Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, April 15, 2011

Attorney Files Suit Against Match.com Over Assault

Attorney Mark L. Webb has filed a Jane Doe lawsuit on behalf of his client, someone in the entertainment industry, against Match.com. Mr. Webb says his client met a man through the site; the man later sexually assaulted her.  Mr. Webb's client is asking the site to screen its members and until it begins doing so, he has asked a court for a temporary injunction to prevent Match.com from signing up new members.  More here from MSNBC.com.

April 15, 2011 | Permalink | TrackBack (0)

More On Tasini v. AOL

More on the Tasini lawsuit against Arianna Huffington et al. The complaint here; some discussion from Law Across the Wire and Into the Cloud (Zwillinger Genetski) here; excerpts from an interview with Mr. Tasini here.

April 15, 2011 | Permalink | TrackBack (0)

The Ninth Circuit and Anonymous Speakers

Musetta Caruso Durkee, University of California, Berkeley, Law School, has published The Truth Can Catch the Lie: The Flawed Understanding of Online Speech in In Re Anonymous Online Speakers, in volume 26 of the Berkeley Technology Law Journal (2011). Here is the abstract.

Recently, the Ninth Circuit was the first circuit court to address a discovery request to un-mask anonymous speakers in a case involving online speech. Many hoped, given the competing standards developed by courts over the past decade, that In re Anonymous Online Speakers would provide a singular standard to guide the lower courts in anonymous online speech cases. However, not only did the Ninth Circuit decline to clarify competing standards, it mistakenly characterized the online nature of the defendant’s speech as a separate factor in the aforementioned balancing test, finding that the allegedly harmful speech occurred on the Internet inherently weighed against the anonymous speaker. In making this assumption, the Ninth Circuit failed to accurately understand the effect of various online spaces on the accuracy, verifiability, and correct-ability of anonymous online speech. In light of the Ninth Circuit’s decision, this Note argues that regardless of the standard employed in balancing the rights of the anonymous online speakers with the rights of allegedly harmed plaintiffs, courts cannot afford to misunderstand the nature of the Internet nor, by extension, the nature of speech occurring in online contexts.

This Note shows that highlighting the online context of the speech is not only necessary for combating the misconception of the Internet as a wild, undifferentiated frontier, but is also in line with established precedent in both anonymous speech cases and cases involving online speech. Furthermore, this Note summarizes recent efforts of a number of district and state courts to take the context of online speech into account when balancing the rights of anonymous speakers with the rights of harmed plaintiffs. These cases reveal that, though good efforts at capturing the nature of speech in a variety of online spaces, courts fail to understand the particularly malleable and fast-changing characteristics of specific online sites. As such, this Note will show that online speech cases occur in situations of a peculiarly malleable nature for two main reasons, and that both reasons must be taken into account in anonymous online speech cases. Not only are the different categories of online spaces themselves constantly developing, but the user norms and technological codes governing speech, actions, and communications within and between these spaces are also constantly (and sometimes abruptly) changing. Thus, courts’ investigations of the meaning and effect of online speech require a nuanced understanding of both the heterogeneity of online spaces as well as the malleable nature of particular sites and services within different categories of online spaces.

Download the Note from SSRN at the link.

April 15, 2011 | Permalink | TrackBack (0)

Bad Pirate Squirrel! Bad, Bad Pirate Squirrel Who Doesn't Understand (Or Care) About Copyright!!

Attention, all YouTube users who uphold infringing material and get caught. You might find yourself in school with a squirrel dressed as a pirate. YouTube has created a video to explain (in four minutes) to those who post in violation of the DMCA what they've done wrong and (sort of) how to do it right--"Why not make your own video?" The video is aimed at young people, although adults might find it informative as well. More YouTube copyright resources here.

April 15, 2011 | Permalink | TrackBack (0)

Online Tracking and Lawyer/Client Confidentiality

Anne Klinefelter, University of North Carolina, Chapel Hill, Law School, has published When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking, at 16 Virginia Journal of Law and Technology 1 (Spring 2011). Here is the abstract.

Attorney-client privilege, work-product protection, and the attorney’s ethical requirement to protect confidentiality of client information are at risk from commercial surveillance of online activity. Behavioral advertising, data aggregation and sale, and government access to commercially assembled profiles have been denounced as threats to privacy and confidentiality interests, but the harm to attorney and client confidentiality is of particular concern. As the legal research and broader information industries shift from print materials to services on the internet, attorneys cannot simply avoid the online environment to protect confidentiality. This article examines the risk from tracking of online legal research and draws two conclusions: 1) Lawyers must take reasonable precautions to protect confidentiality of internet-based research; and 2) Reasonable precautions are elusive due to the constant evolution of tracking technologies and practices, so attorneys should work collectively to update best practices and to evaluate and influence online industry activities so that the time-honored confidential nature of legal representation can be preserved.

Download the article from SSRN at the link.

April 15, 2011 | Permalink | TrackBack (0)

Media Coverage of Local Government Policy Agenda Setting and Its Result On Outcomes

Bradley Wilson, North Carolina State University Department of Political Science & Public Administration, has published The Impact of Media Agenda Setting on Local Governments: Examining the Relationship between Media Coverage and Policy Outcomes, presented at the Western Political Science Association Annual Meeting, 2011. Here is the abstract.

Agenda-setting studies are abundant in mass media literature. Since the early 1970s the methodology conceived by Don Shaw and Max McCombs has been used to study everything from environmental issues to race relations. Their theories correlated media coverage and public opinion, mostly at the national level. Fewer studies have examined whether agenda-setting concepts can be used to correlate media coverage with policy outcomes. Still fewer studies have been used at the level of local government. This study shows a limited relationship in cities and towns between policy changes and media coverage by looking at changes in budgeted allocations and a content analysis of local newspapers.

Download the paper from SSRN at the link.

April 15, 2011 | Permalink | TrackBack (0)

He Said, They Said

The Hollywood Reporter reports that Charlie Sheen's attorney Marty Singer contests Warner Brothers' version of events concerning discussions over Mr. Sheen's return to "Two and a Half Men." Mr. Singer says, "There absolutely have been discussions...As late as this Tuesday there have been discussions about Charlie coming back and everyone was involved.” The studio's response: "Our attorneys’ letter speaks for itself."

April 15, 2011 | Permalink | TrackBack (0)

Thursday, April 14, 2011

Warner Brothers: Charlie Sheen Out If/When "Two and a Half Men" Returns

From The Hollywood Reporter: Warner Brothers lawyers Munger Tolles & Olsen have informed Charlie Sheen's attorney Marty Singer, "As you know, there have been no discussions, there are no discussions, and there will be no discussions, regarding his [Charlie Sheen's] returning to or having any involvement in the series." Mr. Sheen had said he was talking to network brass about returning to the show.

April 14, 2011 | Permalink | TrackBack (0)

District Judge Grants Preliminary Injunction; I (Heart) Boobies Bracelets Not Lewd Or Vulgar

A federal district judge has ruled that the Easton Area (Pennsylvania) School District cannot forbid students to wear "I (Heart) Boobies" jewelry that promotes breast cancer fundraising and breast cancer prevention awareness. The school district says it will appeal. Here is a link to the school district's dress code; here a link to its general dress and grooming policy. Said U. S. District Judge Mary McLaughlin,

"The Court concludes that these bracelets cannot reasonably be considered lewd or vulgar under the standard of Fraser. The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health. Nor has the school district presented evidence of a well-founded expectation of material and substantial disruption from wearing these bracelets under Tinker. The Court will therefore grant the plaintiffs’ motion for preliminary injunction."

Here is a link to the judge's memo granting an injunction.

April 14, 2011 | Permalink | TrackBack (0)

Mediation of IP Disputes

Susan Corbett, Victoria University of Wellington, has published Mediation of Intellectual Property Disputes: A Critical Analysis, at 17 New Zealand Business Law Quarterly 51 (March 2011). Here is the abstract.

Many intellectual property disputes have common features that suggest mediation could provide the parties with a more satisfactory resolution than litigation. However, anecdotal evidence suggests that the number of intellectual property disputes in which parties choose to go to mediation remains low. Although the indiscriminate recommendation of all intellectual property disputes to mediation should be avoided, this article argues that the potential efficacy of mediation for many intellectual property disputes should be more widely acknowledged and could be explicitly mentioned within New Zealand's intellectual property legislation. As Mary Vitoria states: "In very many small to medium cases the point is rapidly reached where the costs incurred are larger than any likely award of damages. To give an extreme example, in one patent case heard in the Patents County Court [UK], the claimant's costs were US$530,000 and the defendant's costs were US$725,000 in what the judge called "a very simple patent case involving one of the simplest patents I have ever seen". Each party's turnover was about US$85,000 per year."

Download the Article from SSRN at the link.

April 14, 2011 | Permalink | TrackBack (0)

Twitter In the Courtroom

Adriana C. Cervantes, Hastings Law School, has published Will Twitter Be Following You in the Courtroom?: Why Reporters Should Be Allowed to Broadcast During Courtroom Proceedings, at 33 Hastings Communication & Entertainment Law Journal 133 (2010). Here is the abstract.

Thanks to micro-blogging and social networking tools, we no longer have to pick up a phone to call our friends and ask them what they are doing. Instead we turn to our laptop, BlackBerry, or iPhone to get instant information available to us through the Internet. Twitter is a key player in the Internet information exchange line-up. It has made its way into one of the oldest and most archaic forums: the courtroom. This article will discuss the history of prohibitions against broadcasting in the court, analyze the reasons why reporters should be allowed to use Twitter and other micro-blogging tools in the courtroom, and propose a solution for how their presence can be accounted for in order to maintain order in the court. This topic is significant because the digital era has presented new technology-in-the-court issues. People are entering courtrooms across America carrying electronic digital devices that can access blogging sites within seconds. The current law does not properly address whether reporters should be allowed to tweet, but this trend is becoming more prevalent. Twitter needs to be addressed with our current society in mind; a society wanting instant access to information. Legislatures and courts have both addressed the question of whether court proceedings should be broadcast differently. This note will examine whether broadcasting through websites like Twitter should be allowed during civil and criminal cases so that the public can have instant access to judicial proceedings.

Download the Note from SSRN at the link.

April 14, 2011 | Permalink | TrackBack (0)

Prior Restraints and Preliminary Injunctions in Copyright Law

John M. Newman has published Raising the Bar and the Public Interest: On Prior Restraints, ‘Traditional Contours,’ and Constitutionalizing Preliminary Injunctions in Copyright Law. Here is the abstract.

Until very recently, a great deal of confusion existed among courts regarding the correct standard to apply in granting preliminary injunctions, particularly in copyright-infringement lawsuits. While two recent U.S. Supreme Court decisions have at least begun to clarify the proper approach, the myriad methods of analyzing the separate factors of the Court’s test – as well as the Ninth Circuit’s persistence in applying its own alternative formulation – make it difficult for lawyers and litigants to predict outcomes.

This Article begins by detailing the potential harms that arise from applying an overbroad preliminary-injunction standard. It then seeks to demonstrate that the Court’s proffered test for granting such relief, which requires plaintiffs to demonstrate each of four individual factors, should be applied uniformly by lower courts deciding copyright preliminary-injunction requests. Through a close examination of recent Supreme Court precedent, I posit that the Court is attempting two primary aims: (1) raising the bar for copyright plaintiffs requesting preliminary injunctions, in order to reduce the irreparable harms inflicted by the current, overly lenient standard; and (2) drawing the four-factor test into the “traditional contours” of copyright law, in an attempt to stave off potential conflict between copyright protections and the First Amendment’s guarantee of freedom of speech.

Unfortunately, the Court has been vague on how lower courts should apply its new standard in order to achieve these ends. As to the first, I argue that the presumptions that formerly governed copyright preliminary injunctions should be discarded. I then address the question of whether the Court’s approach can sufficiently account for free-speech concerns, particularly the potential – raised persuasively by Professors Lemley and Volokh – that the prior-restraint doctrine should apply to copyright law. I argue in response that, despite the theoretical appeal of this argument, the Court’s traditional-contours approach is a practical reality. Thus, the question becomes how best to serve the interests of both the First Amendment and copyright law while operating within the framework currently governing copyright-preliminary-injunction jurisprudence. I contend that free-speech concerns may be mitigated through careful application of the Court’s new four-factor standard for granting preliminary injunctions, particularly under the public-interest inquiry dictated by the new standard. I conclude by setting forth a factor-by-factor analysis of how the standard should be applied in order to raise the bar faced by copyright plaintiffs and preserve copyright’s constitutionality.

Download the paper from SSRN at the link.

April 14, 2011 | Permalink | TrackBack (0)

Protecting the Nonbeliever From Government Religious Speech

Caroline Mala Corbin, University of Miami School of Law, has published Nonbelievers and Government  Religious Speech in volume 97 of the Iowa Law Review (2011). Here is the abstract.

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination. 

This Article argues that government religious speech such as “In God We Trust” or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless, and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes - in particular, that atheists are immoral and unpatriotic - which lead to discrimination against them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake.

Download the article from SSRN at the link.

April 14, 2011 | Permalink | TrackBack (0)

Wednesday, April 13, 2011

The Meaning of "Communication to the Public" Under Article 3(1) of the Info Society Directive

Enrico Bonadio, City University London, City Law School, has published 'Communication to the Public’ in FAPL v. QC Leisure and Murphy v. Media Protection Services: The Advocate General’s Opinion in volume 6 of the Journal of Intellectual Property Law and Practice (March 2011). Here is the abstract.


On 3rd February 2011 Advocate General, Professor Juliane Kokott, gave her much awaited opinion in FAPL v. QC Leisure YouTube and Karen Murphy v. Media Protection Services Ltd (Joined Cases C-403/08 and C-429/08). She gave her interpretation of ‘communication to the public’ under Article 3(1) of the Info Society Directive and concluded that the showing of live Premier League matches in pubs does not amount to such communication.

Download the article from SSRN at the link.

April 13, 2011 | Permalink | TrackBack (0)

A Guide To Internet Legal Landmarks

Michael L. Rustad and Diane D'Angelo, both of Suffolk University Law School, have published The Path of Internet Law: An Annotated Guide to Legal Landmarks as Suffolk University Law School Research Paper No. 11-18. Here is the abstract.

In the classic holiday film “It’s a Wonderful Life,” a disillusioned George Bailey (played by Jimmy Stewart) makes a wish that he had never lived. Clarence, the Angel in training, grants George his wish and shows him how life in his hometown would have been different if he had never been born. Our Article asks how the law of intellectual property and legal research have been reshaped by the creation of the Internet. This Article provides guideposts for the best legal resources for Internet law to assist busy lawyers and legal academics in tracing the past, present, and future path of Internet Law. This Article unfolds in three parts: Part I traces the path of the history of the Internet as a technology. Part II is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law developments. This part of the article highlights intellectual property, but our broader point is that Internet law illuminates every substantive and procedural aspect of U.S. law. During this formative period, the Internet reshaped the path of each branch of the law of intellectual property. Part III presents an annotated guide to the best research resources to assist academics and policymakers in tracing the future path of Internet Law. The future path of Internet law will be less U.S. centric, therefore we review the best available sources for tracing the path of Internet law in a global setting. Finally, we conclude by hazarding some predictions based upon the “sibylline leaves” gathered from extant Internet case law and statutory developments about the future of Internet law.

Download the paper from SSRN at the link.

April 13, 2011 | Permalink | TrackBack (0)

Yet Another Lawsuit For Zuckerberg

Mark Zuckerberg faces yet another lawsuit, this time from Paul Ceglia, who says that he hired Mr. Zuckerberg when he was an undergraduate to do some work for him on a project Mr. Ceglia called "Streetfax." Mr. Ceglia alleges he then invested in a project called "the facebook" or "the pagebook" and hired Mr. Zuckerberg to work on it. However, someone named Andrew Logan says he actually hired Mr. Ceglia to work on "Streetfax" when Mr. Ceglia hired Mr. Zuckerberg. Some background here from Business Week. Stay tuned.

April 13, 2011 | Permalink | TrackBack (0)

Arianna Huffington Hit With Lawsuit

From the Guardian: Jonathan Tasini, a former HuffPost blogger, and others who now blog or have blogged for the Huffington Post are suing Arianna Huffington after Ms. Huffington sold her site to AOL. Mr. Tasini alleges that the bloggers have received nothing for what they say has created about one-third of the value of the site. AOL spokesperson Mario Ruiz responded with regard to bloggers' postings, "It's the same reason hundreds of people go on TV shows to promote their views and ideas. HuffPost bloggers can cross-post their work on other sites, including their own."

April 13, 2011 | Permalink | TrackBack (0)

Tuesday, April 12, 2011

The Student Athlete's Right of Publicity

Tara L. Bhupathi, University of North Carolina School of Law & Georgetown University, has published If I Were General Counsel for the NCAA: A Report on How to Properly Exploit Student Athlete’s Right of Publicity. Here is the abstract.

In light of the legal, business, and policy interests surrounding Keller, the NCAA should obtain an express license for the use of SA rights of publicity, enumerating the specific subject matter and scope for which use is contemplated. Part I will introduce Keller. Part II will provide a history and discussion of the right of publicity, focusing on the right‟s application in the sports industry and with respect to video games. Part III will outline the NCAA's current treatment of the right of publicity. Finally, part IV will seek to form a more profitable, efficient, risk averse, and savory plan for the NCAA‟s development and commercial exploitation of college athletics.

Download the paper from SSRN at the link.

April 12, 2011 | Permalink | TrackBack (0)

Rulemaking Under the DMCA

Arielle Rani Singh has published Agency Regulation in Copyright Law: Rulemaking Under the DMCA and Its Broader Implications in volume 26 of the Berkeley Technology Law Journal. Here is the abstract.

On July 27, 2010, the Library of Congress and the U.S. Copyright Office issued the final rule for the fourth round of the triennial rulemaking process under the Digital Millennium Copyright Act ("DMCA"). The new exemptions created by the final rule indicate that agency regulation could re-infuse flexibility in both the DMCA specifically and copyright legislation generally. Although some have criticized the triennial rule-making process as too narrow, the latest round was broader than the first three rounds, particularly in the number, scope, and importance of the exemptions. If this expansion continues, together with modifications to the rule-making process and with more authority vested in the Copyright Office, the DMCA triennial rule-making process could set a precedent for implementing greater agency involvement in an increasingly regulatory form of copyright law.

This Note first outlines copyright’s transition to a regulatory model, the reasons for this change, its benefits and harms, and the DMCA’s fit within the regulatory scheme. It then illustrates the mechanics of § 1201 and focuses on the rule-making provision’s notice-and-comment process. It then outlines each round’s exemptions, the positive trend from round to round, criticisms of the DMCA rule-making process, and proposals for addressing these criticisms in order to bolster expansion in round five. Overall, this analysis suggests that expanding the Copyright Office’s role in copyright law may be beneficial, due to the tension between regulatory copyright legislation and rapid technological advances as well as the Register’s performance in the DMCA rule-making process.

Download the article from SSRN at the link.

April 12, 2011 | Permalink | TrackBack (0)

Monday, April 11, 2011

News International Apologizes For Phone Hacking; Two Arrested

From the Hollywood Reporter: News International, owner of The News of the World, is apologizing for engaging in phone hacking and says it has set up a fund to pay compensation and legal fees to those affected. Meanwhile, high profile hackees, like Sienna Miller, say they are not happy with the offers of apology and compensation. One lawyer has called for the Press Complaints Commission to issue a condemnation of the NOTW.

Here's Roy Greenslade on press coverage of the News International apology. The Guardian asserts that Cabinet Secretary Gus O'Donnell prevented a pre-election inquiry of the phone hacking scandal. And two  journalists have been arrested: Ian Edmondson and Neville Thurlbeck. Mr. Edmondson formerly worked for NOTW. Mr. Thurlbeck is now a reporter for the paper.

April 11, 2011 | Permalink | TrackBack (0)