission could achieve when ventures concentrated on one function, e.g., operating a conduit for content created by others, and offered one readily identifiable service, e.g., telephony. Diversification also obscures the specific reach of the FCC’s regulatory wingspan, both in terms of what regulatory classification applies to which services and what regulatory safeguards the Commission can lawfully apply. For example, an appellate court recently reversed the FCC’s attempt to subject Internet Service Providers (“ISPs”) to regulatory safeguards identified in Title II of the Communications Act, as amended, but which the Commission wanted to apply using the concept of “ancillary jurisdiction” based on Title I of the Act. The D.C. Circuit Court of Appeals rejected the FCC’s attempt to apply such safeguards on ventures classified as information service providers, a status that qualifies for a largely unregulated “safe harbor.”
In light of an appellate court reversal, the FCC must rethink how it can serve the public interest and safeguard consumers, despite having broadly applied the information service classification to all Internet services and ISPs. Already the FCC has had to find ways to impose Title II-type regulatory safeguards on providers of Voice over the Internet Protocol (“VoIP”) service. Additionally the Commission has avoided making necessary regulatory classifications as to which category new services such as VoIP and Internet Protocol Television fit.
Absent a legislative remedy the FCC must find a way that will pass muster with reviewing court, but also provide necessary safeguards. FCC Chairman Julius Genachowski has proposed to reclassify Internet access as Title II regulated service subject to extensive forbearance from applying many regulatory safeguards he considers unnecessary. Such a re-classification, coming on the heels of court reversal, appears as after the fact scrambling to re-arrange the wingspan of Title II jurisdiction without statutory authority.
This paper will explain how the FCC has backed itself into a corner in light of its predisposition to apply the information service classification indiscriminately and its perceived duty to make either/or determinations about services, i.e., to apply either the telecommunications service classification singularly, or the information service singularly to a convergent service that combines both elements. The paper also will provide recommendations on how the Commission might recognize that convergent services, such as Internet access, combine both components in much the same way as wireless cellular telephone companies offer both regulated common carrier telecommunications services, subject to forbearance, and unregulated information services via the same conduit. The paper recommends that in light of the ascending importance of Internet access and the lack of sustainable competition that would favor self-regulation, Congress should amend the Communications Act to authorize the FCC to apply limited elements of Title II safeguards as already exists for wireless telephony. In light of the failure of Congress to reach consensus, the paper suggests that the FCC safeguard consumers when information service providers cause harm as the Commission did when a DSL service provider blocked access to competing VoIP services.
Download a draft of the article from SSRN at the link.
March 21, 2011
The ATT/T-Mobile Merger
French Watchdog Agency Fines Google Over Street View Program
French agency CNIL (Commission Nationale de l'Informatique et des Libertés) has fined Google 100,000 Euros for breaching security and privacy laws via its Street View program. The ruling was based on among other sources the Council of Europe Convention for the Protection of Individuals With Regard to Automatic Processing of Personal Data. The company says it will delete the data. Text of the decision here (in French).
Turkish Government Obtains Release of New York Times Journalists
Turkey has brokered the release of four New York Times journalists, and they are safe within the Turkish Embassy in Tripoli, according to news reports. Here's coverage from MSNBC.com. Confirmation here from the New York Times.